In Edward the First's time some of the cases remind of the barbarian laws at their rudest stage.If a man fell from a tree, the tree was deodand. If he drowned in a well, the well was to be filled up. It did not matter that the forfeited instrument belonged to an innocent person." Where a man killeth another with the sword of John at Stile, the sword shall be forfeit as deodand, and yet no default is in the owner." That is from a book written in the reign of Henry VIII., about 1530.
And it has been repeated from Queen Elizabeth's time to within one hundred years, that if my horse strikes a man, and afterwards I sell my horse, and after that the man dies, the horse shall be forfeited.Hence it is, that, in all indictments for homicide, until very lately it has been necessary to state the instrument causing the death and its value, as that the stroke was given by a certain penknife, value sixpence, so as to secure the forfeiture.It is said that a steam-engine has been forfeited in this way.
I now come to what I regard as the most remarkable transformation of this principle, and one which is a most important factor in our law as it is today.I must for the moment leave the common law and take up the doctrines of the Admiralty.In the early books which have just been referred to, and long afterwards, the fact of motion is adverted to as of much importance.A maxim of Henry Spigurnel, a judge in the time of Edward I., is reported, that "where a man is killed by a cart, or by the fall of a house, or in other like manner, and the thing in motion is the cause of the death, it shall be deodand." So it was said in the next reign that "oinne illud quod mover cum eo quod occidit homines deodandum domino Regi erit, vel feodo clerici." /l / The reader sees how motion gives life to the object forfeited.
The most striking example of this sort is a ship.And accordingly the old books say that, if a man falls from a ship and is drowned, the motion of the ship must be taken to cause the death, and the ship is forfeited, -- provided, however, that this happens in fresh water. For if the death took place on the high seas, that was outside the ordinary jurisdiction.This proviso has been supposed to mean that ships at sea were not forfeited; but there is a long series of petitions to the king in Parliament that such forfeitures may be done away with, which tell a different story. The truth seems to be that the forfeiture took place, but in a different court.A manuscript of the reign of Henry VI., only recently printed, discloses the fact that, if a man was killed or drowned at sea by the motion of the ship, the vessel was forfeited to the admiral upon a proceeding in the admiral's court, and subject to release by favor of the admiral or the king. A ship is the most living of inanimate things.Servants sometimes say "she" of a clock, but every one gives a gender to vessels.
And we need not be surprised, therefore, to find a mode of dealing which has shown such extraordinary vitality in the criminal law applied with even more striking thoroughness in the Admiralty.It is only by supposing the ship to have been treated as if endowed with personality, that the arbitrary seeming peculiarities of the maritime law can be made intelligible, and on that supposition they at once become consistent and logical.
By way of seeing what those peculiarities are, take first a case of collision at sea.A collision takes place between two vessels, the Ticonderoga and the Melampus, through the fault of the Ticonderoga alone.That ship is under a lease at the time, the lessee has his own master in charge, and the owner of the vessel has no manner of control over it.The owner, therefore, is not to blame, and he cannot even be charged on the ground that the damage was done by his servants.He is free from personal liability on elementary principles.Yet it is perfectly settled that there is a lien on his vessel for the amount of the damage done, and this means that that vessel may be arrested and sold to pay the loss in any admiralty court whose process will reach her.If a livery-stable keeper lets a horse and wagon to a customer, who runs a man down by careless driving, no one would think of claiming a right to seize the horse and wagon.It would be seen that the only property which could be sold to pay for a wrong was the property of the wrong-doer.
But, again, suppose that the vessel, instead of being under lease, is in charge of a pilot whose employment is made compulsory by the laws of the port which she is just entering.
The Supreme Court of the United States holds the ship liable in this instance also. The English courts would probably have decided otherwise, and the matter is settled in England by legislation.But there the court of appeal, the Privy Council, has been largely composed of common-law lawyers, and it has shown a marked tendency to assimilate common-law doctrine.At common law one who could not impose a personal liability on the owner could not bind a particular chattel to answer for a wrong of which it had been the instrument.But our Supreme Court has long recognized that a person may bind a ship, when he could not bind the owners personally, because he was not the agent.
