378 ORAL ARGUMENT OF SIR CHARLES RI'SSELL, Q. C. M. P. 



And then the Judge of First Instance proceeds to Justify that by a 

 further examination of the case; and he finally comes to the conclusion 

 that if it had only been their intention to look for the same coast, then 

 it is presumed he was making for it for the purpose not of business, but 

 of smuggling-. 



Now that being the state of the case, it is argued on the one side that 

 the seizure Avas not one which, by the strict letter of the Portuguese 

 law, was authorized, or by international law was authorized, because 

 the vessel had not gone into ports trade with which was forbidden, and 

 was anchored some four leagues oft' the coast; although the master had 

 gone in, as alleged, for the purpose of making arrangements for this 

 illicit trade, it was argued that as the ship was seized beyond the three 

 mile limit it was practically an act of maritime trespass. 



The learned Judge deals with that in a way that I will call your atten- 

 tion to. The argument is enormously long, and the judgment, which 

 resembles it, is at page 231. On page 232 Chief Justice Marshall says : 



The words of the exception in the first policy are : The insurers are not liable for 

 seizure hy the Portuguese for illicit trade. 



Then he repeats the words in the second policy; and then he says: 



For the plaintiff it is contended, that the terms used require an actual traffic 

 between the vessel and inhabitants, and a seizure in consequence of that traffic, or 

 at least that the vessel should have been bro.ight into port in order to constitute 

 a case which comes within the exception of the policy. 



It was a question upon the policy. Then he goes on : 



But such does not seem to be the necessary import of the words. The more 

 enlarged and liberal construction given to the defendants, is certainly warranted by 

 common usage. 



Then he goes on : 



In this case the unlawfulness of the voyage was perfectly understood by both 

 parties. 



That is to say, you the underwriter knew the unlawfulness of the 

 trade which you were not going to take upou yourself the consequence 

 of; you the assured knew the unlawfulness of the particular trade of 

 which you agreed you would take upon yourself the risk and Would 

 not put it ui)on the iinderwriter. 



Then he goes on to say : 



That the crown of Portugal excluded, with the most jealous watchfulness, 

 1174 the commercial intercourse of foreigners with their colonies, was probably, a 

 fact of as much notoriety as that foreigners had devised means to elude this 

 watchfulness, and to carry on a gainful but very hazardous trade with those colonies. 

 If the attempt should succeed, it would be very profitable, but the risk attending it 

 was necessarily great. It was this risk which the underwriters, on a fair construction 

 of their words, did not mean to take upon themselves. "They are not liable", they 

 say, "for seizures by the Portuguese for illicit trade". They do not take the risk 

 of' illicit trade with the Portuguese; now this illicit trade was the sole and avowed 

 object of the voyage, and the vessel was engaged in it from the time of her leaving 

 the port of New- York. 



Therefore, really, as it seems to me, this matter might have ended 

 there, and it did not require to examine whether or not the thing could 

 be said to be strictly defensible or justifiable by international law, to 

 make the risk one within the contemplation of both parties to the 

 contract, and one which the underwriter never intended to take upon 

 himself, and which the assured never thought the underwriter was 

 taking upon himself. No doubt, the learned Judge does go more widely 

 into the question, and he does on page 234 examine the power of nations 

 within and without their territory, but in a way which, it seems to me, 



