French court, in a country out of the jurisdiction of France, had been wisely held not to change the property; but when it had been acquiesced in, in that country, it might make a difference.'(1) It does not appear that the Danish government acqui- (1) Smith v. esced in the decrees of this court, otherwise than by not in- Surridge, 4 terfering to stop its proceedings. This is a decree of acquies- Esp. 25. cence yielded in every country where such a court is held. Section 2. The legality of the Interest. In certain cases the law does not permit insurance, though the interest may be in itself sufficient. The English laws pro c. 18. s. 4. hibit insurance upon marriages, births, and christenings ;(2) the (2) 6 Geo. I. price of public stocks ;(3) and the slave trade.(4) The codes c. 18. of other European states prohibit insurance on certain subjects. (3) 7 Geo. II. Such prohibitions have not been found necessary in the United (4) 47 Geo. States. But the courts of no country can lend their aid to en- Ìlí. c. 36. force the execution of a contract, which involves a violation of The interest the laws that those courts were constituted to administer. It is must be legal. a universal principle, that if it be the design of the policy to protect property implicated in an illegal trade, or applied to an illegal use, or which it is not lawful for the assured to hold, the insurance is void. The owner of property so held or employed, has no legal insurable interest in it. And upon the same principle, though a person have an interest in property, or an event, which the law will recognise, and employ his interest in a way that the law will justify, still if an insurance of his interest be contrary to the spirit, policy, and general principles of the laws, he will cease to have a legal insurable interest. A war suspends commercial intercourse with the subjects of the hostile country, and renders it unlawful to buy of them, or sell to them, or contract with them; the goods, and ships, and any other subjects of insurance, embarked in such intercourse, Property emor destined to it, or to be derived from it, become affected by ployed in the prohibition. Property or interests so employed, or so situ- trade with the ated, cannot lawfully be protected by insurance. This incapa- public enemy. city of the subject, is different from the disability of an alien enemy to be insured, though it depends upon the same principle, namely, the unlawfulness of commercial intercourse with the enemy; one being the personal disability of an alien enemy, the other the effect upon property, or an interest, of being employed in contravention of law, or involved in a prohibited in tercourse. When, however, Lord Mansfield and other English judges favoured insurance on behalf of public enemies, they could not but extend the indulgence to trade carried on with them. Accordingly, in a case of a policy on goods bought in Holland after the commencement of war, Mr. Justice Buller said, the 'underwriter had no right to go into the state of the property, previous to the time when he insured,' and could not object that it had been (1) Bell v. (3) Cases cited, 1 Rob. 202, &c. in the case of the purchased of the enemy.(1) Mr. Justice Heath concurred, but Mr. Justice Rooke was inclined to dissent. Lord Mansfield said,(2) that though trade with the enemy is prohibited by the maritime law, he knew of but two cases to that effect at common law, seeming to intimate a doubt whether it was in fact prohibited at common law. Numerous decisions had been made in the admiralty, and in the House of Lords, that trade with the enemy was unlawful.(3) Insurance on such a trade would accordingly have been void. This point was considered particularly by Sir William Scott in 1799, in the case of goods imported from Holland by Englishmen, while that country was at war with England, and he held that the goods were subject to seizure and forfeiture.(4) And soon afterwards Lord Kenyon Hoop, 1 Rob. and the other judges of the King's Bench, acquiesced in this also the Odin, opinion, and held that an insurance of goods so imported was void.(5) The unlawfulness of trade with the enemy has been a subject of frequent consideration in the courts of the United Bell, 8 T. R. States. Mr. Justice Story, says, 'I lay it down as a fundamental proposition, that strictly speaking, in war, all intercourse between the subjects and citizens of the belligerent countries is illegal, unless sanctioned by the authority of the government, or in the Hoop. (4) The 196. See 1 Rob. 248. (5) Potts v. 548. (6) The Julia, exercise of the rights of humanity.'(6) 8 Cranch, 181. Property in enemy's country at the breaking out of war. (7) Cases cited, 1 Rob. 202, &c. in the case of (9) The Ra pid, 8 Cranch, 155. See also the Alexan 169. The prohibition of intercourse consequent upon a state of war is so general and complete, that it has been held to extend to a citizen's property remaining in the hostile country at the breaking out of the war.(7) His property cannot be removed with safety from the enemy's country, unless under the sanction of his own government, because the law would never deem that a reasonable mode of conveying property, which involved in it a trade with the public enemy.'(8) An American citizen had purchased goods in England before the war, and deposited them on Indian Island, belonging to the British, and near the boundary of the United States, and after the breaking out of the war, a vessel was sent from Boston to fetch the goods. Both vessel and cargo were forfeited, and consequently the owners of neither could have protected their interest by insurance.(9) But there are not wanting authorities to show that citizens. having property abroad at the breaking out of a war, may have der, 8 Cranch, it brought home, without thereby exposing it to forfeiture, and where the bringing home of the property is lawful the proprietor, may insure it. The ship Frances sailed from Greenock in Scotland, on the 19th of July 1812, being the day after the declaration of war by the United States against Great Britain, and was captured by an American privateer. Claims were put in for different parts of the cargo by sundry American citizens, and the only question made by the court, was, whether they were actually and bona fide owners of the property.(10) (10) The Frances, 8 Cranch, 335. In another case a ship sailed from Liverpool to the United States, a few days after the declaration of war was known in Great Britain,' and was captured on her voyage by a private armed American vessel. Part of the cargo was claimed by M'Kean and Woodland, American citizens, and their claim was allowed, the only question suggested by the court, being, whether the property had vested in them when the goods were purchased by their agent in England before the declaration of war.(1) Sir William Scott held that goods ordered before the (1) 8 Cranch, war, might be imported from the enemy country after the decla- 317, The Merration of hostilities, if there had been no opportunity of coun- rimack. termanding the order.(2) (2) The Juff 141. See also rina, 5 Rob. Saltus v. Unit. Ins. Co. 15 Johns. 523. It appears then that a declaration of war does not necessarily, row Cathaand without distinction, fix a hostile character upon all property, at that time in the country of the enemy. But the rules in respect to the time within which property so situated may be imported, and the manner in which the importation must be conducted, or the circumstances which will justify it, do not seem to be very definitely and satisfactorily laid down. Where the property has been condemned, there have generally, if not invariably, been some circumstances to give it a hostile character-there has been great delay, or some intermediate trade, or intercourse, or community of interest with the enemy, or such an opportunity for these as could not safely be indulged. Goods prohibited port, from ne It has been held that a party, whose property has been seized by the enemy, or by persons with whom trade is interdicted, bought of the may lawfully take such goods as are given him in exchange. enemy or at a Trade with France and its dependencies being interdicted, a ship was driven by stress of weather, into port St. François in cessity. St. Domingo, a French port, where a part of the cargo was seized by the public officers, who forbade the exportation of the rest, but gave the captain leave to exchange it for the produce of the island. It was held that the goods obtained in exchange might be insured.(3) And Chief Justice Marshall said, in delivering (3) Jenks v. the opinion of the court, that even if an actual and general war had existed between this country and France, this would not have been deemed such a traffic with the enemy as would vitiate the policy upon the new cargo.'(4) 6 Hallett, 1 1 Caines' Cas. Jenks, 3 Cranch, 210. Taunt. 792. The illegality of a part of a cargo has not been held in all cases to infect the remainder. An insurance being made on a cargo, a part of which was liable to condemnation on account of being imported from the enemy's country, the importation of the rest being authorized by a license, the insurance was considered valid in respect to the goods covered by the license.(5) (5) Pieschell And in the case of insurance on 300 barrels of gunpowder, the . Allnutt, 4 exportation of only half of which was licensed, and the law provided that gunpowder exported without license should be forfeited, and also the ship in which it was exported, Gibbs C. J. said, 'The licensed barrels were not forfeited, then the tion of them was legal, and the insurance thereon is also legal.'(6) But Lord Ellenborough had said, in the case of a cargo, the Keir v. exportation of a part of which was prohibited, with the penalty Andraade, 2 of the forfeiture of the goods and the ship, that it had been 196. See also decided a hundred times, that if a party insure goods altogether The Vriendschap, 4 Rob. exporta 1 See also Butler v. Allnutt, Stark. 222. (6) Keir v. Andrade 6 Taunt. 498; Marsh. Rep. Dick,11 East, 221. (1) Parkin v. in one policy, and some of them are of a nature to make the 502, 2 Camp. Voyage illegal, the whole contract is illegal and void.'(1) And where a part of the goods belonging to a shipper were contra(2) The Staadt band, Sir William Scott condemned the whole. He said, 'to Embden, 1 Rob. 31. See escape the contagion of contraband, the innocent articles must Bynk. Q. J. be the property of a different person.'(2) Pub.1.1.c.14, Tobias, 1 Rob. 329. (3) The Joseph, 1 Gal. 545; the Rap id, 8 Cranch, 155. (4) Atkinson Though ships or goods destined to or from an enemy port, and The Jonge cannot, in general, be protected by insurance ;(3) yet where a vessel destined to Copenhagen with supplies intended for the fleet under Lord Nelson, left the Nore three days after the time, when, by the articles of capitulation, the British fleet was to leave Copenhagen, under the expectation that some delay might occur to the fleet; the voyage was held to be lawful and the insurance valid, though the vessel was destined to an enemy's port.(4) And a policy upon goods to any port in the Baltic, some of the ports of which were hostile and others friendly, was held to be valid, it not appearing but that the voyage was to a friendly port.(5) But in the case of a policy on a voyage from Boston to the port of discharge in Europe, no exception to be taken on account of ports interdicted by the laws of the United States,' some of the European ports being so interdicted, and others not, and the vessel sailed for a French port, which was among those interdicted, it was decided that the assured could not cover his interest, and that the policy was void.(6) v. Abbott, 11 Welbie, Jere my's Index, 1819, p. 74. (6) Russell v. Degrand, 15 Mass. Rep. 35. 5 Rob. 251. 6 Sir W. Scott says, there must be an act of trading to the enemy country, as well as an intention. No case has been produced in which the mere intention to trade to an enemy's country has enured to condemnation.' And though the voyage was towards a colony supposed by the party to belong to the enemy, but which had been captured by his own nation before the arrival of the ship, it was held not to be a trading to the enemy (7)The Abby, Country.(7) Where the country is known to be hostile,' says the same judge, 'a commencement of a voyage towards that country may be a sufficient act of illegality, but where the voyage is undertaken without that knowledge, the subsequent event of (8) The Abby, hostility will have no such effect.'(8) The circumstance that the goods destined to the enemy are to go first to a neutral port, will not make the adventure lawful. During a war between Great Britain and Holland, it was not permitted to a British merchant to send goods to Embden, then a neutral port, with the view of sending them forward, on his own account, to a Dutch port.(9) 8 Rob. 254. (9) The Jonge Pieter, 4 Rob. 79. (10) Johnston Though the troops of the country to which the assured belongs, have possession of an enemy's port, it is not lawful to make a voyage thither without the sanction of his government, and insurance on ship or goods for such a voyage is ineffectual.(10) But, where a country is in possession of the troops of the enemy, but continues to be under the administration of its own government, the inhabitants have been considered as neutrals in some cases.(11) In general, however, though acquisi1 M. & S. 450. tions made during war are not considered as permanent until confirmed by treaty, yet to every commercial and belligerent purSugar v. Boyle, pose they are considered as part of the domain of the conqueror, so long as he retains the possession and government of them.'(12) r. Sutton, (12) Thirty Hogsheads of 9 Cr. 191. Yet in the case of goods shipped for Messina, a friendly port, but consigned to the subject of a neutral nation resident at Leghorn, at that time occupied by the enemy, the trade was held to be lawful and the insurance valid.(1) A ship is held to have the character of the nation under the flag and pass of which she sails ;(2) and consequently is not insurable, if she sails under the flag and pass of the enemy. the flag does not determine the national character of the go.(3) But car (1) Bromley Vreede Schol- n. (3) 5 Rob. 5. If property assumes a hostile character by a declaration of war, after the policy is effected, this does not necessarily defeat the insurance, though an alien enemy has a joint interest in the property. Rotch being domicilled in England, was insured there upon his interest in some fishing vessels fitted out in a French port, the other joint owner of the same vessels being a Frenchman. The vessels were detained in the French ports by an embargo laid after the policy was made, which was followed by a declaration of war. The policy was held to be valid, and a loss by the embargo was recovered after the declaration of war.(4) But the interest which a person resident in a neutral (4) Rotch r. country has in a house of trade established in the country of Edie, 6 T. R. the enemy, has been considered to have the national character of the hostile country.(5) 413. (5) The If property is seized provisionally in contemplation of hostili- Friendschaft, ties, and war is afterwards declared, the declaration will have 4 Wheat. 105. a retroactive operation in respect to the property so seized, which will be liable to confiscation in the same manner as if the declaration had preceded the seizure.(6) (6) The BoAs the personal disability of an alien enemy to make con- edes Lust, 5 Rob.248; The tracts, and bring actions, may be removed by his privilege of Herstelder, 1 holding property, or by a safe-conduct, or a license, so a license Rob. 113; or privilege granted by sufficient authority, will, in like manner, Lucena v. make it lawful in a subject to carry on trade with the public R. 13, 3 enemy, and any property employed, or trade conducted, within B. & P. 75, the privilege, will not be divested of any of the rights which 2 N. R. 269. usually belong to it, and it may accordingly be insured. Whatever man or body of men in a community, has the power of declaring and carrying on war, has, as incident to such power, the right to qualify the declaration, and exempt any persons or property from its operation. This is only continuing or restoring peace, as to some of the subjects of a foreign state or their property, or as to particular descriptions of trade. There is indeed some qualification of hostilities, or something of the character of peace, in all wars between civilized nations, as in the case of cartels, flags of truce, and all the cases that come within the rules of civilized warfare. Licenses and privileges to individuals, or to specific property or kinds of trade, are only an extension of the principles upon which such rules are founded, with this distinction, that the rules of warfare may be the dictates of humanity, whereas licenses and exemptions in respect to trade, generally proceed upon considerations of interest. Craufurd, 8 T. |