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so done, and the table of fees were again laid before him, amended in that respect, he should be prepared to confirm it accordingly.

The parish having since complied with the recommendation, by making no restriction as to depth, the table of fees has been confirmed in the usual manner.

Ruding v. Smith, falsely calling herself Ruding.-The following elaborate and able judgment on a most important subject was the last delivered by lord Stowell in the Consistory-court:

This is a suit brought by Walter Ruding, esq., against Jemima Claudia Smith, for the purpose of praying this court to pronounce null and void his marriage had with that lady under the follow ing circumstances :

She was born at Fort St. George, in the East Indies, on the 24th day of December, 1777. His birth took place at Kineton, in the county of Warwick, on the 13th day of May, 1775. In Sept. 1796, she was at the Cape of Good Hope. The Cape had surrendered a year before: for what purpose she came thither, or how long she meant to remain, does not appear; and at the same time Mr. Ruding came thither also, in his way to the East-Indies, being at that period a captain in the 12th regiment of foot. On the 22nd of October, 1796, they were married by the chaplain of the British garrison, under the authority of a license granted by general Craig, the commander-inchief of the British forces in that country. When the marriage was performed he had attained his majority, but the lady was under the age of nineteen. The consent

of parents or guardians, required by the Dutch law then generally prevailing at the Cape, was not obtained as regarded either of the contracting parties. Her father had died some years before, and her mother had married a second husband. Nor had any appointment of guardians taken place. It is contended by the husband, that by the Dutch law at that time in force at the Cape, this marriage was null and void, and on that ground he seeks the aid of this court to pronounce a sentence declaratory of its nullity. The facts which I have stated, and the Dutch law under which, if applied to these facts, the marriage is to be invalidated, are pleaded in the libel, and I think there is little doubt that the Dutch law is fairly represented, and would be so proved if the libel was admitted: as little doubt is there that the facts of the case would be established by clear proof; but the real question is, whether the Dutch law so pleaded ought to govern entirely this case of fact; for if it ought not, the libel, which rests the case upon it, ought not to be admitted. In order to maintain that the Dutch law ought to govern the case, they plead first, a stipulation in the capitulation under which the Dutch colony was surrendered to the British arms. That stipulation covenants that the inhabitants shall preserve the prerogatives which they enjoy at present. The meaning of this article, be it what it may (for the term "prerogatives" is sufficiently indefinite and obscure), can never be extended to the British conquerors vi terminorum." They are the grantors, not the grantees; they

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were not in the enjoyment of any prerogatives whatever under the Dutch law. They had nothing under it, which they could wish to preserve. It is impossible, that the Dutch could intend to stipulate for them. It has, therefore, I think, been nearly admitted, that as to the British conquerors this article has no intelligible application; consequently, if the Dutch law binds them, it must be some other obligation, which, independently of this article of capitulation, imposes the Dutch law upon them. In order to bring it a lit tle nearer, after pleading in the following articles what the Dutch law of marriage is, they plead, that that law binds all persons whatever within the colony, fo reigners as well as natives, for that their laws say so, and that their learned lawyers will sup port that doctrine, and their courts will enforce it. Now, if it be true, that the law binds the British conqueror immediately upon the capitulation, there be ing no express covenant to that effect, it must be either from some known rule of the law of nations, which subjects the conqueror to the laws of the conquered, or from some peculiar principle of the law of England, which im poses such an obligation upon the British conquerors of the pos sessions of the enemy. Dutch authority cannot impose it, for it had ceased, and a Dutch court taking upon itself to force this law upon British parties only, and in transactions purely British, might be thought to put forward no very just or moderate pretension. I am not aware, that any such principle or practice exists in the general law of nations. It VOL. LXIII.

sometimes happens, that the conquered are left in possession of their own laws. More frequently the laws of the conquerors are imposed upon them, and sometimes the conquerors, if they settle in the country, are content to adopt for their own use such part of the laws prevailing before the conquest, as they may find it convenient, under the change of authority, to retain. I presume, that there is no legal difference between a conquered country and a conquered colony in this respect, as far as general law is concerned; and I am yet to seek for any principle derivable from that law, which bows the conquerors of a country to the legal institutions of the conquered. Such a prin ciple may be attended with most severe inconvenience in its operation. The laws may be harsh and oppressive in the extrememay contain institutions abhorrent to all the feelings and opinions and habits of the conquerors; at any rate, can be but imperfectly understood; and that they should all of them instantaneously attach, and continue obligatory upon them, till their own government has time to learn them, and select and correct them, is a proposition which a professor of general law would be inclined to consider cautiously, before he admitted it unreservedly. But it is argued to be the doctrine of the law of England: if so, it is not the less hard, as the municipal code of our country is generally admitted to be more liberal and more indulgent, than the codes of most other countries. It would be a most bitter fruit of the victories of its subjects, if 2 D

they were bound to adopt the jealous and oppressive systems of all the countries which they subdued, and to groan under all the tyranny, civil and ecclesiastical, of those systems, till their own government, occupied by the pressure of existing hostilities, had time to look about it, to collect information, and to prescribe rules of conduct more congenial to their original habits. To learn what the laws of a country are, is not the work of a day, even in pacific times; and to construct a code, fit for such a new and mixed situation of persons and things, demands, not without reason, a very serious tempus deliberandi, and conquerors are certainly not the last men who are entitled to the protection of their country under new grievances. I am perfectly aware, that the law is laid down in the authorities referred to-"Calvin's case, 7th Reports," and "Hall and Campbell, Cowper, page 208," that the laws of a conquered country remain, till altered by the new authority. I have to observe, first, that the word "remain" has, ex vi termini, a reference to its obligation upon those in whose usage it already existed, and not to those who are entire strangers to it, in the whole of their preceding intercourse with each other. Even with respect to the ancient inhabitants, no small portion of the ancient law is unavoidably superseded by the revolution of government that has taken place. The allegiance of the subjects and all the law that relates to it, the administration of the law in the sovereign appellate jurisdiction, and all the laws connected with the exercise of the sovereign authority, must undergo alterations

adapted to the change. This very libel furnishes instances of this sort.

In the 3rd article it is

stated, that dispensations from the publication of banns must be had from the authority of the States of Holland. That, I must presume, could not be continued during the existence of the war, and the extinction of the sovereignty of that nation. But, secondly, though the old laws are to remain, it is surely a sufficient application of such terms "that they shall remain in force," if they continue to govern (so far as they do continue) the transactions of the ancient settlers with each other and with the new comers. That they shall intrude into all the separate transactions of these British inhabitants, is to give them a validity which they would otherwise want in all cases whatever. It is certainly true, that, in Hall and Campbell, that most eminent judge, lord Mansfield, a person never to be named but with expressions of reverence, has laid down the following proposition: "That the law and legislative government of every dominion equally affects all persons and all property within the limits thereof, and is the rule of decision for all questions which arise there. Whoever purchases, lives, or sues there, puts himself under the law of the place. An Englishman in Ireland, Minorca, the Isle of Man, or the Plantations, has no privileges distinct from the natives." Huber, too, speaking upon general principles, had before promulgated the same doctrine, L. i., T. 3: "Pro subjectis imperio habendi sunt omnes qui intra terminos ejusdem reperiuntur, sive in perpetuum, sive ad tempus, ibi com

morantur." But to such a proposition, expressed in very general terms, only general truth can be ascribed, for it is undoubtedly subject to exceptions. It is not to be said, that ambassadors and public ministers are subject to the whole body of the municipal law of the country, where they reside. Take the case of a conquering force stationed in a conquered country or colony (for there is no difference), for the very purpose of enforcing the reluctant obedience of the natives, and composing for the present a distinct and immiscible body-surely it can never be laid down that the success of their arms left them at the feet of the civil jurisdiction of the country, without any exception. The occasion in that case must modify the law by which such a body is to be governed. No general rule can be safely expressed or applied under such circumstances. Much of the order of society in such a case must depend upon a discreet application of general principles to local institutions, but that the whole mass of laws formed for another state of things, and for a status personarum widely different, is to be forced instantly upon these foreigners in their own separate transactions, without any reserve or limitation, is a proposition not to be maintained. -Inter arma silent leges, and it is not a compelled surrender that can in a short time effect the establishment of a complete uniformity between the two parties. The state of this colony at the time of the transaction is to be considered: this marriage took place at no great distance of time from the compelled surrender.

This case has no resemblance to the case of Ireland, the Isle of Man, the Plantations, or even Minorca, where recognized civil governments had been established, and a permanent system introduced, of which all must be supposed cognizant. The Cape was conquered, but not ceded, and it remained for a treaty of peace to decide to whom it was to belong. The ancient civil sovereignty was suspended, and no other fully established in its place. The character of the individuals is likewise to be considered. The husband goes there, not as a volunteer or a settler by intention of his own, but in the character of a British soldier in the prosecution of a voyage directed by British authority. He does not put himself under the law of the place. He goes there neither to purchase, sue, nor live. What the legal case of persons engaging in such concerns would be I am not called upon to inquire, much less am I disposed to determine. The party principal is a military servant of the British government sent upon a public errand elsewhere, and not in itinere upon any movement of his own. Whatever a Dutch court might determine upon the general case of a foreigner or traveller, however just in such a case, it has no pertinent application to the present. In one of the following articles it is alleged, that such a marriage would be declared by Dutch tribunals and Dutch jurists as not only null and void in Holland and the Colonies, but likewise in this kingdom and in every other country. I should presume, that this is a claim of universaljurisdiction, which Dutch

jurists and Dutch tribunals would not make for themselves-to decide for Great Britain upon the marriages of British subjects. They are certainly the best and only authority upon the question, whether the marriage is conform able to the Dutch law, and they can decide that question definitively for themselves and for other countries. But questions of wider extent lie beyond this whether the marriage be not good in England, although not conformable to the Dutch law, and whether there are not principles leading to such a conclusion. Of this question and of these principles they are not the authorized judges; for this question and those principles belong rather to the law of England, of which they are not au. thorized expositors at all, or to the jus gentium,upon which the courts of this country may be supposed as competent as themselves, and certainly, in the cases of British subjects, much more appropriate judges. It is true, indeed, that English decisions have established the rule, that a foreign marriage, valid according to the law of the place where celebrated, is good every where else. But they have not e converso established, that marriages of British subjects, not good according to the law of the place of celebration, are universally, and under all possible circumstances, to be regarded as invalid in England. Where marriages conformably to the marriage laws of other countries cannot be had on account of legal or religious difficulties that are insuperable, such marriages, performed according to the rites of our own marriage law, so far as they can be, are held good here,

ex necessitate juris. Marriages in the house of the ambassador, and by his authority, have a reputation of the same kind, though not recognized, as far as I know, by any solemn decision. It is doubtless to be recommended, as the safest course, to marry abroad according to the law of the country; but if that cannot be, this country does not go the length of saying, that they shall not marry at all. There is a jus gentium upon this matter, which inclines to support honest marriages, where an exact conformity to the jus civile of the country in which it was celebrated could not be pursued. Before the marriage act which first noticed the marriages of Jews, it certainly was no doctrine of the matrimonial law of England, that all the married persons of that nation, living in this country, were living in a state of concubinage, and all their children in a state of bastardy. The libel here states a case of marriage, as nearly entitled to the privileges of necessity as can be.

The husband was a person entitled by the laws of his own country to marry without consent of parents or guardians, being of the age of 21; but by the Dutch law he could not marry without such consent till he is thirty years of age.

Now I do not mean to say that Huber is correct in laying down, as universally true, personales qualitates alicui in certo loco jure impressas, ubique circumferri et personam comitari— that being of age in his own country, a man is of age in every other country, be their law of majority what it may; yet it is not to be laid out of the case, that the Dutch law would impose, in this

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