of foreign industry and art, which might come in competition with those of our own; and it has been observed, not without surprise, that some licences themselves have given a countenance to this practice. Where the licences have expressly permitted the introduction of such goods, this court cannot take upon itself to withhold from the individual the benefit of such licences, however obtained; but it will always consider it to be its duty to look to the licence for the enumeration of the goods that are to be protected by it. In the present case it appears, that the terms of the licence have not been followed in this respect. Here is a licence for barilla, wool, liquorice, orchilla wood, and dying wood; yet there are other articles, a considerable quantity of wine and some hides on board. It is said that these, comparatively with the burthen of the vessel, form but a very trifling part of the cargo. Be the quantity what it may, it ought to have been provided for in the enumeration which the merchant submitted to the discretion of government when he applied for his licence. As it now stands, I must consider this part of the cargo as totally denuded of any authority under the licence, and therefore subject to condemnation.' The same point, as to the nature of the articles constituting the cargo, was again decided in the case of the Vriendschap (1). The question turned upon a quantity of barilla sent from London to Rouen; the claimants had obtained a licence to export certain enumerated articles thither, but barilla was not included in that licence: Sir William Scott condemned it. "The shipper," said he, "obtains a licence, which is a thing stricti juris, to be obtained by a fair and candid representation, and to be fairly pursued. Is this a fair execution of the licence? I cannot think it is. It is certainly a good logical rule, not to argue ab abusu contra usum; but if it is clear that the abuse would be certain and frequent, and impossible to be prevented in numerous cases which must occur, then the abuse so probable, certain, and frequent, is a fair argument against the allowance of the practice. If the Court is convinced, that, out of a thousand instances, there would be nine hundred and ninety-nine of abuse, in opposition to one fair and bona fide execution of such an intention as is here alleged, it is reasonable to conclude, that such a practice would not be permitted. If this could be admitted, what has any British merchant to do, but to put articles of any sort on board

(1) 4 Rob. Rep. 96.

under such pretences? and how is it possible to prevent them from going without molestation into the hands of the enemy ?"

Another material circumstance in all licences is the limitation of time in which they are to be carried into effect; for as it is within the view of government, in granting these licences, to combine all commercial and political considerations, a communication with the enemy might be very proper at one time, and at another very unfit and highly mischievous; it might be highly proper in 1799, and highly inexpedient in 1801. Time therefore appears to be a very important ingredient; if the party takes upon himself to extend the term of the licence, in this repects it would be a licence not reasonably assumed (1). Two circumstances are required to give due effect to a licence: first, that the intention of the grantor shall be pursued; and secondly, that there shall be an entire bona fides on the part of the user (2); but where a licence was limited to be in force until the 29th of Sept., and the ship did not sail from the foreign port till the 4th of Oct., it appearing that the goods were loaded on board by the 12th of Sept., and the adventure was then bona fide prosecuting under the licence, this was held legal. (3)

But these are not all the particulars in which a licence is construed strictly by the courts: the port of shipment also appears to be of moment. In the case of the Twee Gebroeders (4), it appeared that the vessel had obtained a licence for the purpose of bringing away a cargo from Bourdeaux to any port of this kingdom. The parties interested, however, thought proper, without any communication with government to change this licence, so as to accommodate it to a voyage from the port of St. Martin's: Sir William Scott condemned the ship and cargo. "It has been said," observed he, in giving judgment, "that specific licences were at the time obtained for the purpose of carrying on this trade from St. Martin's, and that the deviation cannot therefore be considered as contrary to the policy of government; but I cannot consider that as a sufficient excuse: such an alteration can only be made upon a particular representation, leaving government to judge of

(1) Cosmopolite, 4 Rob. Rep. 12, 13. Vandyck v. Whitmore, 1 East, 475. 4 Rob. 13.

(2) Per Sir Wm. Scott, Cosmopolite, 4 Rob. Rep. 12, 13.

(3) Schrooder v. Vaux, 15 East, 52, 3. Groning v. Crockett, 3 Campb. 83. S. P.

(4) 1 Edwards, 95.

the terms on which it may be proper to comply with the request. What is the ground of the policy of granting licences at all, but that government may see what communication is going on with the enemy: and therefore I do not think that a case, in which the real port is not disclosed, does come within that latitude of interpretation which the necessities of commerce might tolerate. Parties cannot be permitted to take licences for one purpose and apply them to another; in such a case it would be going beyond the powers of this court to extend its protection."

With respect to the limitation of the use of the licence to the precise persons for whose advantage it has been obtained, some difference of opinion appears to have prevailed. In the case of Defflis v. Parry (1), the following facts were proved :—A licence had been granted to Messrs. Bridge and Smith, enabling themselves, or their agents, or the bearers of their bills of lading on board six ships, to import certain goods. Other persons, by the permission of Messrs. Bridge and Smith, had imported goods in one of these ships, and bills of lading had been made out, by which the captain undertook to deliver the cargo, not to Messrs. Bridge and Smith, but to the shippers or their order: the shippers accordingly wrote to the merchants in London, by whom they were employed, enclosing one of the bills of lading indorsed in blank. But the same shippers also indorsed one general bill of lading for the whole cargo to Messrs. Bridge and Smith. The question was, whether this bill of lading, indorsed to Messrs. Bridge and Smith, who evidently had not the property of the goods, should be considered as the true bill of lading, or only as a fraudulent paper for the purpose of protecting the property of those who were not within the terms of the licence? Lord Alvanley thought the general bill of lading, indorsed to Messrs. Bridge and Smith, sufficient to protect the whole transaction. "I have no difficulty," concluded his Lordship, "in saying, that it was the intention of government, that any goods which should come to this country under their bill of lading, and with their permission, should be protected by the licence. I believe it to be within the knowledge of government, that this sort of use is made of the licences granted to individuals. We are not to construe the acts of government strictly against the merchants: if it had been in

(1) 3 Bos. and Pul. 3.; and Hagedom v. Reid, 1 M. & S. see Feise v. Bell, 4 Taunt. 4. 567.

tended that the licence should have been more confined, I think it would have been so expressed. It appears to me, that a fair use has, in this instance, been made of the licence, the terms of which fully warranted the transaction." Shortly after this decision, a case, precisely similar, came on in the Admiralty Court before Sir William Scott, who decided contrary to this judgment of the Common Pleas. This was the case of the Jonge Johannes (1). Messrs. Bridge and Smith were the ostensible owners in this case also. This licence, as in the last case, extended not only to themselves, but to their agents and to the bearer of their bills of lading; and, as before, a general bill of lading had been made out to them, while there were other bills of lading, by which the master was bound to deliver the several parcels to the order of the Dutch shippers. Sir William Scott thus expressed himself upon the facts of this case: "Is it possible to say that these parties come under either of the descriptions of persons mentioned in the licence? Bridge and Smith are certainly not the importers, because the real and effective bills of lading consign the goods to other persons; they cannot claim any interest before the court. Are the claimants the agents of Bridge and Smith? Certainly not: that house appears rather to act as the agents of these persons, and to have no original interest in the shipment. Then the only possible character in which the claimants can stand before the court, is that of bearers of their bills of lading, as deriving a title from bills of lading transferred from Bridge and Smith. There was a general bill of lading on board, consigning the property to Bridge and Smith; but it appears clearly that this was meant to operate only as a formal paper, by which no right whatever was to be conveyed; there being other bills of lading on board, by which the master was bound to deliver the several parcels to the order of the Dutch shippers. Then how can I restore these goods under either of these titles? The only persons to whom I am authorised to restore, are Bridge and Smith as importers, or their agents, or persons holding their bills of lading, and claiming under bills of lading which Bridge and Smith, after having conducted the importation from the enemy on their own account, had transferred to them. Seeing that there is no apparent violation of good faith towards the public in the parties interested in this claim, I am sorry to be obliged to pronounce that there is no character in which they can receive

(1) 4 Rob. Rep. 263; and see Mennett v. Bonham, 15 East, 477.

restitution. The great principle in these cases is, that subjects are not to trade with the enemy, without the special permission of the government; and a material object of the controul which government exercises over such a trade is, that it may judge of the particular persons who are fit to be entrusted with an exemption from the ordinary restrictions of a state of war (1). I hardly conceive I am, upon any principle, warranted to declare, that when a licence is granted to one person, it may be extended to the protection of all other persons who may be permitted by that person to take advantage of it." The case of the Aurora (2) establishes the same general doctine as to the employment of the licence by the party to whose use it was granted, or by some person legally connected with him, for the purpose of that particular transaction.

The licence which came into question in the case of Timson and Merac (3) was very liberally construed by the court of King's Bench. This licence was proved to have been obtained for Merac and Co. and other British merchants, to authorise an importation of brandy, being according to the words of the instrument, the property of the said persons, or some of them, as might be specified in their bills of lading. Under this licence brandy was imported, of which Merac and Co. were the guarantees, but in which they had no absolute property of their own. "If," said Lord Ellenborough," the licence had only extended to cover the property of Merac and Co. and they had no other interest in the goods than appears upon the statement of this case, it might have been contended not to be sufficient to cover this adventure; but it includes other British merchants; and it afterwards says, being the property of the said persons or some of them. It might, indeed, have been a more certain means of avoiding fraud, if the names of the persons really interested were specified in the licence; but the act of parliament does not require this, and it appeared at the trial that the licence in question was in the common form. The articles, however, licensed to be imported are specified, together with the ship and the time; and there could be no more than that ship could contain in one cargo; and these checks seem to have been thought sufficient for the purpose in view, without greater particularity."

(1) See Argument in the Hendrick. 1 Acton's Rep. 326. (2) 4 Rob. Rep. 218.

(3) 9 East, 35.; and see Haydon v. Reid, 1 M. & S. 567, 3 Campb. 377. S. C.