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Admiralty Court. The policy of the Civil Law in authorising the arrest and detention of vessels under the proceeding known as an actio in rem was founded on two considerations: (1.) That under the Roman Empire ships were for the most part owned by Roman citizens, who did not go to sea themselves in their vessels, but committed them to the charge of their freedmen or slaves, who had no pecuniary means wherewith to make compensation, if they mismanaged the navigation of them, and (2) if the wrong-doers were once allowed to sail away, the security for compensation to those, who had suffered injury from the mismanagement of any vessel, would be lost to them. The convenience of the proceeding in rem was equally appreciated in the middle ages, when ships were for the most part owned in shares, and it was impossible for an injured party to seek out the part-owners, and to proceed against them personally, for wrong done by their agents or servants in the management of their vessels. But these considerations do not apply in the present day to the public ships of civilised States, which are in constant communication with one another as members of the family of Nations. There is no fear of any intolerable wrong being worked against the British owners of the steamtug Daring, if the process of the Admiralty Court should not be allowed to issue against the Belgian mailpacket, which is the property of the Belgian State. Ever since the case of the Prins Friederik, a Dutch ship of war, in Lord Stowell’s time (2 Dodson’s Admiralty Reports, p. 451) the recognised practice has been, wherever British subjects have suffered damage by a collision with, or have performed salvage services to, a public vessel of a foreign State, for the British Government to transmit officially the claim of the British subjects to the Government of the foreign State, and the question of compensation has been settled by arbitration, sine strepitu at fora judicii, the Judge of the High Court of Admiralty of England being for the most part invited to act as arbitrator. Under the Belgian
Postal Convention, the same system of arbitration will be available, and it is evidently for the public interests, that the service of the public mails should not be liable to be interrupted by any unnecessary arrest and detention of the vessels employed in their service.
There is a plain tomb of the greatest of the Plantagenet Kings in Westminster Abbey, on which is engraved the simple inscription: “ Edwardus Primus Malleus Scotorum, hic est, I308. Pactum Serva.” We believe the case of Le Parlement Belge to be the first instance on record, in which an English Court of justice has declined to give effect to a duly ratified Treaty between the British Crown and a Foreign Crown on grounds dehors the Treaty itself, and it is a singular coincidence that the Court in question should be the Admiral’s Court, which owes its institution to the same King Edward I., who speaks to us from the tomb, and exhorts us to observe the Faith of Treaties. The coincidence serves to remind us of the fate of the eagle, which was struck by an arrow poised by a feather, which
had dropped from its own wing. TRAVERS Twiss.
II.—LEGAL FICTIONS: THE CASE OF
IF the record of the proceedings in our Courts of justice,
which is to be found in the Law Reports, should survive the existing phase of legal ideas, one of the greatest puzzles to a future generation will be to comprehend how the judgments in the recent case of Angus v. Dalton (L.R. 4 Q.B. Div. 162), could have been delivered by exceptionally able judges. To us, who are familiar with the ingenious absurdities handed down by a previous generation, it is less surprising, and we can only condole with those who exercise their intellectual powers under such manifest disadvantages. That judges should be compelled to support their conclusions by arguments such as are here put forward, is a misfortune both to themselves and to the public, and I do not quite see where this legal entanglement is to end. Something possibly might be done by a decision of the House of Lords. Very few of the cases which embarrassed the judges of the Court of Appeal had come before the House of Lords and, perhaps, the present Lord Chancellor might induce his brethren to over-rule them and so to get on to clearer ground. But the House of Lords does not, any more than the inferior Courts, confound the distinction between legislation and judicial decision, and I doubt whether it would be considered to be within its judicial authority to clear away so much rubbish, as would have to be got rid of before the ordinary legal principles applicable to this subject could have free play.
Possibly, therefore, the Legislature will have to interfere, but in the meantime it seems to me that a looker-on may do some good by drawing attention to the unsatisfactory state of the law upon this subject. My only fear is that my motives may be mistaken; and I desire, therefore, to preface what I say with one word of explanation. I am about to criticise, not the judges or their judgments,but the-arguments on which these judgments are based, which I know to be not their own arguments but those which previous decisions have fastened upon them. Nor am I about to base my exposition of the unsoundness of these arguments upon any opinions of my own. I shall rest my observations upon facts and authorities which, anywhere but in an English Court ofjustice, would pass undisputed. That is my design; ifI err, it is in the execution.
The following was the question to be determined in the case, stated with as much precision as is necessary for my present purpose.
A. and B. had two adjoining houses. A. pulled down his own house, and made excavations in his own ground. The result of this proceeding was that B.’s house partly fell down also. B. then brought an action against A., alleging that he had a right to the support from A.’s premises, of which he had heretofore had the advantage, and the question was whether he had that right.
B. proved beyond dispute that he had actually enjoyed the support which he claimed for twenty years. Lush, j., thereupon told the jury that, this being proved, B. was ipso facto entitled to the right which he claimed, having gained that right by twenty years enjoyment, just as a man gains a title to land by twenty years possession, and he directed the jury to find a verdict in B.’s favour. .
All the Lords justices thought this was wrong; they all agreed that the right claimed, if it had not been enjoyed from the time of Richard I. (as in this case it clearly had not), must be based upon prescription or upon grant. But they also went on to say that although B. could produce no grant, and in fact never had one, there were certain circum
_ stances which would put B. precisely in the same legal
position as if he had ; in which case it ought to be presumed that at one time he had a grant, but could not produce it because it was lost.
Whatever outsiders may think about the matter, we are not entitled to say that there was, in this, anything very wrong or very foolish. Fictions have had a well-established place amongst legal remedies, and though never absolutely the best remedy, have at times been the best remedy available. No student of legal history is much more affected by Bentham’s vituperation of fictions than he is by Savigny’s praise; he is much more likely to listen to the opinion of Sir Henry Maine, that, though fictions have been useful in their time, the time for them has gone by.
But this by the way. I am not now considering the value of fictions as a class of legal remedies, but the mode in
which this particular fiction of a lost grant has been dealt with.
The grand error which pervades these judgments, and the error which must be retrieved before the law can possibly be brought into any reasonable condition, is making the existence or non-existence of this fictitious grant part of the question to be submitted to the jury. Submit what? The truth of a fiction? The thing on the very face of it is an absurdity. But it is more than an absurdity. It is a most perilous way of treating a juryman’s oath to find the truth, to force him by any device into finding that which is false. One of the judges in this case lays down that, whilst it is necessary to ask the jury whether a grant existed or not, they must still be told that “mere proof” that it did not exist is not sufficient. Another judge says : “ If the parties at the trial admitted that there was not, in fact, any grant, that, in my opinion, was not sufficient to rebut the presumption ” that there was a grant. The remaining judge does not accept this “revolting” doctrine. But by the decision of the majority, which was well supported by previous cases, any English judge may any day be compelled to say to a jury, “ Gentlemen, the parties to this case have admitted that there was no grant, and it is quite true that there never was one, but it is your duty, nevertheless, to find that there was.” Fortunately, juries do not fully understand the meaning of such a direction as this, or they would assuredly refuse to obey it. The reasoning by which lawyers justify a presumption of that which is false is very subtle. There have been many examples of such false presumptions in our law. Thus, the judges of the Queen’s Bench gave themselves jurisdiction in ordinary civil cases by pretending, untruly, that the defendant had committed a trespass, for which he was in custody of the Marshal of the Court. judges of the Exchequer did the same by an equally untrue pretence, that the plaintiff was a debtor to the Crown. So all the judges