XII.

CHA P. trade with an enemy, which in time of peace was illegal: the two first claffes would have been wholly nugatory, if the doctrine, that infurances of this nature, were illegal, had ever prevailed. Such ftatutes have been passed in every war from the reign of Charles the Second to the present time; which prove demonftrably, that parliament conceived a legiflative prohibition was necessary to make the trading illegal, otherwife all or most of the acts alluded to would have been unneceffary and fuperfluous.

Bynk. Quæf. Jurif. Pub.lib. 1. cap. 3.

On the other hand it is contended by thofe who hold the infurance of enemy's property to be illegal and impolitic, that by the declaration of war, all commerce immediately and neceffarily becomes prohibited between hoftile nations; and if fo, it follows that infurances muft alfo be forbidden; for it cannot be lawful to do that indirectly,which is not permitted to be done directly. Inftances of trading with enemies to be found in writers on general law, by exprefs ftipulation, only fhew that governments occasionally make exceptions from the general rule to fuit their own convenience; and to this fource all the fpecial ftatutes alluded to are referable; fome of which too contain regulations of particular branches of commerce. Even where they extend to general prohibitions of trade with an enemy, it is for the purpose of superadding special penalties for checking bold offenders, who are not to be deterred by the ordinary prohibitions of the law, an obfervation which fully applies to the ftatute of 21 Geo. II. and to the Traiterous Correspondence Bill lately paffed. But all the writers upon infurance concur in the illegality of such contracts. The author of Le Guidon, a work of great repute, published by Monf. Cleirac about the middle of the last century, is explicit upon the point; and the editor of the work observes, that this opinion is conformable to the ordinances of Barcelona, which paffed fo along ago as 1484. Valin, in his commentary, concurs in declaring the fame law, and relates that by the Englifh infuring French property in the then last war, one part of the nation rendered back to France, what had been taken by Bynk. Q. Jur, the other jure belli. Bynkershoek, to whofe writings mankind Pub. lib. 1. cap. are much indebted, dedicates a whole chapter of his work to

Le Guidon, cap. 2. 1. 5.

Valin, liv. 3. tit. 6. art. 3.

21.

XII.

this subject, and argues ftrongly both against the legality and CHA P. expediency of fuch contracts. In the only two cafes, in which the legality of trading with an enemy came in queftion in England (fee ante, p. 238.), it was held to be illegal. Even the expediency of fuch contracts is greatly to be doubted. The English infurers, who deal at a cheaper rate, and fulfil their engagements more punctually than thofe of other nations, will, in time of peace, eafily regain fuch branches of that trade, as, by a prohibition during war, may be diverted into other channels. With regard to the fuppofed profit, that must ever be a matter of great uncertainty, for the premiums are not clear profit. In cafes of capture, there is no lofs to the enemy, and no gain to us: in loffes by perils of the fea, we bear the whole burthen, and there is actual gain to them, deducting indeed the premium in both cafes. In a national point of view, the detriment derived to us from the fupport afforded to the commercial refources of our enemies is beyond all computation. Our infurers too are by this traffick rendered bad fubjects of the country, by being interested against the fuccefs of our own cruizers, in favour of the enemy's escape. The argument of procuring intelligence of the enemy' plans by thefe means is fallacious in the highest degree; for it never can be fuppofed, that underwriters would be the means of betraying the fhips infured into the power of our cruizers, by which they would be the greatest fufferers; on the other hand, the temptation must be very ftrong to them to afford fuch intelligence to the enemy of the failing of our armed veffels, as may put them on their guard, and prevent them from falling into our hands. That fuch intelligence had been given to the enemy was afferted as a fact in the debates in parliament in 1747; and the general law of the land will not tolerate a contract, which may lead the fubject into fo ftrong a temptation to betray his duty. Even the opinions most favourable to this fpecies of contract have never gone further than to contend, that infurances upon enemy's property from a friendly or neutral port, or from one hostile country to another, were legal; but till the late cases of Brandon v. Nesbitt and Briflow v. Towers, it never was attempted to be argued, that an insurance could legally be made

оп

XII.

CHA P. on enemy's property, failing directly from this country to that of the enemy. Such is the fum of the argument on both fides of this great question, which is probably now finally clofed.

There is one fpecies of infurance which never could be made upon the fhips or goods of an enemy, or even of a fubject, and that is upon a voyage to a befieged fort or garrifon, with a view of carrying affiftance to them; or upon ammunition, other warlike ftores, or provifions; because, from the nature of these commodities, they are abfolutely prohibited by the laws of all nations.

Having thus difposed of these two important queftions, it will be proper to conclude, by stating what the principle is, which is laid down in this chapter, and fupported by autho rity. All infurances upon a voyage generally prohibited by law, fuch as to an enemy's garrifon, or upon a voyage directly contrary to an express act of parliament, or to royal proclamation in time of war, are abfolutely null and void.

CHAPTER THE THIRTEENTH.

844

TH

Of Prohibited Goods,

HE fubje&t of the prefent chapter is materially connected CHA P.
with that of the foregoing; and indeed follows as a confe-

quence from the doctrine there advanced. We then faw 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 commo-

XIII.

fecur. No. 21,

dities are declared to be illegal: to act contrary to that prohi- Lord Kaim's
bition is clearly a contempt of legal authority; and confequently Prin. of Eq. 66.
a moral wrong. If the act itself be illegal, the insurance to
protect fuch an act must also be contrary to law; and therefore
void. Agreeably to this principle, it seems to have been laid Roccus de Af
down by the writers upon the fubject, as a general and uni-
verfal propofition, that an infurance being made, although in
general terms, does not comprehend prohibited goods; and
therefore when the infured fhall procure fuch commodities to
be shipped, the underwriter being ignorant of it, by means of
which the ship and cargo are confifcated, the infurer is dif
charged. In this paffage from Roccus 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 Le Guidon,
find this paffage: affeurances fe peuvent faire fur toute forte de
merchandize, pourvu que le transport ne foit pas prohibé par les
edics et ordonnances du roy. And from an authority no less Emerigon
refpectable, it appears that the law of France has undergone rance, tom. 1.
no alteration fince that period; for, he fays, " that thofe effects, c. 8. f. 5.
"the importation or exportation of which is prohibited in

c. 2. art. 2.

Traité des Affu

1

CHA P.
XIII.

Molloy, lib. 2. 4. 7. 1. 15.

France, cannot be the fubject matter of the contract of in"furance; and if they fhould be confifcated, the infurers are "not refponfible, even where the truth has been declared by a Special claufe in the policy. The affurance is void, and no

66

premium is due." This paffage from the celebrated work juft referred to, confirms the idea above started, with respect to the knowledge of the underwriter.

The law of England, whose commercial regulations have furpaffed thofe of every other nation in the world, has also introduced fuch a rule into its fyftem of mercantile jurispru dence and the oldeft writers upon the subject have taken notice of it. It is faid, "if prohibited goods are laden aboard, "and the merchant infures upon the general policy, it is a

queftion whether if fuch goods be lawfully seized as prohi"bited goods, the infurers ought to answer. 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 such an assurance as the law fupports, but a fraudulent one."

66

But it is not upon the opinions of learned men merely, that this doctrine is founded in the English law; for the legislature have by positive statutes declared their ideas upon the fubject. It appears from the preamble to that fection of the ftatute about to be quoted, that a custom, highly prejudicial to the revenue of the country had prevailed, and was encreafing to a very alarming degree, of importing great quantities of goods from foreign flates in a fraudulent and clandeftine manner, without paying the cuffoms 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 clandeftincly imported, at their charge and hazard, into the houses, warehoufes, or poffeffion, of the owners of fuch goods. In order to 4 and 5 W. and remedy this mifchief, it was enacted, "that all and every M. c. 15. f. 14, perfon and perfons, who, by way of infurance or otherwife, penalty on per- "fhould undertake or agree to deliver any goods, wares, or

15, 16. 5001.

fons infuring to

import prohibit

ed goods.