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whilst he was walking on the foot pavement in a public street, when the driver, in order to avoid a tram-car which was coming in the opposite direction, pulled the left rein and swept the plaintiff off the pavement so that he fell under the cab, the horses' feet striking him just above the ankle, and both wheels of the cab passing over his thighs. We should have thought that this was as clear a case of negligence on the part of the driver as could well be imagined. Judge Austin held that “negligence on the part of the driver was not proved, and the case fell into the class of pure and unadulterated accidents,” and judgm
was given for the defendant It would have been interesting to have heard the opinion of the Judges of the High Court on this new exposition of the law of negligence, had the case come before them on appeal, and perhaps the converse of an impure and adulterated class of cases would
have been expounded.
I.—A WATER COURT.
THE power of the Lord High Admiral of England is not
only of a naval character, but is also judicial and ministerial. We are apt to forget this, accustomed as we are to the predominant naval jurisdiction. The same power is still vested in the Commissioners for executing the Office of Lord High Admiral. From very early times, and if we may credit the Black Book of the Admiralty (Vol. I., p. 64), as early as the reign of Henry I., Sessions were held by the Admiral. Again, the Ordinance of Grimsby, which, according to the same authority, was made in the reign of Richard I., evidences that a system of Admiralty jurisdiction was then in full force, that the Admiral was distinctly recognised, that his lieutenants were duly nominated, and that the acts of each and every
of them were of record. The Black Book of the Admiralty is supposed to have been commenced in the reign of Edward III., and to have been continued during the reigns of Richard II. and Henry IV. “ When one is made Admiral,” says the Black Book (Vol. I., A. I), “he must first ordain and substitute for his lieutenants, deputies and other oflicers under him, some of the most loyal, wise, and discreet persons in the Maritime Law and ancient customs of the seas, which he can anywhere find.” The Admiral is next “to write to all his lieutenants, deputies and other officers whatsoever, throughout all the sea coasts through the whole realm, to know how many ships, barges, balingers and other vessels of war the King may have in his realm when he pleaseth or need shall require, and of what burthen they are, and also the names of the owners and possessors thereof,” and “to know, likewise, by good and lawful inquests taken before the said lieutenants, deputies, or other officers of the Admiralty, how many fighting mariners are in the realm.” The reason of this ordinance was that in case the King or his Council (which he had always about him for advice in matters of law, and who managed the affairs of the Navy) should make enquiries of the Admiral, they might always know what force might be serviceable by sea. Again, it was ordained at Hastings by King Edward I., “ and his lords,” that “though divers lords had several franchises to try pleas in ports, that neither their seneschals (stewards) nor bailiffs should hold plea if it concerns merchant or mariner, as well by deed as by charter of ships, obligations and other facts, though the same amounts but to twenty shillings or forty shillings ; and if anyone is indicted that he hath done to the contrary, and be thereof convicted, he shall have the same judgment as above said. Item: Any contract made between merchant and merchant, or merchant or mariner beyond the sea, or within the flood-mark, shall be tried before the Admiral, and nowhere
else, by the ordinance of the said King Edward and his lords. Item: Those who are indicted that they hold plea of hue and cry, or bloodshed committed on salt water, within the flood-mark, if they are thereof convicted, they shall be imprisoned for two years and then shall be fined according to the pleasure of the King or the Admiral.” The above words before the Admiral, evidently signify the Admiralty Courts or Sessions, and are not to be restricted to the personal presence of the Admiral. There is no evidence that the Lord High Admiral ever personally presided in his judicial office, although the precepts of venire facias to the sheriffs and officers, as also the warrants for proclaiming the Sessions, for bringing prisoners to their trials, for executing such as had sentence of death against them, etc., were in the Admiral's name, and under his seal of office. Neale (Sea Laws, p. 6), writing in 1704, refers to this power of the Admiral of appointing deputies for particular parts of the sea coast, thus: “Now seeing the Admiral himself is commonly resident at land, or if at sea, not possible to be everywhere and consequently is not capable of an immediate exercise of this authority on the sea, it has been judged convenient for the entire preservation of his jurisdiction to constitute a Vice-Admiral, with captains to supply his absence; and considering the dignity and difficulty of his office, as well for the aggrandizement of the one as the ease of the other, he constitutes his deputies for particular parts on the sea coasts, with coroners to view the dead bodies found on sea or on the coasts.” And Godolphin (Admiral, p. 41), who wrote earlier (1661), speaks of the Admiral having several officers “of higher and of lower form; some at land, others at sea; some of a military, others of a civil capacity; some judicial, others ministerial.” The Admiral had jurisdiction of all causes of merchants and mariners, happening on the sea or in foreign parts within the King's dominions, as also of all crimes within the above limits, and of all maritime causes where the common law could give no remedy. Where the lex terra does not run, other laws are allowed in many cases, and this is not contrary to Magna Charta. “If,” says Coke (2 Inst., p. 50), “any injury, robbery, felony, or other offence be done upon the high sea, the lex terra extended not to it; therefore the Admiral hath cognizance thereof, and may proceed according to the marine law by imprisonment of the body, and other proceedings as have been allowed by the laws of the realm.” The Admiral appointed his deputies or Vice-Admirals for the sea coasts, from the very early times which, we have already indicated, unto the present day. The sea coasts of England and Wales were divided into nineteen circuits, or vice-admiralties, viz.:-I. Northumberland, Durham, and York; 2. Lincoln; 3. Norfolk; 4. Suffolk; 5. Essex; 6. Kent; 7. Sussex; 8. Southampton; 9. Dorset; Io. Devon; II. South Cornwall; 12. North Cornwall; 13. Somerset; 14. Gloucester; 15. South Wales; 16. North Wales; 17. Chester; 18. Lancaster; 19. Westmoreland and Cumberland. Of these only six are at present filled, viz.:-Lincolnshire, Norfolk, Suffolk, Cornwall, North Wales and Carmarthen, Westmoreland and Cumberland, by the Earl of Yarborough, the Earl of Kimberley, the Earl of Stradbroke, the Earl of Mount Edgcumbe, the Marquess of Anglesey, and Lord Hothfield respectively. “Every Lord Admiral,” says Sir W. Monson, “substitutes his deputy or Vice-Admiral in every maritime shire in England, except in such places where the lords of manors challenge a right formerly granted by the Kings of England, as will appear by their grants. These Vice-Admirals are carefully to look that all things be performed that are ordained by the Lord Admiral, and yearly to keep a Court in their several counties, where every man’s complaint may be publicly heard.” A Vice-Admiral is now constituted or
appointed by Letters Patent of the Sovereign, given in the