CHAPTER THE THIRTEENTH. Of Prohibited Goods. 'HE fubject of the prefent chapter is materially connect- CHA P. ed with that of the foregoing; and indeed follows as THE XIII. Prin. of Eq. fecur. No. 21. a confequence from the doctrine there advanced. We then saw that a contract founded upon that which was contrary to law, could never be carried into effect. Thus by the laws of almost all countries, the exportation and importation of certain commodities are declared to be illegal: to act contra- Lord Kaim's ry to that prohibition is clearly a contempt of legal authority; 66. and confequently a moral wrong. If the act itself be illegal, the infurance to protect fuch an act must also be contrary to law; and therefore void. Agreeably to this principle, it Roccus de Afseems to have been laid down by the writers upon the fubject, as a general and universal proposition, that an insurance being made, although in general terms, does not comprehend prohibited goods; and therefore when the infured fhall prosure fuch commodities to be fhipped, the underwriter being ignorant of it, by means of which the fhip and cargo are confifcated, the infurer is discharged. In this paffage from Reccus it may be inferred, that if the underwriter knew that the goods were prohibited, the infurance would be valid. But we truft, it was fufficiently fhewn in the preceding chapter, that that will not alter the cafe : because no confent or agreement can render a contract good and valid, which, upon the face of it, is contrary to law. In France this rule was adopted fo long ago as the year 1660; for in the work of a very refpectable writer of that age we find this paffage: affeur- Le Guidon, c.] ances fe peuvent faire fur toute forte de merchandize, pourvu que le transport ne foit pas prohibé par les edicts et ordonnances du roy. And from an authority no lefs refpectable, it appears that Emerigon the law of France has undergone no alteration fince that pe- Traité des Affurance, tom. I. riod; for he fays, "that thofe effects, the importation or c. 8. f. 5. 66 exportation of which is prohibited in France, cannot be "the Z 2 2. art. 2. XIII. CHAP. "the fubject matter of the contract of infurance; and if "they fhould be confifcated, the infurers are not responsi"ble, even where the truth has been declared by a special claufe "in the policy. The affurance is void, and no premium is "due." This paffage from the celebrated work just referred to, confirms the idea above started, with refpect to the knowledge of the underwriter. The law of England, whofe commercial regulations have furpaffed thofe of every other nation in the world, has alfo introduced fuch a rule into its fyftem of mercantile jurifprudence and the oldest writers upon the subject have taken noMolloy, lib. 2. tice of it. It is faid, "if prohibited goods are laden aboard, f. 7.1.15. and the merchant infures upon the general policy, it is a "queftion whether if fuch goods be lawfully feized as pro"hibited goods, the infurers ought to anfwer. It is conceived "they ought not: for if the goods are at the time of the "lading unlawful, and the lader knew of the fame, fuch "affurance will not oblige the infurer to answer the lofs; for "the fame is not fuch an afïurance as the law fupports, but a fraudulent one." But it is not upon the opinions of learned men merely, that this doctrine is founded in the English law; for the legiflature have by pofitive ftatutes declared their ideas upon the fubject. It appears from the preamble to that fection of the ftatute about to be quoted, that a cuftom, highly prejudicial to the revenue of the country had prevailed, and was increafing to a very alarming degree, of importing great quantities of goods from foreign ftates in a fraudulent and clandeftine manner, without paying the customs and duties payable to the crown and that this evil had been encouraged and promoted by fome ill defigning men, who, in defiance of the laws, had undertaken as infurers, or otherwife to deliver fuch goods. fo clandeftinely imported, at their charge and hazard, into the houses, warehouses, or poffeffion, of the owners of such goods. In order to remedy this mifchief, it was enacted, 4 and 5 W. and " that all and every perfon and perfons, who, by way of M. c. 15. f. 14, infurance or otherwife, fhould undertake or agree to deliv15, 16. 500 1. penalty on per- er any goods, wares, or merchandizes whatfoever, to be fons infuring to imported from parts beyond the feas, at any port or place import prohib ited goods, "whatsoever XIII. "whatsoever within this kingdom of England, dominion of CHA P. "Wales, or town of Berwick upon Tweed, without paying "the duties and customs that should be due and payable for "the fame at fuch importation, or any prohibited goods whatsoever; or in pursuance of fuch infurance, undertaking or "agreement, fhould deliver, or caufe or procure to be deliv"ered, any prohibited goods, or fhould deliver, or caufe "or procure to be delivered, any goods or merchandizes "whatsoever, without paying fuch duties and cuftoms as "aforefaid, knowing thereof, and all and every their aiders, "abettors, and affiftants, fhould for every fuch offence for"fcit and lofe the fum of five hundred pounds, over and above "all other forfeitures and penalties, to which they are lia"ble by any act already in force." It was alfo enacted, seat. 15. "that all and every perfon and perfons, who fhould agree Like penalty "to pay any fum or fums of money for the infuring or con"veying any goods or merchandizes that fhould be fo im66 ported, without paying the customs and duties due and payable at the importation thereof, or of any prohibited goods whatsoever, or fhould receive or take fuch prohibit❝ed goods into his or their house, or warehouse, or other << place on land, or fuch other goods, before fuch cuftoms "or duties were paid, knowing thereof, fhould alfo for every "fuch offence forfeit and lofe the like fum of five hundred pounds; the one half of the faid forfeitures to be to their "majetties, and the other half to the informer, or to fuch "perfons as thould fue for the fame. And if the infurer, conveyor, or manager of fuch fraud fhould be the difcov"erer of the fame, he fhould not only keep the infurance ¢ money or reward given him, and be difcharged of the pen"alties to which he was liable by reafon of fuch offence, "but should also have to his own use one half of the for"feitures hereby impofed upon the party or parties making "fuch infurance or agreement, or receiving the goods as "aforefaid: and in cafe no discovery should be made by the "infurer, conveyor, or manager as aforefaid, and the party "or parties infured or concerned in fuch agreement fhould "make discovery thereof, he fhould recover and receive back "fuch infurance money or premium as he had paid upon "fuch insurance or agreement, and fhould have to his own "ufe one moiety of the forfeitures impofed upon fuch infurer, conveyor, or manager as aforefaid, and fhould alfo be "difcharged on the infured. CHAP. "difcharged of the forfeitures hereby imposed upon him or "them." XIII. A few years afterwards, luftrings, the manufacture of which till then was little known in England, having been worked to great perfection by the Royal Luftring Company, the legislature found it neceffary to protect this branch of trade, by prohibiting the importation of such filks from foreign countries into this, without paying the duties, whethther by direct means, or by the way of insurance. It was 8 and 9 W. 3. enacted, "that every perfon, who fhould import any foreign "alamodes or luftrings from parts beyond the feas, into any c. 36. f. 3. Sect. 2. port or place within the kingdom of England, dominion "of Wales, &c. without paying the rates, cuftoms, impo"fitions, and duties that fhould be due and payable for the "fame at such importation, or should import any alamodes "or luftrings, prohibited by law to be imported, or should, "by way of insurance or otherwife, undertake or agree to "deliver, or in purfuance of any undertaking, agreement, "or insurance, fhould deliver, or cause to be delivered, any "fach goods or merchandize, and every perfon who, should agree to pay any fum or fums of money, premium, or "reward for insuring or conveying any fuch goods or mer"chandize, or fhould knowingly take or receive the fame "into his, her, or their house, fhop, or warehouse, custody "or poffeffion, fuch perfon or perfons fhould and might be "profecuted for any of the offences or matters aforefaid, in "any action, fuit, or information; and thereupon a capias "in the first procefs, fpecifying the fum of the penalties "fued for, fhould and might iffue, and fuch person or per"fons should be obliged to give fufficient bail and fecurity by natural born fubjects, persons naturalized or denizens "to the officer executing the writ, to appear in court to an"fwer fuch fuit, and at fuch appearance to give fufficient "bail to answer and pay all the forfeitures and penalties "incurred for fuch offence, or to yield his, her, or their "bodies to prifon.” The fecond fection of this ftatute enables perfons to fue for the penalties impofed by the former act of William and Mary by action of debt, bill, plaint, or information, in any of his majesty's courts of record at Westminster. Wool XIII. 8 Eliz. C. 3. I. c. II. Wool being the ftaple manufacture of this kingdom, it C H A P.. was always deemed a heinous offence to tranfport it out of the realm: for we find it was forbidden at the common law; Mir. c. 1. f. 3. and afterwards more exprefsly in the reign of Edward the 11 Ed. 3. c. I. Third, fince which period this branch of trade has been 12 Car. 2. c. much attended to, and any offences against it have met with 32. 7 and 8 W. 3. c. 28. 4 G. corporal and pecuniary punishments by several subsequent ftatutes. This being the cafe, an infurance upon wool so to be exported muft have been void; because the very foundation of the contract was contrary to law. But notwithstanding these restrictions, the practice of exporting wool became so frequent, as well as the practice of insuring such cargoes, and undertaking to deliver them fafely abroad, that it became necessary for the legislature to interpofe, and by a new declaration of the law, and the impofition of a heavy penalty, to endeavour to check the growing evil. Accordingly it was enafted, "that every perfon, who, by way of insurance or 12 Geo. 2. a ❝ otherwise, should undertake or agree, that any wool, wool- 21. §. 29. "fells, wool-flocks, mortlings, fhortlings, worsted, &c. "fhould be carried or conveyed to any parts beyond the "feas from any port or place whatfoever within this king"dom or Ireland: or in purfuance of fuch infurance, un- 500l. penalty "dertaking, or agreement, fhould deliver, or caufe to be on the infurer "delivered, any of the faid goods in parts beyond the feas, procures wool "such person, and all and every his aiders, &c. fhould for to be landed in foreign parts. every fuch offence forfeit and lofe the fum of five hun"dred pounds." The next fection inflicts a like penalty on Sect. 30. the insured and the following one, in order to encourage Sect. 31. the parties to difclofe fuch contracts, releafes the party informing from all the penalties, to which he himself was fubject, and also gives him the whole of the forfeiture, after ' deducting the charges of the profecution, But in order wholly to prevent this illicit exportation of wool, it was neceffary for the legiflature to go one step further because as policies, are frequently made on goods, as well as on fhips, in which the infurer undertakes, in confideration of the premium, to bear all the risks and hazards of the voyage; and as it is generally unknown to the insurers what forts of goods are loaded on board any fhip or vessel, it happened that infurances were made on wool or woollen yarn to be carried from Great Britain or Ireland to foreign ports, or on woollen manufactures to be carried from Ireland. Therefore who infures or |