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Vaughan and Taddy, for plaintiffs.
The Solicitor General and Spankie, for the defendant.
[Attornies, Pearce and Son.. Growder and Lapie.]
Although the state of Eu. By these acts, a special power rope, in which the late exten- is given to the King in Coun. sive system of licenses origi. cil to modify or dispense with nated, has passed away, most such provisions as might be probably never to return; found expedient in particular yet, as in some future war, a conjunctures. Under some of condition of things may arise, these statutes, licenses were requiring a partial application directed to be granted by an of the same system, it may not Order in Council, &c. : under be useless to explain the prin- others, the Secretaries of State, ciples, and to refer to the lead. by an authority under the ing decisions, upon which the King's sign manual, and in practice of granting and inter- pursuance of an Order of preting licenses was controlled · Council specially authorizing and regulated.
the grant, were empowered to The navigation laws, and act in the place of the sove. more especially the celebrated reign. The principal acts were, act of 12 Chas. 2. c. 18. (the the 43 G. 3. c. 153. s. 15., 45 basis of our commercial sys. G. 3. c. 34., 46 G. 3. c. 111., tem,) being the statutes of the 47 G. 3. c. 27., 48 G. 3. c. realm, could not of course be 37., 48 G. 3. c. 126., 49 G. dispensed with by the preroga- 3. c. 25., 49 G. 3. c. 60. tive of the crown. But it has the authority to grant these been found necessary on many
licenses was derived from the occasions to have recourse to whole legislature, the power parliament to suspend their under them was consequently operation in time of war. Va. restricted to the letter and rea. rious acts therefore were pass. sonable intendment of the sea ed, to alter or qualify them veral acts, and could not be according to the new condition extended farther than the sta. of things which was produced. tutes themselves permitted.
Independently of this power of Admiralty, and likewise of
1815. of bestowing licenses, by which the Courts of common law (in the restrictions of the naviga. which such licenses came in. Gregg and tion law were dispensed with, cidentally under their cogni
Another the Crown, by its prerogative, zance in questions of policies
Scott. already possessed a power of of insurance, freight, &c.) to granting privileges and dispen- interpret them liberally and sations, by which it receded largely, and with none of that from its own rights in a state of jealous apprehension of the war. Upon these conjoint le subject taking more than the gal powers, therefore, viz. the Crown intended to give, by licenses by statute, which was which royal grants had been an enlargement of the powers
fettered and controlled at comof the Crown by acts of par. mon law. liament, and the licenses by It would be a want of due prerogative, which were of in- professional feeling, now that herent right, was built a sys- the subject presents itself, not tem sufficiently large to accom- to join the humble testimony of modate itself to Europe under the writer of this note (with the the Milan and Berlin decrees. concurrent praise of all) to the Being granted for commercial profound and accurate learning purposes, they were not deem- . of Sir William Scott, who, in ed to be strictissimi juris : they the administration of this law, were not construed so tena. has shewn how the most liberal ciously as the grants of the equity can be reconciled with Crown in ordinary to the sub- the requisite certainty of law. ject. Their object was to dis- He is in fact the author of the embarrass commerce from the whole learning of the law re. restrictions which the enemy lating to the system of licenses. had thrown upon it. The And if it be considered how Crown, in these licenses, gave suddenly and unexpectedly the nothing but a more extensive circumstances arose, it must be liberty of trade and commerce; matter of reasonable admira.' of importation and exporta- tion, and of the most unqua. tion. It no way diminished lified praise, that a connected its own stock, whilst it con. set of principles, so consistent sulted the interest of the re- with law, and the practice of venue. Hence it became, the Courts, vas as immediately though not indeed in the first in- invented to meet and embrace stanice, a practice of the Courts them. It must remind the
1815. common lawyer of the cele.
press, for an enemy will not brated fiction of uses, so inge- be protected by a general liGREGG and niously invented and intro- cense. 1 Acton, 313. Another
duced by the clergy to evade In all cases, however, in
the statutes of mortmain. The Scott.
which the King grants a lie law of licensing, a term and cense, he may also qualify it, title already known to the Ad- in which case the parties seek, miralty Courts, was thus ex- ing to protect themselves under tended to comprehend a new it must conform to its regulaand unexpected state of things. tions. 1 East, 475. A certain nature, suitable prin. In the case of the Cosmopociples, and rules, were given lite,
lite, 4 Rob. 11. Sir William to it; and most ingeniously, Scott says, " a license is a high and at the same time most act of sovereignty: they are learnedly, they were made to necessarily stricti juris, and accommodate themselves to all must not be carried farther the cases which could occur. than the intention of the great The limits of a note will only authority which grants them enable us to give a summary
may be supposed to extend. I of the leading cases which do not say that they are to be have been decided upon this construed with pedantic accusubject.
racy, or that every small den We have already observ- viation shall vitiate the fair ed, that the King, who is the effect of them.” arbiter of foreign commerce, Again that learned Judge may regulate it, except be observes, “the shipper obbe restrained by statutes; but tains a license, which is a he cannot change the law of thing stricti juris, to be obthe land, or the law of na- tained by a fair and candid retions, by general and unlimited presentation, and to be fairly regulations.
pursued.” 4 Rob. 96. He may give an enemy li- In this case, the Cosmopolite, berty to import; he may place Sir William Scott, proceeds to a whole district, though the lay down certain rules for the member of a hostile country, obtaining and construction of in a state of amity; he may licenses, which are most fit to exempt any individual from the be attended to. “ Two cir. operation of war. 1 Acton, 313. cumstances," he says, “ are
But a license to an enemy required to give due effect to a to import goods must be ex- license: Ist, that the intention of the grantor shall be pure spective goods, and one gene- 1815. sued; 2d, that there shall be ral bill of lading for the whole an entire bona fides on the cargo was sent to A,; the GREGG and part of the user. It has been Court of Common Pleas held Another contended that the latter alone the whole cargo to be pro. should be sufficient, and that tected. In this case Lord Ale
SCOTT. a construction of the grant vanley observed, “ we are not merely erroneous should not to construe the acts of Go. prejudice. This is, I think,
This is, I think, vernment strictly against the laid down too loosely. It merchant. If it had been in. seems absolutely essential, that tended that the license should that only shall be done, which have been more confined, ! the grantor intended to permit: think it would have been ex. whatever he did not mean to pressed." permit is absolutely interdict. In the case of the Jonge Jo, ed; and the party who uses hannes, which was a case prethe license engages not only cisely similar, 4 Rob. 263., for fair intention, but for an
Sir William Scott decided in accurate interpretation and ex- direct opposition to the judg, ecution. I do not mean to ment of the Common Pleas, exclude such a latitude as may holding, that when a license is be supposed to conform to the granted to one person it canintentions of the grantor lite- not be extended to the protecrally understood.”
tion of all other persons who In the early cases upon li. may be permitted by that percenses in the common law son to take advantage of it. Courts, the inclination of the “ The great principle," he Judges was in favour of a li.
says, in these cases is, that beral construction of them. şubjects are not to trade with Thus in Defflis v. Parry, 3 the enemy without the special Bos. and Pul. 3., where a li- permission of the Government; çense was obtained by A. to and a material object of conimport from an enemy's coun- troul which Government ex. try, in six ships, such goods as ercises over such trade is, that should be specified in his bill it may judge of the particular of lading, and goods were im
persons who are fit to be en. ported on board one of the six trusted with an exemption from ships on account of B., C., and the ordinary restrictions of a D., to whom several bills of state of war.” See likewise the lading were sent for their re- case of the Aurora. 4 Rob.218.
1815. In some subsequent cases, protects even enemy's propet
however, the Courts of com- ty. 1 Acton, 332. So where GREGG and mon law adopted a more li. a license was granted to a BriAnother
beral construction. Thus, tish merchant by name, on beSCOTT.
where a license was granted to half of himself and others, to A., on behalf of himself and
export to Petersburgh, and other British merchants, to import a cargo thence, it was export goods to certain places held, that an alien enemy might within the influence of the lawfully be interested in the enemy, which places were in- export catgo, as well as in the terdicted to British commerce, import cargo.
Feize v. Bell, it was held sufficient to legalize 4 Taunt. 4. The decision in an insurance upon such adven- that case turned upon the geture, if it appeared that A. neral words of the license, was the agent employed for which was to the grantee by the British merchants really name, on behalf of himself interested in it, to get the li- and others. The object was to cense, though he had no pro- facilitate the export of British perty in the goods himself. goods, to effect which the Rawlinson v. Janson, 12 East, goods must necessarily be con223. Sed vide Barlow v. signed to foreigners. A dif. M'Intosh, 12 East, 311.
ferent construction would obWhere a license was granted viously have impeded the comto A. of Birmingham, for the mercial purposes for which the importation of certain goods license was granted. So it has from Holland into this coun- been holden by K. B. that try, Sir William Scott decided a license to J. H. of London that such license would not merchant, on behalf of himself protect a shipment made by and other British merchants, him in Holland in person, and to import a cargo from certain under papers describing the limits, within which an enefirm of his house as A. and Co. my's port was situate, in any of Amsterdam. Jonge Kas: vessel bearing any flag except sind, 5 Rob. 297.
the French, would protect a neral license is to be construed ship trading from that port, strictly, and will not extend to in which ship J. H. and an the protection of enemy's pro. alien enemy were jointly inteperty. The Josephine, 1 Ac- rested. Hagedorn v. Reid, 1 ton, 313. But a license, par- Maule and Selw. 567. The ticularly specifying any flag, Court thought that the true
So a ge