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21 Geo. 2.

c. 4.

and although it was vigorously opposed by Sir Dudley Ryder, and the Honourable Mr. Murray, the then Attorney and Solicitor General, upon the principles already stated; yet it paffed that house without a divifion, and was afterwards carried into a law. The duration of that act, however, being limited by the existence of the French war then carrying on, it expired in about a year after it was paffed. No attempt has been made to introduce it in any fubfequent war, which in fome measure serves to fhew, either that the inconveniencies of it were felt, during it's fhort existence; or that the arguments advanced against such a bill have convinced the legislature of the impropriety of prohibiting fo valuable a branch of trade.

From what has been faid then it appears, that whether the measure be politick or not; fuch infurances are good and binding, not being forbidden by any law exifting at this day. Before this point is concluded, it will be proper to mention, that Lord Hardwicke feems inclined to the opinion delivered in the House of Commons by Sir Dudley Ryder and Mr. Murray; for in the cafe already alluded to in this chapter, his lordfhip 1 Vezey 319. fays: there has been no determination, that infurance on enemies fhips during, the war is unlawful; and there have been feveral infurances of this fort, during the war, which a determination upon the legality of trading with an enemy might hurt. In addition to this, it may be observed, that Lord Mansfield, in the course of his long experience as Chief Juftice of this country, has never found reafon to alter thofe fentiments which he enter tained, when he fpoke in the House Commons against the bill introduced in the year 1747. For his lordfhip has frequently fince in parliament, and upon the bench, declared his approbation of Giv.Mafon. thefe infurances: and fo late as the year 1786, in Term Rep. the course of a judicial opinion, he said, "It is 84 and MS." for the benefit of this country to permit these note of fame contracts upon two accounts: the one because

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you hold the box, and are fure of getting the premiums at least, as a certain profit; the "other, because it is a certain mode of obtaining intelligence of the enemy's designs, and I "have known inftances of intelligence procured by fuch methods." Notwithstanding this liberality of fentiment, however, which prevails in the English nation, there is one fpecies of infurance, which cannot be made upon the ships or goods of an enemy, or even of a fubject, and that is upon a voyage to a befieged fort or garrison, with a view of carrying afliftance 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 difpofed of these two important queftions, and fhewn, that however impolitick the measure may be, general trading with an enemy for the mutual benefit of both countries feems by no means to have been declared to be contrary to law; and that infurances of enemy's property certainly are not: it will be proper to conclude by ftating what the principle is, which is laid down in this chapter, and fupported by authority. All insurances upon a voyage generally prohibited, fuch as to an enemy's garrison, or upon a voyage directly contrary to an exprefs act of parliament, or to royal proclamation in time of war, are abfolutely null and void.

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66.

Roccus de
Aflecur.

No. 21.

CHAPTER THE THIRTEENTH,

Of Prohibited Goods.

HE fubject of the prefent chapter is mateTrially connected with that of the foregoing

and indeed follows as a confequence 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 commodities are Lord Kaims's declared to be illegal to act contrary to that Prin. of Eq. prohibition, is clearly a contempt of legal authority; 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 seems to have been laid down by the writers upon the fubject, as a general and univerfal propofition, that an infurance being made, although in general terms, does not comprehend prohibited goods; and therefore when the insured shall procure fuch commodities to be shipped, the underwriter being ignorant of it, by means of which the fhip and cargo are confifcated, the insurer is difcharged. In this paffage from Roecus 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 thewn 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: affeurances fe peuvent faire fur toute forte de merchandize, pourvu que le transport

Le Guidon.

c. 2. art. 2.

ne

it

appears,

Traité des

ne foit pas prohibé par les edits et ordonnances du roy. And from an authority no lefs refpectable, Emerigon that the law of France has undergone Affurances, no alteration fince that period; for he fays, "that tom. 1. c. 8. "thofe effects, the importation or exportation of f. 5. "which is prohibited in France, cannot be the "fubject matter of the contract of infurance; "and if they fhould be confifcated, the infurers

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are not refponfible, even where the truth bas "been declared by a special clause in the policy. "The affurance is void, and no premium is due.' This paffage from the celebrated work juft 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 fubject have taken notice

of it. It is faid, "if prohibited goods are laden Mol'oy, lib. "aboard, and the merchant infures upon the 2. c. 7. f. 15. "general policy, it is a queftion whether if fuch

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goods be lawfully feized as prohibited 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 fuch an affurance as the law fup tr ports, but a fraudulent one."

But it is not upon the opinions of learned men merely, that this doctrine is founded in the Englifb 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 encreafing 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 fuch goods. In order to remedy 4 and 5 W. this mifchief, it was enacted," that all and every and M. c. 15. « perfon and perfons, who, by way of infurance f. 14, 15, 16. or otherwife, fhould undertake or agree to de500l. penalty on perions in- "liver any goods, wares, or merchandizes whatfuring to im- "foever, to be imported from parts beyond the port prohib. "feas, at any port or place whatsoever within goods. "this kingdom of England, dominion of 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 pur"fuance of fuch infurance, undertaking or agreement, should deliver, or caufe or procure to "be delivered any prohibited goods, or fhould "deliver, or caufe or procure to be delivered,

Sect. 15.

Like penalty on the infured

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any goods or merchandizes whatfoever, with

out paying fuch duties and customs as afore"faid, knowing thereof, and all and every their "aiders, abettors, and affiftants, fhould for ec every fuch offence forfeit and lofe the fum of "five hundred pounds, over and above all other "forfeitures and penalties, to which they are "liable by any act already in force." It was alfo enacted, "that all and every person and perfons, "who fhould agree to pay any fum or fums of

money for the infuring or conveying any goods or merchandizes that fhould be fo imported, "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 prohibited goods into his or their "house, or warehouse, or other place on land, "or fuch other goods, before fuch customs or "duties were paid, knowing thereof, fhould alfo

"for

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