220 constantly resided in Ireland, he was only liable to be tried in the courts of that country, Lord Ellenborough, in a very elaborate judgment, overruled the plea, thus concluding: "If the circumstances of the defendant's birth in Ireland and his residence there at the time of the publication here have the effect of rendering him not punishable in any court in this country for such publication, this impunity must follow as a consequence from its being no crime in the defendant to publish a libel in Middlesex. Indeed, the argument rests wholly upon this position, that the defendant owed no obedience to the laws of this part of the United Kingdom, so that he has not been guilty of any crime in breaking them. The learned Judge lays down for law that if he remains at Dublin, he may by means of a hired assassin commit a murder in London without being liable to punishment." The indictment being tried at bar, the libellous letters published in Cobbett's Political Register' were proved to be in the handwriting of the defendant, with the Dublin post-mark upon them. They were addressed to the editor of the Register' in Middlesex, and they contained a request that he would print and publish them. The defendant's counsel insisted that he was entitled to an acquittal on the ground that the evidence was defective. Lord Ellenborough: "There is no question of the fact of publication by Mr. Cobbett, in Middlesex, of that which is admitted to be a libel; and the only question is, whether the defendant was accessory to that publication? If he were, the offence is established; for one who procures another to publish a libel, is no doubt guilty of the publication, in whatever county it is in fact published, in consequence of his procurement.” The other Judges concurred, and the defendant was found GUILTY.* The Government of the United States of America having in the year 1808 laid an embargo in American * 6 East, 583; 7 East, 65. English un not liable the Govern assured. ports on all American ships bound for Great Britain, the owners, who were insured in England, gave notice of abandonment to the under- derwriters writers, and claimed a total loss. Lord Ellen- for embargo borough acquired great glory by boldly de- put on by ciding that, under these circumstances, the ment of the English underwriters were not liable. He proceeded on this maxim, that a party insured can never recover for a loss which he himself has occasioned, and he laid down that under every form of government each subject or citizen must be considered as concurring in every act of the supreme power of the country in which he lives : "The foundation of the abandonment is an act of the American Government. Every American citizen is a party to that act; it has virtually the consent and concurrence of all, and, amongst the rest, the consent and concurrence of the assured. The assured having prevented the vessels from sailing, can they make the detention of the vessels the foundation of an action ?" * illegitimate Where a marriage had been regularly celebrated by a priest in orders, in the face of the church, Validity of between a man of full age and a woman under marriage of age, who was illegitimate, with the consent of minor. her mother, the father being dead, and they had lived together as man and wife for many years, Lord Ellenborough decided (I think erroneously, although he had the concurrence of two able Judges, Le Blanc and Bayley) that the marriage was void and their children were bastards, because the Court of Chancery had not appointed a guardian to the minor, to consent to the marriage. This most revolting decision might have been avoided by holding on the true principles for construing statutes, that although Lord Hardwicke's Act (26 Geo. II. c. 33) says that all marriages not * 10 East, 536. Conway v. Gray. constantly resided in Ireland, he was only liable to be tried in the courts of that country, Lord Ellenborough, in a very elaborate judgment, overruled the plea, thus concluding: "If the circumstances of the defendant's birth in Ireland and his residence there at the time of the publication here have the effect of rendering him not punishable in any court in this country for such publication, this impunity must follow as a consequence from its being no crime in the defendant to publish a libel in Middlesex. Indeed, the argument rests wholly upon this position, that the defendant owed no obedience to the laws of this part of the United Kingdom, so that he has not been guilty of any crime in breaking them. The learned Judge lays down for law that if he remains at Dublin, he may by means of a hired assassin commit a murder in London without being liable to punishment." 6 The indictment being tried at bar, the libellous letters published in Cobbett's Political Register' were proved to be in the handwriting of the defendant, with the Dublin post-mark upon them. They were addressed to the editor of the 'Register' in Middlesex, and they contained a request that he would print and publish them. The defendant's counsel insisted that he was entitled to an acquittal on the ground that the evidence was defective. Lord Ellenborough: "There is no question of the fact of publication by Mr. Cobbett, in Middlesex, of that which is admitted to be a libel; and the only question is, whether the defendant was accessory to that publication? If he were, the offence is established; for one who procures another to publish a libel, is no doubt guilty of the publication, in whatever county it is in fact published, in consequence of his procurement." The other Judges concurred, and the defendant was found GUILTY.* The Government of the United States of America having in the year 1808 laid an embargo in American * 6 East, 583; 7 East, 65. English un not liable the Govern assured. ports on all American ships bound for Great Britain, the owners, who were insured in England, gave notice of abandonment to the under- derwriters writers, and claimed a total loss. Lord Ellen- for embargo borough acquired great glory by boldly de- put on by ciding that, under these circumstances, the ment of the English underwriters were not liable. He proceeded on this maxim, that a party insured can never recover for a loss which he himself has occasioned, and he laid down that under every form of government each subject or citizen must be considered as concurring in every act of the supreme power of the country in which he lives : "The foundation of the abandonment is an act of the American Government. Every American citizen is a party to that act; it has virtually the consent and concurrence of all, and, amongst the rest, the consent and concurrence of the assured. The assured having prevented the vessels from sailing, can they make the detention of the vessels the foundation of an action ?" * illegitimate Where a marriage had been regularly celebrated by a priest in orders, in the face of the church, Validity of between a man of full age and a woman under marriage of age, who was illegitimate, with the consent of minor. her mother, the father being dead, and they had lived together as man and wife for many years, Lord Ellenborough decided (I think erroneously, although he had the concurrence of two able Judges, Le Blanc and Bayley) that the marriage was void and their children were bastards, because the Court of Chancery had not appointed a guardian to the minor, to consent to the marriage. This most revolting decision might have been avoided by holding on the true principles for construing statutes, that although Lord Hardwicke's Act (26 Geo. II. c. 33) says that all marriages not * 10 East, 536. Conway v. Gray. solemnized in the manner therein mentioned shall be void, this nullification applies only to the marriages of persons in the contemplation of the legislature, and that the marriages of illegitimate minors could not have been in the contemplation of the legislature with respect to this consent, as the condition requiring the consent of parents or guardians could not be fulfilled-so that this being casus omissus, the marriage in question was valid. But Lord Ellenborough's nature was somewhat stern, and he did not dislike a judgment that others would have found it painful to pronounce-rather rejoicing in an opportunity of showing that he was not diverted by any weak sympathies from the upright discharge of his duty.* Case of the However, he was always eager to extend the protection of British law to all who were supposed to be oppressed. Upon an affidavit that an African female, formed in a remarkable manner, was exhibited in London under the name of the HOTTENTOT VENUS, the deponents swearing that they believed she had been brought into this country and was detained here against her will, he granted a rule to show cause why a writ of habeas corpus should not issue to her keepers to produce her in court, and that in the mean time the Master of the Crown Office and persons to be appointed by him should have free access to her : At Venus ætherios inter Dea Candida nimbos She appeared before the Master and his associates magnificently attired, offered them presents, and declared that she came to and remained in this country with her free will and consent. *Priestly v. Hughes, 11 East, 1. Mr. Justice Grose dissented; the decision was condemned by Westminster Hall, A report to this effect and finally the law was rectified by the Legislature. 4 Geo. IV. c. 76; 6 and 7 Wm. IV. c. 85, |