ISSUE OF SPECIAL LICENCES TO TRADE WITH THE ENEMY; PASSPORTS AND SAFE-CONDUCTS. A special licence, says Kent (r), "is the assumption of a state of peace to the extent of the licence, and the act rests in the discretion of the sovereign authority of the state, which alone is competent to decide how far considerations of commercial and political expediency may, in particular cases, control the ordinary consequences of war"-a generalization founded on the dictum of Sir W. Scott in his judgment in The Cosmopolite (x). The following is an example of a special licence (y) :— "George the Third, by the Grace of God, of the United Kingdom of Great Britain and Ireland King, Defender of the Faith, &c. To all commanders of our ships of war and privateers, and all others whom it may concern, Greeting. Our will and pleasure is, that you permit John Whitton to export on board the Papenburgh ship "St. Anton." N. Wilkens, master, from the port of Liverpool to any port of Holland, with liberty to touch at Tonningen to obtain fresh clearances, one cargo of rock salt, to whomsoever the said cargo may appear to belong, and notwithstanding all the documents which accompany the same may represent it to be destined to any other neutral or hostile port; and that if the said vessel so laden and documented be detained, and brought in by any of our ships of war or privateers, the same shall be forthwith liberated, if proceeding against for adjudication, upon a claim being given for the same by or on the behalf of the said John Whitton, and bail being given to answer adjudication, and shall be finally restored upon satisfactory proof being made that such cargo was really shipped by or under the directions of the said John Whitton or his agents, for the purpose of being exported to Holland, and thereupon the said vessel shall be permitted. to proceed on her voyage. This, our licence, to remain in force for four months from the date hereof. Given at our Court at St. James's, the 6th day of June, 1807, in the forty-seventh year of our reign. By His Majesty's command. John Whitton (Signed) HAWKESBURY." Licence. Varieties of the same instrument permit the vessel to bear "any flag except the French"; to bear the French flag "only until she is two leagues distant from her foreign port of clearance, or the neighbouring coast"; the vessel not to be navigated by French seamen; not to proceed to any blockaded port; and so forth. As regards this last provision, it may be observed that Sir W. Scott declared in The Byfield (z), that a licence expressed in general terms, to enable a ship to enter or leave an enemy's port, did not apply to a port under blockade. To authorize trade with such a port there must be an express provision in the licence. This decision, though not altogether in harmony with that of the same learned judge in a previous case (a), may apparently be accepted as establishing the law on the subject (b). It is stated that in 1811 there were granted 8,000 English licences, and that in 1808 and 1809 the system was Without a licence all carried to a still greater extent (c). trading with the enemy is, as has been already set forth («), (2) Edwards, p. 188. (a) The Hoffnung, 2 Rob. 162. (b) Vide Twiss's Law of Nations, pp. 228-230. absolutely prohibited, and where such licences are granted they are construed with great strictness. This strictness is, however, not to be carried to the extreme of pedantic accuracy, nor is every small deviation to be held to operate as a vitiation of the fair effect of the licence (e). In The Juffrow Catharina (f), a licence had been given for the importation of certain raw materials from France, and under this permission a shipment was made of certain lace. The article, it seems, had been ordered before the outbreak of hostilities, and could not, owing to peculiar circumstances, be countermanded. The Court stated that it would have been a more guarded proceeding on the part of the British merchant to have applied for a licence for this special importation, but that there were considerations to induce a favourable view of his claim. But at the same time the Court wished it to be understood that by a decree in his favour the necessity of obtaining a licence was not in any way relaxed. Thus in another case (g), where the claimant had exported under a licence specially enumerating various articles, certain barilla not included amongst them, Sir W. Scott condemned the shipment. "It seems absolutely essential," said his Lordship, in The Cosmopolite (supra), "that that only shall be done which the grantor intended to permit; whatever he did not mean to permit is absolutely interdicted; and the party who uses the licence engages not only for fair intention, but for an accurate interpretation and execution. When I say an accurate interpretation and execution, I do not mean to exclude such a latitude as may be supposed to conform to the intentions of the grantor, liberally understood." In a case where the person to whom the licence had been (e) The Cosmopolite, supra, p. 277. (f) 5 Rob. 141. (9) The Vriendschap, 4 Rob. 96. See also Shiffner v. Gordon, 12 East, granted had been incorrectly described in it, it was held that this misdescription was in the circumstances immaterial, the conditions on which the authority had been granted having been duly complied with (h). "Another material circumstance in all licences is the limitation of time in which they are to be carried into effect; for as it is within the view of government, in granting these licences, to combine all commercial and political considerations, a communication with the enemy might be very proper at one time, and at another very unfit and mischievous” (i). But if the voyage be by unavoidable accident delayed beyond the time for which the licence was granted, the breach of the time-limit-provided the person licensed be clear of all fraud or laches-will not render the voyage illegal (). Sir W. Scott laid it down as a general rule that "where no fraud has been committed, where no fraud has been meditated, as far as appears, and where the parties have been prevented from carrying the licence into execution by a power which they could not control, they shall be entitled to the benefit of its protection, although the terms may not have been literally and strictly fulfilled" (7). But the circumstances in which the strict terms of the licence have been departed from must not be of the making of the person licensed. Thus in The Twee Gebroeders (m), where a licence had been granted to carry a cargo from Bordeaux, and the person licensed thought fit to treat it as available from another port-St. Martin-the licence was vitiated, and ship and cargo were condemned, Sir W. Scott remarking that parties cannot be permitted to (h) Lemecke v. Vaughan, 1 Bing. 473. (i) The Cosmopolite, supra. Vide also Vandyck v. Whitmore, 1 East, 475. (k) Schroder v. Vaux, 15 East, 52. (1) The Good Hope, Edw. Cases on Licences, 6. And see Evereth v. Tunno, 1 B. & A. 142. (m) 1 Edw. 95. take licences for one purpose and apply them to another; and that in such a case it would be going beyond the powers of the Court to extend its protection. In like manner, the use of the licence must be strictly limited to the persons for whose benefit it was granted. "The great principle in these cases," said the same learned judge, "is, that subjects are not to trade with the enemy without the special permission of the government; and a material object of the control which government exercises over such a trade is, that it may judge of the particular persons who are fit to be entrusted with an exemption from the ordinary restrictions of a state of war" (n). In this sense the holder of a licence must be prepared to substantiate, if required, that he is its bonâ fide holder. Thus, in Barlow v. Mackintosh (0), where the vessel had been seized as being engaged in trade with the enemy, the underwriters denied that the assured was entitled to the protection of the licence on which he relied, and Lord Ellenborough gave judgment in their favour, unless the plaintiff should prove his title to the document. The licence was "general," in that it specified neither the name of the ship nor of the shipper, and it was to remain in force for six months from date. The voyage protected was between London and Holland; and as the licence was more than three months old when the plaintiff made use of it, the Court observed that it might already have served for three voyages to Holland; it might have dropped out of the pocket of the person entitled to it and been found by the plaintiff, who must, in these circumstances, connect himself by other evidence than the mere possession of the document; otherwise there was a natural suspicion, a preponderance of (n) The Jonge Johannes, 4 Rob. 263. and Barlow v. Mackintosh, 12 East, 311. See also The Aurora, ibid. 418; (0) Supra. See also Rawlinson v. Jansen, 12 East, 223. |