pro

scarcity at Rome, (a) the Emperor Claudius encouraged the importation of corn for the use of the capitol, by promising to those who should engage in the traffic, a similar indemnity. The observations of Mr. Park on these transactions, are, that they bear no resemblance to the contract of insurance, since the mise of the Roman government imports no more "than every well regulated state is bound to do, by "the ties of natural justice." "It is equitable and "just, (he adds,) that those who appropriate their "wealth to the public use, should be reimbursed from "the purse of the state, for the private losses they

66

may sustain. Such, indeed, is the rule of conduct "between man and man-for when one man pur"chases goods of another, to be sent abroad, was it "ever supposed that the seller was to be at the risk "of the voyage, or that if the goods perished, he "was never to be paid." It is evident, that the learned writer assumes in these remarks, that the Roman government became the purchaser of the commodities to be transported before they were embarked, and consequently, was to be the actual owner during the voyage. Upon this supposition, the truth of his observations cannot be denied. Upon any other, their application is not easy to be discerned.

If the contract of purchase was future in its character, and was not to be complete until the delivery of the cargoes at their destined ports, the Roman government was not bound by any rules, either of positive law or natural equity to sustain the losses

(a) Liv. L. 23, c. 49; L. 25, c. 3. Sueton. Lib. 5, c. 2.

that might attend the transportation.(a) The rule in every system of law with which I am acquainted, is directly the reverse, and that rule is founded on the clearest reason: The plain design of the parties in every such contract, is to cast the risks of the voyage upon the seller. Even when the purchaser of goods, to be delivered by the seller, at a foreign port, agrees also to assume the risks of the voyage, the added agreement does not change the property. The seller still remains the owner until delivery, and the purchaser is, during the voyage, his insurer, in the proper and in the legal sense of the term. I remark then, in reply to the observations of Mr. Park, that his supposition that the government was to be the owner when the voyages commenced, is more than gratuitous. It is not consistent either with the language of the historian, (I speak now of the cases under the republic,) or with the facts, which his narrative records.

We are told by Livy, in reference to the first transaction, that the merchants required the guaranty of the government against the perils they apprehended, as an express condition of their contract. Now, it seems evident, that if, under the contract, the government was to be the owner of the cargoes, when laden, it would never have occurred to the merchants that the condition they demanded was necessary or proper. The plain object of their demand, was to make the government responsible for losses, to which, otherwise it would not have

(a) See Appendix, Note 5.

been liable. Had the government been the owner, a special agreement that it should sustain the losses resulting either from hostile force or the perils of the sea, would have been useless and unmeaning. It would be so under our law. It would have been so under the Roman. Under that law, neither the owner or master of a vessel was ever responsible for losses occasioned by a superior force, or inevitable accident. (a) The circumstances mentioned by Livy, in connection with the second transaction, place its real character beyond the reach of a reasonable doubt. He states that some of the merchants, to whom an indemnity had been promised, endeavored to defraud the government, by fabricated accounts of shipwrecks and losses that had never occurred; and his meaning, evidently is, that for these pretended losses, they sought to obtain, under their special agreement with the government, a compensation in money. It is plain, that to such a compensation, even had the losses been real, it was only in their capacity of owners, that they could be entitled. As to the passage from Suetonius, it scarcely requires a remark. Its meaning is clear and unambiguous. It does not appear that the Emperor Claudius was to purchase the corn at all. It was to be imported into the general market of Rome, for general sale to its inhabitants, and the encouragement held forth by the emperor to the merchants was, an indemnity, if the corn should be lost on the voyage, and a fixed bounty in case of its ar

(a) See Appendix, Note 6.

KEN. LAW LIB'Y.

MARINE INSURANCE.

21

rival. Negotiatoribus certa lucra proposuit, suscepto in se damno, si cui quid per tempestates accidisset. Upon the whole, the conclusion seems hardly to be doubtful, that, on the occasions mentioned by Livy and Suetonius, the merchants were the owners of the cargoes to be transported, and in each case were to continue so during the voyage, and until its termination. The government, therefore, in each case and in the strict and proper sense of the term, was the insurer of the merchant. It assumed on itself the whole risks of each voyage, in consideration of the benefit the public would derive from its successful completion. The objection that no premium was paid, (a) seems hypercritical, and is easily answered. The government received a premium in the benefit resulting to the public, and the merchants paid a premium in a reduction from the price they would otherwise have received. Had the risks of the voyage been cast upon the merchants, the value of the risks, as computed by them, would doubtless have been added to the price they demanded. When goods are transported by sea, insurance, whether a premium be paid or not, or, in other words, a just compensation for the risks incurred, is always a component part of a remunerating price, just as freight is a component part of the same price, even when the owner of the cargo is also owner of the vessel. It is true that the historical facts adduced by Emerigon, while they prove an insurance by the government, are not sufficient to

(a) See Appendix, Note 7.

prove that marine insurance was known as a private contract: but, as they clearly show the reluctance of merchants to embark their property in voyages of hazard, without the assurance of an indemnity, they render it probable that, when tempted by the expectation of high profits, they engaged in similar voyages, in which the government had no interest, it was in a contract with individuals that they were accustomed to seek the desired indemnity. The quotations of Emerigon, it thus appears, more than support the position for which he cited them. They have a direct bearing on the general question, and tend by a reasonable inference to establish the fact, that the contract of insurance, as now understood, was in actual use. It is quite incredible that it was, only in the cases mentioned by history, that the desire to be protected by insurance was felt, and almost equally so, that the guaranty of the government was the only security-the only means of indemnity ever sought to be obtained.

The grand difficulty of the argument yet remains to be encountered-the entire omission of the subject of insurance in the Roman law-a difficulty much strengthened by the fact that the analogous contract of bottomry is fully and carefully treated. I shall not dissemble the extent of the difficulty, nor deny that, on the first consideration of the subject, the inference seemed to me unavoidable and necessary, that insurance was omitted because it was unknown. It did not then occur to me that any other explanation of the fact could be given. Subsequent reflection and research have led me to a different