other business, to make a purchase which he had been authorized to make, the court says that he did what was forbidden by the soundest principles of public law.

Now, by what logic can the learned counsel on the other side bring this case of Grossmayer into their service? Will they hold that the payment of this premium was only the payment of a debt? In what recognized sense of the term can a premium on a life insurance policy be called a debt? Nothing is a debt that is not collectible by law. Dr. Bond was under no obligation whatever to pay the premium. It was within his power to decline to pay for any reason, good or bad, and the company had no resource; they could not compel him to pay. It was a unilateral contract, which left the insured free to pay or not, as he pleased. If he paid, the company was bound by the contract. But whether he paid or did not pay was a matter of his own choice. The premium cannot, therefore, be called a debt. In its relations to war, the premium differs from a debt in this: the Confederacy could confiscate a debt, whether paid to an agent or not. If Dr. Bond had owed a debt to the New York Life, the Confederate government could have confiscated it in Dr. Bond's hands just as well as it could after it had been paid over to Kirtland. It did not change the status of the property. And it appears to me a sufficient reason why the court has decided that an agent may receive a debt, because in so doing it does not change the status of the property in relation to belligerent parties. But suppose Dr. Bond had paid the premium to Kirtland as the agent of the New York company. The moment before payment it was Bond's money, not liable to confiscation by the Confederate authorities; but the moment he took the $224.50 from his estate, and delivered it over to a recognized agent of the New York company, that moment it would have been enemy's property in Kirtland's hands, and that moment it would have been liable to confiscation by the Confederate authorities. And this fact makes the power of an agent to receive money in payment of a debt wholly unlike the power of an agent to receive money as a premium on an insurance policy.

I desire to call your Honors' attention to another aspect of this case. If the view contended for by counsel on the other side be correct, the war conferred special legal benefits upon all assured persons within the territory of the Rebellion. A large

per cent of those who hold life insurance policies annually fail to pay their premiums. This happens partly by accident and partly by their own choice. Now, if the doctrine contended for by the opposing counsel be adopted, it will follow that war excuses all assured persons from the necessity of paying their premiums to any company belonging to a belligerent, but does not release the company from its obligations to keep the policy alive, and to pay the loss whenever the war is over. Thus the assured enemy enjoys all the benefits of the insurance, and incurs no risk by failure to pay his premium. Indeed, the war not only excuses him from payment, but gives him all the rights and benefits of his policy, even though he did not intend to make payment.

If it should be determined that an insured enemy is entitled to have his insurance policy carried all through the war, this will follow the insured is under no obligation to pay his premium, because the war excuses him;. but the company is obliged to carry and protect the interest of the insured, without enjoying the benefit of the premiums, or the interest that it is entitled to derive therefrom. Now, the life of the company depends upon receiving its premiums promptly, and investing them, so as to make it possible to pay losses. Yet it must go forward without its premiums, or interest thereon, to keep alive a contract with a public enemy who incurs no risk, no danger of a lapse, no loss in any way, and who is shielded from obligation to pay only because he has elected to stay with the enemy. I cannot believe that this would be equitable, even if it should be held that life insurance policies are only suspended, and not abrogated, by war.

There is another phase of this case to which I desire to call your Honors' attention. There is in the State of New York a public officer called the Insurance Commissioner, whose duty it is to examine the condition of insurance companies, to see that each policy claimed to be in force is sustained by the proper legal reserve in possession of the company. Companies which do not hold the requisite legal reserve to cover the policies which they consider in force, are declared insolvent, and are closed up. Now, if the doctrine insisted on by the counsel on the other side should be adopted, it might result that, while the New York company was doing all in its power to keep itself in a sound condition, yet, because so many of its members be

longing to a belligerent government had not paid their premiums, the reserves of the company might fall below the amount required by law, and that the Commissioner would report the company insolvent, and wind it up. In that case, the company would be insolvent only because the court should declare it to be the duty of the company to carry ten thousand policies, perhaps, on the lives of enemies.

The counsel who last addressed the court cited a case, the case of Semmes v. Hartford Insurance Company.1 I submit that there is nothing in that case which throws any light on the question of the validity of insurance policies during war. In that case the loss occurred before the war began, and there was a complete obligation on the part of the company to pay. It so happened that, before the sixty days had elapsed within which the company was obliged to make payment, the war broke out. It was simply a question as to the construction of the statute of limitations as affected by the war.

MR. PHILLIPS. I merely cited it as authority to show that the war was an excuse for the non-performance of a thing expressly stipulated in the contract.

The case shows clearly that it was simply a question whether the failure to bring suit within the length of time was excused by the war.

The learned counsel also made another suggestion to which I desire to call your Honors' attention. He held that ours was an insurrection rather than a war. For a full answer to this suggestion, I refer to the decision of this court in the Prize Cases,2 where it is shown that our war was not merely an insurrection, not merely a rebellion, but a great territorial civil war, with definitely defined boundaries, a contest to be carried on in accordance with the laws of nations, the laws of war. It was as really a war as though it had been waged between England and the United States. If these two had been the belligerents, the insurance cases likely to arise would have been cases of marine insurance; but from the fact that ours was a war between those who had been fellow-citizens, and had been in close business relations with each other, it has resulted that contracts of life insurance have borne to the Rebellion a relation analogous to that which contracts of marine insurance ordinarily bear to a foreign 2 Black, 63, 65.

1

13 Wallace, 158.

2

war. From our study of the principles that underlie both kinds of insurance, it seems to us that the great doctrines which have been held by this court in a long series of decisions require only to be applied in the same spirit that they have already been applied in ordinary contracts of partnership, agency, and marine insurance, to enable us to reach a just conclusion in this case.

It is not out of place to suggest, that a decision which shall determine that this life insurance company is bound to keep alive its contracts with public enemies will probably strike a staggering blow to those companies that had a large Southern membership before the war. But the future is more important than the past, provided it be determined that, when a civil war breaks out, those citizens who elect to stay with rebels shall lose nothing on their life insurance policies, but, by playing the part of non-combatants, shall be able to hold their grip on loyal life insurance companies, while uninsured enemies go into the field and do the fighting. I submit that it is far more in accordance with public policy that every citizen should know that he cannot rebel against his country without losing the benefits which result from a policy of life insurance; that to maintain such a policy he must commit his fortune and his life to the cause of his country, and not to the cause of her enemies.

EFFECTS OF THE REBELLION ON SOUTH

ERN LIFE INSURANCE CONTRACTS.

ARGUMENT MADE BEFORE THE SUPREME COURT OF THE UNITED STATES IN THE CASES OF THE NEW YORK LIFE INSURANCE COMPANY v. STATHAM ET AL. AND THE SAME v. CHARLOTTE SEYMS.

APRIL 26, 1876.

THESE cases were decided at the October term of the court, 1876, and the decision, pronounced by Mr. Justice Bradley, is found in 3 Otto's Reports. The Reporter thus states the history of the two cases:

"The first of these cases is here on appeal from, and the second on writ of error to, the Circuit Court of the United States for the Southern District of Mississippi.

"The first case is a bill in equity, filed to recover the amount of a policy of life assurance, granted by the defendant (now appellant) in 1851 on the life of Dr. A. D. Statham, of Mississippi, from the proceeds of certain funds belonging to the defendant attached in the hands of its agent at Jackson, in that State. It appears from the statements of the bill that the annual premiums accruing on the policy were all regularly paid until the breaking out of the late civil war, but that, in consequence of that event, the premium due on the 8th of December, 1861, was not paid; the parties assured being residents of Mississippi, and the defendant a corporation of New York. Dr. Statham died in July, 1862.

"The second case is an action at law against the same defendant to recover the amount of a policy issued in 1859, on the life of Henry S. Seyms, the husband of the plaintiff. In this case, also, the premiums had been paid until the breaking out of the war, when, by reason thereof, they ceased to be paid, the plaintiff and her husband being residents of Mississippi. He died in May, 1862."

This is the Reporter's syllabus of the decision:

"1. A policy of life assurance which stipulates for the payment of an annual premium by the assured, with a condition to be void on nonpayment, is not an insurance from year to year, like a common fire