on the conftruction of the claufe granting the exemption. Now 1801. the act which was for the increase of mariners, by giving protections to perfons upon their entrance into the fea fervice, does not Ex parte extend to fuch as were liable to be impreffed before they entered SOFTLY. into that service, in respect of which the exemption is claimed; for fuch perfons do not come within the reafon of the exemption. The binding of one as an apprentice to the fea fervice, who was before that time in a clafs of perfons liable to be impreffed as mariners, would not operate to the increase of mariners, but would [469] rather reduce the number of perfons difpofable at the public fervice. The right of preffing mariners for the navy is, fays Mr. Juftice Fofter (a), a prerogative inherent in the Crown, grounded upon the common law, and recognized by many acts of parlia ment. Amongst the latter he refers (b) to the act of the 2 and 3 Ph. & M. c. 16. which lays a penalty on watermen plying between Gravefend and Windfor, for withdrawing themfelves in the time of prefling by commiffion for the fervice of the crown upon the fea. Upon which he obferves, that though it extends only to watermen on the Thames, yet it fuppofes the legality of fuch commissions, and that these people were the objects of them. A fortiori, therefore, perfons of the defcription of these keelmen, who, though not used to go to fea, are employed in a laborious and femetimes dangerous navigation, which requires great skill and hardihood, in a large navigable river like the Tyne, must be liable to be impreffed. Such perfons come exprefsly within the words and meaning of the order of council on which the prefs-warrants are framed, which include not only feamen and feafaring men, exprefsly fo called, but "others whofe occupations and callings are to "work in veffels and boats upon rivers." That the legiflature in the 13 Geo. 2. c. 17. had the protection of landmen principally in view, who had never before been fubject to be impreffed, may alfo be collected from other ftatutes paffed in pari materiâ, viz. 7 & 8 W. 3. c. 21. f. 15. which enables the Admiralty to give protections for two years to "landmen defirous to apply themfelves to the fea fervice." 2 & 3 Ann. c. 16. f. 4, 5., and 15. protects poor [470] boys bound by parith officers to fea in the merchant fervice till 18 years of age; and alfo, for three years, all fuch as fhall voluntarily bind themselves. Then the ftat. 4 & 5 Ann. c. 19. reciting that the laft-mentioned act was intended for the encouragement of landmen to bind themselves apprentices to the fea fervice, and that the exemption had been abused by protecting feamen who had fo bound themselves, enacts and declares, that no perfon of the age of 18 years shall be exempted from being impreffed who fhall have been in any fea fervice before the time they bound themfelves, &c. It appears alfo from thefe itatutes, that the term landman is ufed in contradiftinction to feaman, and that all perfons are confidered as feamen who are liable to be impreffed for the fea fervice. Park, contrà, admitted that the party was within the defcription of those who were liable to be impreffed by the order of council: but contended that he was exempted by the fpecial provifion of the (a) Foft. Cr. Lazo, 159. (6) Ib. p. 171. and vide stat 4 & 5 Ann, c. 19, f. 18. VOL. I. FL1 ftat. > 1801. Ex parte ftat. 13 Geo. 2. c. 17. f. 2. which exempts all perfons not having be fore ujed the fea, who fhall bind themselves apprentices to ferve at fea. Now here the fact was pofitively fworn to, that Softly" had SOFTLY."never ferved at fea, or been bound before to any other perfon to "ferve at fea." By using the fea must be understood navigating upon the open fea. None of the acts referred to carry the argument further, because they all ufe the fame defcription. And confidering that they were all paffed for the purpose of encouraging perfons to embark in this mode of life, which is a nursery for the navy, under the faith of being protected from being impreffed for a certain [471] period, the words ought to be conftrued in their plain and popular fenfe, adapted to the understanding of that description of men to whom they apply. Lord KENYON C. J. This cafe in its confequences is of infinite importance to the public, fince the existence of the country depends upon its fleets. I have frequent applications made to me as Chief Juftice, out of court, for discharging perfons who have been improperly impreffed a power which, as Lord Mansfield faid, had been exercised by Lord C. J. Holt, and long before his time: but I have never confidered myself at liberty to discharge perfons of this defcription. The power of preffing perfons for the fea service is not general; it goes as far only as the fafety of the country requires that it should, and there it ftops. It extends to perfons whofe employment is upon the fea and in navigable rivers. There can be no question but that perfons employed like this man upon the river Tyne are liable to be impreffed. The only question then is, Whether he is protected under the act of the 13 Geo. 2.? I think not. That act was paffed for the encouragement of land. men, perfons not before used to a fea life, to follow the fea; for which purpofe it gives them a protection from being impreffed for a certain period. But it is faid that this man did not before this time ufe the fea, and therefore that he comes within the exemption, though liable before to be impreffed: but that construction would decrease the number of mariners difpofable at the fervice of the ftate, inftead of increase them as the object of the act purports to do. Befides, if it were neceffary, I am not sure that the mouth of fuch a river as the Tyne is not in a general fenfe to be called the [472] fea. Navigable rivers below the bridges where the sea ebbs and flows are called ftuaria maris (a). The rivers Severn, Mersey, and Dee, have outlets of the fame defcription. The lower part of the Severn, which takes the name of the Briftel Channel, is no doubt the fea; and the outlets of the Merfey and Dee, which are called the æftuaries of those rivers, are fo likewife. It is clear, however, that the perfons employed in this fort of navigation are not thofe, inexperienced landmen whom the legiflature, in order to encourage them to enter upon this mode of life, meant to protect for a time; for the keelmen are for the most part able and expert navigators; and an officer well acquainted with those parts, who joins in the affidavits, fays he fhould prefer as a feaman a perfon of the age of 21, bred to the keels, to one who had been two (a) Vide 4 Inft. 139. 141. 2 Hale, 16. 54. Hale de jure maris, 12. 35, 46, 7. voyages voyages to the Eaft Indies. This perfon it appears is of that age; and it is most obvious that he has bound himself apprentice, not for the purpose of learning his bufinefs, but in order to protect himfelf from being impreffed. And Ithink we fhould be dealing away the fecurity of the country if we were to hold that the protection of the act extended to persons of this defcription binding themselves apprentices. 1801. Ex parte SOFTLY. GROSE J. The only question is, Whether this party is protected by the act of parliament; that is, whether before he became bound he could be faid not to have used the fea? The answer in the affirmative to the question which I put during the argument, namely, whether this perfon before he was bound was liable to be impreffed, in my judgment decides the cafe; for the exprefs object of the act was to increase the number of mariners for the fake [473] of the public fervice, and therefore to hold out an encouragement to landmen, who were not before liable to that fervice, to enter upon that mode of life. Whereas the construction now contended for would decrease the number of disposable mariners, by allowing protections to those who were before fubject to be impressed. Therefore, though the words used are very general, yet they muft be conftrued according to the obvious meaning of the legislature, and according to the ufage which has always prevailed in refpect to that clafs of men who are faid to use the fea; in that fenfe perfons not used to the fea are to be understood of landmen who were not before liable to be impreffed. LAWRENCE J. I entertain fome doubt whether this man does not come within the words of exemption of the act, exempting every perfon, not having before used the fea, who fhall bind himfelf apprentice to ferve at fea. And my doubt arifes on this, that there are other defcriptions of perfons liable to be impreffed, who yet do not use the fea; fuch as perfons employed on navigable rivers, who are defcribed in the order of council, without reference to their being fo employed within the flux and reflux of the fea in fuch rivers of this defcription are many perfons employed in navigating upon the Thames, at various places between London and Oxford, who certainly cannot be faid to have used the fea and therefore, as the legislature, in defcribing the perfons intended to be exempted, have ufed a term not co-extenfive with the power of impreffing; my doubt is, how far we are warranted in faying, that they only meant by these words to defcribe perfons not before liable to be impreffed. At the fame time it must be admitted, that the intro- [474] ductory part of the claufe goes to fhew that this person is not entitled to be exempted; for the exemption is faid to be given for the encouragement of able bodied landmen to betake themselves to the fea fervice: and the object of the act being to increafe the number of mariners and feamen, feems alfo to favour fuch a construction as will not deprive the country of its right to avail itself of the affiftance of any defcription of perfons neceffary for its fafety, and who were before liable to be impreffed. But certainly there is a difficulty in putting fo large a conftruction on the enacting words of the claufe giving the exemption. Ff 2 LE 1 1801. LE BLANC J. The legislature at the time of paffing the act of the 13 Geo. 2. feem to have had two defcriptions of perfons in contemEx parte plation; the one, landmen who required instruction in the new SOFTLY. line of life in which they were about to engage, in order to fit [ 475 ] Monday, May 18th. It is legal to trade with the fubjects of an ene try by the licence that the party places pro goods in them for their employment; the other, perfons having fufficient THIS VANDYCK and Others against WHITMORE. 'HIS was an action upon two policies of insurance, both dated 17th March 1798, upon a voyage at and from London to Rotterdam or Amfterdam, with or without clearances, to or from a my's coun- neutral port; the one being upon 137 boxes of fugar on board of king's lia fhip called the Jonge Hendrick Vlerland, and on 42 boxes of fugar eence. But on board of another fhip called the Juffrow Lydia; the other on if it be pro- goods on board the faid fhip Juffrow Lydia, declared to be 11 cafks of fugar, valued at 330l. a quantity of coffee valued at 3735% and on 3o cafks of tobacco, valued at 138ol. The defendant fubfcribed acting under each of thefe policies for 300l. at a premium of fix guineas per it fhall give bond for the cent. The declaration contained counts upon each policy for a total due exporta- lofs by capture, and a count for money had and received. The tion to the defendant pleaded non affumpfit, and paid 237. 12s. 6d. into court p. fed of the upon the count for money had and received. At the trial before Lord Kenyon C. J., at the fittings at Guildhall after laft Michaelmas tended to be term, the jury found a verdict for the plaintiffs for 3461. 175. 6d. coun- fubject to the opinion of this Court on the following cafe. The try, and they fhips Vlerland and Lydia were Prussian ships. On the 20th of Deare exported cember 1797, the Lydia being then bound upon a voyage to Calais, bond being and the plaintiffs intending to fhip goods on board her for that port, given, fuch obtained for that purpose an order of council. This order was exportation dated 2oth December 1797, and reciting a petition of the plaintiffs to export from London to Calais 100 hogfheads of tobacco, &c. in owners can- the Pruffian hip Juffrow Lydia, granted permiffion to fend fupply [476] and deliver the fame in the faid vefiel, being neutral, from Lon den to Calais or elsewhere, as circumstances might require, for the the goods. ufe of any perfons for whom the fame were prohibited by the ftat. 34 Geo. 3. c. 9. to be fent without fuch licence. With a provifo, and deliver that nothing therein contained fhould extend to affect the provi goods to an ions in any act of parliament, except the faid act; or to licence exported to fuch coun without fuch is illegal, and the not recover on a policy to protect If a licence to export enemy's country be granted for a limited time, it is not fufficient that the goods were shipped before the expiratica of the time, the fhip not failing till afterwards, any 1801. WHIT MORE. any act to be done further or otherwife than by the said act the king was authorized to licence. Provided alfo, that if any question fhould arife whether any thing done was authorized by that order, VANDYCK proof that fuch thing was done under the circumftances, and ac- againf cording to the terms and conditions therein expreffed, fhould be on the perfons claiming the benefit thereof. Provided also, that the faid licence fhould remain in force for two months from the date, and no longer. The plaintiffs, in confequence of this licence, fhipped 30 hogfheads of tobacco on board the last mentioned fhip, which formed part of the goods infured by one of the policies in question; and on the 23d of December 1797 entered the fame at the custom-houfe for Calais; and upon fuch entry the fhipping clerk of the plaintiffs made the following oath: "Edward Ray, for "Vandyck and Gevers, maketh oath that the goods mentioned in "this certificate are now to be exported to Calais on their "own account. E. Ray." The plaintiffs at the same time entered into a bond according to the provifions of the ftat. 29 Geo. 3. c. 68. in the penal sum of 1520/. conditioned to land the tobacco at Calais, &c. The remainder of the goods insured by the policies in question were afterwards fhipped by the plaintiffs for Rotterdam, under an order of council of 10th January 1798 (after mentioned). On the 7th of April 1798 the captain of the Juffrou Lydia cleared [477] out his hip at the custom-house in London for Calais, Rotterdam, and Emden, having made oath to the truth of the clearance in the ufual form; and on the 14th of the fame inonth failed from London direct for Rotterdam. The Juffrow Lydia, when the fo failed from London, had on board the faid 42 boxes and 11 cafks of fugar, the faid quantities of coffee, and the faid 30 cafks or hogfheads of tobacco; and the Vlerland the 137 boxes of fugar; all on account of the plaintiffs. The Vlerland arrived fafe at Rotterdam; but the Lydia with the fugar, coffee, and tobacco on board, having arrived off, the mouth of the Marfe, and having come to an anchor there, was captured by a French privateer and carried into Oflend; whereby the 42 boxes of fugar infured by the first mentioned policy, and the 11 cafks of fugar, valued at 330l. the coffee, valued at 3735, and the 30 hogfheads of tobacco, valed at 13807., infured by the other policy, were refpectively wholly loft to the plaintiffs. By an order of council, dated 3d September 1796, reciting that an act paffed in the 33 Geo. 3. (c. 27.) intituled "An act more effectually to pre"vent during the prefent war between G. B. and France all traiter"ous correfpondence with the enemy," &c. And another act paffed in the 34 Geo. 3. (c. 9.) intituled "An act for preventing money or "effects in the hands of his majefty's fubjects, belonging to or dif "pofable by perfons refident in France, being applied to the use of "the perfons exercifing the powers of government in France, and "for preferving the property thereof for the benefit of the indivi"dual owners thereof." And that another act paffed in the 34 Geo. 3. (c. 79.) intituled "An act for more effectually pre"ferving money and effects in the hands of his majesty's fubjects, [478] "belonging to or difpofable by perfons refident in France for the "benefit of the individual owners thereof." And that it was ex |