Contracts void. trade. As the former rule can be relaxed only by permission of the Sovran power of the state, so this can be relaxed only by the permission of the allied nations, according to their mutual consent.* On similar principles, all Contracts made with the Enemy during War are utterly void. This applies to Insurances on the enemy's property and trade; to the drawing and negociation of Bills of Exchange, whether the subject of this country or of the alien enemy be the acceptor; to the sending of Money or Bills to the enemy's country; to Commercial Partnerships. All endeavours to trade by third persons are equally illegal.† Thus also all Contracts made in contemplation of War, and which never could have existed at all, but as an insurance against the pressure of war, and with a view to evade the rights that arise out of war, and in fraud of the belligerent, are illegal, even though made by neutrals.‡ Insurances. The municipal or common law of every state declares all Insurances to be void, by which ships or merchandize of the enemy are sought to be protected. Also all Insurances by or on behalf of alien enemies are wholly illegal and void, although effected before the breaking out of hostilities; but if both the policy had been effected and the loss accrued before the war, the remedy is only suspended during the war. The general principle is that the contract of assurance is vacated and annulled ab initio; wherever an insurance is made on a voyage expressly prohibited by the common, * 2 Wheaton, p. 37. t1 Kent's Com. p. 67. The Rendsborg, 4 Rob. Adm. Rep. 132. statute, or maritime law of the country; the policy is of no effect.* Thus, if a ship, though neutral, be insured on a voyage prohibited by an embargo laid on in time of war, by the prince of the country in whose ports the ships happen to be, such an insurance is void.† Similarly, all Insurances to protect the interests of British subjects trading without licence with the enemy are absolutely void.‡ So also, if a Licence is not strictly pursued, so that the voyage becomes illegal, the insurance is void.§ I have said that all Insurances will be void which are designed to protect voyages or trading to hostile ports. But, for this purpose, it must be clearly made out, not only that the port into which the ship sails is hostile, but also, that she was bound with a distinct hostile destination at the time of loss. Thus a policy to "ports in the Baltic,” is legal, as some may be hostile, and some not, and it is not certain that she was sailing to a hostile port. The general principle by which the validity of a policy is to be tested, is by the voyage, that it is a voyage prohibited by law, on some ground of public policy. The will, therefore, of the parties is of no account, as the prohibition is for public, and not private benefit. So that if the underwriter is told that the voyage is illicit he is not more bound than if he were not told so.|| It is Insurances upon voyages generally prohibited by by law, such as to an enemy's garrison, or upon a voyage directly contrary to an express act of parliament, or to * Park, p. 497. † Toulmin v. Anderson, 1 Taunt. 227. Potter v. Bell, T. Rep. 548; The Hoop, supra. § Vandyck v. Whitmore, 1 East, 475. || Park, 502. Bills of Exchange drawn royal proclamation in time of War, that are absolutely void and null;—therefore, on neutral vesssels, or the vessels of British subjects possessing neutral rights and sailing from neutral ports to enemies ports are not void.* Similarly, with respect to Insurances on neutral vessels carrying contraband goods, for it is not the voyage, but the cargo, that is illegal in that case.† Insurances are good on Neutral Vessels engaged in the Colonial Trade of the Enemy, and which was closed to the Neutral in time of peace, ‡ It must be observed, that if a voyage is illegal, and voids the policy for that voyage, it does not follow that it voids the voyage in the opposite direction, and even the goods purchased by the proceeds of a former illegal voyage, may be the subject of Insurance. § It has been stated above that all Bills drawn or negociated during War. With the enemy, whether a British subject or the alien enemy be the acceptor, are null and void; during the last war, however, attempts were often made to draw and negociate bills that should pass muster in our courts of law, as for example: An alien enemy, during war, drew upon a British subject resident in England, and who had funds of the alien in his hands; the drawer then indorsed the bill to an English-born subject, resident in the hostile country; such a bill cannot be enforced even after the restoration of peace, for otherwise it would enable alien enemies to take the benefit of all their property in this country, by allowing them to pay debts out of such funds, by the instrumentality of bills. || * Park on Insurance; Arnold on Insurance; Gist v. Mason, 1 T. R. 84. § Park, 502; Sewell v. Royal Exchange Assurance Co. 4 Taunt. 856; Wilson v. Marryat, 8 T. Rep. 31. || Willison v. Patterson, 7 Taunt. 439; Vide Note on the War Bill Act, at the end of this part. The principle seems to be,—that it is not every bill that bears the name of an alien enemy upon it that is void, but such bills only that are instrumental in assisting in communication with an alien enemy;—and a liberal application of this principle has been made use of to open a way for English prisoners to make use of their property at home for their support in the country of their captivity. Thus, where one of two Englishmen, detained in France on the breaking out of hostilities, drew in favour of the other, upon a subject here, it was held that he might legally draw such a bill for his subsistence, and that he might indorse it to an alien enemy, an inhabitant of the hostile country; for he could not avail himself of the bill except by negociation; and to whom could he negociate it, except to the inhabitants of the country in which he resided?* Bills, like other contracts, are only void by the policy of war; but the law still recognizes some extent of obligation between the parties, so that bills void in their concoction (as instruments of trade with the enemy,) are not so far void that they may not constitute the basis of a promise by which a party may bind himself on the return of peace. † made before On the very important question of the effect of a declara- Contracts tion on Contracts with the subjects of the enemy, entered the War. into previous to the War, the rule is, that if the performance of the contract be rendered unlawful by the Government of the country, the contract is dissolved on both sides. ‡ * Per Gibbs, C. J. Antoine v. Morshead, 6 Taunt. 238. According to Mr. Serjeant Byles, a bill drawn by a British prisoner in favour of an alien enemy cannot be enforced by the payee. He cites no case in support of this assertion; but on the principle of the last case cited, if it were drawn for subsistence and not for trade, there seems to be no reason why it should not be legal. † Duhamel v. Pickering, 2 Starkie, 92. Barker v. Hodgson, 3 M. & S. 270. Thus the contract of Affreightment is dissolved when the voyage becomes unlawful, by the commencement of war, or the interdiction of commerce;* and this whether the interdiction is complete as to the ship, or partial as to the receiving of goods. Similarly, if the voyage be broken up by Capture on the passage, so as to cause a complete defeat of the undertaking, the contract is dissolved, notwithstanding a recapture. † A Blockade of the port of destination, that renders the delivery of the cargo impossible, and obliges the ship to return to its port of destination, dissolves the contract.‡ A temporary interruption of the voyage does not put an end to the agreement. Embargoes, hostile blockades, and investments of the port of departure are held to be temporary impediments only.§ But in the case of an Embargo imposed by the government of the country, of which the merchant is a subject, in the nature of reprisals and partial hostility, against the enemy to which the ship belongs, the merchant may put an end to the contract, if the object of the voyage is likely to be defeated thereby; as if, for example, the cargo were of a perishable nature. || Partnerships. A Public War operates as a positive dissolution of Partnerships between subjects of the contending nations. Every Partnership is dissolved by the extinction of the business for which it was formed. By a declaration of War, the respective subjects of each country become * Liddard v. Lopes, 10 East. 526; Abbot, on Shipping, 596. 1 Kent's Com., 249. § Hadley v. Clarke, 8 T. R. 259; 3 Kent's Com. 249. || Abbot, on Shipping, 599. Pothier, Trait du Cout. de Joc. No. 140. |