cannot be presumed, that they intended to wage war with those commercial principles which were already established.

This brings us back again to the first inquiry, what were the principles upon which the negotiability of promissory notes was supported, before the statute of Anne? If such principles did exist, there seems to be nothing in this act of assembly which prevents their full operation in Virginia.

52. THE EARLY HISTORY OF INSURANCE LAW 1

IT

BY WILLIAM REYNOLDS VANCE 2

T seems so highly improbable that the practice of insurance, now deemed indispensable to the safe conduct of commerce on sea or land, should have been unknown to the Phoenicians, Rhodians, Romans and other ancient commercial peoples, that scholars have subjected ancient writings to the closest scrutiny in the effort to find in them some evidence that insurances were made in early times. The result has been the discovery of accounts of certain transactions which bear such a resemblance to insurance as to have led not a few scholars to the conclusion that insurances were known to the ancients, although the business of underwriting commercial risks was probably not highly developed. Foremost among these writers championing the ancient origin of insurance is Emérigon, whose brilliant and learned Traité des Assurances, first published in 1783, is still read with respect and admiration by all students of the subject, and cited as authority in the courts of all civilized countries. In this country the same view has been advocated by Justice Duer, whose discriminating and scholarly Lectures on Marine Insurance were published in 1845, and there are not wanting recent textwriters to reach the same conclusion.3 The contention that

This Essay first appeared in the Columbia Law Review, 1908, vol. VIII, pp. 1-17, and has been revised by the author for this Collection. Professor of law, and dean of the faculty of law, in George Washington (Columbian) University, since 1903. Washington & Lee University, A. B. 1892, M. A., 1893, Ph. D. 1895, LL. B., 1897; professor of law in the same, 1897-1902; dean of the law department in the same, 1902-3. Other Publications: Law of Insurance, 1904.

3

E. g., Joyce on Insurance (1897), Vol. I, p. 14.

insurance was known to the ancients rests mainly upon certain passages found in the histories of Livy and Suetonius and in the letters of Cicero. Livy tells us that the contractors who undertook to transport provisions and military stores to the troops in Spain stipulated that the government should assume all risk of loss by reason of perils of the sea or capture.1 In the second passage from Livy, which gives in detail an account of the extensive frauds practised by one Postumius upon the country during the Second Punic War by falsely alleging that his vessels, engaged in the public service, had been wrecked, or by making false returns of the lading of old hulks that were purposely wrecked, it seems to be taken as a matter of course that the government was liable to make good such losses.3

Suetonius, in his life of Claudius, states that that emperor, in order to encourage the importation of corn, assumed the risk of loss that might befall the corn merchants through perils of the sea.1 This passage alone was sufficient to comvince Malynes that Claudius "did bring in this most laudible custom of assurances." 5

Likewise many writers have thought that Cicero refers to a transaction of commercial insurance when he writes to Caninius Sallust, proquæstor, that in his opinion sureties should be procured for any public moneys sent from Laodicea, in order that both he and the government should be protected from the risks of transportation. These passages, of doubtful significance when read in connection with the well-known

1Livy, lib. 23, c. 49. * ut quæ in naves imposuissent ab hostium tempestatisve vi publico periculo essent." Livy, lib. 25, c. 3.

It is stated by Dr. August Böckh that in the time of Alexander the Great a certain Macedonian grandee of Rhodian birth living at Babylon, named Antimones, devised a plan of insuring masters against the loss they might suffer through the escape of slaves required to serve in the army, the insurer requiring a payment of eight drachmas for each slave, and paying to the master of a lost slave the estimated value of such slave. See The Public Economy of the Athenians (Second German Ed., Lamb's Translation), p. 101.

*Suetonius, lib. 5, c. 18. "Nam et negotiatoribus certa lucra proposuit, suscepto in se damno, si cui quid per tempestates accidisset, et naves mercatura causa, fabricantibus magna commoda constituit."

Malynes, Lex Mercatoria, (1st ed., 1622) 146.

Cicero, Epist. ad Fam., lib. II, Epist. 17. "Laodicea me prædes accepturum arbitror omnis pecuniæ publicæ, ut et mihi et populo cautum

fact that the rules of general average, and bottomry and respondentia loans, transactions closely related to insurance, were familiar to the ancients,' have been considered by these writers adequate evidence that insurance was at least known to the commercial peoples of the ancient world.

On the other hand, a great number of writers on insurance consider that these passages refer to other transactions than insurance, and conclude that insurance was wholly unknown among the ancients. Among these are Grotius 2 and Bynkershoek 3 on the Continent, and Park, Marshall and Hopkins in England.

This conflict of opinion as to the practice of insurance among the ancients is due largely to the fact that some writers restrict the significance of the term “insurance" more narrowly than others. The fact that we find no trace of the insurance contract in the laws of Rome or of any of the other ancient peoples, indicates unquestionably that if the contract of insurance, as known in modern times, was known to the ancients at all, its practical use was so little developed as to have made it insignificant. But if the term

sit sine vecturæ periculo." But the course suggested by Cicero can hardly have been in general use, for, according to Plutarch, when Cato the Younger wished, about the same time, to transport a large sum of public money from Cyprus to Rome he adopted the following curious device to prevent its loss at sea. The money was placed in a large number of small casks, to each of which was attached by means of a long rope a large block of cork. By this means, we are told, the money was carried to Rome with very little loss.

1 See Moldenhauer, Das Versicherungswesen, p. 9; Walford, Encyclopædia of Insurance, Vol. I, p. 333. In the speech against Lakritos attributed to Demosthenes, but now thought to have been written by some other Athenian advocate about 341 B. C., there is set forth a bottomry bond which contains provisions for general average contribution, and other terms strikingly like those of a modern bottomry bond. For the provisions of the Roman Law governing maritime loans, see De nautico fenore, Dig. xxii, 2; Code, iv, 33.

Grotius, De Jure Belli et Pacis, ii, 12, 3, 5.

8 Bynkershoek, Quæst, Juris Pub. i, 21. "Adeo tamen ille contractus olim fuit incognitus, ut nec nomen ejus, nec rem ipsam in jure Romano deprehendus."

System of the Law of Marine Insurances (1786). This most careful and learned work by Sir James A. Park (afterward Mr. Justice Park of the Common Pleas) is the first orderly treatment in English of the law of insurance. It reflects much of the spirit and genius of Lord Mansfield, with whose whole judicial career the author was personally familiar. (See especially his summary of the argument against the ancient origin of insurance at p. Ixi, 8th ed.)

"insurance" be given a broader significance and made to include any kind of conventional arrangement by which one or more persons assume the risk of perils to which others are exposed that is, an arrangement for aiding the unfortunate — then it is equally unquestionable that insurance is as old as human society itself. Friendly societies organized for the purpose, among others, of extending aid to their unfortunate members from a fund made up of contributions from all, are as old as recorded history. They undoubtedly existed in China and India in the earliest times. 1 Among the Greeks these societies, known as Eranoi and Thiasoi, are known to have existed as early as the third century before Christ. These Grecian societies were largely religious and ritualistic, but among their chief functions, we learn, was that of providing for the expense of fitting burial for members. Similar societies, called Collegia, existed in Rome, where their establishment was attributed to Numa. These also performed many of the functions of benefit insurance societies, providing succor for the sick and aged members, and burial for those deceased. These Roman Collegia fell into disfavor

1 Walford, Encyc. Ins., Vol. IV, p. 380.

2 Walford, ibid.; Martin Saint-Léon, Histoire des Corporations de Metiers, p. 23 et seq.

3

* Martin Saint-Léon, Histoire des Corporations de Metiers, p. 24. At Lanuvium, an ancient Latin town about nine miles distant from Rome, there has been found a marble bearing an inscription which sets forth the constitution and regulations of one of these friendly societies in the time of the Emperor Hadrian (A. D. 117-138). Parts of this inscription are thus translated:

"An Association (collegium) constituted under the provisions of a decree of the Roman Senate and People, to the honor of Diana and Antinous, by which decree the privilege is granted of meeting, assembling and acting collectively.

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Anyone desiring to pay a monthly subscription for funeral rites may attend the meetings of the Association; but persons are not allowed, under the color of this Association, to meet more than once a month, and that only for the purpose of contributing for the sepulture of the dead. "You who are desirous of becoming a new member of this Association, first read through its laws carefully, and so enter it as not afterwards to complain, or to leave a subject of dispute to your heir.

"It is absolutely required by the Association that anyone wishing to enter, shall pay an entrance-fee of one hundred sesterces, give an amphora of good wine, and pay as monthly dues five asses.

"Item; It is resolved that whoever shall have omitted to pay his dues for consecutive months, should the fate of humanity befall him, there shall be no claim on the society for his funeral rites, even though he shall have made a will.