תמונות בעמוד

greatly covered with rust; but had been proposed to be 251. but the court could not infer any then it was to be considered that thing from this one instance'; this parish was extremely popuvarious accidental circumstances lous, in the heart of the metromight have concurred to produce polis, closely surrounded by this effect; the covering of rust, buildings, with churchyards exbesides, would, he imagined, tremely circumscribed, and at a have tended to protect the metal great distance from the environs from further decomposition. It of the city. The fee of 211. for was upon these species of evi- the parish of St. Mary Islington, dence, his own impressions, im- appeared exorbitant, as ground perfect as they were, upon the there, though highly valuable, subject, the common apprehen- was much more attainable; he sions of men, and the result of was, however, not prepared to various experiments by scientific say that it might not be justified. persons, that he was now called An objection had been made to upon to act, such being the only the application of the fee and the evidence that he had been able, proportion allotted to the incumby great industry of his own, and bent ; but the present party had the valuable assistance of those no right to look into this; 'if the much more competent on the fee were a proper one, that was subject, to collect; and should enough for him; and it would be the conclusions he had come to, foreign to the present question, hereafter appear to be erroneous, to show that the freehold was in it was for the justice of the parish the incumbent, although in many to correct any error; and if they instances in London, parishes failed in their duty, it was for the have acquired by time a concourt to enforce it. The mode current right. In the Table of of fixing the increased taxation Fees before the court, the sum was now the remaining question charged is for a metallic coffin; to be considered ; and here he and that, without impropriety; apprehended that no general for it appears, under the patent, measure of quantum could be that the patentee has secured established, as it depended upon to himself a right to offer brass, so many various circumstances, tin, or any other metals or acting differently in different composition of metals. This parishes; the size of the burial court cannot limit human art, ground, with reference to the nor is it possible to say, looking population, the possibility of at the discoveries of our enlarging their ground, the faci- days, whether other metals may lity of purchasing new ground, not be brought within attainable these, and many other circum- compass. It was worthy of obserstances, rendered the fee to be vation also, that coffins were, established for one, no rule for from their construction, out of other parishes. Amongst the the reach of internal examination, fees that had been laid before and there were no means to prehim, as agreed upon by various vent their being varnished, parishes, there were demands painted, or tinned, without fear which, he confessed, startled him. of discovery; while parishes That of St. Dunstan in the West will still be under the neces. sity of receiving them, on the George, Hanover-square, a parish bona fide of the maker; for he peculiarly well governed, had is not excluded, under the adopted the same. Had it fallen patent, from introducing more to the court to fix the quantum, durable metals. It appeared too it would probably have fixed a much to say that the coffins lower fee, and in other parishes would be always of the exact he observed that to be the case; quality of those specified in the St. Saviour, Southwark, had proarticles; parishes, therefore, have posed 5l. ; and St. George in the a right to guard themselves East, 6l. 9s. 6d. Doubtless the against other disguises. The matter had been well consiparish of St. Andrew, Holborn, dered by them, and there were the subject of the present dis- good grounds for the fees proputc, was in the most crowded posed; and it was not for the part of the town, with a dense court to disturb what had been population, both of living and done, founded, as he concluded dead: both populations were it to be, on local circumstances. rapidly increasing, and in the The court could not, in the face four cemeteries belonging to it, of evidence, where the preponthe bodies were as closely packed derance was considered to be in as decency would admit of. And favour of the durability of iron, he would ask, was a parish thus come to any other decision. The circumstanced fit for an experi- only point upon which he hesiment like this, for such it must tated was, the condition in the be deemed by its most favourable Table of Fees, that the depth of advocates ? When he weighed the graves in which metallic the serious inconvenience to the coffins were to be deposited, parish, against the individual should be 15 feet; and he must profit of the patentee, he could confess, that he could see neither not hesitate on such an alterna- the justice nor prudence of this tive. The patentee must be con- proposition; if the parish demandtented to await the issue of fur- ed and received a larger fee for ther experiment and observation, iron coffins, they were entitled to before he could reap that abun• the same ground as those of wood, dant harvest which would here- the additional fee being a comafter accrue to him, if it should pensation for their longer duraturn out that his premises were tion; he still more objected to well founded. Let experience it on the ground of the increased show that the apprehensions of expense to which parties would the court were groundless, and be subjected for a grave of that it was to be hoped that parishes depth; besides, if such a measure would be then ready to do their were adopted, parishes would duty; but the court must know have no means of observing the much more than it at present decay of these coffins by occadid, before it could overthrow its sional observation, so as hereafter present opinion. The sum pro- to come to a practical conclusion posed to be charged in the table on the subject. The learned of fees for iron coffins, was 101. judge concluded by expressing a extra ; and what made it of more wish, that this point should be weight was, that the parish of St. re-considered, and when they had so done, and the table of fees of parents or guardians, required were again laid before him, by the Dutch law then generally amended in that respect, he prevailing at the Cape, was not should be prepared to confirm it obtained as regarded either of the accordingly.

contracting parties. Her father The parish having since com- had died some years before, and plied with the recommendation, her mother had married a second by making no restriction as to husband. Nor had any appointdepth, the table of fees has been ment of guardians taken place. confirmed in the usual manner. It is contended by the husband,

that by the Dutch law at that Ruding v. Smith, falsely calling time in force at the Cape, this herself Ruding:- The following marriage was null and void, and elaborate and able judgment on on that ground he seeks the aid a most important subject was the of this court to pronounce a senlast delivered by lord Stowell in tence declaratory of its nullity. the Consistory-court :

The facts which I have stated, This is a suit brought by Walter and the Dutch law under which, Ruding, esq., against Jemima if applied to these facts, the Claudia Smith, for the purpose marriage is to be invalidated, of praying this court to pronounce are pleaded in the libel, and I null and void his marriage had think there is little doubt that with that lady under the follow- the Dutch law is fairly repreing circumstances :

sented, and would be so proved She was born at Fort St. if the libel was admitted : as little George, in the East Indies, on doubt is there that the facts of the 24th day of December, 1777. the case would be established by His birth took place at Kineton, clear proof; but the real question in the county of Warwick, on the is, whether the Dutch law so 13th day of May, 1775. In Sept. pleaded ought to govern entirely 1796, she was at the Cape of this case of fact; for if it ought Good Hope. The Cape had sur. not, the libel, which rests the rendered a year before: for what case upon it, ought not to be adpurpose she came thither, or how mitted. In order to maintain long she meant to remain, does not that the Dutch law ought to goappear; and at the same time vern the case, they plead first, a Mr. Ruding came thither also, in stipulation in the capitulation his way to the East-Indies, being under which the Dutch colony at that period a captain in the was surrendered to the British 12th regiment of foot. On the arms. That stipulation covenants 22nd of October, 1796, they were that the inhabitants shall premarried by the chaplain of the serve the prerogatives which they British garrison, under the autho- enjoy at present. The meaning rity of a license granted by ge- of this article, be it what it may neral Craig, the commander-in- (for the term “prerogatives'' is chief of the British forces in that sufficiently indefinite and obcountry. When the marriage was scure), can never be extended performed he had attained his to the British conquerors majority, but the lady was under ti terminorum.They are the the age of nineteen. The consent grantors, not the grantees ; they

were not in the enjoyment of sometimes happens, that the cons any prerogatives whatever under quered are left in possession the Dutch law. They had no- of their own laws. More frething under it, which they could quently the laws of the conquerwish to preserve. It is impossi- ors are imposed upon them, and ble, that the Dutch could intend sometimes the conquerors, if to stipulate for them. It has, they settle in the country, are therefore, I think, been nearly content to adopt for their own admitted, that as to the British use such part of the laws preconquerors this article has no vailing before the conquest, as intelligible application ; conse they may find it convenient, quently, if the Dutch law binds under the change of authority, them, it must be some other to retain. I presume, that there obligation, which, independently is no legal difference between a of this article of capitulation, conquered country and a conimposes the Dutch law upon quered colony in this respect, as them. In order to bring it a lit- far as general law is concerned; tle nearer, after pleading in the and I am yet to seek for any prinfollowing articles what the Dutch ciple derivable from that law, law of marriage is, they plead, which bows the conquerors of a that that law binds all persons country to the legal institutions whatever within the colony, fo- of the conquered. Such a prin. reigners as well as natives, for ciple may be attended with most that their laws say so, and that severe inconvenience in its opetheir learned lawyers will sup- ration. The laws may be harsh port that doctrine, and their and oppressive in the extremecourts will enforce it. Now, if may contain institutions abhorit be true, that the law binds rent to all the feelings and opithe British conqueror immediately nions and habits of the conupon the capitulation, there bé querors; at any rate, can be but ing no express covenant to that imperfectly understood; and that effect, it must be either from some they should all of them instantaknown rule of the law of nations, neously attach, and continue obwhich subjects the conqueror to ligatory upon them, till their own the laws of the conquered, or government has time to learn from some peculiar principle of them, and select and correct the law of England, which im- them, is a proposition which poses such an obligation upon ' a professor of general law the British conquerors of the pos- would be inclined to consider sessions of the enemy. Dutch cautiously, before he admitted authority cannot impose it, for it it unreservedly. But it is arhad ceased, and a Dutch court gued to be the doctrine of the taking upon itself to force this law of England : if so, it is not law upon British parties only, and the less hard, as the municipal in transactions purely British, code of our country is generally might be thought to put forward admitted to be more liberal no very just or moderate preten- and more indulgent, than the sion. I am not aware, that any codes of most other countries. such principle or practice exists It would be a most bitter fruit of in the general law of nations. It the victories of its subjects, if VOL. LXIII.

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they were bound to adopt the adapted to the change. This very jealous and oppressive systems libel furnishes instances of this of all the countries which they sort. In the 3rd article it is subdued, and to groan under all stated, that dispensations from the tyranny, civil and ecclesias- the publication of banns must be tical, of those systems, till their had from the authority of the own government, occupied by the States of Holland. That, I must pressure of existing hostilities, presume, could not be continued had time to look about it, to col during the existence of the war, lect information, and to prescribe and the extinction of the sorules of conduct more congenial vereignty of that nation. But, to their original habits. To learn secondly, though the old laws what the laws of a country are, is are to remain, it is surely a suffinot the work of a day, even in cient application of such terms pacific times; and to construct a “that they shall remain in force," code, fit for such a new and mixed if they continue to govern (so far situation of persons and thi as they do continue) the transdemands, not without reason, a actions of the ancient settlers with very serious tempus deliberandi, each other and with the new and conquerors are certainly not comers. That they shall intrude the last men who are entitled to into all the separate transactions the protection of their country of these British inhabitants, is under new grievances. I am per- to give them a validity which fectly aware, that the law is laid they would otherwise want in all down in the authorities referred cases whatever. It is certainly to_“Calvin's case, 7th Reports,” true, that, in Hall and Campbell, and “ Ilall and Campbell, Cow- that most eminent judge, lord per, page 208," that the laws of a Mansfield, a person never to conquered country remain, till al- be named but with exprestered by the new authority. I sions of reverence, has laid have to observe, first, that the down the following proposition: word “remain" has, ex vi termini, -" That the law and legislative a reference to its obligation upon government of every dominion those in whose usage it already equally affects all persons and all existed, and not to those who are property within the limits thereof, entire strangers to it, in the whole and is the rule of decision for of their preceding intercourse all questions which arise there. with each other. Even with re. Whoever purchases, lives, or sues spect to the ancient inhabitants, there, puts himself under the law no small portion of the ancient of the place. An Englishman in law is unavoidably superseded Ireland, Minorca, the Isle of Man, by the revolution of government or the Plantations, has no privithat has taken place. The alle- leges distinct from the natives." giance of the subjects and all the Huber, too, speaking upon gelaw that relates to it, the admi- neral principles, had before pronistration of the law in the so- mulgated the same doctrine, L. vereign appellate jurisdiction, and i., T. 3: “ Pro subjectis imperio all the laws connected with the habendi sunt omnes qui intra terexercise of the sovereign au- minos ejusdem reperiuntur, sive in thority, must undergo alterations perpetuum, sive ad tempus, ibi com

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