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CHAPTER XXI.

Of Insuring enemy's property.

EXT to the contracts of purchase, sale and hire,* there is none, at present, in more frequent use, in commercial countries, than that of insurance. It was, however, so entirely unknown to the ancients, that no trace of it is to be found in the volumes of Roman jurisprudence. The reason probably is, that commerce was not at that time carried on to the same extent that it is at this day. Perhaps, also, the fleets of the Romans secured their merchant vessels from depredations at sea, or the vast extent of their empire, bordering on all the seas which their navigators were in the habit of frequenting, dispelled all fears of enemies. Nor was there so much to be feared as there is at present from the dangers of the ocean, as their vessels generally sailed coastwise, prudently keeping within a small distance from the shore, and did not venture out to sea in the winter months, whereas our ships at present sail out to any distance, and we trust them at all times and in all seasons to the treacherous element, without knowing whither the fates may carry them.

I have read, however, in Suetonius's life of the emperor Claudius, that during a time of great scarcity, when the people abused him, and shewed him, by way of reproach, fragments of stale bread, he not only gave great encouragement to the

Locatio, hiring or letting to hire. At the civil law, the signification of this word is very extensive; locatio operum, is when a man hires out or engages his labour to another for a specific reward; locatio rerum, is the hiring or letting to hire or farm (as we call it) of property of any kind, whether real, personal or mixed.

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Ex die tertio Iduum Novembris, usque ad diem sextum Iduum Martii maria clauduntur. The seas are closed from the eleventh of November, to the second of March. Veget. de Re Milit. 1.4. Justinian's code permits navigation from the first of April to the first of October. Cod. de Naufrag. 1, 3. T.

building of ships, but proposed certain profits to the merchants, taking upon himself the risk of any loss that might be occasioned by the violence of the winds and seas. This was a species of insurance, which is nothing else than an engagement for the safety of another's property, by which the owner is liberated from the risk, which is assumed by the insurer, in consideration of a certain præmium.* Claudius, indeed, assumed upon himself the dangers of the sea, but he did it gratuitously and not for the consideration of a præmium or reward; nor did he undertake to bear the losses which might be suffered from pirates; therefore, I say that it was only a species of insurance.f

I have premised a definition of the contract of insurance, in order to make it appear, that the reason of war absolutely requires the prohibition of insurance on the ships, merchandize or other property of enemies. For, what else is assuming the risk to which their property may be exposed, than promoting their maritime commerce? The object of insurance is, that maritime trade may be carried on with the greatest possible profit, and the least possible loss. Hence, the states-general, on the 1st of April 1622, while we were at war with the Spaniards, issued an edict, annulling all insurances made and to be made by Dutch subjects on Spanish property, and laying a fine of one hundred pounds, Flemish, on all who should act

* The definition, which our author gives of the contract of insurance, is very similar to that which had been given, long before him, by Roccus, which is still the most logical and comprehensive of all that have ever been offered. "Insurance," says that able writer, in the excellent translation of his two treatises, (on ships and freight and on insurance), lately published at Philadelphia, by Mr. J. R. Ingersoll, "is a contract by which a person assumes upon himself the risk to which the property of another may be exposed, and binds himself, in consideration of a certain præmium, to indemnify him in case of loss." Ingersoll's Roccus, p. 85.

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† For a full and complete view of all that is to be found in the works of the ancients which may be considered as having any relation to the subject of insurance, see Mr. Park's introduction to his System of the Law of Marine Insurances, which is fraught with a great deal of information on this particular subject, from whence Mr. Park justly concludes with our author, that the contract of insurance, as at present understood, was not known to the ancient Greeks and Romans.

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to the contrary. This was extremely proper, because, in all declarations of war, the subjects are ordered to do as much harm as they can to the enemy, and therefore, it follows, that they are prohibited from doing them any good. Such are the rules prescribed by the general law of war, and the statesgeneral did no more than declare that law during the war with Spain, by their edict of the 2d of April 1559.

It may, perhaps, be said, that such insurances are productive of more profit than loss to the insurers, and therefore, that they are more advantageous to us than to the enemy. But this may prove a very fallacious reasoning, for the result of insurances on enemy's property, is, in a national point of view, very uncertain, nor does experience sufficiently enable us to judge of their effects upon the nation at large; while on the other hand, it is very certain that the enemy thereby acquires the means of extending his maritime commerce. It therefore, follows, that what is certainly useful to our enemy, and almost as certainly threatens our own destruction, is, on every principle, to be prohibited.*

* Trading with enemies, and insurances on enemy's property have been prohibited, from the earliest times, in almost every country of Europe. England and Holland are the only ones that are known to have pursued, for a while, a different policy. The ordinance of Barcelona, made in 1484, expressly forbids such insurances to be made, directly or indirectly, no puxen esser aseguradas directamen o indirectamen. Cleirac, Us & Coutumes de la Mer, p. 118.—Consol. del Mar. (Boucher's Fr. transl.) vol. ii. p. 717. $1540. Le Guidon, a very old treatise on maritime law, declares it to be unlawful to trade with enemies, and to make insurance on enemy's property, c. 2. art. 5. in Cleirac, p. 117. Mr. Valin mentions several ancient ordinances of France to the same effect, which shew, that the law was always so understood in that country. But he observes that the English, during the seven year's war, were in the habit of insuring the property of the French, even when bound from a French port to a French colony, or from one French port to another. "By this means," says he, one part of the nation restored to us, by the effects of the contract of insurance, what the other took from us by the law of war." 2 Valin's Comm. p. 32.

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It is certain, that in England, not only during that war, but during that which immediately preceded, and that which immediately followed it, that is to say, during a period of near half a century, trading with enemies, and insurances on enemy's property were carried on to a great extent, and were sanctioned by the decisions of the tribunals of that country. In the

This reason alone would have been sufficient to justify the said edict of the 1st of April 1622, but it also adverts to a consequence that would follow, if those insurances should be

year 1749, lord Hardwicke considered an insurance as legal, which had been made on an English vessel that had been sent to Ostend, to be neutralized, and from thence to trade with the enemy, under cover of the neutral flag. He said, that "it had never been determined, that insurance on enemy's ships, during the war, was unlawful; and that it might be going too far to say, that all trading with enemies was prohibited by law, for the general doctrine would go a great way, even when English goods were exported, and none of the enemy's imported, which might be very beneficial.” Henkle v. Royal Exch. Ass. Comp. 1 Ves. 317.

During the American war, insurances of this description were neither less frequent nor less favoured by the English tribunals. Planché v. Fletcher, was the case of a Swedish ship, laden for French account, and bound directly from London to Nantz, with a simulated destination for the neutral port of Ostend. Doug. 251.—Thellusson v. Ferguson, was an insurance on a French ship, which had sailed under French convoy from a French colony to a port in France. Ib. 361. In both these cases, the property insured had been condemned by the English court of admiralty, but the insurances were, nevertheless, held valid; and thus, the courts of common law sanctioned and encouraged the same acts which the courts of admiralty punished. In the former case, it was objected, that in time of war, the exportation of enemy's property, even in neutral bottoms, was illegal, and that an insurance upon such goods was void; but, lord Mansfield overruled the objection. "It does not appear," said he, "that the goods were French property; an Englishman might be sending his goods in a neutral ship. But it is indifferent whether they were English or French; the risk insured, extends to all captures.” Doug. 252, 253. It is but justice, however, to observe, that sir William Scott has expressed doubts of the correctness of the report of this decision. The Hoop, 1 Rob. 182. Am. ed. But, in a subsequent case, Gist v. Mason, which was decided on by the court of king's bench, in the year 1786, lord Mansfield appears to have been even astute, to establish his favourite doctrines, and to give, as much as possible, a legal sanction to the trade of British subjects with enemies, and to their insurances on enemy's property.

This was not a case of insurance on property belonging to enemies, but on English property shipped on board of a neutral vessel, employed in the trade between Ireland and the enemy's colonies. The report does not state, whether the insurance was on the ship and goods, or on the vessel only, but it could not have made any material difference; because, if it was unlawful for British subjects to ship their merchandize to the French colonies, the means could not be legal, when the end was prohibited.

In this case, lord Mansfield is reported to have said: "This, on the face of it, is the case of a neutral vessel. It is no where laid down, that policies on

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considered as lawful. The very property taken by our own subjects from the enemy, might be claimed by the underwriters. And why should it not, if their contract was legal? It is well

neutral property, though bound to an enemy's port, are void. And, indeed, I know of no cases, (except two, both of which are short notes,) that prohibit a subject trading with the enemy. By the maritime law, trading with an enemy, is cause of confiscation in a subject, provided he is taken in the act, but this does not extend to neutral vessels." 1 Term Rep. 85. Lord Mansfield here appears to have, as much as possible, kept the cargo out of view, and to have endeavoured to palliate the illegality of its destination, by holding up the neutrality of the vessel.

As to the expediency of permitting such insurances, he expressed himself in a clear and decided manner. "It is," said he, "for the benefit of the country, to permit these contracts, upon two accounts; the one, because you hold the box, and are sure 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." Park on Ins. 316. 6th edit.

But, during the last war, the tribunals of England entirely discarded their former ill judged policy, and restored, to all appearance, on a firm basis, the ancient principle of the law of nations. In the year 1794, a death blow was given to insurances on enemy's property, in the cases of Brandon v. Nesbitt, and Bristow v. Towers. 6 Term Rep. 23. 35. Nothing, however, was finally decided, as to the legality of trading with an enemy, until sir William Scott, in the year 1799, gave his able and luminous judgment, in the case of the Hoop, Cornelis, 1 Rob. 165. Am. ed. which was soon followed by that of the court of king's bench, in Potts v. Bell. 8 Term Rep. 548, in which it was held to be illegal, on general principles, for a subject to trade with an enemy. We observe with pleasure, that these decisions were principally founded on the authority of the irresistible arguments of our author in the present chapter; it is not the only instance in which he has had the honour of giving the law to the tribunals of the great nations of Europe.' That lord Mansfield made the well known principles of the law of nations yield to his favourite policy, is at present too well authenticated to be denied. "On the legality of these insurances," says Mr. Justice Buller, "I never could get him to reason. He never went beyond the ground of expediency." Bell v. Gilson. 1 Bos. & Pul. 354. "He always," says lord Alvanley, "entertained doubts upon the law, and endeavoured to keep out of sight, a question which might oblige him to decide against what he thought for the benefit of the country." Furtado v. Rogers. 3 Bos. & Pul. 197.

From this and other instances which might be adduced, it is evident, that the law in England is made to subserve the great political interests of the nation, and varies with the notions of policy that are entertained at different times. It behoves us, therefore, to consider how far we are bound implicitly to adopt the rules laid down by English judges, in cases which may affect their political concerns, on the mistaken supposition that they are founded. on the principles of the ancient common law. The situation and interests of