would be deemed an evasion of the act and a fraud upon the underwriter, and on both grounds void.' From this prohibition of all wager policies on British ships and goods, the statute by way of exception provides (sect. 2), "that insurances on private ships of war, fitted out by any of his Majesty's subjects solely to cruise against his enemies, may be made by or for the owners thereof, interest or no interest, free of average, and without benefit of salvage to the insurer." The reason of this exception is stated by Best, C. J., to be," that privateers carry no cargoes, and their crews are composed of more persons than it would be safe to trust with the secret that the ships were to be wilfully destroyed, or purposely exposed to capture."" Sect. 3 provides, "That any effects from any ports or places in Europe and America, in the possession of the crowns of Spain and Portugal, may be insured in the same manner as if the act had not been made." The reason assigned for this exception by Best, C. J., is that ships going to the territories of Spain or Portugal were not likely to export wool (a thing much dreaded by the English government at the time the act passed, and expressly mentioned in the preamble as one of the mischiefs that had been encouraged by permitting wager policies), nor other raw materials, or to import any articles that could interfere with the monopoly of British manufactures. Another, and perhaps more cogent reason appears to have been the desire to facilitate by this means the smuggling trade, especially in bullion, carried on by our merchants with the Spanish and Portuguese colonies,3 Sect. 6 provides, "That in all actions brought by the insured, the plaintiff, or his attorney or agent, shall within fifteen days after he shall be required so to do in writing by the defendant or his attorney, declare in writing what sum or sums he has insured or caused to be insured in the whole, 1 Lewis v. Rucker, quà supra. 24 Bing. 567, 570. 31 Marshall, Ins. 124, note (a); 3 Kent, Com. 265; see the case of Da Exceptions from this prohibition. Wager policies law. and what sums he has borrowed at respondentia or bottomry for the voyage, or any part of the voyage in question." : It is not only in our own country that insurances by way illegal by foreign of wager are held illegal in France, in Germany, in Holland, in the greater part of the North of Europe, in most of the United States of America, their illegality is equally established by general mercantile usage or positive ordinance. In France. In Germany, In Italy. In the United In France, though not prohibited in express terms, they have always been held unlawful, as opposed to the spirit of the Ordonnance de la Marine,' and the text of the Code Civil.' When the provisions of the Code de Commerce were under the consideration of the French legislature, an attempt was made to procure the protection of the law for this species of contract, but it was immediately checked by the indignant exclamation of the Imperial orator, that "it was not for a great nation like France to legalize the immorality of gambling contracts (des paris)." The legislative prohibitions of these contracts in the different maritime states and trading towns of Germany, Holland and the North of Europe, are collected by Magens, and by Benecke.' In Italy they are expressly prohibited by the ordinances of Genoa and Venice; but in the ports of Tuscany and Naples they are still allowed, and are also practised in Portugal.' In the greater number of the United States of America these policies, though not prohibited by positive statute, 1 Liv. 3, t. 6, art. 22, 23; 2 Valin, 73. 2 Code Civ., art. 1965, 1966, which declares all wagers illegal. The Code de Commerce, says Boulay-Paty, cannot be more indulgent on this point than the Code Civil; Droit Mar., tom. iii. 238. 3 See Estrangin, note to Pothier, Traité d'Assurance, p. 14; BoulayPaty, ubi supra; note by M. Becane to his edition of Valin, tom. ii. p. 285. 2 Magens, Ord. of Middleburgh, p. 70; Koenigsburgh, p. 88; Amsterdam, p. 132; Rotterdam, p. 189; Stockholm, p. 257, &c., under the respective titles of the different states. 5 1 Nolte's Benecke, 240, 241, et seq. In Hamburg, though not directly prohibited, they are not practised, ibid. 290. In Prussia they are prohibited by the Code, art. 1995, tit. Assurance; ibid. 295. 61 Nolte's Benecke, 240. 1 have invariably been considered illegal. In New York, however, till a very recent period, they were held legal ;2 but are now prohibited by the revised statutes of that state." For the sake of order we here refer to a decision twice already in the course of a few pages adverted to, definitely discriminating the second class of those who may not be assured, namely, persons affecting to contract by policy for an indemnity in respect of foreign ships or cargoes in which they have no insurable interest. Persons so situated may effect a valid policy in respect of such property, provided the policy expressly negatives the possession of insurable interest; but in the absence of such express negation any policy effected by them is presumed by our law to be upon interest capable of proof and necessarily averred in the declaration, and since ex hypothesi they possess no such interest the policy is invalid. Second. Those without insur able interest in foreign property, and purporting to contract for an indemnity. enemies. The third class of those who may not be assured, being alien Third. Alien enemies, comprises all persons who by domicil, whether of origin or of acquisition, belong to a state actually engaged in war with that of the insurer. This restriction upon insurances for the benefit of such persons is an obvious consequence of that universally recognized principle in the law of nations, that the object of maritime war is the destruction of the enemy's commerce and navigation, directly aiming at his naval power, and indirectly affecting his general resources for war. Marine Insurance consequently by our countrymen upon his property would be a frustration of these efforts at our own cost. "Hostium enim pericula in se suscipere, quid est aliud quam eorum commercia maritima promovere." Ante, p. 107,111; Cousin v. Nantes, 3 Taunt. 512. Bynkershoek, Quæst. Jur. Publ., 1. 1, c. 21. It was for a long time, however, an unsettled question in English law, whether the insurance of enemy's property was or was not illegal at common law. Lord Hardwicke in 1749, said it had never been declared in our Courts to be unlawful;' and Lord Mansfield supported it, not apparently upon any principles of law, but on fancied grounds of expediency, that the English underwriters would gain more in premiums, than they would lose by captures; but Valin, followed by Pothier and Emerigon, declares, on the contrary, that owing to the permission of this practice in England, one part of our nation restored to theirs, by the effect of insurances, what the other part took from them by the rights of war.1 The English legislature afterwards by two temporary statutes, one in 1748, and another in 1792, prohibited the insurance of any ships or merchandise belonging to France during the wars then pending with the subjects of that nation. And at length the Courts of Westminster Hall took the whole subject into consideration upon the principles of international law, and established by a long course of decisions, under Lord Kenyon, Lord Alvanley, and Lord Ellenborough, that such insurances were not only illegal and void, but repugnant to every principle of public policy. "The question is," said Lord Alvanley, "whether it be competent to an English underwriter to indemnify persons who are engaged in war with his own sovereign, from the consequences of that war; and we are all of opinion that, on the principles of the English law, it is not competent to any 1 Henkle v. Royal Exch. Comp. 1 Ves. Sen. 317. 2 Buller, J., said that he never could get him to give any opinion as to their legality; Bell v. Gilson, 1 B. & P. 345, 354. 3 Planché v. Fletcher, 1 Dougl. 251; Gist v. Mason, 1 T. R. 84; Lavabre v. Wilson, 1 Dougl. 284. 42 Valin, liv. iii. t. vi. art. 3, 39, (he is speaking of the war terminated by the peace of Paris, 1763); Emerigon, c. iv. s. 9, p. 128. Boulay-Paty says, that in the present state of French law such insurances are illegal; Comment on Emerigon, vol. i. p. 131. 21 Geo. 2, c. 4. 7 Brandon v. Nesbitt, 6 T. R. 23; Bristow v. Towers, ibid. 35; Furtado v. Rogers, 3 B. & P. 191; Kellner v. Le Mesurier, 4 East, 396; Gamba e. Le Mesurier, ibid. 407; Brandon r. Curling, ibid. 410; M'Connell v. Bector, 3 B. & P. 113; Le Luneville r. Phillips, 2 B. & P. N. R. 97. subject to enter into a contract to do anything which may be detrimental to the interests of his own country; and that such contract is as much prohibited as if it had been expressly forbidden by act of parliament."1 The first two cases in which the question was formally decided, Brandon v. Nesbitt, and Bristow v. Towers,2 proceeded exclusively on the ground that such a contract could not be enforced in our Courts. But in the case of Furtado v. Rogers, Lord Alvanley, then presiding in the Court of Common Pleas, laid it down decisively, that insurances effected on behalf of an alien enemy, though made previously to the commencement of hostilities, and therefore legal in their inception, could not cover a loss by British capture after war had broken out; and that no action could be brought upon them in our Courts even after the restoration of peace.3 The language of Lord Ellenborough in condemning these insurances was even stronger than that of Lord Alvanley; he pronounced them to be not only illegal and void, but repugnant to every principle of public policy. enemies' pro Whether the loss in respect of which the assured sought to Insurance on recover were a loss by British capture, or by a co-belligerent: perty by British whether the insurance were effected before or after the break- subject invalid. ing out of hostilities; or whether the action were brought during war or after the restoration of peace;' Lord Ellenborough's decision was uniformly the same; and he declared, that every insurance on alien property by a British subject must be understood with this limitation, that it shall not extend to cover any loss happening during the existence of hostilities between the respective countries of the assured and the underwriters. When, however, it was attempted to extend this principle still further, and urged in argument, that an insurance against 1 In Furtado v. Rogers, 3 B. & P. 191, 198. 26 T. R. pp. 23, 35. 3 Furtado v. Rogers, 3 B. & P. 191. As in Kellner v. Le Mesurier, 4 Fast, 396. As in Brandon v. Curling, 4 East, 410. 6 As in Furtado v. Rogers, 3 B. & P. 191; or Brandon v. Curling, 4 East, 410. 7 As in Gambar. Le Mesurier, 4 East, 407. |