1 2 Valin, Comm. art. 49, p. 127; 1 Emerigon, ch. 8, § 5, p. 212, 215, 218, edit, par Boulay Paty.
2 Pothier, Assur. n. 58, note of Estrangin. Mr. Justice Story, in his Commentaries on the Conflict of Laws, § 257, in stating the common-law rule, says: "An enlightened policy, founded upon national justice, as well as national interest, would seem to favor the opinion of Pothier in all cases where positive legislation has not adopted the principle, as a retaliation upon the narrow and exclusive revenue system of another nation. The contrary doctrine seems, however, firmly established in the actual practice of modern nations, without any such discrimination, too firmly, perhaps, to be shaken, except by some legislative act abolishing it." So, also, Chancellor Kent has taken ground with Pothier. He says: "It is certainly matter of surprise and regret, that in such countries as France, England, and the United States, distinguished for a correct and enlightened administration of justice, smuggling voyages, made on purpose to elude the laws, and seduce the subjects of foreign states, should be countenanced, and even encouraged, by the courts of justice. The principle does no credit to the commercial jurisprudence of the age." So, also, Mr. Marshall and Mr. Chitty have added the sanction of their judgment to the doctrine as contended for by Pothier. 1 Marsh. Ins. 59 to 61, 2d ed. Mr. Chitty says: "There is something in these decisions to which a liberal mind cannot readily assent; and the impropriety of them seems to have been hinted at by Lord Kenyon, in the before-mentioned case of Waymell v. Reed [5 T. R. 599]. It is impossible not to feel a greater inclination towards the opinion of Pothier, who observes, ' that a man cannot carry on a contraband trade in a foreign country, without engaging the subjects of that country to commit an offence against the laws which it is their duty to obey; and it is a crime of moral turpitude to engage a man to commit a crime; that a man, carrying on commerce in any country, is bound to conform to the laws of that country; and therefore to carry on an illicit commerce there, and to engage the subjects of that country to assist him in so doing, is against good faith; and