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It will be said, perhaps, that I am wasting words on an idle and useless question, as it is unlawful to make captures without a commission from the states-general, or the admiral, and so far from the one who takes a prize without such a commission, being entitled to it, he is rather to be considered as a pirate, agreeably to the principles which I have above contended for. But this does not follow in every case. Grotius very properly says,* that“ a private capture is acquired to a private captor, and there can be no doubt, that a prize taken under circumstances of necessity, by non-commissioned vessels, belongs to those who have taken it.” I know, that the authority of Puffendorf | is adduced to the contrary, but he does not contradict this doctrine; for he speaks of those, who, without any authority, go out for the express purpose of making captures, not of those, who, being attacked by an enemy, turn upon him in their own defence, and these are the persons that I am speaking of. If, in such a case, it is denied, that it is lawful to take the enemy's property, it must be denied also, that it is lawful to despoil him, who otherwise will despoil us, and there must be an end to the right of self-defence. And yet, every declaration of war not only permits, but expressly orders all good and loyal subjects, to injure the enemy by every possible means, that is to say, not only to avert the danger with which the enemy threatens you, but to capture and strip him of all his property. The case is different with those who sail out on cruises, without a commission, and without complying with the previous requisites of the law, because they are prohibited from doing so by various edicts of the states-general. But how can he be expected to have a commission, who, sailing merely for the sake of trade, meets an enemy who attacks him, and captures him in his own defence! If Grotius and Puffendorf had explained themselves in this
• De Jure B. ac P. I. 3. c. 6. § 10.
We have not meant to include such justifiable captures by non-commissioned vessels, in our definition of piracy, above, p. 128. We have, therefore, used in it the word depredations, as implying illegality, ex vi termini,
manner, those who now find fault with both, would have had no occasion to do it.*
• In France and Great-Britain, prizes taken by non-commissioned vessels belong to the lord high admiral, as a droit of his office. 1 Valin's Comment. 79.–British order in council, of the 6th of March 1665-6, in a note to the case of the Rebecca, 1. Rob. 193. Amer. edit. No distinction is made, whether the captor did or not make the capture in his own defence, or from some other justifiable motive. But, as in Great-Britain the office of high admiral is vested in the king, and has for a long time been executed by commission, suitable rewards are given, at the discretion of the government, in meritorious cases. And we presume, that the government of France is not backward in displaying its liberality on similar occasions.
Of Insuring enemy's property.
is none, at present, in more frequent use, in commercial countries, than that of insurance. It was, however, so entirely unknown to the ancients, that no trace of it is to be found in the volumes of Roman jurisprudence. The reason probably is, that commerce was not at that time carried on to the same extent that it is at this day. Perhaps, also, the fleets of the Romans secured their merchant vessels from depredations at sea, or the vast extent of their empire, bordering on all the seas which their navigators were in the habit of frequenting, dispelled all fears of enemies. Nor was there so much to be feared as there is at present from the dangers of the ocean, as their vessels generally sailed coastwise, prudently keeping within a small distance from the shore, and did not venture out to sea in the winter months, whereas our ships at present sail out to any distance, and we trust them at all times and in all seasons to the treacherous element, without knowing whither the fates may carry them.
I have read, however, in Suetonius's life of the emperor Claudius, that during a time of great scarcity, when the people abused him, and shewed him, by way of reproach, fragments of stale bread, he not only gave great encouragement to the
Locatio, hiring or letting to hire. At the civil law, the signification of this word is very extensive; locatio operum, is when a man hires out or engages his labour to another for a specific reward; locatio rerum, is the hiring or letting to hire or farm (as we call it) of property of any kind, whether real, personal or mixed.
7. + Ex die tertio Iduum Novembris, usque ad diem sextum Iduum Martii maria clauduntur. The seas are closed from the eleventh of November, to the second of March. Veget. de Re Milit. 1. 4. Justinian's code permits navigation from the first of April to the first of October. Cod. de Naufrag. I. 3. T.
building of ships, but proposed certain profits to the merchants, taking upon himself the risk of any loss that might be occasioned by the violence of the winds and seas. This was a species of insurance, which is nothing else than an engagement for the safety of another's property, by which the owner is liberated from the risk, which is assumed by the insurer, in consideration of a certain præmium.* Claudius, indeed, assumed upon himself the dangers of the sea, but he did it gratuitously and not for the consideration of a præmium or reward; nor did he undertake to bear the losses which might be suffered from pirates; therefore, I say that it was only a species of insurance.t
I have premised a definition of the contract of insurance, in order to make it appear, that the reason of war absolutely requires the prohibition of insurance on the ships, merchandize or other property of enemies. For, what else is assuming the risk to which their property may be exposed, than promoting their maritime commerce? The object of insurance is, that maritime trade may be carried on with the greatest possible profit, and the least possible loss. Hence, the states-general, on the 1st of April 1622, while we were at war with the Spaniards, issued an edict, annulling all insurances made and to be made by Dutch subjects on Spanish property, and laying a fine of one hundred pounds, Flemish, on all who should act
• The definition, which our author gives of the contract of insurance, is very similar to that which had been given, long before him, by Roccus, which is still the most logical and comprehensive of all that have ever been offered. “ Insurance," says that able writer, in the excellent translation of his two treatises, ( on ships and freight and on insurance ), lately published at Philadelphia, by Mr. F. R. Ingersoll, "is a contract by which a person assumes upon himself the risk to which the property of another may be exposed, and binds himself, in consideration of a certain præmium, to indemnify him in case of loss.” Ingersoll's Roccus, p. 85.
T. † For a full and complete view of all that is to be found in the works of the ancients which may be considered as having any relation to the subject of insurance, see Mr. Park's introduction to his System of the Law of Marine Insurances, which is fraught with a great deal of information on this particular subject, from whence Mr. Park justly concludes with our author, that the contract of insurance, as at present understood, was not known to the ancient Greeks and Romana.
to the contrary. This was extremely proper, because, in all declarations of war, the subjects are ordered to do as much harm as they can to the enemy, and therefore, it follows, that they are prohibited from doing them any good. Such are the rules prescribed by the general law of war, and the statesgeneral did no more than declare that law during the war with Spain, by their edict of the 2d of April 1559.
It may, perhaps, be said, that such insurances are productive of more profit than loss to the insurers, and therefore, that they are more advantageous to us than to the enemy. But this may prove a very fallacious reasoning, for the result of insurances on enemy's property, is, in a national point of view, very uncertain, nor does experience sufficiently enable us to judge of their effects upon the nation at large; while on the other hand, it is very certain that the enemy thereby acquires the means of extending his maritime commerce. It therefore, follows, that what is certainly useful to our enemy, and almost as certainly threatens our own destruction, is, on every principle, to be prohibited.*
• Trading with enemies, and insurances on enemy's property have been prohibited, from the earliest times, in almost every country of Europe. England and Holland are the only ones that are known to have pursued, for a while, a different policy. The ordinance of Barcelona, inade in 1484, expressly forbids such insurances to be made, directly or indirectly, no puxen esser aseguradas directamen o indirectamen. Cleirac, Us & Coutumes de la Mer, p. 118.- Consol. del Mar. ( Boucher's Fr. transl.) vol. ii. p. 717. $ 1540. Le Guidon, a very old treatise on maritime law, declares it to be unlawful to trade with enemies, and to make insurance on enemy's property, C. 2. art. 5. in Cleirac, p. 117. Mr. Valin mentions several ancient ordinances of France to the same effect, which shew, that the law was always so understood in that country. But he observes that the English, during the seven year's war, were in the habit of insuring the property of the French, even when bound from a French port to a French colony, or from one French port to another. “ By this means,” says he,“ one part of the nation restored to us, by the effects of the contract of insurance, what the other took from us by the law of war.”. 2 Valin's Comm. p. 32.
It is certain, that in England, not only during that war, but during that which immediately preceded, and that which immediately followed it, that is to say, during a period of near half a century, trading with enemies, and insurances on enemy's property were carried on to a great extent, and were sanctioned by the decisions of the tribunals of that country. In the