Who may be insured. Of the assured. permission of this practice in England, one part of our nation restored to theirs, by the effect of insurances, what the other part took from them by the rights of war. (r) At length such insurances were unanimously determined to be illegal and void. The English legislature, adopting this view of the matter. passed two statutes, one in 1748 (s), and another in 1792 (t), prohibiting, under a penalty, the insurance of any ships or merchandise belonging to France during the wars then pending with the subjects of that nation. These acts, however, only applied to the then existing wars, and left the question still undecided as to the legality of such insurances independent of any statutes. At length the courts of Westminster Hall took the whole subject into consideration upon the principles of international law, and established, by a long course of decisions, under Lord Kenyon, Lord Alvanley, and Lord Ellenborough, that such insurances were not only illegal and void, but repugnant to every principle of public policy. (u) "The question is," says Lord Alvanley, "whether it be competent to an English underwriter to indemnify persons who are engaged in war with his own sovereign, from the consequences of that war; and we are all of opinion that, on the principles of the English law, it is not competent to any subject to enter into a contract to do any thing which may be detrimental to the interests of his own country; and that such contract is as much prohibited as if it had been expressly forbidden by act of parliament." (v) § 53. It will not be necessary to cite at any length the 191. (u) Brandon v. Nesbit, 6 T. Rep. 23. Bristow v. Towers, ibid. 35. Furtado v. Rogers, 3 Bos. and Pull. Kellner v. Le Mesurier, 4 East, Gamba v. Le Mesurier, ibid. Brandon v. Curling, ibid. 410. M'Connell v. Hector, 3 Bos. & Pull. 113. Le Luneville v. Phillips, 2 Bos. & Pull. N. Rep. 97. (r) Valin, tit. vi. Des Assurances, (s) 21 G. 2. c. 4. 407. (v) In Furtado v. Rogers, 3 Bos. & Pull. p. 198. Who may be cases which have established this now undisputed principle: Of the assured. but it may be expedient to notice their more important insured. points. Nesbitt, and The first two cases in which the question was formally In Brandon v. decided, were Brandon v. Nesbitt, and Bristow v. Towers, Bristow v. which came before Lord Kenyon and the Court of King's held that these Bench. (w) Towers, it was contracts could not be sued In both, the action was brought by an English agent for upon in Enhis principals, who were alien enemies: the underwriters, in glish tribunals. the first case, raised this matter of defence on the record, by a special plea; in the second, they were allowed to prove it under the general issue. In both alike the court gave judgment in their favour, upon the ground that no action could be maintained in our courts upon any contract made with an alien enemy. void, though hostilities had commenced. These two cases proceeded exclusively on the ground that such a contract could not be enforced in our courts. They did not directly decide the question whether such insurances were absolutely illegal in their own nature. This point was, In Furtado v. for the first time, resolved in the case of Furtado v. Rogers, insurances were Rogers such in which Lord ́Alvanley, then presiding in the Court of held absolutely Common Pleas, laid it down decisively, that insurances effected before effected on behalf of an alien enemy, though made previously to the commencement of hostilities, and therefore legal in their inception, could not cover a loss by British capture after war had broken out; and that no action could be brought upon them in our courts even after the restoration of peace. (x) In this case it was finally determined, that all insurance of enemy's property was, at common law, illegal: the object of war being to destroy the commerce of the enemy, while that of insurance is to encourage commercial speculations by distributing losses amongst a number of individuals: that the same objections which prevailed against such a policy, if effected in war time, were equally applicable to one subscribed before hostilities had commenced; as a foreigner might other (w) Reported in 6 Term Rep. p. 23. and p. 35. (x) Furtado v. Rogers, 3 Bos, & Pall, 191. Of the assured. wise insure, previous to the war, against all the evils incident Who may insured. be The decisions borough on to the war. The language of Lord Ellenborough in condemning these of Lord Ellen- insurances, was even stronger than that of Lord Alvanley ; he pronounced them to be not only illegal and void, but repugnant to every principle of public policy. this subject. No insurance on enemy's property by British subject can cover any loss happening from whatever cause, during Whether the loss in respect of which the assured sought to recover were a loss by British capture (y), or by a co-belligerent (z); whether the insurance were effected before or after the breaking out of hostilities (a); or whether the action were brought during war or after the restoration of peace (V), the existence of his lordship's decision was uniformly the same; and he declared, that every insurance on alien property by a British against British subject must be understood with this limitation, that it shall not extend to cover any loss happening during the existence of hostilities between the respective countries of the assured and the underwriters. war. Insurance capture on a foreign ship is illegal. Aliter (as it seems) on a British ship. If the policy be effected before the com When, however, it was attempted to extend this principle still farther, and urged in argument, that an insurance against British capture was void even on a British ship, the point was not decided, but the court intimated a pretty clear opinion, that it would only be illegal in the case of a foreign ship. (c) If such a contract of insurance be effected before the commencement of hostilities, it is legal in its inception; and if the risk have once attached on such policy, there can be no legal in its in- return of premium. (d) mencement of hostilities, it is ception; and if the risk has there can be no If such a policy be knowingly effected after hostilities attached on it, have commenced, the assured, whether a foreigner or British subject, is equally deprived of all right to a return So, where it is of premium, for he paid it as the price of a risk he knew return of pre mium. knowingly effected after hostilities have commenced. (y) As in Kellner v. Le Mesurier, 4 East, 396. (z) As in Brandon v. Curling, 4 East, 410. (a) As in Furtado v. Rogers, 3 Bos. & Pull. 191.; or Brandon v. Curling, 4 East, 410. (b) As in Gamba v. Le Mesurier, 4 East, 407. (c) Lubbock v. Potts, 7 East, 447. (d) Furtado v. Rogers, 3 Bos. & Pull. 191. Who may be insured. Aliter if inno cently commenced after to be illegal at the time (e); if, however, an agent in this Of the assured. country innocently effects an insurance for an alien, who has become an alien enemy by the breaking out of hostilities before the policy was effected, though the agent was unaware of that fact at the time he procured it to be made, yet the premium thus paid under a mistake of fact may be recovered back from the underwriter, as money had and received. (ƒ) If, however, an alien enemy have any licence or privilege to trade, he will have the right of insuring his property as incident to the right of trading. (g) Such a licence not only legalizes the commerce, and therefore the insurance by which it is sought to be protected (h), but also enables the alien enemy, so licensed, to sue upon the policy, not only in the "Whatever comname of the agent, but in his own. (i) merce of this kind,” says Lord Ellenborough (j), "the crown has thought fit to permit, must be regarded by the courts of law as legal with all the consequences of its being legal; one of which consequences is, a right to contract with other subjects of the country for the purpose of protecting such property by insurance." Hence, where a licence to trade with the enemy was given to three persons, two of whom themselves became alien enemies before action brought; it was held, that the broker, who had effected the policy for all the three, might, notwithstanding, recover upon it. (k) Where the party intended to be insured by the policy does not become an alien enemy, until after the loss and the cause of action have arisen, his right to sue on the policy is only suspended during the continuance of hostilities, and revives the breaking out of hostili ties. An alien licensed to insured; enemy who is trade may be and may sue in person on the policy; even where his or by his agent, co-licensees alien enemies before action brought. have become Where the does not be come an alien enemy till after the loss, his right to sue is only suspended during the continuance of hostilities. Who may be insured. In such cases alien enemy Of the assured. on the restoration of peace (7); hence, the defence of alien enemy, in such cases, as it is only in temporary suspension of the plaintiff's right to sue, can only be taken advantage of the defence of by a plea in abatement, and cannot be given under the general issue (m); where, however, the war has broken out before the loss has taken place, even though after the policy has been effected, the alien's disability to sue is not removed by the return of peace; for the policy in such case, as already seen, is wholly illegal and void. (n) must be pleaded in abatement. Where, however, war has broken out after the policy, but before loss, the disability to sue is not removed by the we have return of peace. ART. II. Who are Alien Enemies.Hostile National Character. -How acquired. By Domicil or by Trade. What constitutes an alien enemy. Domicil is the leading test of national character. What constitutes domicil, A. National Character as acquired by Domicil. § 54. Since, therefore, all insurances on the property of alien enemies are in this country strictly prohibited, it becomes, of course, very important to ascertain what constitutes an alien enemy. An alien enemy, in the primary and obvious sense of the words, is the natural-born subject of a state actually engaged in war with our own; but the principle is now fully established, that, for all commercial purposes, the domicil of the party, without reference to his place of birth, is the leading test of national character. Every person domiciled in a state actually engaged in hostilities with our own, is an alien enemy, whether he be a born subject of that state or not. (0) As, therefore, the national character of a party, for commercial purposes, depends principally on his domicil, it will not be out of place here so far to investigate the doctrine of domicil, as to be able to ascertain when and how a character (1) Flindt v. Waters, 15 East, 266. 407. (0) The Indian Chief, 3 Rob. Adm. Rep. 18. The principle is the same ia France. La justiciabilité d'un étranger ne depend pas de sa nationalité, mais de son domicile. (Boulay Paty, Com. on Emerigon, vol. i. p. 127. ed. 1827: see also Kent's Comm. vol. i. p. 74. ed. 1844.) |