a license is the quality and quantity of goods it protects. A Quality small excess in quantity, or the partial substitution of those of and quantity of a different quality, if free from the imputation of concealment goods or fraud, will not absolutely vitiate the license, under the colour of which they were introduced. The goods not protected by it are condemned, while those which it is admitted to embrace are restored. If the excess in quantity be very small, and not attributable to design, it is intimated by Sir William Scott, that it would not be regarded as an essential deviation; but any change in the quality of the goods cannot be justified or excused, and the articles not protected by the license are condemned. The fraudulent application of a license to cover or conceal goods not intended by the grantor renders it wholly void, and exposes to confiscation even the goods that are embraced in its terms. Thus, where a vessel was licensed to proceed only with a cargo of corn on the voyage described, and a quantity of firearms was stowed under the cargo for concealment, both ship and cargo were condemned.1 to enemy's goods § 15. It was at one time held, that express words were Protection necessary to protect the property of an enemy; but it was finally decided by the Court of Exchequer chamber, that a license containing the words, 'to whomsoever the property may appear to belong,' included goods shipped on accoun' of enemy's subjects. But Duer expresses a doubt whethe. this last decision was not to be referred to the peculiar circumstances of the war, and to be regarded as the fruits of the extreme liberality of construction which prevailed in England at that particular time.2 1 Wildman, Int. Law, vol. ii. pp. 256, 257; the 'Jonge Clara,' 1 Edw. R., 371; the Juffrow Catharina,' 4 Rob., 141; the Nicoline,' I Edw. R., 363; the Vriendschap,' 4 Rob., 96; the 'Goede Hoop,' Edw. R., 336; the Catharina Maria,' Edw. R., 337; the 'Wolfarth,' 1 Edw. R., 365; the 'Seyerstadt,' 1 Dod. R., 241; Kier v. Andrade, 6 Taunt. R., 498. * Duer, On Insurance, vol. i. pp. 604, 605; the Cousine Marianne,' 1 Edw. R., 346; the 'Hoffnung,' 2 Rob., 162; the 'Beurse van Koningsberg,' 2 Rob., 169; Mennett v. Bohnam, 15 East. R., 477; Usparicha v. Noble, 13 East. R., 332; Foyle v. Bourdillon, 3 Taunt. R., 546; Feise v. Bell, 4 Taunt. R., 478; Anthony v. Moline, 5 Taunt. R., 711; Schnakoneg v. Andrews, 5 Taunt. R., 716; Robinson v. Touray, i M. and Sel. R., 217; Hullman v. Whitmore, 3 M. and Sel. R., 337. A license granted to certain British subjects on behalf of themselves and others to export in a specified ship, bearing any flag except the French, a cargo from London to Archangel, being an enemy's port, and to import from thence, in the same ship, certain articles of a particular VOL. II. A A enemy License to § 16. A license to an alien enemy removes all his personal an alien disabilities, so far as is necessary for his protection in the particular trade which is rendered lawful by the operation of the license. In respect to the voyage and trade which the license is intended to authorise and cover, he is not to be regarded as an enemy, but has all the legal privileges of a subject. So far as that particular voyage, trade, or cargo is concerned, he has a persona standi in all the courts, and may maintain suits in his own name, the same as a subject. Where a license is granted to an enemy, it operates as a partial suspension of the war, it being laid down by public writers on the law of nations, that the party so licensed is to be considered as if in amity with the sovereign who grants the license,1 description to any port in the United Kingdom, notwithstanding all the documents which accompanied the ship and cargo may represent the same to be destined to any neutral or hostile port, and to whomsoever such property may appear to belong (Edw. 20), is considered capable of protecting a cargo, either outwards or homewards, which is either in whole or in part the property of an alien enemy. (Hulkman v. Whitmore, 3 M. and S., 100, 307.) So a license granted to C. and H., who were shipowners in London, on behalf of themselves and British or neutral merchants, to load and export a cargo on board the Russian ship 'Fortuna,' from London to any port in the Baltic not under blockade, was held to protect Russian property exported from this country on a voyage to a Russian port, Russia being at war with Great Britain. (Rucher v. Anstey, 5 M. and S., 25.) 1 Bynkershoek, Quæstiones Juris Publici, lib. i. c. 3, cited 8 East. R., 287; Morgan v. Oswald, 3 Taunt. R., 555; Usparicha v. Noble, 13 East. R., 332; Flindt v. Scott, 5 Taunt. R., 674; 15 East. R., 525 ; Fenton v. Pearson, 15 East. R., 419. 'His Majesty,' says Lord Comyn, 'may grant letters of safe-conduct to an enemy, and by this means take him into his keeping and protection; ' see Com. Dig. Prerog., B. 5; Wells v. Williams, 1 Salk., 46; and independently of letters of safe-conduct or passports, a person residing in this country by the license and under the protection of the Sovereign_is not to be regarded as an alien enemy. See Wells v. Williams, 1 Ld. Raym., 282. In like manner, an insurance may be effected upon the interest of an alien enemy under the protection of a license from the Crown. (Hullman v. Whitmore, 3 M. and S., 338.) In the course of the wars of 1810, the conflicting relations in which the different States of Europe were placed towards one another by the overruling power of France rendered it necessary for the interest of Great Britain that the prerogative of granting licenses should be frequently called into exertion. Acts of Parliament were also passed, by which powers were given, during the war, to the King in Council, and to the Secretary of State, to a greater extent than the King's prerogative was alone sufficient to authorise; and, in particular, of granting in certain conjunctures dispensations from the navigation laws, which, being the statutes of the realm, could not be encroached upon by the unassisted § 17. The protection of a license is not limited, in all If cargo be injured cases, to the cargo originally shipped; for if the original cargo should be accidentally injured or spoiled, it may be replaced by a second one, precisely corresponding with that described in the license. A license, says Wildman, was granted to a neutral vessel to import a specified cargo from Amsterdam; the ship having taken on board her cargo, sailed from Amsterdam, but was obliged to put into Medemblick, which bears the same relative situation to Amsterdam that Gravesend does to London. At Medemblick it was necessary to unload the cargo, which was found to be so much damaged that it was not fit to be put on board again. The old cargo was therefore sold, and a new one of the same identical nature with the first, corresponding with it both in substance and quality, was put on board. It was held that, under these circumstances, the parties were not deprived of the protection of the license. The case would have been widely different, if goods of a different description had been taken instead of prerogative of the Crown. (See Shiffner v. Gordon, 12 Rast., 296; and statutes of George III., 4, c. 3; 45, c. 34; 47, c. 37; 48, c. 47; 48, c. 153; 49, C. 25; 49, c. 60.) The licenses so issued were in general granted to British subjects, but sometimes to alien enemies, and generally for certain voyages either to or from an enemy's country, either to export commodities with which the British markets were overstocked, or to import such articles as they stood in need of. Much contrariety of opinion existed with respect to the construction to be put on these licenses, and in particular on the subject whether to any, and to what extent a license of this kind operated to remove the personal disabilities of an alien enemy who may be interested in the property: being a high act of sovereignty, care must be taken that the license is not extended beyond the intention of the power from which it emanated, and that it is not by too great a latitude of interpretation made auxiliary to the purpose of fraud. But subject to this limitation the rule was that the license should receive a liberal construction to effectuate the purpose for which it was intended, and that the terms which it contained were not to be limited in construction where the adventure contemplated had been fairly pursued. It should be remembered that a license is granted not so much for the benefit of the individual upon whom it is conferred, as for the promotion of the national interest; and the strictness of interpretation, which may be applicable in the case of a grant of property from the Crown, cannot be exercised towards such an instrument. A license of this nature, legalising a particular adventure, incidentally legalises all the measures necessary to be adopted for its due and effectual prosecution; it therefore implicitly allows a person whose commerce it authorises, although he be an alien enemy, to protect his interest by insurance; and a British agent, in whose name the insurance is effected, may bring an action upon the policy even during the continuance of war. (Kensington v. Ingles, 8 East., 273.) If it can not be landed Compul sory change of cargo License to import tion for re-exportation the original cargo. Here the original purpose was pursued; no new speculation was originated, nor was there any change, except such as was produced by time, and unavoidable accidents.1 18. A license to export goods to an enemy's port, although limited in terms to the outward voyage, is sufficient to protect both ship and cargo on the return, if the delivery of the goods at the port of destination was prevented by some inevitable accident, as a blockade, or a reasonable apprehension of seizure. But to entitle himself to the benefit of this liberal construction, the claimant must prove that the goods brought back are the identical goods exported under the license.2 § 19. It is never admitted as a valid excuse for receiving on board goods not permitted in the license, that compulsion had been used by the hostile government, and that they were received only to avoid the seizure of the vessel. If such an excuse were admitted, it would open the door to fraud and collusion, as it would be difficult, if not impossible, to discover whether such a transaction, taking place in an enemy's port, was voluntary or not.3 § 20. Where a license is given expressly for importation, it no protec- is held that it can be used for that purpose only, and not for re-exportation. Although the application should be made for a license to import, for the particular and special purpose of re-exportation, the permission to import would extend no further than was expressed in the instrument itself. So, also, a license to import for the purpose of exportation, with condition of putting cargo in government warehouses, as security for re-exportation, must be strictly complied with. Such a license does not cover importations for sale. Course of voyage § 21. The fourth point to be considered in determining the due execution of the license is, the course and route of the voyage. The requisitions of a license as to the port of ship Wildman, Int. Law, vol. ii. p. 258; the 'Wolfarth,' 1 Dod. R., 305; Siffkin v. Glover, 4 Taunt. R., 717. 2 The 'Jonge Frederick,' 1 Edw. R., 357. In time of war Switzerland and other interior countries have been allowed to export and import through an enemy's port, but strict proof of property has been required. (The 'Magnus,' i Rob., 32.) s Duer, On Insurance, vol. i. p. 608; the 'Catharina Maria,' Edw. R., 337; the 'Seyerstadt,' 1 Dod. R., 241. The Vrouw Deborah,' 1 Dod. R., 160. ment or delivery, of departure or destination, must be strictly followed. The same may be said, in general, with respect to the course of the voyage. If the license directs that the ship shall stop at a particular port for convoy, the neglect or omission to comply with the direction invalidates the license. The same result would follow the touching for orders at an interdicted port; but a deviation, for the same purpose, to a neutral or other port not forbidden, although not authorised, seems not to impair the legal effect of the license. Any deviation from the prescribed course of the voyage, if produced by stress of weather, or other unavoidable accident, does not invalidate the license; if the necessity is proved, it is deemed a valid excuse.1 destination § 22. An enemy's ship and cargo, belonging to the same change of owner, and licensed to go to Dublin, were taken going to Leith, a place not named in the license, and to be reached by a course totally different from that indicated; both ship and cargo were condemned. The party not being within the terms of the license, the character of enemy revives, and the property, thus become hostile, is subject to the ordinary rule of confiscation.2 ulterior § 23. An intended ulterior destination does not vitiate the Intended protection of a license, if the parties keep within the terms destinaexpressed and intended by the instrument. Thus, a vessel tion had a license to import a cargo into Leith from a port of the enemy, with an ulterior destination to Bergen. It was held that such ulterior destination did not vitiate the license for the voyage to Leith; but had the vessel been captured after completing the licensed part of the voyage, and on the way from Leith to Bergen, the license would have afforded her no protection.3 to call for § 24. The condition introduced in the license, that the Condition vessel shall stop at a particular port for convoy, is regarded convoy as fundamental, and the breach of it as fatal. The reason for introducing the condition is that the vessel may be subject to inspection in that part of her navigation. In a case where the 'The 'Europa,' 1 Edw. R., 341; the 'Minerva,' 1 Edw. R., 375; the 'Emma,' 1 Edw. R., 366; the Twee Gebroeders,' I Edw. R., 97 ; the Byfield,' I Edw. R., 188. The Manly,' I Dod. R., 257; the 'Edel Catharina,' 1 Dod. R., 55 ; Wainhouse v. Cowie, 4 Taunt. R., 178. The 'Henrietta,' i Edw. R., 363. |