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. 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

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

known, that property insured, belongs in a certain manner to the insurers, and they are, in a great degree, identified with the owners, as appears by the printed policies that are in every body's hands. If, then, the underwriters could thus claim enemy's property, after it had been lawfully captured, it would not only occasion a considerable loss to the captors, but it would, (as the edict justly observes,) deter them from fitting out vessels to cruise against the enemies of the state. Surely, there can be nothing more directly in opposition to the law of war.*

America and Great-Britain are known to differ in many essential points, and therefore, the rules by which the one is led to prosperity, may prove greatly injurious to the other. We have had frequent occasion to observe, that many of their belligerent principles are entirely unsuited to our neutral situation, and this is so true, that the state legislatures have been obliged to make laws to counteract the effects of the application of British doctrines, as has lately been done in Pennsylvania, with respect to the conclusiveness of the sentences of foreign prize courts. But, we observe also, with regret, that in some of the states they have gone so far as to prohibit the reading or citing, in courts of justice, of British adjudications of a date posterior to the American revolution. It is paying a poor compliment to the patriotism and intelligence of the judges who grace the benches of our superior tribunals, and a degrading tribute to the presumed superiority of British jurists, to suppose, that their opinions would obtain an undue influence or ascendency over those of our own countrymen. To the sound discriminating minds of our enlightened judges, (aided from time to time by special legislative acts,) it might safely have been left to decide, how far the principles adopted by the tribunals of Great-Britain are consonant with our own national policy, which undoubtedly is as much a part of our law, as that of the English is a part of theirs.

T.

* It does not seem to follow, because the loss suffered by the capture of enemy's property may be recovered from the underwriters, that the property itself may be recovered by the insurers from the captors; but the effect of such insurances is certainly, as Valin happily expresses it, that the nation which permits them, restores with one hand what it takes with the other.

We cannot help adverting here to what might be considered as another striking instance of injudicious policy, if we were not assured from high authority, that it originated in misapprehension and mistake. We mean to speak of the doctrine of conclusiveness, as applied to the sentences of foreign prize courts, which has so often frustrated, to the great loss of the parties insured, the insurances made in England upon neutral property. The ships and cargoes of neutrals are insured there for high war præmiums, against capture and its attendant confiscation by the enemies of Great-Britain; but, as the law is understood in that country, (and surely the unfortunate neutral is not aware

So far, no fault can be found with the said edict of the 1st of April 1622. But I have discovered a supplement to it, of the 13th of May in the same year, by which it was declared, that the edict should only operate on those insurances which were or should be made after its publication; as if this was a proper subject for the application of the rules of the Roman code, on the subject of ex post facto laws.* It would seem,

of it, otherwise he would not subscribe to such an unequal contract), if condemnation takes place, the sentence is in most cases considered as conclusive evidence of the property insured being enemy's property, and the innocent neutral being thus convicted of fraud, the insurer is allowed to retain the præmium and to pay no loss. In this manner, præmiums to an immense amount, have been earned by English underwriters, without risk, and neutrals have paid their money without being compensated for their losses. Such are the effects of the celebrated doctrine of conclusiveness of foreign sentences, so justly reprobated by two of the greatest law characters of our age, lords Thurlow and Ellenborough; Donaldson v. Thompson, 1 Campi. N. P. Rep. 429. These consequences were not contemplated, we are sure, by the respectable judges of England; but they, nevertheless, certainly followed, and at last it was found necessary to tolerate the evasion of that law by a special clause annexed to policies of insurance; (Lothian v. Henderson, 3 Bos. & Pul. 499.) otherwise, the British insurance offices would have been entirely deserted by neutrals. And yet it is supposed to be founded on a principle of the law and comity of nations, which, we would presume, it does not belong to individuals to dispense with.

It is much to be wished, that this fatal doctrine may be exploded throughout the United States, as it is in Pennsylvania and New-York. While our property is more than ever exposed to the captures of belligerent cruisers, and to the unjust condemnations of foreign tribunals, the effects of such a principle must be to deprive our citizens of the benefit of insurance in such cases, and thus to further the views of those powers who may wish to check our commercial career. We do not receive immense sums in præmiums from foreigners; American property, principally, is insured in our offices, and those insurances ought to be made as effectual as possible, that the risk and the loss may be divided among many, instead of falling upon a few. It is true, that we, also, can evade the doctrine in question, by a special clause; but a law which requires to be evaded is a snare to the unwary, and is necessarily a bad law.

We beg leave to refer the reader on this subject to the able and conclusive opinion of the honourable judge Cooper, of Pennsylvania, delivered in the high court of errors and appeals of this state, in the case of Dempsey v. The Insurance Company of Pennsylvania, and published with an excellent introduction, by Mr. Dallas; Philadelphia, Byrne, 1810. T.

Leges & constitutiones futuris certum est dare formam negotiis, non ad facta præterita revocari: nisi nominatim & de præterito tempore, & adhuc pendentibus + Y

that the states-general considered that the insurance of enemy's property was legal, unless it was prohibited by an express law, otherwise, there was no reason for not annulling those insurances which were made before the publication of the edict, as well as those which were made afterwards. The edict had been very properly expressed in general terms, and had made no such exception; and, as it did not enact a new law, but was merely declaratory of the law of war, the supplement is rather to be considered as an oversight of the legislature, than as a law actually binding. So much of the edict, indeed, as inflicts a penalty, may very properly have been restricted to future cases; but not so the prohibition itself: unless, perhaps, we should say, that the insurance of enemy's property had before prevailed to such a considerable extent, that it had acquired the force of an ancient custom or usage. Nevertheless, even if there should be a great many instances of insurances of that description, I would not take it to be such an usage as is considered to have the force of law, unless it should be confirmed by an uninterrupted series of judicial decisions.

The states-general, therefore, acted in conformity to the law of nations, when, on the 31st of December 1657, they made an edict, prohibiting the insurance of the goods of the Portuguese, with whom we were then at war; but I cannot say the same thing of a clause which they added to it, by which they extended the prohibition to the insurance of any merchandize whatever, going to or coming from the Portuguese dominions: for, if those goods belonged to subjects of the states-general, or to allies or neutrals, there was no reason to prohibit their being insured, as the trade with Portugal was not prohibited, except as far as related to contraband of war. To these, therefore, the prohibition ought to have been restricted; in other respects, the freedom of insurance ought to have been co-extensive with the freedom of trade. The states

negotiis cautum sit. The laws are only to affect future and not past transactions, unless made with an express reference to them. Cod. de Legib. 1. 7.

T.