cause.

gust. Treaties are attempted, and they miscarry, as they might be expected to do in the hands of persons strongly disaffected towards each other; and then for the very first time a suit of cruelty is thought of. A libel is given in, black with criminating matter. Recrimination comes from the other side. Accusations rain heavy and thick on all sides, till all is involved in gloom, and the parties lose total sight of each other's real character, and of the truth of every fact which is involved in the The humanity of the court has been loudly and repeatedly invoked. Humanity is the second virtue of courts, but undoubtedly the first is justice. If it were a question of humanity simply, and of humanity which confined its means merely to the happiness of the present parties, it would be a question easily decided upon first impressions. Everybody must feel a wish to separate those who wish to live separate from each other, who cannot live together with any degree of harmony, and, consequently, with any degree of happiness; but my situation does not allow me to indulge in the feelings, much less the first feelings, of an individual. The law has said that married persons shall not be legally separated from the, mere disinclination of one or both to cohabit together. The disinclination must be founded upon reasons which the law approves, and it is my duty to see whether these reasons exist in the present case. To vindicate the policy of the law is no necessary part of the office of a judge; but, if it were, it would not be difficult to show that the law in this respect has acted with its usual wisdom and humanity; with that true wisdom and that real humanity that regards the general interests of mankind. For though, in particular cases, the repugnance of the law to dissolve the obligations of matrimonial cohabitation may operate with great severity upon individuals, yet it must be carefully remembered that the general happiness of the married life is secured by its indissolubility. When people understand that they must live together, except for a very few reasons known to the law, they learn to soften by mutual accommodation that yoke which they know they cannot shake off; they become good husbands and good wives from the necessity of remaining husbands and wives,-for necessity is a powerful master in teaching the duties which it imposes. If it were once understood that upon mutual disgust married persons might be legally separated, many couples who now pass through the world with mutual comfort, with attention to their offspring, and to the moral order of civil society might have been at this moment living in a state of mutual unkindness, in a state of estrangement from their common offspring, and in a state of the most licentious and unreserved immorality. In this case, as in many others, the happiness of some individuals must be sacrificed to the greater and more general good."

But the sphere in which he exercised his highest faculties was the court of admiralty, where for a period of thirty years he was engaged in laying the foundations of the law of the sea in the principles of universal justice. Indeed, for a generation he was rather a lawgiver than a judge. With the exception of a few manuscript notes by Sir E. Simpson, some scattered memoranda among the records of the Tower, and occasional references to tradition, there were no precedents for his guidance in adjudicating upon the novel cases arising out of the most important war in English

history. He was free to be guided by the writers on Roman, canon, and international law, and by the historical material with which his wide reading had made him familiar. At the same time, the unequaled variety of cases which came before him enabled him to give unity and consistency to the whole. And such was the accuracy of his judgment that, though often appealed from, it is said that not one of his decisions was reversed during his lifetime. Upon many maritime points his judgments are still the only law, and, little popular as they were at the time in this country, they have since been accepted by our courts as authoritative. Fortified by a store of knowledge at once profound and extensive, combining all the materials that indefatigable research and close and minute observation could provide for the supply of an acute, vigorous, and capacious mind, the judgments of Lord Stowell on international law have passed into precedents equal, if not superior, to those of Puffendorf, Grotius, and Vattel, the venerable authors of the science. His work, like theirs, is animated by the spirit of universal justice. "I trust," he said in the celebrated case of the Swedish convoy,1 "that it has not escaped my anxious recollection for one moment what it is that the duty of my station calls for from me, namely, to consider myself as stationed here, not to deliver occasional and shifting opinions to serve present purposes of particular national interest, but to administer with indifference that justice which the law of nations. holds out, without distinction, to independent states, some happening to be neutral, and some to be belligerent. The seat of judicial authority is, indeed, locally here in the belligerent country, according to the known law and practice of nations, but the law itself has no locality. It is the duty of the person who sits here to determine this question exactly as he would determine the same question if sitting in Stockholm; to assert no pretensions on the part of Great Britain which he would not allow to Sweden in the same circumstances, and to impose no duties on Sweden, as a neutral country, which he would not admit to belong to Great Britain in the same character. If, therefore, I mistake the law in this matter, I mistake that which I consider, and which I mean should be considered, as the universal law upon the question."

"If ever the praise of being luminous could be bestowed upon human compositions," says Brougham, "it was upon his judgments." Aware of the value of his productions, he bestowed extreme labor on their preparation. In some instances his language may seem

11 C. Rob. 349.

to be somewhat inflated,-the attention to diction may occasionally degenerate into purism; but the symmetry and elegance of the whole confirms Lord Lyndhurst's opinion that it is as vain to praise as to imitate him.

JUDICIAL OPINION IN THE CASE OF the gratITUDINE, IN THE HIGH COURT OF ADMIRALTY, 1801.

STATEMENT.

This was a case involving the power of a master of a vessel to hypothecate his cargo, in a foreign port, for the repair of damages sustained by the ship at sea; such repairs being absolutely necessary to enable the ship to proceed on her voyage for the purpose of delivering the cargo according to the charter party. The facts are stated in the opinion. It was decided that the master had such power.1

OPINION.

This case has been learnedly argued; and I have thought it due, not only to the arguments, but also to the extreme importance of the question, as affecting the commerce of this country, to take some time for deliberation in forming my judgment upon it. The case comes on, upon petition, which states "that the Imperial ship, the Gratitudine, having on board a cargo of fruit, and bound from Trieste, Zante, and Cephalonia to London, met with extremely tempestuous weather, and sprung a leak, whereby the cargo sustained considerable damage; that the master was obliged, for the safety of the ship and cargo, and for the preservation of the lives of the crew, to put into Lisbon and unlade; that the master applied for advice and assistance to F- - Calvert, who was the correspondent of Mr. Powell, one of the principal consignees in England; that Mr. Calvert wrote a letter to Mr. Powell, advising him of the misfortune which had befallen the cargo, and the steps which had been taken, and desiring his directions for their further conduct; that, in answer to that application, he received a letter from Mr. Powell stating "that to the master it belonged exclusively to adopt every necessary measure for the preservation of the cargo, and that, if it was necessary to unlade, the master alone was to judge of the propriety of such a measure"; that the master, being in want of money to defray the charges of repairing the vessel, and unlading the cargo, borrowed of the aforesaid F—— Calvert the sum of £5,273. 12s. on a certain bottomry bond, bearing the date 31st January, 1801, binding the ship and appurtenances, cargo and freight, to the said sum of £5,273. 12s., within twenty-four hours after the arrival of

1 Chr. Robinson, 240.

the said ship in the port of London, or any other port; that the said bond had been duly presented to the master, who refused to discharge it; that the holder had no other means of recovering his debt than by proceeding against the ship, freight, and cargo, and prayed the court to decree a monition against the bail given, to answer the action in respect to the cargo and freight, for payment for the balance due, after payment of the proceeds of the sale of the ship.

On the other side it is alleged "that the master had not, under the circumstances stated, a right to hypothecate the cargo for the repairs of the ship, for payment whereof the ship, her master, owners, and freight are liable; that the cargo is by law only subject to pay an average proportion of the charges to which the cargo laden in the ship was liable to, for the unlading and reshipping the cargo, and other expenses relating thereto, all which, with the freight, the parties had always been and were willing to pay."

The proposition contained in the act does not go the length of asserting universally that the master has not a right to hypothecate his cargo in any possible case, but denies the power of the master to hypothecate it under the circumstances of this particular case. In the course of the discussion, however, the argument has been carried to the entire extent, and it has been contended that the master has no right to bind the owners of the cargo in any case; upon this ground, that, although he is the agent and representative of the ship, and by virtue of that relation may bind the ship and its owners, he is not the agent of the proprietors of the cargo, and therefore cannot bind it. It is said that he is the mere depository and common carrier as to the cargo, and that the whole of his relation to the goods is limited to the duties and authorities of safe custody and conveyance. This position-that in no case has he a right to bind the owners of the cargo-is, I think, not tenable, to the extent in which it has been thrown out; for though, in the ordinary state of things, he is a stranger to the cargo, beyond the purposes of safe custody and conveyance, yet, in cases of instant and unforeseen and unprovided necessity, the character of agent and supercargo is forced upon him, not by the immediate act and appointment of the owner, but by the general policy of the law. Unless the law can be supposed to mean that valuable property in his hand is to be left without protection and care, it must unavoidably be admitted that in some cases he must exercise the discretion of an authorized agent over the cargo, as well as in the prosecution of the voyage at sea as in intermediate