Although the state of Europe, in which the late extensive system of licenses originated, has passed away, most probably never to return; yet, as in some future war, a condition of things may arise, requiring a partial application of the same system, it may not be useless to explain the principles, and to refer to the leading decisions, upon which the practice of granting and interpreting licenses was controlled and regulated.

The navigation laws, and more especially the celebrated act of 12 Chas. 2. c. 18. (the basis of our commercial system,) being the statutes of the realm, could not of course be dispensed with by the prerogative of the crown. But it has been found necessary on many occasions to have recourse to parliament to suspend their operation in time of war. Various acts therefore were passed, to alter or qualify them according to the new condition of things which was produced.

By these acts, a special power is given to the King in Council to modify or dispense with such provisions as might be found expedient in particular conjunctures. Under some of these statutes, licenses were directed to be granted by an Order in Council, &c.: under others, the Secretaries of State, by an authority under the King's sign manual, and in pursuance of an Order of Council specially authorizing the grant, were empowered to act in the place of the sovereign. The principal acts were, the 43 G. 3. c. 153. s. 15., 45 G. 3. c. 34., 46 G. 3. c. 111., 47 G. 3. c. 27., 48 G. 3. c. 37., 48 G. 3. c. 126., 49 G. 3. c. 25., 49 G. 3. c. 60. As the authority to grant these. licenses was derived from the whole legislature, the power under them was consequently restricted to the letter and reasonable intendment of the several acts, and could not be extended farther than the statutes themselves permitted.

Independently of this power of bestowing licenses, by which the restrictions of the navigation law were dispensed with, the Crown, by its prerogative, already possessed a power of granting privileges and dispensations, by which it receded from its own rights in a state of war. Upon these conjoint legal powers, therefore, viz. the licenses by statute, which was an enlargement of the powers of the Crown by acts of parliament, and the licenses by prerogative, which were of inherent right, was built a system sufficiently large to accommodate itself to Europe under the Milan and Berlin decrees. Being granted for commercial purposes, they were not deemed to be strictissimi juris: they were not construed so tenaciously as the grants of the Crown in ordinary to the subject. Their object was to disembarrass commerce from the restrictions which the enemy had thrown upon it. The Crown, in these licenses, gave nothing but a more extensive liberty of trade and commerce; of importation and exportation. It no way diminished its own stock, whilst it consulted the interest of the revenue. Hence it became, though not indeed in the first instance, a practice of the Courts

of Admiralty, and likewise of the Courts of common law (in which such licenses came incidentally under their cognizance in questions of policies of insurance, freight, &c.) to interpret them liberally and largely, and with none of that jealous apprehension of the subject taking more than the Crown intended to give, by which royal grants had been fettered and controlled at common law.

It would be a want of due professional feeling, now that the subject presents itself, not to join the humble testimony of the writer of this note (with the concurrent praise of all) to the profound and accurate learning of Sir William Scott, who, in the administration of this law, has shewn how the most liberal equity can be reconciled with the requisite certainty of law. He is in fact the author of the whole learning of the law relating to the system of licenses. And if it be considered how suddenly and unexpectedly the circumstances arose, it must be matter of reasonable admiration, and of the most unqua lified praise, that a connected set of principles, so consistent with law, and the practice of the Courts, was as immediately invented to meet and embrace them. It must remind the

common lawyer of the celebrated fiction of uses, so ingeniously invented and introduced by the clergy to evade the statutes of mortmain. The law of licensing, a term and title already known to the Admiralty Courts, was thus extended to comprehend a new and unexpected state of things. A certain nature, suitable principles, and rules, were given to it; and most ingeniously, and at the same time most learnedly, they were made to accommodate themselves to all the cases which could occur. The limits of a note will only enable us to give a summary of the leading cases which have been decided upon this subject.

We have already observed, that the King, who is the arbiter of foreign commerce, may regulate it, except he be restrained by statutes; but he cannot change the law of the land, or the law of nations, by general and unlimited regulations.

He may give an enemy liberty to import; he may place a whole district, though the. member of a hostile country, in a state of amity; he may exempt any individual from the operation of war. 1 Acton, 313.

But a license to an enemy to import goods must be ex

press, for an enemy will not be protected by a general license. 1 Acton, 313.

In all cases, however, in which the King grants a license, he may also qualify it, in which case the parties seeking to protect themselves under it must conform to its regulations. 1 East, 475.

In the case of the Cosmopo lite, 4 Rob. 11. Sir William Scott says, a license is a high act of sovereignty: they are necessarily stricti juris, and must not be carried farther than the intention of the great authority which grants them may be supposed to extend. I do not say that they are to be construed with pedantic accuracy, or that every small deviation shall vitiate the fair effect of them."

Again that learned Judge observes, "the shipper obtains a license, which is a thing stricti juris, to be obtained by a fair and candid representation, and to be fairly pursued." 4 Rob. 96.

In this case, the Cosmopolite, Sir William Scott, proceeds to lay down certain rules for the obtaining and construction of licenses, which are most fit to be attended to. "Two circumstances," he says, " are required to give due effect to a license: 1st, that the intention