Star. — London, England, 1802-07-08 00:00:00

ir .r I LkW IN"1 F.I.I.IGENCL FURTADO T. Roc rit s. IN CONTINUATION FROM 1 NF. PRFCEDINCI PACE. COURT OF COMMON PLEAS, JULY S. This was an aaion upon .1 Policy of TM - mance, dated t h e 19th of o.9ober, '792, on a Ship called the Patronelle, from Bayonne to Martinique, and at lird from thenCe to Bayonne, to recover a lots 1/V capture. The cattle wa•,...rkkl before the Right Finn. Lord ALVANLEr, Chief jullice of the Com mon Pleas, at the Sittings in Trinity Term, iHo 1, when the Jury found a verdiLq for the Plaintiff, ftibiea to the opinion of the Court, upon the fol lowing cafe: That t h e Plaintiff was Owner of the Ship, which failed upon the voyage, infured in o.9ober 1792, and arrived at Martinique in November following: remained there until March 1794, but her to re maining; ava,juditied by necellity, and War having broken our between this Country and France,—fhe svas then, upon the capture of the bland of Marti nique, by the Britith Forces, taken by them as prize, with 40 other French veffels. The Plaintiff, at the time the Policy was effected, and from thence until the adion was commenced, wis a French Subject, refiding at Bayonne, in France, which Country was in amity with Great Britain .then the Policy was effefted, and until the month of February 1793, at which time hoftilities commenced between England and France. Thefe were the material fails of this cafe, which was argued with great learning and ability by Mr. Serjeant BAYLEY, for the Plaintiff, and by Mr. Scrjeant BE sr, on behalf of the large body of Un derwriters, who defended this aftion. Mr. Serjeant BAYLEY obfer7ed, that the quer tion in thii saute for the decifion of the Court, was, w:!ether the lubjed of the infurance, belonging to a perfon who was in amity with this kingdom, at t!.e time the infurance was effeeted, and being afterwards, in confequence of a breach of that amity, taken by one of the veffels of this country, whether fuels a plaintiff had or had not a right to recover ? The Learned Serjeant Paid, he fhould Aril confider this cafe on the authorities, becaufe it teemed to him thofe authorities were fo ftrong, that it was not necefrary to recur to the prineipleon which thefe authoritieswere founded. 'l'hefeautho rities arc in Douglas 235, and 751, 'Edward I. and in 251, 7C5, and 78t, of Edward 11. Firft Term Rcp. G► r ; Third Term Rep. 477 ; Sixth Term Rep. 23 and 35 ; Eighth Term Rep. 54 11 ; Firlt E.►tl. 475 ; and Lord Chief Baron Parker's Rep. sos. He obferved, that in thefe cafes, the very fame objedion might have been taken, •hat was meant to be taken in this cafe by hiaßrother Bt sr, but it had not, in fadt, been takcn. But though the queftion was never raifcd, yet as it might have been railed in thefe cafes, and as thepai ties never did raife it, an inference arofe, which he thought could not be got over, that the Plaintiff was en ' titled to recover. There different authorities took in a very confidera'.'e period of time; namely, from the year /778 to the year 1802. lie had made tile of acre authorities for the purpofe of fhewing that they conllituted a (cries of decifions for agreat length of time, by which he conceived that this country was, as it were, pledged, to Foreigners, to perform fuch a contra& as that which was con tained in this policy. His Learned Brother would probably argue, that if the Court were to decide, that on fuch a policy, the Plaintiff was entitled to recover, the confequence would he, that of taking out of the pockets of the Britilh Underwriters, the amount of this lots, which it was meant the enemy fhould fullain, and, that, in fail, the only lots fuflained would be by one part of the King's rub je&s, inflead of the enemy. He contended there was a great deal of fallacy in that argument. He (Nerved that an Alien enemy could bring no ac tion during war, and it would be for the King, when he made peace, to declare on what terms that peace fhonld be made, and whether that an Alien enemy fhould ever have a right of adlion veiled in him,and whether the Underwriters thould pay this money. The King, if be chore, had a right to inf . & on the payment of that money. '(lie King, upon inquilition found, would be entitled to the payment of that money. The King might ither exert the right which his prerogative gave him, to intift on the payment of that money to him, or he might difpenfe with that right in fa vour of fume of his fubje&s ; and it was only by the licence of the Crown, or the negligence of the Crown, that the Alien enemy could after wat ds in tia on his right of affirm. No lois, therefore, was thrown on any fubje& of this country during the war, exccpt it was by the intervention of the King. The ground, therefore, on which he hum bly tubrnitted he was entitled to the judgment of the Conic, was this : That there had been a long ies of authorities for along period of time,during which this quellion had repeatedly occurred, but 11.:d never keen railed in any one of there cares; and this furnifhed a Ilrong argument in his favour, milers his learned Brother could produce either lonic aftual decision, or tome fettled principle of law which excluded the Plaintiff from recovering in fuel: a cafe as this. He then cited the 25th Geo. 11. cap..}. and 33 Geo. 111. cap. 27. fC'el. 4. to thew that the Legitlature, in gaffing thefe /lets, conceived that but for them, the infurance of ene my's property in time of war might be legal. No cafe had been decided laying that a policy of in• furance on en,my's property during the war, was illegal. Mr. Setjeant BEST, on behalf of the Under itet s, laid, he wits to addrefs the Court in fttp port ul the objeaion which he had the honour to wk.:. before his Lordthip :it the trial ; and he Should ta!:4: up very little time in anfwering the argument of bus I.erned ISrother,becaufe itappear ed m that argiunent was built on grounds which were no longer tenable in Weilminfter Hall. Ilis learned Brother 'oat! thought it need - Jay to cite vit'l number cafes ; but one obfervation, he thc..lht, would diipofe of ..d1 thofe cafes. In no one of th:ni was this point ever taken. It was impofii., e, thetccorc, that thefe cafes could be con lidered as any anthorif ies on this point, when the Crum It was alto material to obferve that at the time thcfe cafes came under difcuffion, it was un der flood that the property of enemies,could be in lured Whether Lego. The quefti o n to b e decided was, an infurance effeaed antecedent to the commencement of war, could be legal, when that property was aft erwar d s taken by the force of this country ? As the tales cited on the other fide furnifhed no authority on the point, he conceived the cafe mull depend entirely upon principle ; for, after looking into all the books, he had not been able to find one cafe in which the point in queltion had been decided. But he conceived that on pin. ciple. as old as the Law Will, it was impolEble the Plaintiff could recover in this Action. He tru fled that what he was about to (late was not only applicable to the law of Infurance ; but was to be confidered as a general principle of Law—it was this—" That whatever was againft the gene ral interefts of any State, was againft the Law of that State." What was the firft objed of the Law? It was to protect the public Intereft, and there was nothing more common on that principle, than to make the intereft of individuals give way to that of the Public, fo that the prefervation of the rights of individuals was only a feconclary confederation. 'flue great and firft principle of the law was, to preferve the Rights of Society. If he could fatisfy the Court that the interefts of the Country required that this contraft Ihould not be carried into execu tion, then it would appear on the principles of law, that this Plaintiff could not recover. It was a general principle of the Law of England, that whenever it was !hewn that the enforcing of a contrail would be againft the general interefts of the Community, there the Court was veiled with a general power to declare that that contradt fhoufd not be carried into execution. He fhould Rate feveral cafes in which the Co urt had, on that ground, declared, that an ACtion would not lie. —Suppofe a contraet to be entered into, the en forcingof which Would be contrary to the moralsof the Country : There was no particular law which faid,that contra& should not be carried into execu tion ; but their Lordfhips were declared by the law of the country to be the Guardians of the morals of the country, and therefore, on that principle, the Court would not allow any contra& to be en forced which was againft the principles of Mora. lity. In the fame manner the Court would not allow any contraa to be carried into effea which had a tendency to injure the Revenue of the coun try, and in this they acted as the Guardians of the general interefts of the country. So, in various inftances of Betts or Wagers (and the!?, and Po licies of Infutauces were not to be diltinguifbed from each other), which had a tendency to bring into dircuflion things that were unfit to be dircuff ed in public Courts of Juftice ; fo the Court would not enforce any contraa which militated againft any Civil Eftablithment, as againft mar riage—or that affeaed the trade of the country, or that would tend to the breach of any law of the country. There was no law that faid thee contras fhould not be enforced ; but the fame c'eneral principle which required that the Court, in all thee cafes, in which they fhould be fatisfied that the carrying the contraa into execution would be injurious to the interefts of the Public—would induce them to fay, that this contraa Ihould not be carried into effea. He would fubmit that the Law had gone further on the fubjea—it had not only Paid, that no contraa fhould be enforced which was detrimental to the public interefts, but the law would not allow a man to place himfelf in any fituation in which his intereft, as a fubjea, fhould be at variance with the interefts of the country. That appeared to be the firongefl rea fon in fnpport of the doarine he was contending for.—As the Guardians of the general interefts of the Public, the Court would fee that no contraa fhould be enforced by which the Public might be prejudiced. In rapport of this argument the Learned Ser. jeant cited a number of authorities; and, among others, chore which are to be found in Firft Term Rep. 56—Third Term Rep. 7o2.—Second Term Rep. 610.—Firft Salkeld 198—and made a num ber of ingenious obfervartions upon them. Lord ALvatii.xy— ,, You contend that it is il ' legal for an Englithman to infure againft an AEI of Hoftility committed by his own Prince ?" Mr. Serjeant BEST raid, he certainly contended that. He admitted that the contraa was good as to all the rilks that fell within it, but that this was not one of chore rills—it was good for every purpofe confiftent with the Law, but it could not be extended beyond the Law. he could fhew, on the authotity of thofe cafes he had cited, that this contra& had a tendency to place a man's intereft in dire& oppofition to the interefts of the State, and to make him a bad fubjea ; on the fame prin • ciple on which there cafes had been decided, the Court would hold that the Plaintiff could not re cover. He conceived there was no difficulty in making out that propofition ; he was well aware that fome of the molt celebrated charaaers that ever came into Weftminifer Hall had been of opinion, on principles of policy, that not only In furance of Property before the war fhould be al lowed, to proud Property after the war, againfl the force of that very State, but even that Ene mies' Property, during the war, might. be made the fuhjaa of ',durance. But though he admit ted that celebrated perfon (Lord Mansfield) was of opinion, that this was continent with good po licy, his Learned Brother could produce no au li - thority of that Learned Perron ' fi tting in a Court of Jultice, and fuggefli ng thatdoarine, as a doc trine agreeable to the law of this land. That was not an opinion given in any Court of Juftice, but was an opinion given by him in his place in Par liament, and before he had a feat on the Bench.— But whatever refpea was dui to that opinion, it was impuffible to contend, at this time of day, that it was confiftent with good policy •to infure the Property of Enemies during the war. The great point at which Lord Mansfield looked was, toe Leeping of Ike Box wed receiving the Pryntiuns ; and though it might poffibly be advantageous to trade, it did not therefore follow, that it ought to be al lowed. Maqy trades might be extremely gainful, and yet it might be incontinent with the interefts 1 . .1.. C. St. inconvenience refulting from tbefe trades, confi dered in a political point of view, mutt confider ably counterbalance any advantage that might ante from them. This opinion of Lord Mani field was regarded almoft with contempt by fo reign writers on this fubjea, who confidered that the fithjeas of this country, infuring enemies' property, in time of war, had their interefts placed in dire& oppotition to the interefts of the Stake. He knew it had been fail, that in confecinence of the Gentlemen At Lloyd's being allowed to infure enemies' property, important information had been lometimes procured. He believed the gentlemen at Lloyd's were very good fubjeds, but they muft be fomething more than good fubjeas before they could turn !pies to the Government to enable them to arrelt the (hips of the enemy at the very mo ment when they had inbred them, and when con fequently they were di, ealy interefled in their ar riving in fafety at their ports of deftination. Ano ther point deferving confideration was this. • It could not poffibly be for the lcivantage of the Country, that the effed of War thould be com pletely defeated, but this , was a neceffary confe• quence of allowing the fubjets of this country to infure the property of enemies. On whom does the lots fall ? Not on the enemy, but on the fub jeas of this country. The objea of War was to diftrefs and harafs the enemy, in order to bring that enemy to terms, but it would not have this circa ; it did not tend to ruin the enemy, but it did tend to have that effect on our own fubjeits. If this fort of vontraa were permitted, the Ene mies of the C3untry might defend themfelves againft all the effeas of War, at an infinitely leis expence than we mull be at in psotectiting it againit them. By arithmetical calculation they could al certain the means whereby they could defeat all the attempts of the Force of this Country. Was it poflible that any man fhould be placed in the fituation in which the carrying into effed this policy would place him ? His intereft would be to fight againft she State. It would be making one part of the fubjeas of this Country place them felves in dired hoftility againft the State ; and, therefore, whatever advantage Commerce might poffibly derive by the adoption of fuch a mea fure, in a political point of view, it would be ex tremely prejudicial. One of the firft Reps corn. monly taken at the commencement of a war, was to feize all the property of the enemy in all the Britilh ports. But the interefts of the State and the objea of War were compleatly defeated by this •contraa, if carried into effed, as was contended for by his learned Brother, inafmuch as the lots would fall on the Britifti Underwriters, inflead of falling upon the enemy. The war, therefore, by this pradice, mutt bring ruin on thole whom it was its °hied, as well as the firft duty of Govern ment, to proted ; and the effed of it mull neceifa rily he, to palfy the efforts of the country againft its enemies. To hold this a rifle within the policy, muff be diretlly againll the general interefts of the State in every way in which it could be viewed, by inducing the fubj cas of this country to do every individual ad which war was intended to prevent. What was the great objet of war ? To injure die commerce of the enemy. Lord ALVANLEY (interpofing) " To annihilate their commerce, if poffible. Mr. Serjeant Barr obferved, that the great ob. jai of infurance was to enable the fubjeas of this country to carry on commerce to a greater extent than it was poflible they could, if the rilks of it were cart wholly on themfelves, inflead of being divided among the Underwriters. The objed of infurance was to encourage commerce ; the objet of war was to deltroy the commerce of another country ; and, therefore, the cited of infuring enemies' property molt be to encourage them Coen gage in fpeculations and enterprifes to bring pro perty into their country, to increafe their ftrength, to aid, to affift them, and to enable them to refit} us; although the objea of the war was to deflroy them. When it was to be confidered, that war, in modern times, was carried on chiefly by the fi ' nances of a State, and that money was the finew of war, it was impoffible for any man not to fee, that this policy of affurance was in direa oppofi tion to the belt and molt important interefts of the country. Mr. Serjeant BAYLEY replied ; -- after which, fuch was thought the importanc e o f the cafe, that it was agreed to turn it into a Special Verdi& in I order that it may receive the molt folemn decifion poflible. Mr. Juftice Roosts, " It would be for the honour of the Underwriters if they were not to take the colts hitherto incurred from this Foreigner, as it is very well known this has been always paid in former times." Mr. Serjeant BEST, on the part of the Under writers, Paid, they would not take the coils from the Plaintiff. If they were entitled to the judg meet of the Court, they would, of courfe, have the coils, but he would enter into a Rule of Court not to take them. Lord ALVANLIIY..".." That is very fair in the Underwriters." JULY I.,FURTADIn O. ROOMS. Lord Acvaiwt.ty delivered the opinion of the Court, by which it was determined that the Poftea thculd be delivered to the Defendant, thereby de ciding, •' That it an Eng Underwriter under writes the property of any perfon, at the time of the Policy of Infnrance, living in amity with Great Britain (as the Plaintiff an this cafe, who is a Frenchman, then did, he having, as we have alreadynated, effesled the Policy before the IA war), and, that, before the voyage in queition is completed, war breaks out, and the propetty thus infured is captured by the force of Great Bri• tain, the Law implies that there is An end of the Contra&, as between the Underwriter and the fubjea of the holtile Power, for that the Law of England will not permit an Englifh fubjeCt to in fute againft the captures of his own Sovereign.— That there is no difference between filch a Policy entered into before the war, and a Policy after the war in the affurance of the property of an enemy ; fo that when a Foreigner infines his property in this covintry in time of peace, he takes the chance of its becoming illegal afterwards in cafe a war T 11.:of • forry that in this cafe he could tan r,r,ler the h e . miurn to be returned, which he ftid, he rot:hi do, becaufe as the Ihip had failed, part of the had been incurred. His Lordfhip t !,.,, this nneltion had never before been ju,!ici.:l?; cided ; and that the parties had hen allow,i to turn the cafe into a Special Verdia in (r . cl.Tr thn if any one wa' difFatistied with this dczertninal.it,ll, the queition thould go to the dernicr rcfort." Judgment for Defendant. poucr. BOVV-ITREET.—Several of the pickpockets, Pp. prehended on Monday lalt near I.old's i c k e ., Grotind, at the aicenlion of the balloon, w cre terday examined, when it appeared tit t a them had planted tliemfelves in Baker. fire, ;. among the thickefi of the croud. I rnmediar. - ! , . the balloon going up they made a great rut . !:;:r.L . robbed feveral perfons, ("mile of w.1 , 1:11 w,:re ed down, and very ill treated ; a party of t:i e trole coming up at the moment, f , :cer,;d threc them, one of whom was leen to throw away two watches, but they were picked up. O ne o f t h e patrole, was knocked down in the feutile, the pr(. loners making a defperate Wunn, a brat's-founder, in neighbour. hood of the Strand, identified one of the watches, and the perfon of one of the prifoners, who, h e laid, with feveral others, hufiled him in Baker. fireet North, and robbed him of his watch ; that he feized the prifoner, upon whichieveral others refcued him, knocking him (the witnefs) down, and were going to throw him over a bridge, into come water, when the patrole came to his aid.-- The other watch was identified by a young matt of the name of Ward, who was robbed on the fame (Pot ; and who faid that he had no doubt but the prifoner, who was ken to throw away the laid watch, was the perfon who took it out of his pocket. A third man was identified by a gentle man's fervant, whofe breeches pocket he had turn. ed infide out, though, fortunately, without obtain ing any thii;g, the fervant having neither watch or money about him. He was, however, commit. ted to take his trial for the mifdemeanor ; and the two former prifoners for the felonies. Fifteen other fufpicious perfons were apprehend ed bidiferent parties of the patrole, and moll of them being reputed thieves, were committed to prifon. Several other pickpockets were appre hended by the conftables who attended on the occafion. HATTON GANDAN.—Richard Elbe, a chimney (weeper, and Sara Barber, w ere fully committed for trial ; the former on a charge of dealing a watch out of a window, in Leather-lane, Holborn, and the latter for pledging it for one guinea, which they divided between them and another perfon not yet taken. MANSION HOUSE.—YetterdaT John Haea Eias was finally examined on a charge of defrauding feveral tradefmcn in London of mercery goods, to the amount of nearly aool. He was committed for trill. Gu ILDH Lt..—Yetterday a man, known by the name of My Hearty, was charged on furpicion of having ltolen a quantity of primed cotton, the property of fume perfon at prefent unknown. He was committed for re-examination. WHITECHAPEE.—Yeaerday George Martin and a woman of the name of Daley were esamined a third time, on fufpicion.of knocking down a lady, fome nights ago, in Wentworth-ftreet, Spiral&lds, and robbing her of a gold watA, but n'.) p:ofecu tor appearing, tLey were difchar3ed ; as wac a man, for the fame realon, on fulpicion of hav ing committed footpad robberies in the county of Kent. ADWELL.—Yenerday john Alban; coin. mitted for trial, charged u ith tlealing from a fel. low apprentice, coming in a velfel from Gravcknd, a quantity of wearing apparel, together with Tome flyer and halfpence and a bottle of fpii its. An American failor was committed for trial, charged with breaking out of a houfe, wile: ein lie lodged, and flealing a quantity of wearing apparel. BIRTHS. On Saturday laft, at Claremount, Surrey, the Hon. Miss Charks ERN, of a daushtor. On the asith ult. at Bridlington 0, Jay, the Lady of JoIL2 Pit s, Efil. of a foa. MARRIED. Saturday laft, at %%Thickener, Major George Groves, of e.A 28th Regiment, to Min Akthea Black none, cid& daughter of .the late Dr. Henry Blackttone, of Add( rliury, Oxfordnure. Thurfday lalt, at Beverley Mrifter, Wm. Stuart, E . g. Lieu tenant in the Royal Navy, to Mifa Clubley, daughter of 1 Clubley, Efq. one of the Aldermen of llevorley, and C.qiults in the Eaft York Militia. Saturday, at Liverpool, Capt. Alexander M'Cowen, to MIL Dawfon, eldcft daughter of Doaor Richard Dam on, butt ci that town. Monday morning, at St. Andrew's Church, Thorns Start bode, Efq. of' Hatton-garden, to Mifs Gray, 41aughtec ut the late Andrew Gray, Efq. of the Adclphi. Tuefday. at St. George's, Hanovcr-fquare, Ceorge John Sr. n. Efq. of Belton, Salop, to Mifs Morfe, daughter of Win. Ai,r Efq. of Drayton Green, Tiliddlefor. At Reyhill, county Galway, Rubcrt Blake, Efq. of 1, county Galway, to Mils Rcdington. At Rofs,Bartholomcw DeLuulre, Efq. of Waterford, to Mi:o RulTcl, eldcft daughtir of Vernon Retro', Efq. John Homidge, of Ruffelltown, county Wicklow, F. 1. to Mifs Mary Finnemor, of Ballyward, in fail county. . _ DIED. On the 26th ult. in Little Ormond-Rivet, in the :2d yeas of his age, James Lock Rollinfon, Efq. of Chadlington, Oxon. Sunday morning, at Lushlington, Surrey, tue infant Walter Irvine, Efq. On the soth ult. at his haute at Clapham, in i.e: :^th . 7 : his age, Wm. Fe:OlL...au, Efq. Same day, Mrs. Clitford, at her Boarsling.houl:, • ul_'. Brighton. At the iTrfuline Convent, Cork, Mrs. Cathcri. c of the religious of the Order of St. Uri-dine. • Dominick Hard, FN. of Mareromp. At Peri:thorough, in the 33d year of his a ; !.:, Franklin, formerly ore of the Managers of tnc 1-rocuir. Many of coinciliat.t. . . • On the 29th tilt. in the 70th year of his age, at Grr,f bout:, in the neizilibi tirlinosi of Newcaille, Ch.oks lti Efq. formerly one of the it eprefentatives for Nesvcsalc HIGH WATER A LONDON BRIDGE TO-MORROW Morning A fternoon 31 minutes atter 19 minutes arm• LONDON: Printed !or the Proprictors by JOHN I , AN!: (of Carnaby-(trart) at the STA. PRINTING-OFF - ICI enrey-ftrua ; and nt.bbfbed by LFVF.I. K. , re 1 (.11 • terbury-place, Lambeth), at No. i. Catcy-n.re,!, nnJ 7r • s Sr*r.Orrca, Temple-Bar: to wlikb Office All COM?1•••• , * ,inn• G.. 114. .