sacred character, and the use of it to obtain knowledge or information surreptitiously against the interests or wishes of an enemy is to abuse it, and will subject the bearer to punishment as a spy. 2. The senior officer present is alone authorised to despatch, or to admit communication by, a flag of truce; a vessel in a position to discover the approach of such a flag is to communicate the fact promptly. 3. Flags of truce should never be permitted to approach sufficiently near to acquire useful information. The firing of a gun, by the flag or senior officer's ship, is generally understood as a warning not to approach nearer. 4. On the water, a flag of truce should be met at a suitable distance by a boat or vessel from the senior officer's vessel, in charge of a commissioned officer, having a white flag plainly displayed from the time of leaving until her return. In despatching a flag of truce the same precautions are to be observed. 5. When a flag of truce is admitted, the ensign is always to be hoisted and a white flag at the fore on board the vessel of the senior officer present, when no engagement is in progress, and kept flying until the flag of truce from the enemy has returned within his lines. 6. A flag of truce cannot insist on being admitted, and should rarely be used, during an engagement; if then admitted, there is no breach of faith in retaining it. Firing is not necessarily to cease on the appearance of a flag of truce during an engagement, and should any person connected with it be killed, no complaint can be made. If, however, the white flag should be exhibited as a token of submission, firing is to cease. 7. An attacking force should avoid firing on hospitals, whenever they are designated by flags or other symbols understood. It is an act of bad faith, amounting to infamy, to hoist the hospital protective flag over any other building, unless the attacking force should request or consent that it might be used, in order to spare edifices dedicated to science or literature, or containing works of art. The Brussels Conference (1874) declares :-Art. 43. An individual authorised by one of the belligerents to confer with the other, on presenting himself with a white flag, accompanied by a trumpeter, bugler, or drummer, or also by a flag-bearer, shall be recognised as the bearer of a flag of truce. He, as well as the trumpeter (bugler or drummer), and the flag-bearer, who accompany him, shall have the right of inviolability. Art. 44. The commander to whom a bearer of a flag of truce is despatched is not obliged to receive him under all circumstances and conditions. It is lawful for him to take all measures necessary for preventing the bearer of the flag of truce taking advantage of his stay within the radius of the enemy's position to the prejudice of the latter; and if the bearer of the flag of truce is found guilty of such a breach of confidence, he has right to detain him temporarily. He may equally declare beforehand that he will not receive bearers of flags of truce during a certain period. Envoys presenting themselves after such a notification from the side to which it has been given, forfeit their right to inviolability. Art. 45. The bearer of a flag of truce forfeits his right of inviolability, if it be proved, in a positive and irrefutable manner, that he has taken advantage of his privileged position to incite to, or commit an act of treachery. 364 CHAPTER XXX. LICENCES TO TRADE. 1. Character of licences to trade-2. General licences-3. Special licences-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 principal 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. Licence to alien enemy-17. If cargo be injured—18. If it cannot be landed19. 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 licence-27. Licence does not act retrospectively-28. If not on board, or not endorsed-29. Effect of alteration-30. Breach of blockade, etc., by licenced vessel. § 1. A licence is a kind of safe-conduct, granted by a belligerent 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. Licences 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 licence to trade, though 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 licence. Such restrictions are often of material importance, and cannot be deviated from with safety.1 § 2. A general licence 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 licences issued to certain communities or individuals exempting them from capture. In England, licences 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. In the United States, as a general rule, licences 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-in-chief of the military and naval forces of the United States.2 1 Grotius, De Jur. Bel. ac Pac., lib. iii. cap. xxi. § 14; the 'Abigail,' Stewart V. Ad. R., 360; the 'Cosmopolite,' 4 Rob., 8; the 'Twee Gebroeders,' 1 Edw. R., 96; Schroeder v. Vaux, 15 East., 52. A licence 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 licences, 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. It is probable that the example set by England at the time of the Crimean War, 1854, will be followed in a future war. (See ante, vol. ii., p. 156.) Some extracts from the work of Mr. Serjeant Petersdorff will be found in the notes to this chapter, but the main questions in all of them may be collectively gathered from Usparicha v. Noble, 13 East., 332, Menett v. Bonham, 15 East., 477, and Flint v. Crokatt, Ibid. 522. Duer, On Insurance, vol. i. pp. 355, 541, 594-619; Vandyke v. § 3. For the same reasons, a special licence to individuals 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 licences to trade within the limits of their own commands, 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 licences, 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.' § 4. Licences 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 corn and flour, and captured whilst proceeding from the United States to the Spanish peninsula, under the Whitmore, East., 475; Taulman v. Anderson, 1 Taunt. R., 227; Shiffner v. Gordon, 12 East., 296; the 'Charlotte,' i Dod. R., 387. The Lord Lieutenant of Ireland cannot by proclamation or otherwise authorise a trading of British subjects with the enemy.-The 'Charlotta,' Dodson, 391. A general licence must be applied by evidence to the particular case in judgment; it makes part of the title of the party claiming to be licenced to show how he obtained possession of a licence, 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. 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 U. S. Att'ys. Gen., vol. vi. p. 630. 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 licences 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. Bartholomew. All were condemned where the licences were not expressly included within the terms of the confirmation by the Order in Council.' § 5. There are very few American decisions on the subject of licences, and there is a great want of uniformity in those of the British Admiralty. Mr. Duer has pointed out and commented on the causes of this irregularity. Prior to the peace of Amiens, licences were regarded as an act of special grace, and most strictly interpreted, but, on the renewal of the war, the issuing of licences 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 licences, 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 cir 1 The 'Hope,' I Dod. R., 226; Johnson v. Sutton, Doug. R., 254. |