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Old February 16, 2013, 05:19 AM   #9
tyme
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Join Date: October 13, 2001
Posts: 3,180
Oliver Wendell Holmes, Jr, writes at length about this sort of thing in the beginning of his book, The Common Law ( http://www.constitution.org/cmt/owh/commonlaw01.htm ):

"As long ago as Bracton, in case a man was slain, the coroner was to value the object causing the death, and that was to be forfeited as deodand 'pro rege.' It was to be given to God, that is to say to the Church, for the king, to be expended for the good of his soul." (p. 24)

"In Edward the First's time some of the cases remind us 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. ... It is said that a steam-engine has been forfeited in this way."

"... the fact of motion is adverted to as 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.'" (p. 25)

After quite a lot of rambling about ships, there's this:

"The following is a passage from a judgment by Chief Justice Marshall, which is quoted with approval by Judge Story in giving the opinion of the Supreme Court of the United States: 'This is not a proceeding against the owner; it is a proceeding against the vessel for an offence committed by the vessel; which is not the less an offence, and does not the less subject her to forfeiture, because it was committed without the authority and against the will of the owner. It is true that inanimate matter can commit no offence. But this body is animated and put into action by the crew, who are guided by the master. The vessel acts and speaks by the master. She reports herself by the master. It is, therefore, not unreasonable that the vessel should be affected by this report.' ... ' The thing is here primarily considered as the offender, or rather the offence is primarily attached to the thing.'" (p. 29)

"In other words, those great judges, although of course aware that a ship is no more alive than a mill-wheel, thought that not only the law did in fact deal with it as if it were alive, but that it was reasonable that the law should do so. The reader will observe that they do not say simply that it is reasonable on grounds of policy to sacrifice justice to the owner to security for somebody else, but that it is reasonable to deal with the vessel as an offending thing. Whatever the hidden ground of policy may be, their thought still clothes itself in personifying language." (pp. 29-30)
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