תמונות בעמוד

trorantur.” But to such a propó. This case has no resemblance to sition, expressed in very general the case of Ireland, the Isle of terms, only general truth can be Man, the Plantations, or even ascribed, for it is undoubtedly Minorca, where recognized civil subject to exceptions. It is not governments had been establishto be said, that ambassadors and ed, and a permanent system inpublic ministers are subject to troduced, of which all must be the whole body of the municipal supposed cognizant. The Cape law of the country, where they was conquered, but not ceded, reside. Take the case of a con- and it remained for a treaty of quering force stationed in a con- peace to decide to whom it was quered country or colony (for to belong. The ancient civil sothere is no difference), for the vereigoty was suspended, and no very purpose of enforcing the other fully established in its reluctant obedience of the na- place. The character of the intives, and composing for the dividuals is likewise to be consipresent a distinct and immiscible dered. The husband goes there, body-surely it can never be laid not as a volunteer or a settler by down that the success of their intention of his own, but in the arms left them at the feet of the character of a British soldier in civil jurisdiction of the country, the prosecution of a voyage di. without any exception. The oc- rected by British authority. He casion in that case must modify does not put himself under the the law by which such a body is law of the place. He goes there to be governed. No general rule neither to purchase, sue, nor live. can be safely expressed or applied What the legal case of persons under such circumstances. Much engaging in such concerns would of the order of society in such a be I am not called upon to incase must depend upon a discreet quire, much less am I disposed to application of general principles determine. The party principal to local institutions, but that the is a military servant of the British whole mass of laws formed for government sent upon a public another state of things, and for errand elsewhere, and not in itinere a status personarum widely dif- upon any movement of his own. ferent, is to be forced instantly Whatever a Dutch court might upon these foreigners in their determine upon the general case own separate transactions, with of a foreigner or traveller, however out any reserve or limitation, is a just in such a case, it has no perproposition not to be maintained. tinent application to the present. Inter arma silent leges, and it is in one of the following articles not a compelled surrender that it is alleged, that such a marriage can in a short time effect the would be declared by Dutch establishment of a complete uni. tribunals and Dutch jurists as formity between the two parties. not only null and void in HolThe state of this colony at the land and the Colonies, but liketime of the transaction is to be wise in this kingdom and in considered: this marriage took every other country. I should place at no great distance of time presume, that this is a claim of from the compelled surrender. universaljurisdiction, which Dutch jurists and Dutch tribunals would ex necessitate juris. Marriages in not make for themselves--to de- the house of the ambassador, and cide for Great Britain upon the by his authority, have a reputamarriages of British subjects. tion of the same kind, though not They are certainly the best and recognized, as far as I know, by only authority upon the question, any solemo decision. It is doubtwhether the marriage is conform less to be recommended, as the able to the Dutch law, and they safest course, to marry abroad accan decide that question defini- cording to the law of the countively for themselves and for try; but if that cannot be, this other countries. But questions country does not go the length of of wider extent lie beyond thisą saying, that they shall not marry whether the marriage be not good at all. There is a jus gentium in England, although not con- upon this matter, which inclines formable to the Dutch law, and to support honest marriages, whether there are not principles where an exact conformity to the leading to such a conc on. of jus civile of the country in which this question and of these principles it was celebrated could not be they are not the authorized judges; pursued.

Before the marriage for this question and those princi- act which first noticed the marples belong rather to the law of riages of Jews, it certainly was England, of which they are not au. no doctrine of the matrimonial thorized expositors at all, or to the law of England, that all the marjus gentium,upon which the courts ried persons of that nation, living of this country may be supposed in this country, were living in a as competent as themselves, and state of concubinage, and all their certainly, in the cases of British children in a state of bastardy. subjects, much more appropriate The libel here states a case of judges. It is true, indeed, that marriage, as nearly entitled to English decisions have established the privileges of necessity as can the rule, that a foreign marriage, be. The husband was a person valid according to the law of the entitled by the laws of his own place where celebrated, is good country to marry without consent every where else. But they have of parents or guardians, being of not e converso established, that the age of 21; but by the Dutch marriages of British subjects, not law he could not marry without good according to the law of the such consent till he is thirty years place of celebration, are uni- of age. Now I do not mean to versally, and under all possible say that Huber is correct in laycircumstances, to be regarded as ing down, as universally true, perinvalid in England. Where mar. sonales qualitates alicui in certo riages conformably to the mar- loco jure impressas, ubique cirriage laws of other countries can. cumferri et personam comitarinot be had on account of legal or that being of age in his own counreligious difficulties that are in- try, a man is of age in every other superable, such marriages, per- country, be their law of majority formed according to the rites of what it may; yet it is not to be our own marriage law, so far as laid out of the case, that the they can be, are held good here, Dutch law would impose, in this respect, a very unfavourable dis- is therefore under all these cirability upon the British subject; cumstances I am called upon to and it was one which, in the situa- dissolve a marriage of 25 years' tion of this individual, it was ex- standing, upon a ground of nultremely difficult, indeed almostlity which existed in its formaimpossible, for him to remove. tion, though the vinculum has reHis father lived in England, and mained untouched by either party he was pursuing his prescribed during the whole time. I know, course to the East Indies, for the that, in strict legal consideration, military service. She was a little I am to examine this marriage in younger, but her father had died the same way, as if it had taken in the East Indies, and her mo- place only yesterday. It is likether married again, and no guar- wise not improbable, that the stadian appointed. It would puzzle bility of many marriages may dethe person most versed in that pend upon the fate of this, for most difficult chapter of general doubtless many have taken place law, the conflictuslegum, to say how in a way very similar. But I a marriage could be effected in a know that I must determine it manner satisfactory to the Dutch upon principles, and not upon requisitions. Under such difficul- consequences. Authority of ties as regarded the Dutch law, former cases there is none, for the marriage naturally enough the decision in Middleton and was not solemnized with any re. Jamison turned upon a ground ference to that law, but under a of impeachment, that was directly formal license from the British the reverse of what is attempted government, and by the admi- in the present case; for the ground nistration of an English clergy. there was, that it was a bad marman, chaplain of the English gar- riage under the lex loci to which rison. The Crown, it is admitted, it had resorted; the ground here has the power of altering all the is, that it did not resort at all to laws of a conquered country. the lex loci. In my opinion, this This is an act passing under the marriage (for I desire to be unauthority of the representative derstood as not extending my of the British crown, and between observations beyond it,-i abBritish subjects only, in which stain cautiously from general poDutch subjects have no interest sitions) rests upon solid foundawhatever. It is to be presumed, tions on the distinct British that the representative was not character of the parties; on their acting without the knowledge and independence of the Dutch law; permission of his government, if on the insuperable difficulties of that permission was absolutely obtaining any marriage conformnecessary to legalize that act. ably to the Dutch law; on the It was not so in my opinion, un- countenance given by British auless the Dutch law involved such thority, and British ministration, persons in its obligations; for, to this British transaction ; upon otherwise, no Dutch law was in- the whole country being under vaded by the act, though the British dominion; and upon the sanction of the government might other grounds to which I have be requisite for the mere pur- adverted. And I therefore disposes of order and notoriety. It miss this libel as insufficient, if

it was


proved, for the conclusion it merchants having considered the prays.

measure of loss actually sustained by the injured party. This,

contended, was not High Court OF ADMIRALTY, the true measure of restiNov. 20.

tution; for, that the injured The Carl Johan.-Lord Sto- party's loss ought to be meawell proceeded to give judgment sured by the value of the ship in this matter. A Swedish that had done the injury. Now, vessel, the Carl Johan, to be sure, at first sight this apcharged with having run down a peared to be a most inapplicable British vessel called the James, principle; for how could the vawhich was totally lost, some of lue of the vessel that had done her crew being with difficulty the injury be any measure, by saved, on the 12th September, which to ascertain the extent of 1818. Proceedings were com- injury done to the vessel which menced immediately by the Bri- had suffered? It had no connexion tish owners against those of the with it, and it bore no assignable Swede, and a judgment obtained proportion to it. It was putting against them (certainly under the the matter on the same footing interposition of all the delay, with the compensation" of ruder which either the use or the abuse times—a compensation which, in of the law could supply) on the modern days, bore the name of 26th of November of the last“ deodand.” Compensation, howyear. By that decree it was ever, was that which restored to found, that the loss in question the sufferer what property he had had not, in fact, been occasioned lost. But how was its value to by virtue of any uncontrollable be ascertained by any property accident, but by the misconduct which the other party might apand mismanagement of the Swe- pear to possess? In this case they dish vessel ; for which her owners were in no degree commensurate, were answerable to the extent at and far from being correlative which the losses were charged. with each other, they might be An appeal was prosecuted; it disproportionate in the highest lingered on in the Court of Ap- degree. Thus, the value of a peal, till nearly the time at which collier or a coaster could furnish the hearing in that court would no measure of the value of a ship have taken place. It was then which it might encounter, laden deserted by the parties, dismissed with the rich productions of the with costs, and the cause remitted East, whether these should be to this court. But this court, precious stones or the precious proceeding upon its former sen- metals. It was, in truth, but very tence, referred it to the registrar lately that such a law had been and merchants to ascertain the introduced into the maritime juamount of the damage. This had risprudence of this country. Till been done : and their report, as within a few years, our laws, like now brought in, was attacked the general maritime laws of Euupon the ground that a wrong rope, protected ship-owners from measure of compensation had liability to damages arising from been taken, the registrars and unavoidable accident, while they fixed them to the extent

of render- but framed with a very moderate ing such owners liable for the ina. regard to the compensation to be bility or misconduct of those whom made for the real injury sustained. they employed. Several cases had It was, as the Court had already occurred under the ancient rule of observed, no compensation in it. law, where this responsibility had self. It was a measure evidently been recognised ; yet the interests of policy, and established by of navigation had not been in- countries for the encouragement efficiently conducted in this coun. of their own maritime interests. try, while the influence of the The results of it were to be vindiancient rule had prevailed; at cated only on the ground, perleast not so inefficiently as to call haps, that it was a common benefor any alterations, until the sta- fit, and a common burthen

to tute was passed of the 26th of those whom it applied to. The his late majesty, which discharged British law operated equally upon the owners of a vessel from all all the commercial subjects of the liability for damage or loss oc- country; and he who was affected curring to the goods on board of by it to-day might be benefited it, beyond the value of the ship, hy it to-morrow. If all the comand of the freight accruing upon mercial states adopted the same the voyage. A later statute, the law by common consent, it would 53rd of his late majesty, pro- have the same mutuality to suptected them to the same extent port it. There could be no queswith respect to any losses or tion as to its relative effect upon damages, that they might occa- each. But it would be the grosssion to other ships, or to the goods est injustice to apply it to other laden on board of them. A sie states who had no such mutuamilar regulation, the Court ob- lity; and who could not apply it served, had been made in the ma- against British subjects for any ritime law of some of other minor injury which they might have sus. commercial and maritime states. tained from them. If, therefore, The avowed purpose of it was, to this British statute were applied protect the interests of those who to foreigners by the legislature of were engaged in the mercantile this country, it would be a disshipping of the state, and to re- grace, and an enormous act of move the terrors which would injustice, which ought not to be otherwise discourage people from imputed to it but upon the strongembarking in the maritime com- est evidence of facts, But nomerce of a country, in conse- thing of this sort was to be prequence of the indefinite respon- sumed upon this statute : for it sibility which the old law attached could not be supposed to be any on them. But the new rule of secret to the British legislature, that responsibility was really none at foreigners, sustaining an injury of all. Though that word had found this kind, had a right, under the its way into the statute, yet to maritime laws, to full and real give this law that title was some- compensation ; and that for the thing of a misnomer both as to legislature to say, that foreigners intention and effect. It was a law had no such right, would be a of protection to the ship-owners, gross violation of all justice, and

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