SECTION III.

Licences.

Passports, and Safe-conducts, are a kind of privilege, insuring safety to persons in passing and repassing, or to certain things during their conveyance from one place to another. All Safe-conducts, like every other act of Supreme Command, emanate from the Sovran authority, but are constantly delegated to inferior officers, either by an express commission, or by a natural consequence of the nature of their functions. The person named in the Passport cannot transfer his privilege to another. They generally promise security wherever the grantor has authority and command, and are interpreted by the same rules of liberality and good faith, with other acts of the Sovran power.

A Licence granted by a state to its own subjects, or to those or the enemy, is a dispensation on its own side of the Laws of War, as far as its terms can be fairly construed. The adverse party may justly consider such licence as a ground of capture and confiscation per se; but the Prize Courts of the state, under whose authority they are issued, are bound to consider them as lawful relaxations of the ordinary state of war. In the country which grants them, licences to carry on a pacific commerce are rigidly interpreted, as being exceptions to a general rule; though they are not to be construed with pedantic accuracy, nor will every small deviation be held to vitiate the fair effect of them.

During the later period of the last century, and the earlier portion of this, licences were considered as privileges granted to individuals for their own benefit, and in which the nation at large was but little, or remotely, interested. They were therefore held liable to the same strict construction with other similar grants. Yet this rule was never held in a narrow captious manner; and if the apparent intention of Government was complied with, and there was no suspicion of fraud, a sufficient liberality was allowed in the construction. When the extraordinary mode of warfare established by the Emperor Napoleon, (by an attempt at a general embargo) was carried on, new expedients were required to counteract its evils, and licences to a great extent were granted to relieve the stagnant trade of the country; and this measure, so highly beneficial, and even necessary, was facilitated by the adoption of a still more liberal mode of construction, and which, no doubt, will again guide these cases.

In trading under a Licence, the merchant ought to follow the terms or it as strictly as possible; but if he is acting bonâ fides, some breaches of it will be permitted. Being high acts of Sovranty, they are necessarily the creatures of that act of power, and must not be carried further than the intention of the great authority that grants them may be supposed to extend; not that they are to be construed with pedantic accuracy, nor that any small deviation should be held to vitiate the fair effect of them. An excess in the quantity of goods permitted might not he considered noxious to any extent. A variation in the quality or substance of the goods might be more significant, because a liberty assumed of trading in one species of goods, under a license to trade in another, might lead to very dangerous abuses. The license must be looked to for the enumeration of goods that are to be protected by it.

The principles on which courts act in treating licences is thus succinctly laid down by Sir William Scott.--

"I need not repeat what I have so often stated, the anxious wish of this court to relieve, as much as possible, the difficulties under which the commerce of the world now labours (November 1812,) and to apply the most favourable consideration to the construction of license cases. At the same time it is to be remembered, that the court possesses the mere power of interpretation; that it must confine itself to a reasonable explanation of the terms made use of, and cannot alter or dispense with conditions considered as essential by the Government granting the license. If the court assumes the power of extension by favourable interpretation, it does so only where there is a total absence of bad faith, and where unavoidable obstacles have been thrown in the way of an exact compliance with the terms prescribed. Where there has been a want of good faith, or a departure from the terms, beyond the necessity thus imposed, the court has not felt itself called upon to mitigate the penalties incurred by such a deviation."

It is not an essential deviation from the licence, if ships of other countries than those designated in the license are employed; provided those other countries have the same political bearing towards this kingdom as those mentioned in the licence. But it is not a matter of indifference to substitute a ship belonging to a country at war, for a neutral or native ship, at the will and pleasure of the holder of the licence.

Where an enemy's ship was represented to be neutral, and under that disguise obtained a licence and was navigated, the ship and freight were condemned; and the cargo would have been involved in the same fate had it been shown that the owner of the cargo was privy to the fraud.

A licence to trade in neutral bottoms does not extend to British ships.

The exportation of the produce and manufactures of this country is undoubtedly of great importance; but in time of war, it may be a matter of serious injury to the kingdom, if the commerce of the enemy is to be carried on in security under the abuse of British licences. The Courts of Admiralty and Prize, therefore, as far as lie in their power, guard against the fraudulent application of licences.

The following are a few practical rules for the guidance of merchants:--

1. Where the goods are enumerated in the licence, the best endeavour ought to be made to follow that enumeration. It is not a fatal departure from the licence to take on board non-enumerated articles, if done so by mistake, or inadvertence; but an essential and fraudulent departure from the conditions of the licence is a total defeasance of it.

2. When a licence is granted to one person, it cannot be made to extend to the protection of all other persons who may be permitted by that person to take advantage of it.

3. Where A and B have obtained a licence to import, as for themselves, or their agents, or the bearers of their bill of lading, the only persons entitled to act under that licence, are A and B, as importers, or their agents, or persons holding their bills of lading, and claiming under bills of lading, which A and B, after having conducted the importation from the enemy on their own account, have transferred to them.

4. Under a licence to import, the British merchant must not also be the exporter. He is not permitted under such a licence to go to the enemy's country, and there act as an enemy's merchant, carrying on the export trade of that country.

5. Sometimes, in describing the property in licences, the privilege is extended to all property of a certain class, "to whomsoever the property may appear to belong." In such cases no enquiry is ever made as to the proprietary interest in the property; but if the words are not introduced into the licence, it does not protect enemy's property.

In the Voyage, also, the merchant must follow the licence. It is vitiated by changing the place of shipment. Thus, where a licence was to bring away a cargo from Bordeaux, and the party thought proper to change the licence, and accommodate it to another port in France, it was held by the English Admiralty that the licence was vitiated, and the vessel and cargo were condemned.

Enemies trading to the ports of this country must strictly comply with the conditions under which that permission is granted. No voluntary deviation from the course pointed out can on any account be tolerated; except under the pressure of irresistible necessity. The character of enemy revives, when such a trader so deviates from his appointed course, even if there is no malâ fides, and he runs all the perils of an enemy on an English coast.

It is a violation of a licence to touch at an intermediate port under a licence for a direct voyage to this country, the presumption being that at the intermediate port the vessel might receive another destination, or might actually deliver her cargo in that port.

Of course when the period for which a licence has been granted has expired, it no longer has any operation; yet in cases in which parties have used due diligence, but have been prevented by accident from carrying their intentions into effect within the time, it has been holden that, though their licences have expired, they are entitled to protection.

A licence cannot be ante dated, and if granted subsequent to capture it is no protection against condemnation. It is in its very nature prospective, pointing to something which has not yet been done, and cannot be done at all without such permission. Where the act has already been done, and requires to be upheld, it must be by an express confirmation of the act itself, as by an indemnity granted to the party; but a licence necessarily looks to that which remains to be done, and can extend its influence only to future operations.

Note.--It has been before pointed out, that the Queen has, by her prerogative, the power of granting licences. But the Navigation Laws could not, of course, be dispensed with by the royal prerogative. Various acts, therefore, were passed to alter or qualify them, according to the new condition of things which was produced in time of war. These acts expired with the several wars that suggested them; but the almost total repeal of the celebrated Navigation Laws will render the re-enactment of similar war measures almost unnecessary.