CHAPTER II. WHO MAY BE INSURED. INSURANCE is not distinguished from any other contract, in respect to the ability of the parties to contract. Any one capable of binding himself by a contract, may be an insurer; and in general any person having an insurable interest, may become an assured.(a) No contract with the subjects of a hostile state, or on their behalf, is binding. During a war all trading with the public enemy is interdicted, and he is regarded as an outlaw.(1) No (1) The Hoop, principal of national or municipal law,' says Mr. Justice Story, i Rob. 196. is better settled, than that all contracts with an alien enemy, made during a war, are utterly void.'(2) (2) Cargo of the Emulous, See also Potts 1 Gal. 571. It was formerly held that the contract of insurance might be made in favour of an alien enemy, and enforced in time of war, though it was not the practice to make the policy in his name.(b) r. Bell, 8. T. (a) In England, the London and the Royal Exchange Assurance Companies, have certain privileges, but these privileges have been much complained of, and it appears by a report of a committee of the House of Commons in 1810, that they have been, as monopolies generally are, injurious to the interests of trade. (b) Planchè, v. Fletcher, Doug. 251; Gist v. Mason, 1 T. R. 84; Lavabre v. Wilson, Doug. 284. Contracts for the ransom of captured property were another exception to the general rule, and after the war of 1756, between England and France, and during that of 1778, Frenchmen maintained actions in the English courts on ransom bills. Ricord v. Bettenham, 3 Bur. 1734; Cornu v. Blackburne, Doug. 641. In the former of these actions, Sir William Blackstone is said to have been informed by several eminent jurists of the continent, that a similar action would have been maintained in their courts. Sir William Scott says, that even in cases of ransoms, the enemy was not permitted to sue in his own proper person for the payment of the ransom bill. The action was brought by the hostage for the recovery of his freedom.' The Hoop, 1 Rob. 201. But the above actions brought by Ricord and Cornu, were both brought in the names of the aliens. Lord Kenyon says, Ricord v. Bettenham was not brought until peace was restored, which gets rid of the objection' to the plaintiff as an alien enemy. Brandon v. Nesbitt, 6 T. R. 22. But the action of Cornu v. Blackburne was brought during the continuance of the war. In Henkle v. Roy. Ex. Ass. Co. 1 Vez. 317, determined in 1749, the Chancellor says, 'no determination has been, that insurance of enemy's ships during war is unlawful,' though trade in general, he says, is so. The French boasted that the English had during the war ending in 1763, indemnified them by insurance for what they had lost by captures. 2 Val. 32. h. t. a. 2. But perhaps the French had again indemnified the English insurers by premiums. R. 548. (1) Weskett tit. Enemy. The arguments in favour of keeping up this commercial intercourse with the enemy, were drawn, not from any legal principles, but wholly from a supposed interest, the calculation being, that the insurers would receive in premiums more than they would pay in losses.(1) Lord Mansfield favoured these insurances upon this ground, though Mr. Justice Buller says, he never could get him to reason upon their legality.(a) The same arguments might be used in favour of almost every species of commercial intercourse, where it might be supposed that the subjects of the government permitting it, would profit more than those of the enemy, and so the enemy be comparatively weakened. Against the expediency of insuring enemy's property, it was urged, that it gave to one class of citizens an interest on the side of the enemy. The British parliament has, by two several statutes, prohibited such insurances during the (2) 21 Geo. respective wars pending at the time.(2) II. c. 2; Geo. III. c. 27. (3) Brandon v. Nesbitt, 6 T. R. 23. But the courts have decided that these insurances were illegal, independently of those statutes,(b) and it is well settled law that an underwriter cannot bind himself to indemnify an alien for a hostile capture by a ship acting under a commission from the underwriter's own government; and that he cannot bind himself to indemnify an alien enemy against any loss, or contract with him for insurance, or for any other purpose. And it is indifferent whose name appears in the policy, for if the interest proposed to be protected, is that of an enemy, the contract is void.(3) An Alien ene- (4) Wells v. 1 Ld. Raym. 282. (5) Society, &c. v. Wheel er, 2 Gal. 105 But if an alien enemy have any privilege of trading or holding property, he will have the usual incidents to such privilege, and among others, the right of protecting his property by insurIt has been held that an alien enemy residing, under a safe conduct, in a country at war with his own, may bring an action in the courts of that country,(4) and it seems to be a consequence of this rule, that he may make valid contracts. If he have the privilege of holding lands he may, during war, maintain an action for the possession or other rights growing out of his title,(5) from which it may be inferred, that if he has the privilege of holding a house, he may have it insured. If he has a license to carry on a particular trade, he ceases to have a hostile character, as respects such trade, and it may be insur (a) Bell. v. Gilson, 1 B. & P. 354. It is somewhere said, that when Frenchmen were insured in England, during a war between the two countries, some French merchants would have themselves fully insured at home, and to three or four times the amount of their interest in England, and then send their vessels out to be captured. (b) Furtado v. Rodgers, 3 B. & P. 191, where Lord Alvanley gives the opinion of the court very elaborately, which has been confirmed in Kellner v. Le Mesurier, 4 East, 396; Gamba. Le Mesurier, 4 East, 407; Brandon v. Curling, 4 East, 410; M'Connell v. Hector, 3 B. & P. 113; De Luneville v. Phillips, 2 N. R. 97. And see 2 Val, 32. h. t. a.2.; 1 Emer. 128. c. 4. s. 9. domicil. ed;(a) and the other rights incident to the trade, such as that of stoppage in transitu, will be enjoyed by the party licensed.(1) (1) Fenton v. In regard to the circumstances which constitute national char- Pearson, 15 East, 419. acter it is clear, by the law of nations, that the national char- National chaacter of a person, for commercial purposes, depends upon his racter dedomicil.'(2) 'No position is more established than this, that if pends upon a person goes into another country and engages in trade, and (2) 7 Cranch, resides there, he is, by the law of nations, to be considered as 542. a merchant of that country.'(3) 'What is a residence, or domicil, is in itself a question of considerable difficulty, depending on a great variety of circumstances, that cannot be enumerated with precision. The active spirit of commercial enterprise, increases this difficulty, by increasing the variety of local situations, in which the same individual is to be found at no great distance of time."(4) (3) The Indian Chief, 3 Rob. 18. 322. (4) The HarThe circumstances which determine the domicil of a person mony, 2 Rob. are, in general, the purpose for which he goes to a country, What constithe time he has remained, or proposes to remain there, the ex- tutes domicil. tent of his business in comparison with its extent in other places, and his forming domestic ties and an establishment, or retaining them in the place of his former residence. Sir William Scott thinks that time is the grand ingredient in constituting domicil. In most cases it is unavoidably conclusive. It is not unfrequently said, that if a person comes only for a special purpose, that shall not fix a domicil. This is not to be taken in an unqualified latitude, and without some respect had to the time which such a purpose may or shall occupy, for if the purpose be of a nature that may probably, or does actually, detain the person for a great length of time, I cannot but think that a general residence might grow upon the special purpose. A special purpose may lead a man to a country, where it shall detain him the whole of his life. A man comes here to follow a lawsuit. It may happen that it may last as long as himself. Some suits are famous in our judicial history for having even outlived generations of suitors. I cannot but think that against such a long residence the plea of an original special purpose could not be averred; it must be inferred in such a case, that other purposes forced themselves upon him, and mixed themselves with his original design, and impressed upon him the character of the country where he resided. Suppose a man comes into a belligerent country at or before the beginning of a war; it is certainly reasonable not to bind him too soon to an acquired character, and to allow him a fair time to disengage himself; but if he continues to reside during a good part of the war, contribut (a) Flagedorn v. Reid, 1 M. & S. 567, &c. In Kensington v. Inglis, 8 East, 273, Lord Ellenborough says, the license cannot remove the personal disability of the trader to bring a suit in his own name, yet it purges the trust, so that his agent in whose name the policy is inade, may bring a suit upon it for his benefit. But in Usparicha v. Noble, 13 East, 332, the same judge says, the license may exempt any person, as well as any branch of commerce, from the disabilities and forfeitures arising out of a state of war. Intention of remaining. ing by payment of taxes and other means, to the strength of that country, I am of opinion, that he could not plead his special purpose with any effect, against the rights of hostility. If he could, there would be no sufficient guard against the fraud and abuses of masked, pretended, original and sole purposes of a long continued residence. There is a time which will estop such a plea; no rule can fix the time a priori, but such a time there must be.' 'In proof of the efficacy of mere time, it is not impertinent to remark, that the same quantity of business, which would not fix a domicil in a certain space of time, would nevertheless have that effect, if distributed over a larger space of time. Suppose an American comes to Europe, with six temporary cargoes, of which he had the present care and management, meaning to return to America immediately; they would form a different case from that of the same American, coming with one cargo, and fixing himself, to receive five remaining cargoes, one each year successively. It is to be taken in the compound ratio of the time and the occupation, with a great preponderance on the article of time; be the occupation what it may, it cannot happen, but with few exceptions, that mere length of time shall not con(1) The Har- stitute a domicil.'(1) mony, 2 Rob. 322. If it The question whether the person to be affected by the right of domicil has sufficiently made known his intention of fixing himself permanently in a foreign country, must depend upon all the circumstances of the case. If he had made no express declaration on the subject, and his secret intention is to be discovered, his acts must be attended to, as affording the most satisfactory evidence of his intention. In questions on this subject, the chief point to be considered is animus manendi. appears that the intention of removing was to make a permanent settlement, or for an indefinite time, the right of domicil is acquired by a residence of even a few days.'(2) The shortest residence, if with the design of a permanent settlement, stamps the party with the national character. The question re(3) The Ann sults in an inquiry into the intention and conduct of the party.(3) Green, 1 Gal. 274. (2) The Venus, 8 Cranch, 279. (4) Tb. A Scotchman coming to the United States in 1795, took up his residence at New York, and became a naturalized citizen, and in 1807 became a member of a commercial house there, and in 1808 went to Jamaica to collect debts due to his house, whither he went again in 1810 and staid about a year, and again in 1811 for the same purpose, and remained until after the declaration of war by the United States against Great Britain in 1812. Though he had resided a considerable portion of his time at Jamaica during the four years preceding the war, and was there when war was declared, it was held that his native national character had not reverted, so as to supersede that acquired by residence in the United States, since he was absent rather for a temporary purpose, than with the intention of establishing himself abroad; his business continued to be conducted at New York, and it was understood there, that he proposed to return.(4) Lord Ellenborough says, that if a man be entrapped, and de- Compulsory tained in a foreign country, this will not confer upon him its na- residence. tional character ;(1) and Lord Thurlow, (2) that though the actual (1) Bromley place where a man is, is primâ facie to a great many purposes. Hesseltine, his domicil, yet you encounter that, if you show it is either 1 Camp. 75. con- (2) Bempde strained, or, from the necessity of his affairs, transitory; that. Johnstone, he is a sojourner.' One belonging to the enemy's country cannot be insured upon his interest in the trade of a house established in a neutral country.(3) 3 Ves. 201. (3) The Venus, 8 Cranch, 299. Citizens Some American merchants residing in England, before hearing of the declaration of war by the United States against Great Britain in 1812, and while they had no particular expectation abroad at the of it, shipped cargoes to the United States, which were captured declaration by American cruisers. Some of these merchants were native of war. British subjects, who had formerly emigrated to the United States, and become naturalized citizens. It was contended by the captors, that as these claimants had gained a domicil in Great Britain, and continued to enjoy it up to the time when war was declared, and when these captures were made, they must be considered as British subjects in reference to this property, and, consequently, that it might be legally seized as prize of war, in like manner as if it had belonged to real British subjects. But if not so, it was then insisted, that these claimants having, after their naturalization in the United States, returned to Great Britain, the country of their birth, and there resettled themselves, they became redintegrated British subjects, and ought to be considered in the same light as if they had never emigrated.' 'On the other side it was argued that American citizens settled in the country of the enemy, were entitled to a reasonable time to elect, after they knew of the war, to remain there, or to return to the United States, and that until such election was, bona fide, made, the courts of this country were bound to consider them as American citizens, and their property, shipped before they had an opportunity to make this election, as being protected against American capture."(4) 6 A majority of the judges were of opinion that the doctrine, that a native, or naturalized subject of one country, who is surprised in the country where he was domiciled, by a declaration of war, ought to have time to make his election to continue there, or to remove to the country to which he owes a permanent allegiance; and that until such an election is made, his property ought to be protected from capture by the cruisers of the latter, is as unfounded in reason and justice, as it clearly is in law. The doctrine would apply to cases where the party claiming the benefit of it may gain all, and can lose nothing. If he, after the capture, should find it his interest to remain where he is domiciled, his property embarked before his election was made, is safe, and if he finds it best to return, it is safe. This doctrine, producing such contradictory consequences, is not only unsupported by any authority, but it would violate principles long and (4) The Venus, 8 Cranch, 277. |