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 uni formity 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 establish ed, 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 conformable 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 ofthese 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 authorized 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 certa loco jure impressas, ubique cir cumferri et personam comitarithat 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

respect, a very unfavourable disability upon the British subject; and it was one which, in the situation of this individual, it was extremely difficult, indeed almost impossible, for him to remove. His father lived in England, and he was pursuing his prescribed course to the East Indies, for the military service. She was a little younger, but her father had died in the East Indies, and her mother married again, and no guardian appointed. It would puzzle the person most versed in that most difficult chapter of general law, the conflictus legum, to say how a marriage could be effected in a manner satisfactory to the Dutch requisitions. Under such difficulties as regarded the Dutch law, the marriage naturally enough was not solemnized with any reference to that law, but under a formal license from the British government, and by the administration of an English clergyman, chaplain of the English garrison. The Crown, it is admitted, has the power of altering all the laws of a conquered country. This is an act passing under the authority of the representative of the British crown, and between British subjects only, in which Dutch subjects have no interest whatever. It is to be presumed, that the representative was not acting without the knowledge and permission of his government, if that permission was absolutely necessary to legalize that act. It was not so in my opinion, unless the Dutch law involved such persons in its obligations; for, otherwise, no Dutch law was invaded by the act, though the sanction of the government might be requisite for the mere purposes of order and notoriety. It

is therefore under all these circumstances I am called upon to dissolve a marriage of 25 years' standing, upon a ground of nullity which existed in its formation, though the vinculum has remained untouched by either party during the whole time. I know, that, in strict legal consideration, I am to examine this marriage in the same way, as if it had taken place only yesterday. It is likewise not improbable, that the stability of many marriages may depend upon the fate of this, for doubtless many have taken place in a way very similar. But I know that I must determine it upon principles, and not upon consequences. Authority of former cases there is none, for the decision in Middleton and Jamison turned upon a ground of impeachment, that was directly the reverse of what is attempted in the present case; for the ground there was, that it was a bad marriage under the lex loci to which it had resorted; the ground here is, that it did not resort at all to the lex loci. In my opinion, this marriage (for I desire to be understood as not extending my observations beyond it,-I abstain cautiously from general positions) rests upon solid foundations on the distinct British character of the parties; on their independence of the Dutch law; on the insuperable difficulties of obtaining any marriage conformably to the Dutch law; on the countenance given by British authority, and British ministration, to this British transaction; upon the whole country being under British dominion; and upon the other grounds to which I have adverted. And I therefore dismiss this libel as insufficient, if

prays.

HIGH COURT OF ADMIRALTY,

Nov. 20.

The Carl Johan.-Lord Stowell proceeded to give judgment in this matter. A Swedish vessel, the Carl Johan, was charged with having run down a British vessel called the James, which was totally lost, some of her crew being with difficulty saved, on the 12th September, 1818. Proceedings were commenced immediately by the British owners against those of the Swede, and a judgment obtained against them (certainly under the interposition of all the delay, which either the use or the abuse of the law could supply) on the 26th of November of the last year. By that decree it was found, that the loss in question had not, in fact, been occasioned by virtue of any uncontrollable accident, but by the misconduct and mismanagement of the Swedish vessel; for which her owners were answerable to the extent at which the losses were charged. An appeal was prosecuted; it lingered on in the Court of Appeal, till nearly the time at which the hearing in that court would have taken place. It was then deserted by the parties, dismissed with costs, and the cause remitted to this court. But this court, proceeding upon its former sentence, referred it to the registrar and merchants to ascertain the amount of the damage. This had been done: and their report, as now brought in, was attacked upon the ground that a wrong measure of compensation had been taken, the registrars and

measure of loss actually sustained by the injured party. This, it was contended, was not the true measure of restitution; for, that the injured party's loss ought to be measured by the value of the ship that had done the injury. Now, to be sure, at first sight this appeared to be a most inapplicable principle; for how could the value of the vessel that had done the injury be any measure, by which to ascertain the extent of injury done to the vessel which had suffered? It had no connexion with it, and it bore no assignable proportion to it. It was putting the matter on the same footing with the "compensation" of ruder times-a compensation which, in modern days, bore the name of "deodand." Compensation, however, was that which restored to the sufferer what property he had lost. But how was its value to be ascertained by any property which the other party might ap pear to possess? In this case they were in no degree commensurate, and far from being correlative with each other, they might be disproportionate in the highest degree. Thus, the value of a collier or a coaster could furnish no measure of the value of a ship which it might encounter, laden with the rich productions of the East, whether these should be precious stones or the precious metals. It was, in truth, but very lately that such a law had been introduced into the maritime jurisprudence of this country. Till within a few years, our laws, like the general maritime laws of Europe, protected ship-owners from liability to damages arising from unavoidable accident, while they

fixed them to the extent of rendering such owners liable for the inability or misconduct of those whom they employed. Several cases had occurred under the ancient rule of law, where this responsibility had been recognised; yet the interests of navigation had not been inefficiently conducted in this coun. try, while the influence of the ancient rule had prevailed; at least not so inefficiently as to call for any alterations, until the statute was passed of the 26th of his late majesty, which discharged the owners of a vessel from all liability for damage or loss occurring to the goods on board of it, beyond the value of the ship, and of the freight accruing upon the voyage. A later statute, the 53rd of his late majesty, protected them to the same extent with respect to any losses or damages, that they might occasion to other ships, or to the goods laden on board of them. A similar regulation, the Court observed, had been made in the maritime law of some of other minor commercial and maritime states. The avowed purpose of it was, to protect the interests of those who were engaged in the mercantile shipping of the state, and to remove the terrors which would otherwise discourage people from embarking in the maritime commerce of a country, in consequence of the indefinite responsibility which the old law attached on them. But the new rule of responsibility was really none at all. Though that word had found its way into the statute, yet to give this law that title was something of a misnomer both as to intention and effect. It was a law of protection to the ship-owners,

but framed with a very moderate regard to the compensation to be made for the real injury sustained. It was, as the Court had already observed, no compensation in it. self. It was a measure evidently of policy, and established by countries for the encouragement of their own maritime interests. The results of it were to be vindicated only on the ground, perhaps, that it was a common benefit, and a common burthen to those whom it applied to. The British law operated equally upon all the commercial subjects of the country; and he who was affected by it to-day might be benefited by it to-morrow. If all the commercial states adopted the same law by common consent, it would have the same mutuality to support it. There could be no question as to its relative effect upon each. But it would be the grossest injustice to apply it to other states who had no such mutuality; and who could not apply it against British subjects for any injury which they might have sustained from them. If, therefore, this British statute were applied to foreigners by the legislature of this country, it would be a disgrace, and an enormous act of injustice, which ought not to be imputed to it but upon the strongest evidence of facts, But nothing of this sort was to be presumed upon this statute: for it could not be supposed to be any secret to the British legislature, that foreigners, sustaining an injury of this kind, had a right, under the maritime laws, to full and real compensation; and that for the legislature to say, that foreigners had no such right, would be a gross violation of all justice, and