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general, however, on the 9th of March 1665, being at war with England, issued a similar edict, by which they prohibited the insuring of any merchandize going to or coming from the English dominions. They did the same thing on the 9th of March 1689, during the war with France, and thus interrupted the lawful commerce, not only of our own subjects, but of foreigners. It is thus, that edict-makers content themselves with transcribing those of a prior date, and when once an error (though ever so contrary to the law of nations) has crept into one of them, it is copied, without reflection, into every new law that is made on the same subject, and no one troubles himself about rectifying it.
Upon the whole, it appears, even from subsequent edicts of the states-general, that it is not lawful to make insurance on enemy's property; and because the thing is of daily occurrence, I wish the prohibition had been inserted in all the general and special laws which the states-general have enacted from time to time, respecting that species of contract. I wish also, that Straccha, Santerna, and other semi-barbarians, who have written on the subject of insurance, had left this question entirely untouched, and had contented themselves with observing, that unlawful merchandize, as for instance, contra
* It would seem, however, that although it is not lawful for a belligerent nation to obstruct the commerce of neutrals with their enemies, yet they may lawfully prohibit insurances on such trade within their own dominions, and that such a prohibition is no more than the lawful exercise of the right of municipal legislation.
7. + Our author is much too severe on thosc ancient writers, to whom we are indebted for the first methodical treatises on commercial and maritime law. Nor has he spared that venerable work, the Consolato, (abuve, p. 44), which has been the foundation of almost every subsequent maritime code. Far from joining in his opinion, we wish that those books were more fre. quently read and consulted than they are; they would be found to contain many excellent principles, which, in our modern times, have been unfortunately too much lost sight of. See the excellent decree of judge Davis, (district judge of Massachusetts), on an important question, respecting mariner's wages, the solution of which has been afforded him by a text of the Consolato. 2 Amer. Law Fourn. 359. Il Consol. c. 127. and in M. Boucher's translation, c. 130. vol. ii. p. 195. $ 321.
band of war, could not be insured. For my part, I shall express in a few words, what I conceive to be the law upon this subject. I think, that it is not lawful to insure any ships or goods which are liable to capture by the law of war; but as to those which cannot be made lawful prize, I see no reason why they should not be insured.
I shall conclude with adverting to what some of our writers have said on the subject of insuring goods which are liable to condemnation. Grotius* is of opinion, that he who has insured contraband goods, not knowing them to be such, is not bound to pay the loss. Others have said, that he who has subscribed a policy in general terms, is released from his engagement, if the owner of the goods insured turns out afterwards to have been an enemy; for, enemy's property is never considered as being included in a general description, but must be expressly, declared and made known to be such, to the underwriter.
Consil. Holland. vol. 3. Cons. 175. + Ibid. vol. 2. Consil. 322.
A very correct general rule has lately been introduced in England, upon this subject. “Whenever,” says Park, "an insurance is made on a voyage expressly prohibited by the common, statute or maritime law of the country, the policy is of no effect. Park on Ins. 307. 6th ed. Even though the insurance be made in general terms, a clause or proviso, excluding the prohibited risk, is always considered as ingrafted in the policy. Furtado v. Rogers, 3 Bos. & Pub. 191. Kellner v. Le Mesurier; Brandon v. Gurling, 4 East, 396. 410.
According to the above decisions, the capture of neutral vessels by the cruisers of Great-Britain or her co-belligerents, is considered as a probibited risk, “ because,” says lord Ellenborough, “it is repugnant to the interest of the state, and has a tendency to render the British operations by sea ineffectual.” Kellner v. Le Mesurier, 4 East, 402. This is certainly correct, on the ground of state policy; but, another reason, founded on the broad basis of the law of nations, is afforded by our own judge Johnson, (one of the judges of the supreme court of the United States, and presiding judge of the courts which compose the sixth federal circuit:)“ a neutral,” says he, “ who is captured for having violated his neutrality, is considered by the belligerent as an enemy waging an individual war against his nation, and is abandoned by his own government as such.” Rose v. Himely, Bee's Admiralty Reports, 322. It follows, from this principle, that all risks of capture, by the armed vessels of the nation to which the insurer belongs, may be properly classed within the general prohibition against insuring
But, I think, that even though it be expressly mentioned and designated in the policy, yet, when enemy's property or contraband goods are insured, the insurance is void, and it depends on the will of the parties to fulfil or not, the contract which they have entered into; but no judicial recovery can be had thereon.
enemy's property. And, indeed, according to the formula which is used at present by the courts of admiralty of Great-Britain, whatever may be, in point of fact, the specific ground of condemnation of a neutral vessel or cargo, no other reason is assigned in the decree, but that it belonged, at the time of capture, to the enemies of that country. Horne's Compend. 148.
Of enlisting. Men in foreign countries, and, incidentally, of
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and is still, the cause of much disturbance in many of the kingdoms and states of Europe: Whether it is lawful to enlist men in the territory of a friendly sovereign? Let it not be imagined, that I mean to contend, that it is lawful to entice away soldiers, by bribes or solicitations, from the service of another prince, in order to enlist them into our own. I know too well, that those who promote desertion, are not less guilty, and do not deserve a less punishment than the deserters themselves;* and, indeed, among some nations, that crime has even been construed into high treason. The question which I am about to investigate, is of a quite different nature. It is, whether a prince may, in the territory of a friendly sovereign, enlist private individuals who are not soldiers, and make use of them in war against his own enemies? It is certain, that if a prince prohibits his subjects from transferring their
* The important question respecting the delivering 'up, or as it is called, the extradition of deserters from one country to another, has been the sub. ject of much controversy in America as well as in Europe, and is not yet at rest. It has been but slightly touched upon by some of the writers on the law of nations, and by others not at all. Vartel says nothing upon it. Hubner lays it down as a general principle, that “ a neutral sovereign may receive in his dominions, and even among the number of his subjects, deserters from either of the belligerent armies, unless he is obliged to deliver them up by a special convention, called a cartei.” 1 Hubn. De la Saisie, &c. p. 39. But Galiani distinguishes and contends, that if the army from which the soldiers desert is on the neutral territory at the time when the desertion takes place, as for instance, if it has been allowed the right of passage, the neutral sovereign is bound to deliver up those who have deserted their colours within his dominions; otherwise, it will be considered as a violation of the laws of hospitality, Galiani, De doreri, &c. I. 1. c. 8. $ 4. T.
allegiance and entering into the army or navy of another sovereign, such sovereign cannot, with propriety, enlist them into his service; but, where no such prohibition exists, (as is the case in most of the countries of Europe), it is lawful, in my opinion, for the subject to abandon his country, migrate into another, and there serve his new sovereign in a military capacity.
It is lawful, I repeat it, if there is no law that prohibits it, for a subject to change his condition, and transfer his allegiance from one sovereign to another. The writers on public law are all of this opinion; nor does Grotius dissent from them, but he adds, that expatriation is not lawful among the Muscovites; and we know, that it is unlawful also among the English and Chinese. We know likewise, that Louis XIV. king of France, * declared by an edict of the 13th of August 1669, that those of his subjects who should, without the permission of the government, emigrate from his dominions, with the intention never to return, should be punished with the forfeiture of life and goods. Before that period, it was lawful to emigrate from France, and it is so wherever the country is not a prison.f And if it is lawful for a subject
* This edict was made with a view to the Protestants. It was in the same year that Louis the XIV. began to violate the edict of Nuntz, by abolishing the chambres mi-parties, tribunals consisting of judges of both religions, which that edict had established. Hénault, Abregé de l'Hist. de Fr. sub anno 1669. He foresaw the immense emigration which its final repeal would produce, and thus vainly endeavoured to prevent it.
T. + By the first constitution of Pennsylvania, made on the 28th of September 1776, it was declared, (c. 1. § 15.), " that all men have a natural inherent right to emigrate from one state to another that will receive them." 1 Dallas's Laws of Penn. append. p. 54. The present constitution merely provides, (art. 9. § 25), “ That emigration from the state shall not be prohibited.” 3 Dallas's Laws of Penn. p. xxii.
The question, " whether it is lawful for a citizen to expatriate himself," has been brought several times, and in various shapes, before the supreme court of the United States. It was made a point, incidentally, in the case of Talbot v. Jansen, mentioned above, p. 136. In that case, it appeared to be the opinion of the court, that expatriation is lawful, provided it is effected at such time, in such manner, and under such circumstances as not to endanger the peace or safety of the United States. “ The cause of removal," said judge Patterson, "must be lawful, otherwise, the emigrant acts contrary to