porting fuch commodities, the fituation of the war between the contending parties is to be confidered. Upon this point, his reafoning is excellent: "If," fays he, "I cannot defend my"felf without intercepting the commodities in"tended for my enemies, neceffity will give me "the right, but ftill I fhall be liable to make "reftitution, unless fome other cause of seizure appears. For if the conveyance of fuch com"modities to the enemy fhall prevent the execu"tion of my plans, and he who carried them "knew that I had befieged or blockaded the "town, and that peace or a furrender was ex pected, he fhall be anfwerable for the lofs "fuftained by his mifconduct." With this opi- L. 1. c. 11. nion Bynkershoek for the most part coincides; because, as he observes, the fiege alone is the cause why it is not lawful to carry any thing to the befieged, whether it be contraband or not: for a befieged city is never compelled to furrender by force, but by famine, and the want of other neceffaries. If it were to be permitted to fupply them with the things of which they ftand in need, perhaps the affailants would be obliged to raife the fiege. But as it is impoffible to fay, of what things the belieged stand in need, or in what they abound, every fpecies of commodity is forbidden to be carried into the garrifon; for otherwife there would be no certain rule of fettling disputes. This learned author, however, differs from Grotius, in that paffage where he fays, "the carrier "of goods fhall be anfwerable, if peace or a "surrender was expected, and it was fruftrated by fuch means." Bynkerhoek is of opinion, that fuch doctrine is neither confonant to reafon, nor to the agreements entered into by the laws of nations. He reafons thus: "Quæ ratio me "arbitrum conftituit de futurâ deditione aut pace? et fi neutra expectetur, jam licet ob"feffis quælibet advehere? imo nunquam licet, "durante obfidione, et amici non eft caufam amici Grot. Bynk. loc. cit. perdere, vel quoquo modo deteriorem facere. "Et qui advexit, non ultra tenebitur, quam de "damno culpâ dato? atquin in fubditis id femper capitale fuit, quin et in amicis, edicto ante "monitis, fæpe et in non monitis. Rurfus, fi quis nondum advexit, fed, dum advehere vo"luit, deprehendatur, fola rerum interceptarum "retentione erimus contenti, idque donec cavea"tur, nihil tale in pofterum commiffum iri?" He concludes thus: "I do not agree to that opinion, having learnt from the cuftom and ufages of all nations, to fell all intercepted goods, and often to inflict, if not a capital, at "least a corporal punishment." Such are the opinions of these two very learned writers, who, although in fome refpects they differ, agree in establishing this as a fettled, undifputed rule, that whoever conveys any neceffaries to a befieged town, camp, or port, is guilty of a breach of the law of nations. This being the cafe, an infurance upon fuch commodities must neceffarily be void and of no effect, agreeably to the principles which have already been advanced. One question only remains to be confidered; how far infurances upon goods, the exportation and importation of which are forbidden by the laws of other countries, are valid? In England, the law is clear, as it has been laid down by two very great judges, that fuch infurances are good; because the foundation of the contract is not illicit. It has been exprefsly held by Lord Manf field more than once, in which he has been confirmed by the whole court of King's Bench, that one nation never takes notice of the revenue laws Doug. 238. of another; and therefore fuch an infurance was certainly good and valid. A fimilar opinion feems to have been entertained by Lord Hardwicke; at leaft fo much may be collected from, his argument, in a cafe reported in Vezey. Vide ante 1 Vezey 319. But But although this point is fo clearly fettled by the law of England, in which alfo the law of 1 Emerigon. France coincides, it is certain that the expediency p. 210. of it has been a queftion which has very much engaged the attention of fome confiderable French authors. Their opinions can in no way affect the law of England, which ftands upon much higher authority than the fentiments of fpeculative men, however refpectable; but it may be productive of some amusement, if not inftruction, to see by what arguments the two different opinions are supported. art. z. f. 2. Those who contend that fuch infurances are il- Pothiér Tr. legal, argue in this manner: that they who carry d'Affurances, on commerce in a country, are obliged, by the c. 1. f. 2. custom of nations, and natural law, to conform to the laws of that country, where they trade. Every fovereign has power and jurifdiction over every thing done in the country, where he has a right to command; he has confequently a right to make laws, relative to commerce within his dominions, which bind all those who trade, as well ftrangers as fubjects. No one can difpute with the fovereign, the right he has to retain in his own country certain merchandizes which are there to be found, and to prohibit the exportatation of them. To export them contrary to his orders, is to ftrike a blow at his undoubted authority; and confequently it is unjuft. But admitting, fay they, that a Frenchman would not himfelf be fubject to the law of Spain, for the trade which he carries on in Spain, it cannot be denied that the Spaniards, whofe affiftance he requires, are fubject to thofe laws; and that they offend extremely in affifting him to export that, the exportation of which is prohibited by law. This fpecies of trade then is to be confidered as illicit, and contrary to good faith; and confequently the contract of infurance, introduced in order to protect it, by charging the infurer with U 3 the 2 Val. Com. 129. 212. the risk of confifcation, is illicit, and cannot induce any obligation. Thofe who fupport the oppofite doctrine contend, that the exportation or importation of Emerigon commodities prohibited by foreign laws is no offence; and that the means employed to effect it are regarded by the law, as a laudable and ingenious exertion of fkill. Thus the exportation of certain commodities is prohibited in Spain, which the government of that country has a right to do: but the laws of his Catholick majefty are not the rule of action for Frenchmen. It is allowed them to bring from Spain into France, piaftres, piftoles, and filks, for the fupport of the Banks, the manufactures, and the commerce of that country. Thefe merchandizes are a lawful branch of trade; and there is no reafon why they fhould not be the fubject matter of a contract of infurance. But above all, they infift, that they are juftified by the constant cuftom; and that the reafoners on the other fide ought to be lefs ftrict, when it is confidered, that this contraband trade is a vice common to all commercial nations. The Spaniards and English in time of peace practise it in France: it is therefore permitted to carry it on in their respective countries, by way of reprifal. Whateve ence there may be on the queftion of expediency; it is univerfally admitted by the French writers, that infurances upon fuch goods are valid. We have already feen that the fame ideas have been adopted by the law of England; and that every policy upon goods, the exportation or importation of which is not prohibited by the municipal laws of this country, or by the general laws of nations, is legal and binding upon the parties; and the underwriter muft anfwer for every lofs arifing by means of any of the ufual perils. CHAP CHAPTER THE FOURTEENTH. HA Of Wager-Policies. AVING in the four preceding chapters ftated the various cafes, in which the contract of infurance is void from its very commencement, on account of it's repugnancy to thofe principles of juftice, equity, and good faith, which are the great foundation of all con-. tracts between man and man; we proceed to treat of those policies, which by the pofitive flatute law of the country are declared to be abfolutely null and void. Of thefe the largest class are wager-policies, or policies as they are called, upon intereft or no intereft. The nature of the contract of infurance, in it's original state, was, that a fpecifick voyage fhould be performed free from perils; and in cafe of accidents, during fuch voyage, the infurer, in confideration of the premium he received, was to bear the me-chant harmlefs. It followed from thence, that the contract related to the fafety of the voyage thus particularly defcribed, in refpe&t either of fhip or cargo: and that the perfon infured could not recover beyond the amount of his real lofs. In procefs of time, however, variations were made, by exprefs agreement, from the firft kind of policy; and in cafes where the trader did not think it proper to difclofe the nature of his intereft, the infurer difpenfed with the infured having any intereft either in the ship or cargo. In this last kind of policy, (of which we are now to treat) "va "lued free from average," and "intereft or no "intereft," it is manifeft, that the performance of the voyage or adventure, in a realonable time and manner, and not the bare exiftence of the fhip or cargo, is the object of the infurance. U 4 Such |