though of British manufacture and Brandon v. Nesbitt was held so clearly to control the other, that, on the authority of that decision, the counsel for the exported from plaintiff abandoned the second argument, which the Court hence. had ordered. The special verdict stated that the plaintiff, on the 15th March, 1793, being then resident in Great Britain, in pursuance of an order for that purpose, caused the insurance in question to be made on account of Arrouet, Massot, &c., and that the goods insured were by the policy warranted French property, and were so in fact; that the goods, which consisted of buttons, buckles, &c., of the manufacture of this kingdom, were shipped on board the Nancy (an American ship), on the 19th March, 1793, by Messrs. Humphreys, of Birmingham, in compliance with orders received in January, 1793, from Messrs. Arrouet, Massot, &c., who were and still are subjects of France; that by two orders in council of 11th February, 1793, general reprisals were granted against the ships, goods, and subjects of France, and a general embargo was laid on all vessels in Great Britain, but by another order of 26th February, the said general embargo was declared not to extend to foreign vessels belonging to the subjects of any state in amity with his Majesty, but that they might forthwith proceed on their respective voyages, provided the cargo did not consist of naval or military stores, or any other article the exportation whereof was prohibited by any law or order of council then in force. The verdict then states the sailing of the ship on the voyage insured on the 21st of March, 1793, the subsequent capture of the vessel by some English subjects, and the condemnation of the goods insured as French property. This special verdict was fully argued at the Bar, and a second argument was ordered; but, after the decision of Brandon v. Nesbitt, the counsel for the plaintiff said that he declined the further argument of the case, as he had no hopes of convincing the Court that this case could be distinguished from the principle upon which the former had been so recently determined. Lord Kenyon.-"It appears to the Court in the same light, and there must be judgment for the defendant." cap In the case of Furtado v. Rogers (a) it was clearly decided that all insurances upon foreign ships must be understood as virtually containing an exception in the case of British ture, and in this case it was held that even a French ship that was insured in England, previous to the commencement of hostilities between Great Britain and France, was not protected by the policy in the case of a loss by British capture, after the hostilities had commenced. Lord Alvanley, in delivering the judgment of the Court, said, "There are two questions for our consideration, 1st, Whether it be lawful for a British subject to insure the ship of an enemy from the effect of capture made by his own. government? 2ndly, Whether, if that be illegal, the insurance in this case having been made previous to the commencement of hostilities will make any difference? As to the first point, it has been understood for some years past to have been the opinion of all Westminster Hall, and, I believe, of the nation at large, that all such insurances are illegal, and incapable of being enforced in a Court of Justice. Mr. Park seems to consider the cases of Brandon v. Nesbitt (b), and Bristow v. Towers (c), as having decided the point (d); but, after looking accurately into all the cases, I admit there is no direct determination. The above two cases proceeded on the short ground of "alienage," which was sufficient to support the decision, without entering into the other question." His Lordship, after referring to the uncertainty of the matter which had existed for some years, and referring to the opinion of Mr. J. Buller (e) on the subject, goes on to say: "We can only say, that although many persons have recovered in such actions, it is equally true that doubts have been entertained by many persons as to their right to recover, and that most of those who were informed upon the subject (a) 3 B. & P. 191. (d) See Park Ins. 519. (e) See his judgment in Bell v. Gibson, 1 B. & P. p. 354. were firmly persuaded that the objection might have been made with success. This affords a sufficient vindication to the Courts of this country in now deciding this point against a foreigner. In the year 1748 an act (a) passed, prohibiting the insurance of French ships and goods during the war: this was at, least, a legislative declaration of the impolicy of such insurances at that time. From the expiration of that act to the passing of the 33 Geo. 3, c. 27, s. 4, no legislative interference upon the subject ever took place, and previous to the last act, the policy in question was made. The question, then is, whether the law does not make that exception, and whether it be competent to an English underwriter to indemnify persons who may be engaged in war with his own sovereign against the consequences: by the terms of the policies, the underwriters certainly undertake to indemnify the assured against all captors and detentions of princes, without any exception in respect of the acts of the government of their own nation? We are all of opinion, on the principles of the English law, it is not competent to any subject to enter into a contract to do anything which may be detrimental to the interests of his own country; and that such a contract is as much prohibited as if it had been expressly forbidden by act of Parliament. It is admitted, that if a man contract to do a thing which is afterwards prohibited by act of Parliament, he is not bound by his contract: this was expressly laid down in Brewster v. Kitchell (b): and on the same principle, where hostilities commence between the countries of the assured and the underwriter, the latter is forbidden to fulfil his contract. With respect to the expediency of these insurances, it Bynkershock. seems only necessary to quote a single line from Bynkershoek (c), and part of a passage in Valin (d). Valin. The former says, "Hostium pericula in se suscipere quid est aliud quam eorum maritima promovere ;" and the latter, speaking of the conduct of the English during the war (a) 21 Geo. 2, c. 4. (c) Quæst. Juris Pub. lib. 1, c.21. (d) Page 32. of 1756, who permitted these insurances, says, "The consequence was, that one part of this nation restored to us by the effect of insurance, what the other took from us by the rights of war." There is no express declaration, therefore, either for or against the legality of such insurances, and the question comes now to be decided for the first time. We are all of opinion, that to insure enemies' property was at common law illegal, for the reasons given by the two foreign writers to whom I have referred. If this be so, a contract of this kind entered into previous to the commencement of hostilities must be equally unavailable in a Court of law, since it is equally injurious to the interests of the country; for if such a contract could be so supported, a foreigner might insure previous to the war, against all the evils incident to the war. But it is said that the action is suspended, and that the indemnity comes so late that it does not strengthen the resources of the enemy during the war. The enemy, however, is very little injured by captures for which he is sure to be repaid, at some time or other, by the underwriters. Since the case of Bell v. Potts, it has been universally understood that all commercial intercourse with the enemy is illegal at common law, and that, consequently, all insurances founded upon such intercourse are also illegal. Why are they illegal? Because they are in contravention of his Majesty's object in making war, which is by the capture of the enemy's property, and by the prohibition of any beneficial intercourse between them and his own subjects to cripple their commerce. The same reasoning which influenced the Court of King's Bench in their decision in Bell v. Potts, seems decisive in the present case. For it being determined that during war all commercial intercourse with the enemy is illegal, at common law, it follows, that whatever contract tends to protect the enemy's property from the calamaties of war, though made antecedent to the war, is, nevertheless illegal. I forbear to enter into the argument suggested at the Bar, in favour of the defendant, that the law will not enforce a contract UU founded on a transaction detrimental to the public policy of the state. The ground upon which we decide this case is, When a British "that when a British subject insures against captures, the subject insures law infers, that the contract contains an exception of captures made by the government of his own country; and if he had expressly insured against British capture, such a contion of captures tract would be abrogated by the law of England." against cap tures, the law infers that the contract contains an excep made by the government of his own country. So also in the case of Kellner v. Le Mesurier (a), Lord Ellenborough says, "As to the last ground of objection to the validity of this insurance, it immediately involves this question, viz., whether an insurance made in terms against capture generally can be legally carried into effect, so as to operate as an indemnity against an act of hostile capture on the part of his Majesty and his subjects, in favour of an enemy, (for such the proprietor of this ship must be taken to be at the time of the capture in question), the ship having been, as alleged, taken as prize by his Majesty. And, upon full consideration on the subject, we are of opinion that this last ground of objection is well founded, and that no action can be maintained upon this policy to recover the loss in question. A policy containing an insurance against British capture eo nomine would be illegal, and void upon the face of it, as being directly and obviously repugnant to the interest of the state, having an immediate tendency to render ineffectual to the extent of the indemnity created thereby all offensive operations by sea, adopted by his Majesty and his subjects, for the purpose of weakening the strength and diminishing the resources of the enemy. And if an insurance by a British subject, made in terms, against British capture would be void, an insurance indirectly producing the same effect by the application afterwards of the general words of the insurance to the particular event of British capture, which has since happened, must, we are of opinion, upon principle be equally, illegal; and that no peril, the subject of insurance, can be covered under the generality of the terms (a) 4 East, 396, |