be very sorry for the act, and for the necessity which gives rise to it. It ought, therefore, to be exercised with the greatest moderation, and only upon the most cogent necessity. And though it be a legal power, it may like many others be abused in the exercise of it. A bailiff may execute legal process in such a manner as the court would commit him for: In like manner, the power of pressing may be abused; as by pressing the watermen of the Lord-Mayor, whilst they are in the act of rowing him in his barge. And many other instances might be put. Being founded in immemorial usage, there can be no doubt but there may be an exception out of it, on the same foundation, upon immemorial usage. . . . The only question, upon what appears before us, is, "Whether, in fact, there is evidence of such usage as a matter of right?" I say, as a matter of right: For it is well known that many persons have granted protections; many have given badges to watermen, and have claimed that they should be exempt. Let us see, therefore, whether this is an established exemption of right. . . . In the first place, it does not appear from any law book, it does not appear from any history, it has not been suggested at the bar, that there is, throughout the whole kingdom, any other exemption by the common law. . . . Therefore, to give my opinion upon the case as at present stated, and upon the mere fact whether this exemption, as here claimed, is or is not warranted by immemorial usage, I cannot say it is. At the same time this opinion is without prejudice to any future evidence to be adduced in support of the claim, if any such can be furnished. . . . WILLES, Justice. I do not think, there is anything that sufficiently points out the nature of this service or the usage to be such, as lays a foundation for the exemption and privilege set up. ASHHURST, Justice. . . . I concur with the rest of the Court, in thinking that the exemption is not sufficiently proved. Per Cur. Rule discharged. (1898. 764. A. WOOD RENTON, ed. Encyclopedia of the Laws of England. Vol. VI, p. 323.) Impressment. From a very early date the Crown claimed a right to impress ships and seamen for the service of the Crown in war time (2 Stubbs, Const. Hist. 311, 313). This claim is undoubtedly lawful (2 Pike, Hist. Crime, 271-273, 637), and is recognized by Statutes of 1379, 2 Rich. II, c. 4; 1556, 2 Phil. & Mary, c. 16; and 1563, 5 Eliz., c. 5, s. 26; R. v. Tubbs, 1776, 2 Cowp. 512 [supra, No. 763]. The case of ship-money, 1637, 3 St. Tri. 825, rests on attempts to make inland counties pay an equivalent in money for the [impressment] liability of the maritime counties. Pepys in his Diary described the procedure of his day (1666, June 30, July 1, July 2). In his view, the giving of press-money was necessary to make the impressment legal. The right continued after the Revolution and into the present century, and while now dormant is by no means extinct, any more than the compulsory service in the militia, which can at any moment be imposed by proclamation. The liability to impressment falls only on seafaring men and persons whose occupation and calling it is to work in boats or rivers (R. v. Tubbs, 1776 [supra, No. 763]). Impressment is effected under warrants issued by the Admiralty, after a proc lamation or Order in Council for impressment has been issued (for form, see Prendergast, Navy, p. 121) to an officer of the navy. This officer, or his deputy, with the warrant and a press-gang, seize the seafaring men desired. In case of illegality, malice, or irregularity, resistance even to killing is justifiable. 765. SIR MICHAEL FOSTER. Opinion on the Pressing of Mariners. (1743. Rex v. Broadfoot. 18 How. St. Tr. 1323.) . . . This question touching the legality of pressing mariners for the public service is a point of very great and national importance. On one hand, a very useful body of men seem to be put under hardships inconsistent with the temper and genius of a free government. On the other, the necessity of the case seemeth to entitle the public to the service of this body of men, whenever the safety of the whole calleth for it, the same right that the Crown hath to require the personal service of every man able to bear arms, in case of a sudden invasion or formidable insurrection. The right in both cases is founded on one and the same principle, the necessity of the case in order to the preservation of the whole. . . . As for the mariner himself, he when taken into the service of the Crown only changeth masters for a time: his service and employment continue the very same; with this advantage, that the dangers of the sea and enemy are not so great in the service of the Crown, as in that of the merchant. . . . War itself is a great evil, but it is chosen to avoid a greater. The practice of pressing is one of the mischiefs war bringeth with it. But it is a maxim in law, and good policy too, that all private mischiefs must be borne with patience for preventing a national calamity. And as no greater calamity can befall us than to be weak and defenceless at sea in a time of war, so I do not know that the wisdom of the nation hath hitherto found out any method of manning our navy, less inconvenient than pressing, and, at the same time, equally sure and effectual. . . I readily admit, that an impress is a restraint upon the natural liberty of those who are liable to it: but it must likewise be admitted on the other hand, that every restraint upon natural liberty is not eo nomine illegal, or at all inconsistent with the principles of civil liberty. And if the restraint, be it to what degree soever, appeareth to be necessary to the good and welfare of the whole, and to be warranted by statute-law, as well as immemorial usage, it cannot be complained of otherwise than as a private mischief: which, as I said at the beginning, must, under all governments whatsoever, be submitted to for avoiding a public inconvenience. 766. BENJAMIN FRANKLIN. On the Impress of Seamen. (Essays, ed. 1848, p. 207). (Notes copied from Dr. Franklin's writing in pencil in the margin of Judge Foster's celebrated opinion in favour of impressing of Seamen, as published in the folio edition of his works.) Judge FOSTER, p. 158, "Every man," etc., The conclusion here from the whole to a part, does not seem to be a good logic. If the alphabet should say, Let us all fight for the defence of the whole; that is equal, and may, therefore, be just. But if they should say, Let A B C and D go out and fight for us, while we stay at home and sleep in whole skins; that is not equal, and therefore cannot be just. Page 159. "Private mischief must be borne with patience, for preventing a national calamity." Where is the maxim in law and good policy to be found? And how can that be a maxim which is not consistent with common sense? If the maxim had been, that private mischiefs, which prevent a national calamity, ought to be generously compensated by the nation, one might understand it; but that such private mischiefs are only to be borne with patience, is absurd. . . Page 174. "I hardly admit," etc. (Paragraph 5). When this author speaks of impressing, page 158, he diminishes the horror of the practice as much as possible, by presenting to the mind one sailor only suffering a "hardship" (as he tenderly calls it) in some "particular cases" only; and he places against this private mischief the inconvenience to the trade of the kingdom. But if, as he supposes is often the case, the sailor who is pressed and obliged to serve the defence of trade, at the rate of twenty-five shillings a month, could get three pounds fifteen shillings in the merchant's service, you take from him fifty shillings a month: and if you have 100,000 in your service, you rob the honest industrious part of society and their poor families of £250,000. per month, or three millions a year, and at the same time oblige them to hazard their lives in fighting for the defence of your trade; to the defence of which all ought indeed to contribute (and sailors among the rest) in proportion to their profits by it: but this three millions is more than their share, if they do not pay with their persons; but when you force that, methinks you should excuse the other. But, it may be said, to give the King's seamen merchants' wages would cost the nation too much, and call for more taxes. The question then will amount to this: whether it be just in a community, that the richer part should compel the poorer to fight in defence of them and their properties, for such wages as they think fit to allow, and punish them if they refuse? Our author tells us that it is "legal." I have not law enough to dispute his authorities, but I cannot persuade myself that it is equitable. I will, however, own for the present, that it may be lawful when necessary; but then I contend that it may be sued so as to produce the same good effects - the public security without doing so much intolerable injustice as attends the impressing common seamen. . . If such a press-warrant were given me to execute, the first I would press should be a recorder of Bristol, or a Mr. Justice Foster, because I might have need of his edifying example, to show how much impressing ought to be borne with; for he would certainly find, that though to be reduced to twenty-five shillings a month might be a "private mischief," yet that, agreeably to his maxim of law and good policy, it "ought to be borne with patience," for preventing a national calamity. Topic 2. Tempest 767. MOUSE'S CASE KING'S BENCH. 1608 12 Rep. 63 In an action of trespass brought by Mouse, for a casket and a hundred and thirteen pounds, taken and carried away, the case was: The ferryman of Gravesend took forty-seven passengers into his barge, to pass to London, and Mouse was one of them, and the barge being upon the water, a great tempest happened, and a strong wind, so that the barge and all the passengers were in danger to be drowned, if a hogshead of wine and other ponderous things were not cast out for the safeguard of the lives of the men. It was resolved per totam curiam, that in case of necessity, for the saving of the lives of the passengers, it was lawful to the defendant, being a passenger, to cast the casket of the plaintiff out of the barge, with the other things in it; for "quod quis ob tutelam corporis sui fecerit, jure id fecisse videtur." To which the defendant pleads all this special matter; and the plaintiff replies, de injuria sua propria absque tali causa. And the first day of this term this issue was tried, and it was proved directly that if the things had not been cast out of the barge, the passengers had been drowned; and that levandi causa they were ejected, some by one passenger and some by another; and upon this the plaintiff was nonsuit. It was also resolved, that although the ferryman surcharge the barge yet for safety of the lives of passengers in such a time and accident of necessity, it is lawful for any passenger to cast the things out of the barge; and the owners shall have their remedy upon the surcharge against the ferryman, for the fault was in him upon the surcharge. But if no surcharge was, but the danger accrued only by the act of God, as by tempest, no default being in the ferryman, every one ought to bear his loss for the safeguard and life of a man; for interest reipublicæ quod homines conserventur, 8 Edw. IV. 23, &c.; 12 Hen. VIII. 15; 28 Hen. VIII.; Dyer, 36; plucking down of a house in time of fire, &c., and this pro bono publico; et conservatio vitæ hominis est bonum publicum. So if a tempest arise in the sea, levandi navis causa, and for salvation of the lives of men, it may be lawful for passengers to cast over the merchandises, &c. 768. RICHARD LOWNDES, The Law of General Average. (1888. 4th ed., p. 1.) The law of General Average is built upon or around a small fragment of ancient Greek legislation, which forms the text for a chapter in the Digest of Justinian: "Lege Rhodia cavetur ut si levandae navis gratia jactus mercium factus est, omnium contributione sarciatur quod pro omnibus datum est." (The Rhodian law provides that if in order to lighten a ship merchandize is thrown overboard, that which has been given for all shall be replaced by the contribution of all.) In this short sentence we have the principle, and a perfect example, of the peculiar communism to which seafaring men are brought in extremities. What is given, or sacrificed, in time of danger, for the sake of all, is to be replaced by a general contribution on the part of all who have been thereby brought to safety. This is a rule which from the oldest times of which we have a record has been universal amongst seafaring men, no matter to what country they belong, being obviously founded on the necessities of their position. . . . The word "average" is of much later origin than the thing. Maclachlan conjectures, indeed, that it is derived from “aversio," as denoting a means of escape from danger; but no trace of the actual use of this metaphor, in classical or subsequent times, has been pointed out by him. On the other hand, there are to be found, in the old Pisan code, some faint traces of what looks like the growth or half-conscious construction of a technical term out of the common Italian word "avere," the having or property. The code is written in a sort of Italianized or mongrel Latin; the captain, for example, is called "capitaneus," the sailors "marinarii," and so forth. The word "avere" is used throughout the code to denote the basis of contribution or contributory value; thus, the jettison and damage through jettison, it says, shall be equalized over "totum avere," all the property, remaining in the ship. In another place it 9966 speaks of those whose "avere" (property) has been cast out, and those whose "avere" is safe. . . . All sorts of theories have been propounded as to the origin of this word average, which in this sense is universal in all the languages of Europe under various thin disguises, as "averie," 'haverei," and the like. . . ." The entire responsibility for this sacrificing of part for the whole in time of danger, is a task of the utmost difficulty and the most vital importance. "On its being performed with coolness, courage, and discretion," it has been well said, "the whole property, and the lives of all, depend." Nothing can more tend to the preservation of life and property at sea than that the officer entrusted with this important function should be protected in the exercise of it from whatever may tend to bias or disturb his judgment at that critical moment. He is the paid servant of the shipowner, liable to dismissal if he displeases him. How is he to avoid partiality, or the suspicion of partiality, when he has to determine by what sacrifice he shall avert a common danger, and to choose, perhaps, between a jettison of cargo and the cutting away of a mast, or bearing up for a port of refuge? Will there not be frequent complaints, well or ill-founded, by the merchant or his underwriters, that a costlier sacrifice of cargo has been preferred when a measure less destructive, but involving a loss to the shipowner, would have been equally effectual? The rule of a general contribution, on the other hand, by rendering it immaterial whose property is taken in the first instance, and material only that that should be taken which will most surely and effectually, and at least cost, save the whole, does away with this conflict in the captain's mind between interest and duty, leaves him alone with purely nautical considerations, and thus, no doubt, does more than any statesmanphilanthropist can effect for the preservation of life and property at sea. The utility of the rule of general average thus no doubt explains its universality and permanence. We find, then, that the entire community of seafaring men and traders by sea have from the earliest recorded times to the present day been of one mind in this particular: that what is in time of danger given or sacrificed for the sake of all shall be replaced by the contribution of all. . . . The first case in which the sanction of an English court of common law was given to the principle of general average was that of Birkley v. Presgrave (1 East 220) in 1801. The principle, indeed, does not appear to have been contested at the trial of this case, but is treated in argument as a thing long established and well known, and the dispute was only as to some particular point of its application. One of the judges, however, Lawrence, J., began the argument of his judgment with the following sentence:-"All loss which arises in consequence of extraordinary sacrifices made or expenses incurred for the preservation of the ship and cargo comes within general average, and must be borne proportionably by all who are interested." . . . The words of Lawrence, J., which may be regarded as a slight improvement, in form certainly, on those of the [French] Ordonnance have naturally been always treated as of the highest authority, and have been cited again and again in our courts till this sentence has become a sort of axiom. . This question, What losses or expenses fall within the definition of General Average? is divided under the three main heads -Sacrifices of Cargo, Sacrifices of parts of the Ship, and Extraordinary Expenditures, which last, on account of its complexity, is yet further subdivided. Of these, sacrifices of cargo are taken first, not only because one of them, namely, jettison, or throwing overboard of cargo, to lighten a ship, was by far the earliest to come under the notice of the English courts, but also because this branch of the subject is in its nature certainly the most simple. . . . The first, and ... ... |