COMMERCIAL LICENCES. (Hansard, 29 January 1808)

Mr. Horner
rose, pursuant to his notice, and said, that it would not be necessary for him to detain the house at any length, as the object of his motion could be stated in a very few words. He felt it, however, in the first place, necessary to observe, that it was not his intention, in making the motion he was about to make, to anticipate, in any respect, the discussion that might hereafter arise upon the legality or policy of the Orders in Council; his object was merely to put the house in possession of such information as might enable them to form an adequate judgment of the extent to which a practice unquestionably within the act and in its origin, legal, had been carried; whether with regard to safe conduct, or the commercial intercourse in transports conveying foreign commodities from one country to another. He was aware that never was there a period in which it was more hazardous to attempt to trade without those licences than the present, and that, by consequence, never was there a time in which the granting of licences by the privy council was carried to such a serious extent; but he contended, that this very consideration was the strongest argument why it was necessary for the legislature of the country to ascertain its limits, and, if that was not possible, to prescribe such as both the principles of commercial policy and constitutional law, rendered necessary. When it was considered how largely the field of licences was opened by the present extensive, almost universal, system of blockade, the present would not be thought an unseasonable opportunity for ascertaining the extent of the persons to which the grant of those licences was entrusted. He had said that this unrestrained power was injurious upon two considerations; first upon that of commercial policy; and, secondly, upon that of constitutional law; with regard to the first, there could be no doubt it was not politic to throw into the hands of his majesty's executive government the entire controul of the commercial intercourse of the country: upon such an uncertain principle, commercial men could not be expected to engage in any speculation, because there was no one uniform ground upon which to claim such licences, nor was there any recognized principle by which the. persons exempted 186 could ascertain whether they laboured under any partial grievance, or whether they were, for sufficient reason, exempted from the benefits of such licence; and here he could not help observing, that certainly it did appear that those exemptions had been carried to a most serious extent. But he had said, that this power of granting licences so unascertained, was also contrary to the principles of the constitutional law; he meant those principles by which it was regulated, that no money could be taken from the subject, but by the legislative power. According to the true principles of the constitution, nothing but the parliament could levy money of the people, and yet, what was the mmediate effect of this system of granting licences with a discretionary power? Nothing less than that of establishing an impost, a system of taxation on the subject, in contradiction of the very spirit of the constitution, and in open violation of the law of the land. By this system the entire foreign trade was thrown into the hands of the executive, and thus the foreign trade was exclusively submitted to the controul of the licences of the executive, which licences were not authorized by act of parliament. He understood that the yearly amount of fees received at the Privy Council Office for these licences was very considerable. By what rule, or at what rate they were imposed, he knew not. He was not even aware of any approximation to their amounts; but it was sufficient for the house to know, that almost the whole of the foreign trade was carried on by these licenses, and that in them fees originated which were unauthorized by parliament, and which amounted to a direct impost and taxation on foreign commerce. The hon. gent. concluded with moving, "That an humble address he presented to his majesty, praying that he would be graciously pleased to give directions that there be laid before the house a List of all the Licences granted by his majesty's privy council to private persons, in a manner that would have been illegal, unless under the authority of said Licence, from the month of May 1803, to the 1st day of November last inclusive, distinguishing the number in each month and year."

Mr. Rose
said that there could be but one wish on the part of his majesty's ministers, with respect to the principle of the motion now before the house. The hon. gent. had prefaced his motion with a speech that 187 did him great credit, and shewed at once his candour and perspicuity; in the same spirit of candour he would suggest to that hon. gent. an amendment in the wording of the motion now before the house. The motion went to require a list of the Licences, &c. and there was annexed the distinction of legality, and illegality, a distinction that, perhaps, it would not he so easy to ascertain as might at first he imagined. As to the first objection, it would be scarcely possible to supply a list of all the Licences granted within the five years, specifying each, and severally distinguishing them.

§ Mr. Horner
begged pardon for interrupting the right hon. gent. but he thought he could save the house and the right hon. gent. much unnecessary trouble, by stating that the wording of the present motion, as far as related to the list of licences, specifying each, was a mistake to be attributed to his inadvertency; as his intention was to have moved rather for the number of licences so granted, which would as fully answer the ultimate object of his motion. It was then agreed upon, that the papers to be laid before the house should be an account of the number of licences so granted, &c.

Mr. Rose
could not avoid pressing upon the consideration of the hon. gent. the propriety of another alteration in the wording of his motion. The distinction that was attempted to be laid down as to what orders were legal or illegal, would be necessarily productive of delay, if not difficulty. Perhaps it was not going too far to say, that all such orders were in a manner illegal; but yet, if such were not allowed, and to a certain extent, it would be impossible in such times to carry on a foreign trade at all. But even admitting this, he would yet say, that when the hon. gent. had complained of such licences, as being unconstitutional, he should have adverted to the circumstance of an act having been passed in the 43d of the king, authorising such grants of licences. As an illustration of the difficulty arising out of this distinction of legality or he would adduce art instance of 300 licences being granted within a certain period of time. Now, according to the present wording of the motion, those 300 could not be laid before the house till they had been submitted to the revision of the privy council, and till the privy council had decided which were in their opinion legal or illegal. He wished, therefore, to obvi- 188 ate this difficulty by omitting this distinction, and moving for the production of licences granted within stated times. As to what the hon. member had said he should make the subject of his second motion, namely, the fees granted to the officers of the privy council, he thought, that in general stated fees were much less liable to abuse than gratuities, which he should in every department whatever be prepared to set his face against. As to the precise nature of the fees of office on the granting of licences, the fees amounted, for a whole cargo, to merely 14l. including the stamp duty, which amounted to 1l. 10s.; of which 14 pounds, 91. 4s. 6d. was paid for the sign manual, 2l. to the principal clerk, and 1l. 10s. distributed among the other inferior officers, and 2s. 6d. to the office-keeper. In stating this he would repeat, that there was nothing which he was more anxious to put a check to than the system of gratuities. He would join with any gentleman in annexing to it any punishment seasonably rigorous. He would go so far as to subject it to the penalties of a simple felony. For there was no one existing abuse he was so anxious to put a stop to. He had no other motive in suggesting these alterations to the hon. gent. than to put him in the best way of coming at the information he sought for, which he believed could not be so readily obtained by the motion as it originally stood; for the very merchants who solicited for licences were in many instances totally independent of those licences, though, for a very justifiable caution, they had applied for such licences.

§ Mr. Horner
replied to the general observations of the right hot. gent. as affecting the distinction of the legality or illegality of the licences, and denied that the 43d of the king, as cited by the right hon. gent. applied, because the object of that act related merely to a temporary suspension of the navigation act.

The Chancellor of the Exchequer
defended the necessity of this discretionary power being vested in the privy council, and said that the object of all such orders was to ease the subject under the operation of the strict letter of the law. He took this opportunity of repeating his doubts of the propriety or necessity of asking parliament for an indemnity, with respect to the orders in council, in as much as it did not appear that in this instance more had been done than had been done before, and in a manner legalized by the act already al- 189 luded to.—After some further conversation it was finally agreed, that the two motions should be to the following purport: 1. "That, an humble address be presented to his majesty, that he will be graciously pleased to give directions, that there be laid before this house, an Account of the number of Licences which have been recommended by the lords of his majesty's privy council to be granted by his majesty, under his sign manual, to persons applying for the same, for commercial objects, from the commencement of hostilities in May 1803 to the first of Nov. last; distinguishing the number in each month or year. 2. That there be laid before this house, an Account of the whole amount of Fees or Gratuities which have been yearly paid and received at the Office of his majesty's most honourable privy council, or at any other of the public offices, by or on account of persons who have obtained or have applied for Licences permitting them to navigate or trade, from the commencement of hostilities in May 1803 to the 31st of Dec. last, specifying by what persons in the said offices respectively such Fees, or any proportion of them, have been ultimately received, or in what other manner the whole amount of such Fees has been disposed of; and stating by what regulation, or according to what rate, such Fees are required."