delivered the opinion of the court, that the use of a license or pass from the ftnemy, by a citizen, .being, unlawful, one citizen had no right to purchase of, o,r sell to, another, such a iicense or pass to be used on board an Amercan vessel.
Judgment affirmed.
lii the several cases, during'the late war, of the Julia, 8 Cranch. 181.; the Aurora. Id. 203.; the Hiram, Id. 444, S.C. ante. vol. 1 p. 440, and the Ariadne, ante, vol. 2. p. 143. the court determined, that the use of a license or passport of' protection from the enemy constitutes an act of illegality which subjects the property adding under it to confiscation in the prize court. The act of the 2d of August, 1813, ch. 585. and of the 6th of July, 1812,’ch. 452. s. 7. prohibiting the use of of licenses or passes granted by the authority of the government of the United Kingdom of Great Britain and Ireland, repealed by the act of 3d .of March, 1815, ch. 706., were merejy cumulative upon the pre-existing law of war. It follows asa corrollary from this principle, .that a contract for the purchase or sale of such a license is void as being founded on an illegal conside» ration.-That no contract whatever, founded upon • such a consideration, can be enforced in a court ofjustice, is a doctrine familiar to our jurisprudence, and was also'the rule of 'the civil law. It is upon the' same principle that every con- • tract, whether of sale, insurance, or partnership, &c. growing out of a commercial intercourse -or trading with the enemy, is void. Thus it has been held by the supreme court of New-York, that a partnership between persons residing in two different countries, for commercial purposes is, at least, suspended, if not ipsofado determined by the breaking out of war between, those countries ; and that if such partnership expire by its own limitation during the war, the existence of the war dispenses with the necessity of giving public notice of the dis
It' is, perhaps, almost superfluous to'add, that the use of a license from the government of the country itself, to which the person using it belongs, is lawful ; and, consequently, any contract between the citizens or subjects of that country re- , specting such license is also ]awfnl. Thus, by the act of the 6th of July, 1812, ch. 452, b. 6., the.piesident was authorised to give, at any time within six mohtbsr after the passage of the act, passports for the safe .protection of any ship or .other property belonging to British subjects, and -which wife then within the limits of. the United State's. And such licenses are by no means, as has been commonly supposed, an invention of the present time. For Valin, speaking of the frauds by which the com-merce and property of the enemy were screened from capture, during the war in which Franee and England were allied against Holland and Spain, not only on .the high seas, but even in the ports of France, remarks, that previous to the ordinance on which he ,was .commenting, no othep means of counteracting these frauds had-been discovered, than'that of delivering passports to thf vessels of the enemy, permitting them to trade -with the ports of the kingdom upon the payment of a duty of a crown per ton, which was'done by an edict of 1673. Fofín Sur I’Ord-
But, in order to protect a citizen in the use of a license from his own government to trade with the enemy, it is indispensably necessary that he should conform to the term 8 and conditions under which it is granted ; otherwise, the’trading, and all contracts arising out of it, will be illegal. See the cases collected in Chitty's Law of Nations, ch. VIII. To which add the following: The Byfield, Edward's Adm. Rep. 188. The Goede Hoop, Id. 327. The Catharine Maria, Id. 337. The Carl, Id. 339. The Europa, Id. 342. The Speculation, Id. 343. The Cousine Mariane, Id. 346. The Vrou Cornelia, Id. 349. The Johan Pieter, Id. 354. The Jonge Frederick, Id. 357. The Europa, Id. 358. The Cornelia, Id. 359. The Sarah Maria, Id. 361. The Henrietta, Id. 363. The Nicoline, Id. 364. The Wolfarth, Id. 365. The Emma, Id. 366. The Frau Magdalena,’ Id. 367.
The licenses granted by tile officers bf the British govern■ ment,'4rc. during the late war, to American vessels have been pronounced by this court,. to subject the property sailing under them to confiscation, when captured by American cruisers; and it has been decided to be immaterial whether the licenses would or would not have saved the property from confiscation in the British prize courts, (8 Crunch. 200) but it has been made a question in those courts how far these docunients. could protect a'gainst British captuie, on account of the nature and extent of the authority of the persons by whom they'were issued, The leading case on this subject is that of Hope,(1 Dodson’s Adm. Rep. 226.) which was that of an American ship laded •with corn and floor, captured whilst proceeding from the United States, to the ports of Spain and Portugal,and claimed as protected by ah instrumeat <?n board, granted by, Allen, the British consul at Boston, accompanied by a certified copy of a letter.from Admiral Sawyer, the British commandei on the Halifax station. lit pronouncing judgment in thi* case, Sir W. Scott observed, that jf there was nothing further in the way of safeguard than what was to be derived from these papers, it would certainly be impossible to hold that the property was sufficiently protected. The instrument of protection, in order to be effectual, must cóme .from those whohave a competent authority to grant such a protection: but these papers ct>me frofn persons who are vested'with no. such authority, To exempt the property of enemies from ..effect of hostilities, is a very high' act of sovereign authority: if at any time deligated to persons in ft subordinate station, it must be exercised either by those who have a ' special commission granted to them for the par-. ticular business, and who, in legal language,' are termed mandatories, or by persons in whom such a powet' is vested. in virtue of any official situation to which it may be considered incidental. It is quite clear, that no consul in any country, particularly in an enemy’s country, is vested with any such power, in virtue of his station. Ei r»i nonpros.