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

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.

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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. & Pul. 191. Kellner v. Le Mesurier; Brandon v. Curling, 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 prohibited 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:) 66 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

CHAPTER XXII.

Of enlisting Men in foreign countries, and, incidentally, of Expatriation.

ENTER upon the discussion of a question which has been,

I ENTER

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 subject 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. Vattel 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 cartel." 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' doveri, &c. l. 1. c. 8. § 4.

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