Part 7 (1/2)

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 a.s.sumes 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.”[114]

[Sidenote: The Vessel.]

It is not an essential deviation from the licence, if s.h.i.+ps 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 subst.i.tute a s.h.i.+p belonging to a country at war, for a neutral or native s.h.i.+p, at the will and pleasure of the holder of the licence.[115]

Where an enemy's s.h.i.+p was represented to be neutral, and under that disguise obtained a licence and was navigated, the s.h.i.+p 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.[116]

A licence to trade in neutral bottoms does not extend to British s.h.i.+ps.[117]

[Sidenote: The Cargo.]

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.[118]

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.[119]

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 ent.i.tled 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.[120]

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.[121]

5. Sometimes, in describing the property in licences, the privilege is extended to all property of a certain cla.s.s, ”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.[122]

[Sidenote: The Voyage.]

In the Voyage, also, the merchant must follow the licence. It is vitiated by changing the place of s.h.i.+pment. 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.[123]

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 _mala fides_, and he runs all the perils of an enemy on an English coast.[124]

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.[125]

[Sidenote: Time.]

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 ent.i.tled to protection.[126]

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.[127]

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 pa.s.sed 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.

SECTION IV.

_Ransom, Recaptures, and Salvage_.