9. The bill of health, which is a certificate, properly authen- . ticated, that the ship comes from a place where no contagious distemper prevails, and that none of the crew, at the time of her departure, were infected with such distemper. This bill of health is generally found on board of ships coming from the Levant, or from the coast of Barbary, where the plague so frequently prevails. (1) Upon the subject of the ship's documents, it is to be observed, that, though by the law of nations, the want of some of these papers may be taken as strong presumptive evidence, yet the want of none of them amounts to conclusive evidence against a ship's neutrality. (2) (1) As to bill of health, see Levi v. Costerton, Holt's C. N. P. 167. Beawes, Lex Mer. 6 ed. 1 vol. 369. Pope on Customs, title 7. (2) 8 Term Rep. 434.437.562. Le Cheminant v. Pearson, 4 Taunt. 367. Mayne and Webber, Parke, 363. CHAP. X. Of the Dispensations with the legal Effect of War upon the Commerce of Belligerents and Neutrals, by Passports, Licences, Orders in Council, and Temporary Sta tutes. (1) HAVING, in the preceding chapters, considered the legal effect of war upon the commerce of belligerents, prohi biting all trading between them, and the reciprocal right of capturing each other's property, and how far neutrals are affected by the hostilities that exist between other powers; we will, in this chapter, consider those dispensations, with the exceptions, by virtue of proclamations, letters of passport, licences, and orders in council, founded either on the King's prerogative, or on some act of parliament. We have several times had occasion incidentally to observe, that, notwithstanding the general prohibition, it has been the custom to grant dispensations from the general rule in peculiar circumstances of policy or hardship. These dispensations are sometimes general, extending to a whole class of cases; and sometimes particular, affecting only individual adventures. The general dispensations are of two descriptions--by the permission of the King, and by acts of parliament. The first are usually issued in council, and vary, of course, from time to time with the exigencies of the state. The acts of parliament for temporary purposes of public convenience are passed from time to time, usually to last till the termination of the war, or for some other more definite period, and by which the general strictness of the commercial code, and more particularly of the navigation law, is for a while suspended. The dispensations of a particular nature, are chiefly of two kinds, passports and licences. We will first consider those dispensations which the King, by virtue of his prerogative, may grant; and secondly, those founded on particular acts of parliament. (1) See division of the subject, ante 377. &C. The King is usually denominated the arbiter of commerce (1), 1. Of DispensaThe King, with the advice of his council, has the right of re- King's Prerotions by the gulating the commerce of this kingdom, except where there gative. have been particular provisions made by statute, over which he Proclamations, has no authority (2). It was formerly a doctrine generally prevalent, that the proclamations of the King were of equal force with the statute law; and an enactment declaratory of the principle thus assumed was passed in the year 1539 (3). This statute, which was enforced by 34 & 35 of H. 8. c. 23. declared, that the King, with the advice of his council, might set forth proclamations under such penalties and pains as should seem necessary, which should be observed as if they were made by act of parliament; and though there was a proviso, that this should not be prejudicial to any person's inheritance, offices, liberties, chattels, or life, yet that reservation was little better than a nullity, when the statute immediately proceeded to enact, that whosoever should willingly offend against any article contained in the said proclamations, he should pay such for feitures, or be so long imprisoned, as should be expressed in the said proclamations; and that if any offender should depart the realm to avoid answering the offence, he should be adjudged a traitor. Happily, however, these provisions no longer exist to disgrace the code of British jurisprudence. If they had continued, the constitution, of which we are now so proud, would be but one degree removed from an absolute despotism; and the Parliament, instead of enjoying the exclusive right of legislation, would possess but a legislative power concurrent with that of the King in his sole capacity (4). This obnoxious act was formally repealed in the commencement of the reign of Edward VI. (5); and at this day, especially since the 1 W. & M. sess. 2. c. 2., the prerogative of the King, with regard to proclamations and other acts, extends only where it does not interfere with the statutes, or the common law of the land (6); and in Coke's Reports (7), it is said, that the King cannot, by his proclamation, make a thing unlawful which was before lawful, and therefore nothing will be punishable after proclamation (1) 1 Bla. Com. 273. (2) 2 East, 296. 1 Taunt. 227. (3) 31 H. 8. c. 8. & see Thomas v. Sorrell, Vaughan 345. (4) 4 Hume Hist. 196, 7. 6 Of Passports and Safe Conducts. (5) which was not so before (1). But with this limitation, there is still left to the King a very extensive power. He may, by virtue of his prerogative, declare war or make peace; may grant letters of marque and reprisal, and licences dispensing with the rigour of war, passports and letters of safe conduct (2). He may promulgate blockades according to his direction of the national force; he may also make new declarations of contraband, when articles come into use as implements of war, which were before innocent; he may relax from the utmost rights of war, and from its extreme severities (3). What is termed the war prerogative of the King is created by the perils and exigencies of war for the public safety, and by its perils and exigencies is therefore limited. The King may lay on a general embargo, and may do various other acts growing out of sudden emergencies; but in all these cases the emergency is the avowed cause, and the act done is as temporary as the occasion; the King cannot change, by his prerogative of war, either the law of nations or the law of the land, by general and unlimited regulations. (4) With respect to passports and safe conducts, it is observable that the subject of a king in amity may in general, and subject to the regulations under the alien acts, come into this kingdom without licence or safe conduct (6); but no subject of a king in enmity with the king of England, can come into the kingdom without the king's licence and safe conduct. Safe conducts, according to divers ancient statutes, must have been granted under the king's great seal and enrolled in chancery, or else were of no effect; the king being supposed the best judge of such emergencies as may deserve exception from the general law of arms. But passports under the king's sign manual, or licences from his ambassadors abroad, are now usually obtained, and are allowed to be of equal validity (7); and the violation of the protection afforded (1) Chalmers, Col. Op. vol. 2. (2) Com. Dig. Prerogative. March 8, 1808, on Orders in (4) Lord Erskine's speech, Beawes, Lex Mer. 6 ed. 394. Com. Dig. Prerogative, B. 5. Jacob's Law Dict. titles "Passport, Safe Conducts ;" and Postlew. Dict. and Montefiori's Dict. same titles. Pardessus, 3 tom. 269. (6) Calvin's Case, 7 Co. 21 b. As to alien regulations, see ante, 143, 4. (7) 1 Bla. C. 7. page 252. 1 Beawes 394. Vatt. 416. Cobbett's St. Trials, vol. 2. 583. Com. (5) As to these in general, see Dig. Prerogative, B. 5. by letters of safe conduct or by a passport, is a contempt of the king's authority, and punishable as a misdemeanor. (1) The term passport, says Vattel (2), is used on ordinary occasions when speaking of persons who lie under no particular exception as to passing and repassing in safety, and to whom it is only granted for greater security, and in order to prevent all debate, or to exempt them from some general prohibition. A safe conduct is given to those who otherwise could not safely pass through the places where he who grants it is master; as for instance, to a person charged with some misdemeanor, or to an enemy (3). Of safe conducts, Vattel expresses himself to the following effect (4): "All safe conducts, like every other act of supreme command, emanate from the sovereign authority; but the prince may delegate to his officers the power of granting safe conducts, and they are invested with that power either by an express commission, or by a natural consequence of the nature of their functions. A general of an army, from the very nature of his post, can grant safe conducts, and as they are derived, though mediately from the sovereign authority, the other generals or officers of the same prince are bound to respect them. The person named in the safe conduct cannot transfer his privilege to another; for he does not know whether it be a matter of indifference to the grantor of the safe conduct, that another person should use it in his stead; and so far from presuming that to be the case, he is even bound to presume the contrary, on account of the abuses which might thence result; and he cannot assume to himself any farther privilege than was intended for him. If the safe conduct is granted, not for persons, but for certain effects, those effects may be removed by others besides the owner. The choice of those who remove them is indifferent, provided there do not lie against them any personal exception, sufficient to render them objects of just suspicion in the eye of him who grants the safe conduct, or to exclude them from the privilege of entering into his territories. He who promises security by a safe conduct, promises to afford it, whenever he has the command; not only in his own territories, but likewise in every place where any of his troops may happen to be; and (1) Com. Dig. Prerogative, B. 3. E. 8. 4 Bla. Com. 68, 9. (2) Vattel, b. 3. c. 17. s. 265. (3) Several of the points relating Safe-conducts are applicable also to (4) Vatt. b. 3. ch. 17. s. 266. E |