343 CHAPTER XXX LICENSES TO TRADE 1. Character of licenses to trade-2. General licenses-3. Special licenses-4. Decisions on their authority and effect-5. Want of uniformity in British decisions-6. Representations of the grantee7. Intentions of grantor-8. Persons entitled to use them-9. Where the grantee acts as agent for others-10. Character of the vessel11. Exception of a particular flag-12. Change of national character during voyage-13. Protection before and after voyage-14. Quantity and quality of goods-15. Protection to enemy's goods-16. License to alien enemy-17. If cargo be injured—18. If it cannot be landed— 19. Compulsory change of cargo-20. For importation does not protect re-exportation-21. Course of voyage-22. Change of port of destination-23. Intended ulterior destination-24. Condition to call for convoy-25. Capture before and after deviation-26. Time limited in license-27. License does not act retrospectively-28. If not on board, or not endorsed-29. Effect of alteration-30. Breach of blockade, &c., by licensed vessel. to trade § 1. A LICENSE is a kind of safe-conduct, granted by a bel- Licenses ligerent State to its own subjects, to those of its enemy, or to neutrals, to carry on a trade which is interdicted by the laws of war, and it operates as a dispensation from the penalties of those laws, with respect to the State granting it, and so far as its terms can be fairly construed to extend. The officers and tribunals of the State under whose authority they are issued, are bound to respect such documents as lawful relaxations of the ordinary state of war; but the adverse belligerent may justly consider them as per se a ground of capture and confiscation. Licenses are necessarily stricti juris, and cannot be carried beyond the evident intention of those by whom they are granted; nevertheless, they are not construed with pedantic accuracy, nor will their fair effect be vitiated by every slight deviation from their terms and conditions. Much, however, will depend upon the nature of the terms which are not complied with. Thus a variation in the quality or character of the goods will often lead to more dangerous consequences than an excess of quantity. Again, a license to trade, though A general license safe in the hands of one person, might become dangerous in those of another; so also with respect to the limitations of time and place specified in a license. Such restrictions are often of material importance, and cannot be deviated from with safety. A license may be qualified, in which case the party seeking to protect himself under it must conform exactly to its requisitions. The questions which arose in the English Common Law courts upon the constructions of licenses, granted under statutes, are extremely various; they turned in many cases upon the precise words used, and most of these cases have been discussed in the Court of Admiralty by the very learned judge Sir William Scott. Licenses to trade were not issued by Great Britain during the Crimean war, 1854, but certain modifications were granted to neutral or friendly flags.2 §2. A general license is a suspension or relaxation of the exercise of the rights of war, generally or partially, in relation to any community or individuals, liable to be affected by their operation. It must emanate from the sovereignty of the State, for the supreme authority alone is competent to decide what considerations of political or commercial expediency will justify a suspension or relaxation of its belligerent rights. That branch of the government to which, from the form of its constitution, the power of declaring or making war is entrusted, has an undoubted right to regulate and modify, in its discretion, the hostilities which it sanctions. This may be done by a general ordinance, by instructions to armed vessels, or by licenses issued to certain communities or individuals exempting them from capture. In England, licenses are either granted directly by the Crown, or by some subordinate officer, to whom the authority of the Crown has been delegated, either by special instructions or under the provisions of an Act of Parliament. But the Lord-Lieutenant of Ireland as Viceroy cannot by proclamation or otherwise authorise a trading of British subjects with the enemy. In the United States, 1 Grotius, De Jure Bell. ac Pac., lib. iii. cap. xxi. § 14; the 'Abigail,' Stewart V. Ad. R., 360; the 'Cosmopolite,' 4 Rob., 8; the 'Twee Gebroeders,' I Edw. R., 96; Schroeder v. Vaux, 15 East., 52; Usparicha v. Noble, 13 East., 332; Menett v. Bonham, 15 East., 477; Flint v. Crokatt, ibid. 522. 2 It was declared by Order in Council of April 15, 1854, that 'all vessels under a neutral or friendly flag, being neutral or friendly property, shall be permitted to import into any port or place in her Majesty's as a general rule, licenses are issued under the authority of an Act of Congress, but in special cases and for purposes immediately connected with the prosecution of a war, they may be granted by the authority of the President, as commander-inchief of the military and naval forces of the United States.' license §3. For the same reasons, a special license to individuals A special for a particular voyage, or for the importation or exportation of particular goods, must, as a general rule, also emanate from the supreme authority of the State. But there are exceptions to this rule growing out of the particular circumstances of the war in particular places. The governor of a province, the general of an army, or the admiral of a fleet may grant licenses to trade within the limits of their own commands, dominions all goods and merchandise whatsoever, to whomsoever the same may belong; and to export from any port or place in her Majesty's dominions to any port not blockaded any cargo or goods, not being contraband of war, or not requiring a special permission, to whomsoever the same may belong; and save and except only, as aforesaid, all the subjects of her Majesty, and the subjects or citizens of any neutral or friendly State shall and may, during and notwithstanding the present hostilities with Russia, freely trade with all ports and places wheresoever situate, which shall not be in a state of blockade, save and except that no British vessel shall under any circumstances whatsoever, either under or by virtue of this order or otherwise, be permitted or empowered to enter or communicate with any port or place which shall belong to, or be in possession or occupation of, her Majesty's enemies.' An Ionian subject was held not to be in the same position as a British subject for trading with Russia during the above-mentioned war. (The 'Ionian Ships,' 2 Spinks Adm. and Eccl., 212; but qualified by the 'San Spiridione,' 2 Jur. N. S., 1238.) See Esposito v. Bowden (7 E. and B., 763), and the Odessa' (Spinks Pr. R., 208), as to the effect of the above Order in Council (and of other similar proclamations) on the trade of a British subject with the enemy. If the license granted be conditional, it is incumbent on the party who seeks to protect himself under it to conform to its requisitions. (Vandyke v. Whitmore, 1 East., 475.) If the conditions be only colourably complied with, the license will be avoided by reason of the fraud. (Gordon v. Vaughan, 12 East., 302.) The licensing system was carried by England to a great extent, as an expedient for supporting her trade, in defiance of all obstacles created by the enemy, during the long wars with the Continental Powers of Europe and with the United States in the reign of Geo. III. (The 'Goede Hoop,' 1 Edw. R., 327.) Duer, On Insurance, vol. i. pp. 355, 541, 594-619; Vandyke v. Whitmore, 1 East., 475; Taulman v. Anderson, 1 Taunt. R., 227; Shiffner v. Gordon, 12 East., 296; the 'Charlotte,' 1 Dod. R., 387. A general license must be applied by evidence to the particular case in judgment; it makes part of the title of the party claiming to be licensed to show how he obtained possession of a license, which in the term of it is general; it makes part of the plaintiff's case against the underwriter to connect himself with the property insured, and to show that it was lawfully insured. (Rawlinson and others v. Janson, 12 East., 223-) Judicial decisions and such documents are binding upon them and upon all persons who are under their authority, but they afford no protection beyond the limits of the authority of those who issue them. Thus, in the war between the United States and the Republic of Mexico, the governor of California and the commander of the Pacific squadron issued such licenses, but it was not pretended that such protection extended beyond the limits of their respective commands. The peculiar circumstances of the case, the great distance from the seat of the supreme federal authority, the scarcity of provisions and supplies, and the want of American vessels on that coast were deemed sufficient reasons for the exercise of that power.1 2 § 4. But though by the general maritime law of the realm on licenses trading with an enemy is undoubtedly illegal, 'the Crown,' says Lord Ellenborough, C.J., ' may remit its rights in whole or in part, as it shall see fit.' And this power of remission is the foundation of the licensing system, by which certain voyages with cargoes of enumerated articles are legalised on the petition of merchants to the Board of Trade; the licenses directing the commanders of all British ships of war and privateers not to interrupt the vessel therein named and so laden. In times of war positive statutes are usually passed to prohibit commercial intercourse with the enemy, and to regulate the issue of licenses, which are always construed rigorously against the grantees, so that any want of conformity in the terms and conditions of a license is fatal to the protection which would otherwise have been derived from it. Licenses have frequently been granted during the operations of a war, not only for the protection of an enemy trading in the country of a belligerent, but to authorise subjects to trade with the enemy; and the cases relative to their authority and legal effect are numerous, both in the reports of courts of Admiralty and of common law. The leading case on this subject is that of the Hope,' an American ship, laden with 1 Wheaton, Elem. Int. Law, pt. iv. ch. ii. § 27; Letter of Secty. of California, 31st Cong., 1st sess. H. of R., Ex. Doc., No. 17, p. 671; Cushing, Opinions of U.S. Attys.-Gen., vol. vi. p. 630. 2 Maule v. Selwyn, 29. King William III., in his declaration of war against France, excepted all the French Protestants. Wells v. Williams, 1 Lord Raymond's Reports, 283; and see 2 Robinson's Admiralty Reports, 163. corn and flour, and captured whilst proceeding from the United States to the Spanish peninsula, under the protection of instruments granted by the English admiral on the Halifax station, and the British consul at Boston. In pronouncing judgment in that case, Sir William Scott remarked, that no consul in any country, particularly in an enemy's country, is vested with power, in virtue of his office, to exempt the property of enemies from the effects of hostilities; and that an admiral could restrain the ships under his immediate command from committing acts of hostility, but could grant no safe-conduct of this kind beyond the limits of his own station. But such acts might be regarded as sponsiones, or agreements sub spe rati, to which a subsequent ratification, by the proper authority, would give validity. It was shown that these acts of its officers had been confirmed by an Order in Council, and a restitution of the property was decreed accordingly. But, in the case of the 'Charles,' and other similar cases, where the safe-conducts had been signed by an English admiral, and also by the Spanish minister in the United States, but not confirmed by the British Government, it was decided that the licenses afforded no protection, being issued without proper authority. So, also, in cases of safe-conducts granted by the British minister, in the United States, to American vessels sailing with provisions to the island of St. Batholomew. All were condemned where the licenses were not expressly included within the terms of the confirmation by the Order in Council.' decisions § 5. There are very few American decisions on the subject Want of of licenses, and there is some want of uniformity in those of uniformthe British Admiralty. Prior to the peace of Amiens licenses English were regarded as an act of special grace, and most strictly interpreted, but, on the renewal of the war, the issuing of licenses by England was regarded as a matter of national policy, rather than personal favour. The courts, in consideration of this policy, gave to these instruments the largest interpretation possible. Most of the reported cases on the subject of licenses were decided during the period that this liberal doctrine prevailed, and in many of them it is a matter of extreme difficulty to say, whether the determination was governed by the peculiar circumstances and character of the 1 The 'Hope,' 1 Dod. R., 226; Johnson v. Sutton, Doug. R., 254. |