Page:Harvard Law Review Volume 32.djvu/876

840 construction by American and British courts in the three species of con- tracts in which it is still commonly employed, namely, charter-parties, contracts of affreightment, and contracts of marine insurance. While the wording of this clause frequently varies, such minor verbal variations have not affected the construction given to it; indeed, it would seem that the clause has acquired a legal individuality, so to speak, which no mere change in verbiage can destroy. Thus, whether the classic formula of "arrests, restraints and detainments of all kings, princes and people, of what nation, condition or quality so ever," or the phrase, perhaps commonest nowadays, "arrests and restraints of princes, rulers or people," or some even more abbreviated modification is used, the courts waste no time in attempting to gather from the words used the meaning of the parties, but give the various phrasings of the clause an identical effect, — a procedure which would seem to be wholly proper. Hence the varying results of their construction of it can hardly be attributed to any difference in subject matter.

While generally one of force, the restraint may be one of law alone. Although clearly a person subject to his jurisdiction could not be ex- pected to proceed in violation of a law of a sovereign until forcibly re- strained, only recently was it actually decided that such prohibition, in itself inducing obedience, was a restraint. This was perhaps due to the fact that when performance of a contract becomes illegal by domestic law, it is not necessary to rely on the restraint-of-princes exception as a defense for nonperformance. But when the question arose on a policy