Insurances on been held that a policy "to any port or ports in the Baltic” voyages and ports. trading adven- was legal, though some of those ports were hostile to this tures to hostile country, and no licence had been obtained; for non constat, and the evidence did not show that the ship, when captured, was sailing with a fixed destination for a hostile Baltic port. (h) So, a policy of insurance is not vitiated by its containing a liberty for the ship to proceed to any port in a particular sea, in which there are both hostile and neutral ports, unless it can be shown that it was intended the ship should, in fact, sail to one of the former. (i) Although an insurance on goods, the property of a neutral, to a port occupied by the enemy, would, as it seems, be void; yet an insurance on such goods to a friendly or neutral port, there to be delivered for the neutral, would be valid, though the neutral himself might be resident in the port of hostile a port of hostile Occupation. (j) occupation. necessary to decide as to the hostile or nonhostile character of ports occupied by the forces of Napoleon. Principles on which our courts proceed ed, as laid down by Lord Ellen During the unexampled circumstances of the last war, when Napoleon, by the Berlin and Milan decrees, endeavoured to exclude English commerce from all the ports of the Continent, our courts were frequently called upon to decide as to the hostile or non-hostile character of ports which were occupied by the arms, or coerced by the power, of the conqueror who aspired, and almost attained, to an universal empire over Europe. Our courts were naturally desirous not to defeat any contracts made to protect British trade with ports so situated, where they could possibly be upheld in compliance with the known rules of the law of nations. "It belongs," they said, "to every state to pronounce upon the continuance either of Bell, M. & amity, hostility, or neutrality, as between itself and every other state; and although the government of any port thus occupied by the enemy's forces, may, in compliance with his borough in Hagedorn v. Sel. 459, 460. (h) Wright v. Welbie, 1 Chitt. 49. S. P. Anon. ibid. See also, as to insurance to any port or ports in the island of St. Domingo, when partly in possession of the French, partly of King Christophe, Johnson v. Greaves, 2 Taunt. 344. Blackburn v. Thompson, 3 Camp. 61. (i) Muller v. Thompson, 2 Camp. 610., per Lord Ellenborough. (j) Bromley v. Heseltine, 1 Camp. 76. voyages and trading adven tures to hostile ports. wishes, and in furtherance of his policy, have taken measures Insurances on against this country which would justify us in treating such government as hostile, yet we are not bound to take up even a just ground of offence; but, if we deem it expedient, in consideration of the convulsed state of European commerce, may overlook the provocation, and, instead of enforcing against the coerced government the rigours of war, prefer to maintain our ancient commercial relations of amity and peace." (k) The principle, accordingly, upon which our courts acted with respect to such ports, was to treat them as neutral, and, consequently, all trading to them as legal, in all cases where they still preserved the forms of an independent neutral government, though the enemy might have such a body of troops stationed there as effectively to exercise the real powers of sovereignty. Such ports were always regarded as neutral where no British order in council them hostile, had declared and where they still preserved the forms of an independent neutral government, though occupied by an overwhelming force of the Thus, where it appeared, that although the island of Corfu was in the occupation of an overwhelming Russian force, yet the flag of the Ionian republic still flew from its ports, and the republican government still continued to appoint a enemy. port admiral and receive consuls from foreign states, Lord Ellenborough held that Corfu was neutral, spite of the hostile occupation. (7) So, in the year 1811, when our commerce was totally excluded from the ports of Prussia, under the Berlin decree, and no diplomatic intercourse subsisted between the two states, Lord Ellenborough decided that, as no acts of open hostility had passed between them, Prussia was not to be considered in a state of war with this country, and, therefore, that an insurance effected on the property of a British subject shipped hence for a Prussian port, was not illegal. (m) During the period that Hamburgh was in the military occupation of Davoust with an overwhelming French force, (k) See the elaborate judgment of Lord Ellenborough in Hagedorn v. Bell, 1 Maule & Sel. 459, 460. (1) Donaldson ບ. Thompson, 1 Camp. 429. (m) Muller v. Thompson, 2 Camp. 610. 2 Donaldson v. Thompson, 1 Camp. 429. Muller v. Thompson, Camp. 610. Hagedorn v. Sel. 450. but while the senate of Hamburgh still continued in the full exercise of sovereign civil authority, an insurance was effected in this country on goods, the property of certain persons domiciled at Hamburgh, and shipped from London for a Baltic risk, under a licence to cover British and neutral trade. The question was, whether the parties interested, being domiciled at Hamburgh, were neutrals, so as to protect the trading under this licence, and give validity to the insurance effected on it. Lord Ellenborough and the Court of King's Bench held that they were; for Hamburgh having still the forms of her own government must be regarded as a neutral port, though under hostile occupation, and had not been declared otherwise by any orders in council subsisting when the risk attached under the policy. (n) It always belongs to the government of the country to determine in what relation any other country stands towards it; wherever, therefore, our government, in the course of the last war, by order in council, proclamation, or other act of supreme authority, declared any ports in the colonial or other possessions of the enemy not to be hostile, or when such order, &c., though issued for another purpose, contained a recognition that there were such non-hostile ports, a trading with such ports, though not directly sanctioned or permitted by the order, was held to be legal without a licence, and insurances effected to protect such trading were upheld as valid. This principle was illustrated by decisions of the courts with regard to those ports in the island of St. Domingo in possession of King Christophe, then in a state of rebellion against our enemies the French; and it was held on more than one occasion, that trading between this country and such ports was valid without any licence. (0) (n) Hagedorn v. Bell, 1 Maule & Camp. 61. See also the case of At- (0) Johnson v. Greaves, 2 Taunt. $44. ART. 3. Of Licences to trade with the Enemy or to hostile § 271. The executive power of the state, being the sole and supreme arbiter of all questions relating to peace and war, may grant to any such of its subjects as it pleases, any privilege or licence to trade with the enemy, or to hostile ports, on any terms and for any period that may appear expedient. of licences to enemy or to trade with the hostile ports. The executive state may grant power of the licences to legalise trading that would otherwise be unlawful. The licensing system of the During the last war, when Napoleon endeavoured to paralyse our commerce by closing all the ports of the Continent against us, it became necessary on our parts to legalise a vast number of mercantile enterprises, which would otherwise last war. have been held illegal, on the strict principles of the lex belli. The mode in which this was effected was by licences granted by the authority of the king in council, giving permission to carry on various branches of trade with the different European ports, which were either comprised in the dominions or occupied by the arms of the enemy. As the tendency of Napoleon's system was to throw a vast proportion of the carrying trade of Europe into our hands, while the policy of our government was to encourage such trade by every means in their power, the number of such licences became very great, and the decisions of the English courts upon them proportionably numerous. It may reasonably be hoped that such a state of things as Not likely to gave rise to the licensing system will not recur in Europe, recur. at all events in our day; with the disuse of the system itself the cases decided upon it have ceased to be of any immediate practical importance; but as it may be considered desirable Summary of to possess the means of referring to them, the following summary of the principal points and distinctions which they established is taken without alteration from the treatise of Mr. Marshall: the cases. A licence to a British subject, " on behalf of himself and Licence to exothers," will legalise the exportation of a British cargo, con- port. signed to an alien enemy at a hostile port, whether it be the Of licences to trade with the enemy or to hostile ports. joint property of British subjects and alien enemies (p), or the sole property of, and exported by, alien enemies. (7) And the cargo may be insured against seizure by the government of such enemy's country. (r) A licence to export, granted to A. " and other British merchants," is good, though A. be only the agent of the British merchants really interested (s): but to entitle the latter to the benefit of it, they must connect themselves with it, either by showing that they were the persons for whom it was intended, or by proving agency. (t) And where an alien enemy, who had been residing here by permission, obtained a licence in this form, but not till after his licence to reside had expired, and he had quitted this country, the exportation was not protected, and the insurance of it was void. (u) If the party interested be falsely described in the licence, as "A. B. of London," when, in fact, he resides elsewhere, the licence is vitiated. (v) A licence to a British subject, for a particular ship to go to a hostile country, will protect a cargo purchased in England, on account of, and consigned to, an alien enemy in the hostile country. (w) If a licence to export contain a condition, precedent to the protection of the voyage, as that the exportation shall be |