The Sun.
London, England, 1821-11-16 00:00:00

114,":,7\i, V

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im
The following elaborate and able jllogm en t on a most
portant subject was the last delivered by Lord ST OW -E. L L in the
Consistmy Court: circumstances have hitherto prevented our
giving an accurate report of it :
This is a suit brought by Walter Reding, Esq., against
Jewitna Claaidia Smith, for the .purpose of praying this Court
to pronounce_ null and void his marriage had with that Lady

under the following•circumstanees
She was born at Fort St. George, in the East Indies, on the
2-lth 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 silt: meantto remain, -does not appear ; and
at•the same time Mr. Hurling came thither also, in his way to
the East Indies, being at that period a Captain in the 12th Re-
giment of Foot. On the old of October, 1796, they were
married by the Chaplain of the British Garrison, under the au-
thority of a license granted by General Craig, the Commandeea
in-Chief of the British forces in that country. When the mar-
riage was performed he had attained his majority, but the Lady
was under the age of 19. 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 inoth,r,
had marrieda second husband. NOT 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
.0-Tound he seeks the aid of this
Court to pronounce a sentence declaratory of its nullity. The
case of facts which I have. stated, and the Dutch law under
which, if applied to these. facts, the marriage list.° be invalidated,
are pleaded in the libel, and I think there is little doubt that the
Dutch law is fairly represented, and would 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 surren-
dered 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 used of prerogatives is sufficiently indefinite and obscure),
can never be extended to the British conquerors " ex vi tenni-
norum." They are the grantors, not the grantees ; they 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 ad-
mitted, that as to the British conquerors, this article has no in-
whigible application ; consequently', if the Dutch law binds
them, it must be some other obligation, by which, independent
of this article of capitulation, th Dutch law imposes itselftip-•
on them. In order to bring it a little nearer, after pleading in
the following articles what the Dutch law of marriage is, they
plead that that law hinds all persons whatever within the co-
lony, foreigners as well as natives, for that their laws say so,
and that their learned lawyers will support that doctrine, and that
their Courts will enforce it. Now, it that be true, that the law
binds the British conqueror immediately upon the capitulation,
there being 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 allogland, which imposes such an
gation upon the British conquerors of the possessions 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 veiy just or mooerate pretension.
I am not aware that any such principle or practice exists in the
general law of nations. It sometimes happens that the con-
quered are left in possession of their own laws. More frequent- •
ly the laws of. the conquerors are imposed upon them, and
sometimes the conquerors, if they settle in the country, are con-
tent 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 con-
quered colony in this respect, as far as general law is con-
cerned; 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 principle may be at-
tended with most severe inconvenience in its operation. The
laws may be harsh and oppressive in the extreme—may con-
tain institutions abhorrent to all the feelings and opinions
and habits of the conquerors; at any rate, can be but im-
perfectly understood, and that they should all of them instan-
taneously attach, and continue obligatory upon them, till their
own Government had time to learn them, and select and cor-
rect them, is a proposition which I think a professor of general
law would be inclined to consider cautiously, before he unre-
servedly admitted it. 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 same codes of most other countries.
It would be a most bitter fruit of the victories of its subjects, if
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 Governmant,occupied by the pressure of existing hostilities,
had time to look about it, to collect information, and to pre-
scribe 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 conque-
rors are certainly not the last men who are entitled to the pro-
tection of their country under new grievances. lam perfectly
aware that the law is laid down in the authorities referred to—
" Calvin's case, 7th Reports," and Hall and Campbell, Cow-
per, 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 obliga-
tion upon those in whose usage it already existed, and not to
those who are entire strangers to it, in the whole of their pre-
ceding intercourse with each other. Even with respect to the
ancient inhabitants, no small portion of the ancient law is un-
avoidably 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 ap-
pellate 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 third article it is stated, that dispensations from
the publication of bans 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 extinc-
tion 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 colliers. That they
shall intrude into all the separate transactions of these British
inhabitants, is to give them a validity which they would other-
wise 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 accompanying 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. 1., T. 3. " Pro sub-
jectis unperio habendi sunt omnes qui intra terminos ejusdent
reperiuntur sive in perpetuum sive ad tempus ibi coninioran-
tur. 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 he said that Ambassadors
and public Ministers are subject to the whole body of the mu-
nicipal 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 ex-
pressed or applied under such circumstances. Much of the
order of society in such a case must depend upon a discreet ap-
plication of general principles to local institutions,, but that
the whole mass of laws formed for another state of things,
and for a status personarurn widely different, is to be forc-
ed 'instantly upon these foreigners in their own separate trans-
at
icotnio trans-
actions, t without obue maintained.—lnter lonrlirflaritnaltaionsi is a proposi-
tion loges, and
it is not a compelled surrender that can in a short time
aiensrv._e
ter
effect the establishment of a complete uniformity between the
two parties. The state of this colony_ at the time of the transac-
tion 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 Nlinorca, where recognized civil govern-
ments had been established, and a permanent system introduc-
ed,- 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 sove-
zeignty was suspended,' and no other fully established in its
place. The character of the ,no
is likewise to be con.

,idered. The husband gOct there, not as a Volunteer or a set-
tler by intention of his own, but in the character of a British
soldier, in The preseeatian of a voya7 directed by British an-
dimity. Ile does tot put himself uoder the law of the •place.
Ile 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 iotnore. much less urn I dispas at to deter-
mine. Thu patty pri:icipal is a military servant of the British
Government sent upon a public errand elsewhere, and rot in
itmere 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, has no pertinent applica-
tion to the present. In the following article 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 Col.,
onies, but likewise in this kingdom and in every other country.
—I should presume that this is a claim of universal jurisdiction
which Dutch jurists anti Dutch tribunals would not make for
themselves—to decide for Great Britain upon the marriages of
British subjects. They are certainlythe best and only authority
upon the question whether the marriage is conformable to
the Dutch laW, and they can decide. that question definitive-
ly 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
jutigo; for this question and those psinciples 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 aritish subjects much more appropriate judo:at.—
It is Irtie,O indeed, that English decisions have established
the rule, find a foreign marriage, valid according to the law of
the place Where celebrated, is good every where else. But
they have not e converse established that marriages of British
subjects not good according to the law of the place where cele-
brated, are universally, and under all possible circumstances, to
be regarded as invalid in England. Where marriages con-
formably 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 hiw,"so far as they can be, are held good here, ex ne-
cessitate 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 to
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 ins civile of the country in which it was cele-
brated could not he pursued. Before the marriage act which
first noticed the marriages of Jews, it certainly was no doctrine
Of the matrimonial lair 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 pri-
vileges of necessity as 'can be. The husband was a person en-
titled by the laws of Isis 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 withottt'such consent till lie is thirty
years of age. Now Ido not mean to say that Huber is cor-
rect in laying down as universally true,
.44* personales qualitates
alicui in certo loco jure impressas, übictue circumferri et per-
son= 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 respect a very unfavourable disability,
upon the British subject, and it was one which, in the situa-
tion of this individual, it was eextremely difficult, indeed almost
impossible, for him to removes 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 per-
son 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 Du tch requisitions. Under such difficul-
ties, 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 ad-
ministration 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 repre-
sentative 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, other-
wise, 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 circum-
stances I am. called upon to dissolve a marriage of 25 years'
standing, upon a ground of nullity which existed in its forma-
tion, though the vinculum has remained untouched by either
party during the whole time. I know that, in strict legal con-
sideration, I am to examine this marriage in the same way as
if it had taken place only yesterday. It is likewise not impro-
bable that the stability of many marriages may depend upon
the fate of thiS, for doubtless many have taken place in g way
very similar. But I know that I must determine it upon prin-
ciples, and not upon consequences. Authority of former cases
there is none, for the decision in Middleton and Jamison tarried
upon a ground of impeachment, that was directly the reverse of
what is attempted in the present case ; for the ground there
was, thatit 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,—l ab-
stain cautiously from general positions), rests upon solid found-
ations—on the distinct British character of the parties ;on their
independence of the Dutch law and all. their internal ttansa.c-
tions, of the insuperable difficulties of obtaining any marriage
conformably to the Dutchlaw ; on the countenance given by
British authority, and British ministration to this Elitists tran-
saction ; upon the whole country being under British dominton ;
and upon the other grounds to which I have adverted. And I
therefore dismiss this libel as' insufficient, if proved, for the con-
clusion it prays.

Saturday, at Aylesbury, there were upwards
of 110 loads of wheat in the market, of which
only 10 were sold.---(Bath Chronicle.)

ACCIDENT AT ST. PAUL'S CATIIEDR.IL•—Ano
her melancholy accident took place yesterday if

St. Paul's Cathedral. A journeyman painter,
employed in beautifying the interior, accidentally
fell from a height of fifty feet. When taken up
he was quite dead,Lis skull being fractured, and
his body dreadfully shattered. He is said to be
a single man, and in the employ of a painter in
the City-road.
SHOCKING ACCIDENT.—As the collier brig
John and Mary, of Newcastle, was dropping up
the River on Monday last, a seaman named
THOMAS M +sox fell from under the fore-top
across the fore bitt, and sustained severe con-
tusions of the shoulder and spine, and a concus-
sion of the brain ; he was conveyed on board the
Grampus Seaman's Hospital Ship in a dreadful
condition, where by immediate attention and
medical advice, hopes are entertained for his re-
covery. This institution is a new one, and cal-
culated to afford important benefits to the ship-
ping interests in general, more especially as an
apparatus for resuscitation is at all times ready
in cases of accident.

MYSTERIOUS DEATITS.-013 Friday last an In-
quest was held at the Jolly Sailors' public-house,
at the Scalp, on the bodies of William Itick,,on, '
a bachelor, and John Turnbull, a married
man, seamen, belonging to the Supply of Sunder.
land, Capt. Hopkirk. It appeared in evidence,
that the two unfortunate men had been to the
house stated above, for two casks of fresh
water, and were on their return in the boat to
the ship about eight or nine o'clock at night. As
each of the unfortunate men had received
a bruise under one eye, it is much feared
that a quarrel had ensued between them, and
that they had closed in the scuffle and rolled
overboard. This opinion was corroborated by
the situation in which the boat was found next
morning, near the bodies, with the oars and
casks in their proper places. Verdict—" Found
Drowned."—(Boston Gazette.)