XII. It was an action on a policy of infurance, at and from CHA P. London to Penfacola and Manfbae in the river Miffifippi, with liberty to touch at Portsmouth and Jamaica. The fhip infur- Lever v. Fletch ed, was employed in the usual trade in the river Miffifippi, er, Lond. Sitt. Hil. Vac. 1780, and traded at Little Manfhae, on the ifland of New Orleans, part of the dominion of Spain. Manfbue, the place mentioned in the policy, is part of the continent of North Ameri ca, on that fide of the river, which France and Spain by the treaty of Paris in 1763, furrendered to Great Britain, and is about 37 leagues higher up the river than New Orleans. The lofs happened by a feizure of the ship at Little Manfhae by the Spanish governor, as a reprifal for tranfgreffions alleged to have been committed by a king's fhip in the Lakes, The counfel for the defendant contended, that the policy in question was on a trading voyage, and that the trade itfelf was an illicit one. Lord Mansfield." The first question is, whether this pol icy covers the trading on the Missifippi before the ship's ar rival at Manfbae. The trading at Little Manfbae is a delay of the voyage, and an increase of the risk. If the policy do not cover this part of the trading, then it is a deviation, and there is an end of the contract, at leaft, fo as to prevent the plaintiff from recovering. It is very clear what the trade is. Every trading with the subjects of Spain is illicit by the treaty of Paris. The navigation is free to both countries; and the municipal laws of both countries remain. Though such trading be contrary to the laws of Spain; yet no country pays attention to the revenue laws of another. Therefore, if the defend ant had, with full knowledge that it was a finuggling trade with Spain, made the infurance, then it might be a fair contract be tween the parties. But the main question for confideration seems to be, whether this trading at Little Manfhae was in fured by the policy." The jury found for the defendant and it may be prefumed on the ground of deviation. It cannot be improper, becaufe it is nearly connected with the fubject before us, to enter upon the inquiry, how far ↑ trading with an enemy, in time of actual war, is legal? Guid. c. 2. f. 2, The opinion of foreign writers upon this point, cannot fail 3 2 Val 31. to afford information upon the question. It has long been fettled XII. CHA P. fettled in France, that all trading with enemies is illegal.. This indeed is given as the reason for requiring to be inferted in the policy of insurance, the name and place of abode of the infured, the effects upon which the insurance is made, the name of the fhip, and the place of loading and unloading. By complying with fuch a requifition, it is known in time of war, whether, notwithstanding the prohibition of Byak. Q. Jur. commerce, which, according to thefe writers, a declaration Pub. lib. 1. c. 3 of war always imports, the fubjects of the king continue to trade with the enemies of the state, or with their friends and allies; by which means they would be able to convey. warlike ftores, provifions, and other prohibited goods to the enemy. But every thing of this kind being forbidden, as prejudicial to the state, would be liable to confifcation, and to be condemned as prize, whether found in ships of our country, or of friends and allies. The prohibition to infure the property of an enemy, which is almost generally establifhed by the ordinances of foreign countries, proceeds up-. on the principle, that it is unlawful to trade with an enemy; because if commerce were allowed to be carried on between the hoftile nations, there could not poffibly be an obя. jection to protect that commerce by means of the contract of infurance, Ord. of Stock holm, &c. 2 Mag. 277. 2 Roll. Abr. 173. The general law of England had not, till lately, laid down any exprefs rule upon the fubject; but we must take notice. of what has paffed in the courts of justice upon the que tion. The only ancient cafes to be found in the books upon the fubject are two; the one is in Roll's Abridgment, and happened in the 13th year of the reign of Edward the Second. A licenfe granted to certain merchants to buy and fell in Scotland, which was then at war with the king of England, was declared to be void; and confequent1 Term. Rep. ly the trading held to be illegal, The other was a cafe put to the judges, in the time of Lord Somers, for their opin ion upon the point, whether fending corn to the enemy, in time of war and famine, was a crime at the common law. The judges held it was a mifdemefnor. It is to be obferved, however, that the laft was a cafe where provifions were fupplied, which, as well as warlike ftores, muft be prohibited from the nature of the thing. P. 85. The XII. The first modern cafe, in which trading with an enemy CHA P. came at all under confideration; although it did not then. meet with any decision, was that of Henkle against the Roy• 1 Vezey 317. al Exchange Affurance Company, before Lord Hardwicke in the Court of Chancery, which upon a former occafion was cit- Vide ante, p. x. ed much at length. His lordship there faid; it might be going too far to fay that all trading with enemies is unlawful: for that general doctrine would go a great way, even where only English goods are exported, and none of the enemy's imported, which might be very beneficial. He was not fatisfied with the answer given to the objection of an illicit trade, by citing the cafe of the South Sea Company; for that by no means determined the queftion. That was not a trading contrary to the law of this country; but contrary to the agreement of the company: which is different from a contract repugnant to the general law of the country, whether ftatute, common, or maritime law. The fame answer might be given to Sir Robert Nightingale's cafe, which was merely a plea in the Exchequer, upon the private right of the company, being contrary only to their statutes, and not to the general law of the land. 84. From this opinion, it is evident that the queftion was Gift. v. Mason, by no means fettled in Lord Hardwicke's mind: but in a fub- 1 Term Rep. fequent cafe, Lord Mansfield strongly argues, that trading with an enemy is not forbidden by the general law of the country; for he says, that several acts of parliament have been specially passed, in order to make such trading illegal, which proves that the legislature did not think it was fo before. The fhip, indeed, in the last of these cases appeared to be neutral; and the court laid it down, that it had no where been held that an infurance upon a neutral ship trading to an enemy's port was void. But then Lord Mansfield went upon the doctrine of a subject's trading with enemies, and concluded thus: by the maritime law, trading with an enemy is cause of confifcation, provided you take him in the act; but this does not extend to neutral veffels. The next question which comes to be confidered is, whether it be lawful to insure the property of an enemy. What ever CHA P. ever doubts might formerly obtain in England, either as to XII. R. Brandon v. R. 23. the legality or expediency of fuch infurances, the question is now finally fettled in the negative by two unanimous decifi ons of the Court of King's Bench. The first of those cafes was an action on a policy of infur Nefiu, 6 Term ance on goods on board the Greyhound, an American fhip, at and from London to Bayonne; there was an averment in the declaration, that the policy was effected for the benefit, and on the account, of David Brandon, Ifaac and David Valery, and others who were interested in the goods; and another averment that the ship was captured as prize. The defendant pleaded that the perfons, in whom the interest was averred to be, were aliens born; and that before the ship failed, they were become alien enemies of our king. 34 G. III. c. 79. £. 17. The fecond plea ftated, that the perfons interested were living in France, and enemies, and that the goods were fent from London after the commencement of the war, for the purpose of being landed and delivered in France to the king's enemies. The replication to the first plea ftated, that the perfons interested were indebted to the present plaintiff in more than the value of the goods infured. The replication to the fecond, that the goods infured were not prohibited at the time of the policy, and that they were shipped before the commencement of the war. To these replications there were demurrers. Lord Kenyon, in giving the opinion of the court, faid, that they had confidered this cafe, and unless any thing more could be urged at the bar to shake the opinion they had formed, they were of opinion, that judgment must be given for the defendant, on this ground, that an action will not lie either by or in favour of an alien enemy (a). This (a) By a late act of parliament, which paffed " for more effectually preferving money or effects, in the hands of his majesty's subjects, belonging "to, or disposable by, persons refident in France, for the benefit of the in"dividual owners thereof," commiffioners were appointed for carrying the purposes of the act into effect: and by the 17th fect. of the statute, the commiffioners were empowered to direct the money due on certain infur ancos XH. This cafe, at first view, may appear to proceed merely CHA P. upon the special plea; but in the fame term another cafe was argued upon a special verdict, in which the only point difcuffed was the legality of insurances on enemy's property; and the principle of the decifion in Brandon v. Nesbitt was held fo clearly to control the other, that, on the authority of that decifion, the counfel for the plaintiff abandon ed the fecond argument, which the court had ordered: R. 35 The special verdict ftated, that the plaintiff, on the 13th Briftowy.Tow March 1793, being then refident in Great Britain, in ers, 6 Term pursuance of an order for that purpofe, caufed the infur ance in queflion to be made on account of Arrouet, Maffot; &c. and that the goods infured were by the policy warranted French property, and were fo in fact: that the goods, which confifted of buttons, buckles, &c. of the manufacture of this kingdom, were shipped on board the Nancy, (an American fhip,) on the 19th March 1793, by Meffrs. Humphreys of Birmingham, in compliance with orders received in January 1793, from Meffrs. Arrouet, Maffot, &c. who were and still are fubjects of France: that by two orders in council of 11th February 1793, general reprisals were granted against the fhips, goods, and fubjects of France; and a general embargo was laid on all veffels in Great Britain but by another order of 26th February the faid general embargo was declared not to extend to foreign veffels belonging to the fubjects of any state in amity with his majesty, but that they might forthwith proceed on their respective voyages, provided the cargo did not confift of -naval or military stores, or any other article, the exportation whereof was prohibited by any law or order of council then in force. The verdict then ftates the failing of the fhip on the voyage infured on the 21st March 1793, the fubfequent capture of the vessel by fome English fubjects, and the condemnation of the goods infured as French property. This special verdict was fully argued at the Bar, and a fecand argument was ordered: but after the decifion of Bran don ances to be paid; and, in cafe of refusal, actions might be brought with the approbation of the commiffioners; and to fuch actions so brought under this authority, alien enemy is not pleadable, |