Page images
PDF
EPUB

Second : The other question is one of more difficulty. It appears that there was over insurance by the first set of policies about $3000, and by the second set about $11,000, and the inquiry is, if the assured, having paid premium on $14,000 more property than was at risk, are entitled to any return premium, and how much from each office? I say that the assured have paid the premium, because the giving of notes is payment, or equivalent to payment. The general rule is, that the assured shall have a return of premium for the amount of short property at risk, and if those policies had all been done at one office, there would be no difficulty in making the adjustment, nor would there be any of the order of time in which they were effected could be ascertained, for then the companies who effected the earlier policies, would be entitled to the whole premium, and the later ones would be bound to return the premium on such amount as these policies did not attach upon; but it is understood that the priority cannot be established in this case, and that all the policies are to be considered as simultaneous or concurrent. By the law of insurance, though an owner cannot recover more than the amount at risk, yet he may, if he chooses to pay double premium, effect double insurance with different companies or individuals, and in case of loss he may claim and sue for the amount under either of the policies and against either insurer at his election; therefore, by law, independently of special contract, or of any usage to the contrary, all the different insurers in concurrent policies are entitled to retain the whole of their premiums, if the property at risk was equal to the amount insured in each policy, because each insurer is liable to be called upon by the assured to pay the whole amount of the loss to the extent of his insurance ; consequently, if there is no express contract, and no usage exists by which in these cases the underwriters are bound to return the premium for short property, the owners of the Clio are not entitled to any such return. But, upon inquiring of several of the presidents of insurance companies and of sundry merchants, I am informed that it is clearly understood as part of the contract between the parties, when insurance is effected at different offices on the same day, that in case of loss each company is to bear its proportion with the others, and is to return a similar proportion of the premium, in case the property shipped and at risk is less than the aggregate amount insured by all the policies, and that settlements are always made according to these principles. If this be the fact, the question above stated is answered in the affirmative, namely, that the owners of the Clio are entitled to a return from each of the companies under the first set of policies, of the premium upon one quarter of the difference between $16,916 and $20,000, and the same proportion under the second set, of the difference between $9,254 and $20,000.

Art. III-CUSTOMS AND ORIGIN OF CUSTOMARY

LAW.

ALL the rules which relate to the social connexion of men, whether they be those which regulate their conversation, their public duties, or their private rights, whether they be rules of language, of government, or of jurisprudence, derive their existence, and of course their force, from consent. They are in their essence and origin conventional. However different in their purposes, the mode of the formation of them all must have been by the same slow and occasional process, deriving their authority from consent founded on convenience and fitness, and their system from the force of custom, from the instinct of imitation, and the necessity of correspondence. These are the elements of these institutions; and it is by the study of these institutions in relation to these elements, by analysis and deduction, that the sciences of language, of government, and of jurisprudence are formed. Metaphysics, on the contrary, may be called an individual, in opposition to these social or constitutional sciences; and the same distinction may be drawn between the latter and the physical sciences. Because the sciences both of physics and metaphysics consider the subjects of which they treat in respect to the innate powers and qualities which they possess, per se, and independently of any artificial causes, (by which we mean conventional or instituted by man,) and which, however they may relate to things external to themselves, and may be developed and brought to light, by accidental events, may be said always to exist independently of them. Thus an acid may be imagined to have had that propensity which makes it unite with an alkali, if there had been no such thing as an alkali. And the human mind may be supposed to have been placed in a physical machine different from our present bodies, which would not have conveyed to it through the medium of the senses, the materials, by the use of which the imagination displays itself; and yet we can conceive that it might still have had this dormant faculty or principle of action.

Language is, as it has been called, the gift of God; not by a direct delivery, but by the endowment of mankind with a similarity of perceptions and conceptions of objects, and the power of representing those conceptions by sounds, according to certain principles of analogy and association, from which the fundamental similarity of all languages proceeds. In the same sense the sciences of law and government are, as Demosthenes says of the laws in his celebrated description of them, 'evenuese rau dwgov 08,' or as Cicero says of them, insitæ in natura.' It is in the same view of them that Cicero says that their power 'non modo senior est quam ætas populorum et civitatum, sed æqualis illius cælum atque terras tuentis et regentis dei.' In this sense laws and government being the result of certain innate social principles and necessities, modified by the influences of our physical constitution, and our relation through this to this globe which we inhabit, having their origin in the plan of our Creator, may be said to be actual parts of this divine model. In the saine manner Cicero says of virtue, est autem virtus nihil aliud quam in se perfecta et ad summum perducta natura.' But as virtue, in the contemplation of men, is merely the regulation of our conduct upon certain principles of conscience and good feeling, so jurisprudence and politics, as sciences, consider their rules only as having their existence and authority by the appointment and institution of men, and refer to their fundamental causes as found in nature, only to explain their meaning and the extent of the power with which they were instituted. As the principles of society only become perceptible to us by the history, and only have their force and operation as rules by the recognition of society itself, and since the study of them as a science is practical, and to apply them to our relations with others, and not speculative, to analyse their nature, we naturally consider them as only having their existence when thus recognised and ratified. For the stage at which a science takes up its subject, depends of course upon

[blocks in formation]

the purpose to which it is to be applied. It may be said of them all, that they have their origin in nature; yet as subjects of scientific study, they are taken up in some artificial point of view, according to the purpose of their application, and to the eyes of most persons have no existence, except as objects of human contemplation and use.

This distinction between those sciences which relate to subjects which have an immediate, necessary and independent existence, and those which treat of subjects which derive their origin and qualities from the appointment of society, or consent, is extremely important and useful to show the different mode of investigation applicable to each; and to explain the reason why the mode employed in the investigation of either of the subjects last mentioned, is applicable to the other; whether the use and enjoyment, as well as the authority of the institution, depends upon consent, as that of language does; or whether it may be in particular cases adverse, as it is in respect to property and political rights. They are indeed all constitutional sciences, (a) and the science of law as much so as that of government; the commission, use, and prerogative of whose principles are to be found only in the motives and purposes of the consent which constituted them, and from which they derive

Whatever does not come within the purpose of any of the subaltern rules, is beyond its commission, and can only be decided by a reference to the same organs of consent by which these rules themselves were established. It makes no difference whether the record of this consent is to be found in custom or in a written constitution, Nam quid interest,' says the Digest (1. 3, 33) an suffragio populus voluntatem suam declarat, an rebus ipsis et factis. In either case the extent of its application, if it cannot be found in the words alone, must be sought for either philosophically by the reason of the thing, or historically by the circumstances in which it originated.

There are various reasons on account of which the constitutional, or what is the same thing, the scientific study of those laws which relate to our personal rights in relation to the gov

their power.

(a) That part of the laws of a society which relate to its political constitution is generally distinguished by the name of constitutional law, because men appeal more frequently in its discussion to the manner of its original formation or constitution, to interpret it. But there is in fact no proper distinction of this sort, because this mode of interpretation is equally proper, though not equally common, in respect to all laws.

ernment under which we live, and our property only mediately through this relationship, always precedes that of those which relate to the rights of property between individuals. For in the first place, by a sort of social instinct, by a happy adaptation of which to their purposes, they are always stronger and more lively in proportion as they are more vital to society, and less connected with the every day motives of human conduct, men are naturally more jealous and more strongly excited in respect to the former; and as the principles of these are few and simple, and depending upon considerations as obvious as they are important, are easily brought to light in the blaze of those political excitements, which call forth the same boldness and acuteness in conceiving and understanding, as it requires courage and conduct to establish the principles wbich are at stake; and moreover as there is no tribunal but that of reason itself, to which the parties to the disputes respecting them can appeal, and they must necessarily act as their own judges; for the same reason that international law is more easily reduced to a science than municipal law, the philosophical study of politics would naturally take the same precedence of that of jurisprudence, strictly so called. On the other hand the principles of jurisprudence are only evolved in the same way with those of moral conduct, by a long series of obscure, extremely complicated, and minute transactions, the self-performed experiments of society, by an induction from which, as its phenomena, the principles of the science are deduced. Of course it must be practised as an art before it becomes a science. The abuses which arise from a misconception of its principles are not very urgent or very easily perceived; and the study of them until the inconveniences of these abuses become quite intolerable, (which are more apt then to be corrected by an appeal to legislation, than by a scientific application of the remedial provisions of the system of law itself,) requires an inbred fervor of mind, which is independent of external excitements, or rather which is as easily excited to comprehensive and patient contemplation by the miracles of a rose bud, as by the dangerous wonders of a volcano, and which generally belongs to men whose genius is too apt to be forestalled by such studies as shut them up in their closets and make them poets and philosophers before they can have had an opportunity to become statesmen and jurists. A form of government and of society like that of Rome—which, by mak

« PreviousContinue »