The same liberality of construction appears also in the case of Rawlinson against Janson (1). A licence had been granted, extending protection to the cargo in question, upon satisfactory proof been made, that such cargo was really shipped by or under the directions of Henry Noden or his agents, for the purpose of being exported to some port on the river Elbe, Weser, or Jalide. It appeared that Henry Noden, on whose application this licence was obtained, after the goods were shipped, was only an agent for the persons really interested in the cargo, who were British merchants at Liverpool. Lord Ellenborough held that this was sufficient to protect the adventure under the licence, and the plaintiff's recovered. Upon a motion for a new trial, the Attorney General took the opinion of court, whether this were a sufficient compliance with the terms of the licence? But all the court were satisfied that it was sufficient; and Lord Ellenborough said, "that the object of inserting the name of a particular person in these licences, was to prevent their being obtained and handed about at large, by which means they might have been made an improper use of. But he had no doubt that Henry Noden, the person named, being proved to be the agent of the British merchants really interested in the adventure, sufficiently identified the licence with it." However, the case of Barlow and M'Intosh (2) throws much light on the two preceding decisions, and shews that they are not to be construed in quite so favourable manner as the terms of them might induce a hasty observer to conclude. A licence had been granted enabling Richard Smith and other merchants to import and export certain articles. The captain of the ship produced at the trial this licence, which he had received, previously to the voyage, from Mr. Schmaling, a merchant in London, the shipper of the goods in question, and which licence was on board during the whole voyage. The counsel, in support of the licence, referred to the before-mentioned cases of Defflis and Parry, and Timson and Merac, as cases turning on the generality of these trading licences, which had received a liberal construction, in furtherance of the trading interests of the country, meant to be facilitated by them. But the court observed, that in the latter of these cases, the licence was granted in the name of Merac and Co. who were sued upon their guarantee of the contract for the importation of the goods under the licence; and in the other case the importers of the goods under the licence were proved to have acted in con 66 nection with the persons to whom the licence was granted; and therefore those transactions were quite in the regular course. Le Blanc, J. further observed, that the licence, in this case, did not appear, by any evidence, to have been in the shipper's hands till above three months after the date of it, when it was given by him to the captain. And Lord Ellenborough, Ch. J. said, “ that, previous to the time when the licence was proved to have been in the possession of Schmaling, and to have been by him delivered to the captain, it might have served for three voyages to Holland. It might have dropped out of the pocket of the person entitled to it, and been found by the present possessor of it. The possibility of such facts existing, consistently with the evidence given at the trial, called upon the shipper of the goods, who endeavours to avail himself of it, to connect himself by other evidence than the mere possession of the particular licence; otherwise, in the absence of all proof of such connection, there was a natural suspicion, a preponderance of probability, that the licence had been used before to cover an antecedent voyage, and against the lawful use of it upon the voyage in question. The state of the commercial world may make it expedient to grant licences in this very general form; but this generality subjects the practice to abuse. If the party who produces and seeks to avail himself of it, be required to shew when and how he obtained the possession of it, that will be a salutary check upon the abuse of it. I did not require the assured, at the trial, to shew that he was the person who obtained the licence from the Privy Council office. I am aware of the difficulties which may exist in disclosing the names of the real parties to the adventure, and the adventure itself; but he might have shewn that he obtained possession of it lawfully from the person by whom it was taken out. But if it be sufficient for a party, at any time, to stand upon his mere possession of such a general licence, there can be no check whatever upon any indefinite abuse of them." There is another case (1) respecting the persons by whom the licence may be employed, which relates not, like the preceding cases, to the question, whether the party employing the licence be in reality the party for whose benefit, government intended it should operate, but to the question of national character. The point in dispute was, whether a licence granted to Mr. Ravie of Birmingham, for the importation of certain goods from Holland into this country, would operate to protect a shipment made by him in person in Holland, and under papers describing the firm of his house as Ravie and Co. of Amsterdam? Sir William Scott decided that it would not, and condemned the property. It has recently been decided that a general licence is to be construed strictly, and not to extend to protection of enemy's property (1); but a licence particularly specifying any flag, protects even enemy's property. (2) Sometimes a licence is granted upon an express condition; and then it is, of course, required that the condition be truly and fairly performed. This was decided in the case of Vandyck and Whitmore (3), where Lord Kenyon said, "Though the king may, at common law, licence a trading with the enemy generally, yet he may also qualify his licence; in which case the party seeking to protect himself under such licence must conform to the requisitions of it." The same point will also be found in a note of the case of Gordon and Vaughan, annexed to the case of Shiffner and Gordon. (4) A licence, by its very nature, is calculated to subsist only during the continuance of the war in which it was granted. "Peace having been concluded," says Sir William Scott, in the case of the Planters Winsch (5), "a licence is necessarily done away and destroyed, having no subject matter to act upon." We will now inquire, how far a licence granted by an ally in the war, is legally capable of protecting the property which it is designed to cover? In all innocent articles of commerce, it appears that a state is, of course, at liberty to authorize the dealings of her subjects with the enemy, without any express permission from any of her allies; but in articles that are contraband of war, the rule is otherwise, because the common cause may be directly and materially injured by such traffic. Sir William Scott, in the case of the Neptunus (6), said, “A practice has crept in, of admitting particular relaxations; and if one state only is at war, no injury is committed to any other state. It is of no importance to other nations, how much a single belligerent chooses to weaken and dilute his own rights, but it is otherwise. (1) The Josephine, 1 Acton, 313. (2) The Hendrick, 1 Acton, 322. 2 Rob. 162. (3) 1 East, 486. when allied nations are pursuing a common cause against a common enemy. Between them it must be taken as an implied, if not an express contract, that one state shall not do any thing to defeat the general object. If one state admits its subjects to carry on an uninterrupted trade with the enemy, the consequence may be, that it will supply that aid and comfort to the enemy, especially if it is an enemy depending, like Holland, very materially on the resources of foreign commerce, which may be very injurious to the prosecution of the common cause and the interests of its ally. It should seem that it is not enough, therefore, to say that the one state has allowed this practice to its own subjects; it should appear to be, at least, desirable that it could be shewn, that either the practice is of such a nature as can in no manner interfere with the common operations, or that it has the allowance of the confederate state." A licence duly granted by the King by virtue of his prerogative, or in pursuance of an act of parliament, legalizes a trade with the enemy in every respect. It was therefore held, in the case of Kensington v. Inglis (1), that where a certain trading with an alien enemy, for specie and goods to be brought from the enemy's country in his ships into our colonial ports, was licensed by the king's authority, that an insurance on the enemy's ship, as well as on the goods and specie put on board, for the benefit of the British subjects, was incidentally legalized; and that it was competent for the British agent of both parties, in whose name the insurance was effected, to sue upon the policy in time of war; the trust not contravening any rule of law or of public policy, and there being no personal disability in the Plaintiff on the record to sue. But it was observed by Lord Ellenborough in that case, that the king's licence cannot have the effect of removing the personal disability of an alien enemy, SO as to enable him to sue in his own name. If, however, the alien reside in this country with the king's permission, he might, in such case, sue in his own name. It was therefore held, in the case of Usparicha v. Noble (2), that a native Spaniard, domiciled here in time of war between this country and Spain, having been licensed in general terms by the king to ship goods in a neutral vessel from hence to certain ports in Spain, such com❤ merce was legalized for all purposes of its due and effectual prosecution, either for the benefit of the party himself or of his Orders in Of Dispensations founded on particular Acts of Parliament by Orders in Council. correspondents, though residing in the enemy's country; and that such goods may therefore be insured by him, either on his own account or as agent for them, and that he might sue and recover upon the policy in his own name in case of a loss. With respect to the issuing of orders in council by virtue of the King's prerogative, and independently of any act of parliament, there is little to be said which has not been anticipated in our general remarks on the power of the King as arbiter of commerce. Many of the rights which he possesses in that capacity are exercised through the medium of orders in council. It is usual, when a permission is to be given to a particular individual, to grant it by licence; but orders of council are of a more general nature, and contain dispensations or prohibitions extending to a whole branch of commerce. It is scarcely necessary to add, that any thing which the statute law or the common law has ordained, cannot be contravened by an order in council, except in those cases where an act of parliament comprehends, amongst its own clauses, a power to the king of dispensing with its enactments. (1) Though we have seen that the king has not, by virtue of his prerogative, a power to dispense with the common law or any legislative provision, yet it has been usual, particularly during war, to give to the king in council a power of modifying or dispensing with such provisions as it may be found expedient, in particular conjunctures, to alter or suspend; for the interests of commerce being of so variable a nature, and depending so much on circumstances suddenly arising, it would be very difficult, not to say impossible, during war, to make them generally subject to any permanent legislative provision. Thus the 43 Geo. 3. c. 153. s. 15 and 16. after reciting that it is expedient that his Majesty, by order in council, &c. should be authorized to permit, during the continuance of hostilities, and until six months after the ratification of a definitive treaty of peace, the importation, in any neutral ships whatever, of any goods from any port belonging to a state not in amity with his Majesty, enacts, "that it shall and may be lawful for his Majesty, by order in council, and, in Ireland, for the Lord Lieu (1) Taunt. 227. 12 East, 296. Com. Dig. Prerogative. |