INSURANCE.
Insurance, that excellent establishment by which losses that would entirely ruin a merchant, being divided among a company, are rendered supportable, and almost imperceptible; by which undertakings too great for one person are easily accomplished, and by which commodities brought from the most distant regions are made cheaper[684], appears not to have been known to the Romans, however near they may have come to the invention of it. If we examine closely the information from which some endeavour to prove the contrary, it will be found that it is far from sufficient to support their opinion.
Puffendorf[685], Barbeyrac[686], Loccenius[687], Kulpis[688], and others, ground their assertions on a passage of Livy[689], who says, that when the Roman army in Spain was distressed for provisions, clothing and other necessaries, a company engaged to convey to them everything they stood in need of, under the stipulation that the State should make good their loss, in case their vessels should be shipwrecked by storms, or be taken by the enemy; and we are told that these terms were agreed to. This was undoubtedly a promise of indemnification, but by no means an insurance, in which it is always necessary that a premium should be given. On occasions of this kind, however, acts of fraud were practised, like those committed at present, to the prejudice of insurers. Shipwrecks were pretended to have happened which never took place; and old shattered vessels, freighted with articles of little value, were purposely sunk, and the crew saved in boats; and large sums were then demanded as a reimbursement for the loss[690].
Little more is proved by a passage of Suetonius[691], which Kulpis and others consider as affording an instance of insurance. That author tells us, that the emperor Claudius promised to indemnify merchants for their losses, if their ships should perish by storms at sea. This passage Anderson must not have read; else he would not have said that Suetonius ascribed the invention of insurance to Claudius.
In Simon’s edition of Grotius, a passage is quoted from Cicero’s epistles[692] as an instance of insurance among the Romans, which seems to be more probable. Cicero says he hopes to find at Laodicea security, by means of which he can remit the money of the republic, without being exposed to any danger on its passage. The word prædes may here signify insurers; but, in my opinion, this quotation ought rather to be classed among those which have been collected by Ayrer, as the first traces of bills of exchange[693].
Those remains of the ancient laws which, according to Kulpis and others, allude to insurance, concern bottomry (fœnus nauticum) only; and that this is much older than insurance has been already fully proved by Stypman[694].
Malynes[695], Anderson, and others affirm, that insurance is mentioned in the marine laws of the Isle of Oleron. This island, which lies opposite to the mouth of the Charente, on the coast of France, was much celebrated in the eleventh, twelfth, and following centuries on account of its trade. It belonged then to the duke of Aquitaine, and came to the crown of England by the marriage of Eleonora, daughter of the last duke, with Henry II. Under Eleonora were framed in the island those laws so well-known by the names Roole d’Oleron, Roole des Jugemens d’Oleron, that, like the laws of the Rhodians, they were used also by foreigners. These laws were afterwards enlarged and improved by Richard I., Eleonora’s son; at least we are assured so by the French historians: but the English ascribe them to Richard alone. In order to determine the period when they were framed, I shall only observe that Eleonora died in the year 1202, and Richard in 1199; and Anderson, therefore, not without probability, places the origin of them in the year 1194. A copy of these laws, printed at Rouen, is still preserved, in which it is said that they were first drawn up in 1266. This, however, the French and the English declare to be false[696]. They are written in French, that is, in the old Gascon dialect. I am acquainted with them from the following scarce book, the author of which, in the preface, calls himself Cleirac: Us et Coutumes de la Mer[697]; but I find no traces in them of insurance. Even Cleirac himself, who has given an excellent explanation of the laws of Oleron, seems not to have found any; for where he relates everything he knew respecting the history of it, he ascribes this invention, and also that of bills of exchange, to the Jews, who made use of it when they were expelled from France. According to Cleirac, insurance was long detested by the Christians, who at that time considered it as a sin to take interest; and the use of it, as well as of bills of exchange, was first made common by the Guelphs and Ghibelines. Of this pretended service of the Jews in regard to insurance, I know no proof.
The celebrated maritime laws of the city of Wisby, in the island of Gothland, whether of later date, as the French assert, or older, which is more probable, than those of Oleron, are equally silent with respect to insurance. These laws were not written originally in Swedish, as l’Estocq[698] says, but in the Low-German. The translation into High-German by Marquard[699] is incorrect, and the French one of Cleirac is too free and too much abridged. The Dutch translation published at Amsterdam is the completest[700].
Insurance was, undoubtedly, not known at the time when the later Hanseatic maritime laws were framed, else it would have been mentioned in them. Of these laws there are various editions. One of those most used is that by Kericke, which is inserted also in Heineccii Scriptorum de Jure Nautico et Maritimo Fasciculus. Cleirac has given a French translation of them.