SIR JAMES ALLAN PARK'S

INTRODUCTION.

WHEN We consider the wonderful effects which commerce has produced on the manners of men, when we observe that it tends to wear off those prejudices which give birth to dissensions and animosities, that it unites mankind by the strongest of all ties, the desire of supplying mutual wants; and that it disposes them to peace and concord, by establishing in every community an order of men whose interest it is to preserve public tranquillity, we are led to think that the history and progress of it would not only be amusing, but highly important and instructive to the inhabitants, of every civilised society. Such a work would be in fact the history of the intercourse and communication of mankind, and must necessarily abound in events the most interesting to every social being, but particularly so to the people of this country, whose great importance in the eyes of Europe originated in commerce, and will endure no longer than whilst the same attention continues to be paid to her commercial interests. In a dissertation upon commerce, insurances form a very distinguished part, and therefore it cannot but be agreeable to the scholar as well as to the lawyer, to trace this branch of commercial law to its source, and to give some account of those various nations which have been rendered famous by the extent of their commerce and by the excellency of their maritime regulations. Indeed, in tracing the origin of insurances, an account of the maritime states that have existed in the world necessarily forms a part of the inquiry.

Insurance, then, is a contract by which the insurer undertakes, in 2 Blackst. consideration of a premium equivalent to the hazard run, to indem- Comm. 458. nify the person insured against certain perils or losses, or against some particular event. When insurance is generally mentioned by professional men, it is understood to signify marine insurances. It is in this light we are at present to consider it; and from the preceding definition it appears to be a contract of indemnity against those perils to which ships are exposed in the course of their voyage from one place to another. The utility of this species of contract in a commercial country is obvious, and has been taken notice of by very distinguished writers upon commercial affairs. Insurances 3 Smith's give great security to the fortunes of private people, and by dividing Wealth of amongst many that loss which would ruin an individual, make it Nations, p. 148, 8vo. fall light and easy upon the whole society. This security tends ed. greatly to the advancement of trade and navigation, because the 1 Magens. risk of transporting and exporting being diminished, men will more 2.

a The Preface of Lord Tenterden (Abbott) has been omitted.

Molloy,
Malyne.

easily be induced to engage in an extensive trade, to assist in important undertakings, and to join in hazardous enterprises; since a failure in the object will not be attended with those dreadful consequences to them and their families which must be the case in a country where insurances are unknown. But it is not individuals only that derive advantages from the increase of commerce; the general welfare of the public is also promoted. It is an observation justified by experience, that as soon as the commercial spirit begins to acquire vigour, and to gain the ascendant in any society, we immediately discover a new genius in its policy, its alliances, its wars and negotiations. No nation that cultivated foreign commerce ever failed to make a distinguished figure on the theatre of the world, as the history of the ancients sufficiently proves; and in proportion as commerce made its way into the various states of Europe, they turned their attention to those objects, and assumed those manners, which distinguish polished nations, and which lead to political consequence and eminence amongst the neighbouring powers.a

The origin of insurance, like that of many other customs, which depend rather upon traditional than written evidence, and for the honour of inventing and introducing which rival nations contend, has occasioned much doubt among the writers upon mercantile law. Indeed it is involved in so much obscurity, that after all the researches which have been made on the present occasion, any very satisfactory solution of this doubt cannot be promised. One truth, however, is clear-that wherever foreign commerce was introduced, insurance must have soon followed as a necessary attendant, it being impossible to carry on any very extensive trade without it, especially in time of war. Some of these writers have ascribed the origin of this contract to Claudius Cæsar, the fifth Roman emperor, on account of a passage to be found in Suetonius. Other respectable authorities 2 Atkyns; have given the honour of it to the Rhodians, thus laying a foundation for the idea entertained by many, that the law of insurance had obtained a place in most of the ancient codes of jurisprudence. As the consideration of this question will be attended with pleasure, it will tend much to the complete investigation of it, to consider the state of commerce amongst the most distinguished of the ancient nations, from whence it will appear that insurances were in those days wholly unknown; or if they were known, that the smallest proofs of the existence of such a custom have not come down to the present times.

554.

Schomberg's The Rhodians claim the first place in this inquiry; for although Observ. there is undoubted testimony that nations of much greater antiquity on Rhodian than the people of Rhodes cultivated commerce, and carried it on to a considerable extent, yet there does not appear to be the smallest ground for entertaining an opinion that any of these naval powers had established amongst themselves, much less communicated to

Laws.

a Vide Robertson's View of the Progress of Society in Europe.

b Eusebius, in his account of maritime states, mentions three anterior to the Rhodians, namely; the Cretans, the

Lydians, and the Thracians; the first of whom flourished about 500 years before the Rhodians, the next 200, and the

last about 80 years. Euseb. Chronicon,

lib. 2.

of Com

merce.

mankind in general, any code or system of marine laws. Rhodes obtained the sovereignty of the sea about 916 years before the Christian era, which was almost 200 years before the building of Rome. The situation and fertility of this island were peculiarly favourable for the purpose of navigation, for it lies in the Mediterranean Sea, a few leagues from the continent of Lesser Asia, and its wealth and fertility have always been celebrated by the poets and historians of antiquity. From these circumstances, joined to the See Anderactivity and industry of the people, it long maintained that superi- son's Hist. ority which it had acquired; its inhabitants were rich, its alliance was courted, though from principles of policy it generally observed a strict neutrality. Notwithstanding this pacific disposition, which commerce naturally inspires, the Rhodians at last became an object of jealousy, and were most furiously attacked and besieged by various foreign powers. But in all their wars they discovered their great strength and superiority at sea, and conducted their enterprises with so much activity and skill, as to attract the admiration of their enemies and the applause of those historians who have given an account of the wars in which they were engaged. In the Punic Polybius, wars, the Romans found the benefit of their alliance by the lib. 16; essential service which they performed in attacking the naval arma- Observ. ments of the Carthaginians.

very

Schomb.

Wealth naturally produces luxury, which gradually enervates the powers of a state. This was the case with the Rhodians; for after maintaining their political importance from the time already mentioned till the termination almost of the Roman republic, they visibly began to decline in wealth and power. Cicero, in his speech Cicero pro on the Manilian law, observes that they were a people whose naval Lege Manilia, сар. 13. power and discipline remained even to the time of his memory, and Cicero expired with the republic.

From this short history, it appears that the Rhodians were very famous for their naval power and strength; but however respectable they might be on that account, they were much more illustrious, and obtained a much higher praise among the nations of antiquity for being the first legislators of the sea, and for promulgating a system of marine jurisprudence, to which even the Romans themselves paid the greatest deference and respect, and which they adopted as the guide of their conduct in naval affairs. These excellent laws not only served as a rule of conduct to the ancient maritime states; but, as will appear from an attentive comparison of them, have been the basis of all modern regulations respecting navigation and commerce. The time at which these laws were compiled is not precisely ascertained; but we may reasonably suppose it was about the period when the Rhodians first obtained the sovereignty of the sea, which was about 916 years before the era of Christianity. Selden says that Selden's the Rhodians maintained the sovereignty of the seas twenty-three Mare clauyears, and that their laws were compiled in the days of Jehoshaphat, king of Judah. This opinion agrees exactly with the preceding calculation; for this king began his reign about 914 years before the birth of Christ. Notwithstanding this, it will always remain a doubtful point when they were compiled; nor perhaps is it very

b

sum. lib. 1.

cap. 10, s. 5.

Obs. on
Rhodian
Laws.

Sueton, Vita Tiberii Claudii.

material that it should be accurately ascertained. It is of more consequence to know when they were adopted by the Romans; but that Schomberg is also a fact involved in some obscurity. We meet with no traces of them in the time of the republic; and from the manner in which Cicero mentions them in the speech last alluded to, he treats of them as laws which had gained the admiration of the world, rather than of Mare clau- such as then made a part of the Roman code. Selden says that they sum, lib. 1, obtained a place in the Roman law in the reign of Tiberius Claucap. 10, s. 5. dius- a conjecture in which he is supported by Peckius, one of the commentators on the laws of Rhodes, and by the well-known character of Tiberius himself, who discovered the greatest attention to maritime affairs, and gave many signal instances of his attachment to Rhodes. But although these islanders were thus famous for their laws, we cannot discover, from the fragments that have come down to our times, that they had the smallest idea of the contract of insurance; nor is there any tradition to induce us to conjecture that they ever were acquainted with that mode of securing their property. It is true that this is not a conclusive argument; because, although no such contract is mentioned in the fragments which we have, it by no means follows that it did not form a part of their Emerigon, whole system, more especially as Emerigon, a very celebrated French Traité des writer of the present day, is of opinion that the real laws of the Assurances, Rhodians have never reached us, and that the fragments which we Preface, p.3. see are certainly apocryphal. But as these laws were adopted by the Romans, it is fair to conjecture, that, whether we have the real regulations of Rhodes or not, we should have the contract of insurance, if it had been known to them, incorporated with the other naval laws in the imperial code. This idea is countenanced by the s. 1, art. 21; contract of bottomry, which is to be found in the fragments of the laws of Rhodes, and with which the people of that island were certainly acquainted; and in every book of the civil law the contract de nautico fœnore, de usura maritima, also forms a considerable part. It is not going too far then to presume that as the Romans adopted a contract so beneficial to commerce as that of bottomy; they would not have passed over a contract of which the influence is still more extensively useful in the promotion of navigation and trade, if those from whom they borrowed their naval laws had themselves been acquainted either with its nature or advantages.

Leg. Rhod.

8. 2, art. 16. Digest. lib. 22, tit. 2.

Cod. lib. 4,

tit. 33.

Montesq.
Esprit des

ch. 7.

Having said thus much of Rhodes and its laws, let us turn our attention shortly to the commerce of the Greeks. It is certainly true, that commerce flourished very much in several of the states of Greece, particularly in Corinth and Athens. The former separated two seas, was the key of Greece, and a city of the utmost importance; loix, liv. 21, its trade was extensive, having a port to receive the merchandises of Asia, and another, those of Italy; and there have been but few cities where the works of art were carried to so high a degree of perfection. Athens, indeed, was particularly famous for commercial knowledge; for their manufactures of all sorts were in high repute, and emulation was excited by the public rewards and honours which were bestowed upon those who attained to excellence in any of the useful arts. The attention of this people to maritime affairs (for they aimed at the

Taylor's

Civil Law, p. 507.