The generic description of the subjects on which the loan is effected, comprehends, according to the difference of the cases, the totality, or the part of the ship, or of the cargo. The contract being declared void, could not have produced any effect, consequently, no maritime interest. The option granted to the lender, is only a natural consequence of the principles which ought to be applied to this species of contract, and a new gua ranty of his real interests. In effect, it is a question concerning fraud, and he who has practised it should not have a right to allege it; it should be the lender, at the charge of proving it. And if the lender prefer not to bring such a suit, the proceedings in which might be difficult, and the result uncertain, how can bis right be disputed? It would be, on the contrary supposition, to condemn him, without exception, to the hazard of a lawsuit, which might turn to his prejudice; he would sometimes be com promitted or ruined by the apparent favour of the law.

It is very true that the lender, not demanding the abrogation of a contract fraudulently made, might, in the case of the arrival of the vessel or the cargo, insist upon the sum lent and the maritime interest, although he had not run a proportionate risk; but this favour is due to him on the one hand, conformably to what we have just said; and this punishment is due, on the other, to the borrower who is guilty of the fraud. The latter is even a gainer by this kind of transaction: he redeems himself from the shame of a prosecution, and the risk of a criminal condemnation.

The explication which I have just given of article 316. imposes on me the duty of justifying the provisions contained in article 318. which declares the contract void, without any regard to the demand of the lender, whenever the loan is effected on any of the subjects prohibited by the law.

The difference between the two cases is evident: the borrower is the only one culpable in the case mentioned in article 316. Here the lender is his accomplice; for they both knew the prohibitory provisions of the law.

The lender, in truth, is the only one punished in this case; for he receives no interest for the money lent, and the borrower

in the meanwhile has enjoyed it: but in fact the surest way to prevent prohibited loans is expressly to punish the lenders. It will not be so easy to borrow as long as there will be nothing but loss in lending.

Article 319. renders general the prohibition which the ordinance had made partial, to lend at respondentia on the wages of

seamen.

Permit me here to enter into some details.

One perceives, said the commentators on the ordinance, what a dangerous tendency it would have, to permit sailors to borrow money on their wages, since the expectation of receiving their wages attaches them as much as the fear of death to the preservation of the ship. And indeed, would there not perhaps be some inconsistency in weakening this motive, in diminishing almost one half, conformably to the ordinance, of the interest of the sailor in the preservation of the ship?

But we must consult experience; we must go back to first principles.

Contracts of bottomry and respondentia are undoubtedly necessary, but they are in general onerous. The maritime interest stipulated in them is not only above all ordinary interest, but all premiums of insurance; and though this interest may be just, it is not the less ruinous to the borrower, whenever the latter has not in view a speculation sufficiently lucrative and extensive to afford him the prospect of an extraordinary profit. Now it must be confessed that a simple sailor seldom finds himself in this situation: and when even such a case should in fact be presented, what sum could the sailor raise from a respondentia loan, the basis of which would be only the half of his slender wages? He would experience all the inconveniences of a burdensome debt, without being able ever to reap the profit of it.

But moreover, the fourth article of the ordinance forbids bottomry loans on the freight to be earned; and in consulting the general spirit of this great work, we perceive that its framers have required in every case a risk really existing as the basis of a contract of bottomry or of insurance. Hence the rescind

ing of these contracts, and even their nullity in case of fraud whenever the risk is estimated above its just value; hence the prohibition to lend on anticipated profits; hence the obligation imposed on the borrower and the insured to prove the existence of It fola risk proportionate to the amount borrowed or insured. lows that every loan, or every insurance, which should not be founded on a real risk, would be at bottom only a wager. The insurer and the lender would bet that the vessel would arrive safe the insured and the borrower would bet the contrary. By this system every thing would be overthrown. Instead of interesting every body in the fortunate voyage of a ship, contradictory interests would be established. The insured would have every thing to gain by the loss of the ship; and by paying a small premium he would demand the amount of the insurance: the borrower on bottomry, in case of loss, would not even have a premium to pay. It is easy to perceive the inconveniences of such a system; and if some examples in its favour may be cited, we do not hesitate to answer, that assuredly it shall not be in France, and in a matter of such importance, that legislation will naturalize the rage of gaming, and the immorality of wagers.

We have only to apply these principles to the subject under consideration. The wages of the sailor depend upon the arrival of the vessel, the duration of the service; consequently, they are only in anticipation, they do not exist, they have not existed, they do not constitute a real risk at the time of making the contract; and it is impossible to foresee how far they will eventually exist.

In this case there is no difference between the freight to be earned by the ship, and the wages to be earned by the sailors; and if the ordinance itself declared that the freight to be earned could not afford the subject of a loan on bottomry, how resist the evident deduction from an acknowledged principle; when it is to be applied, with much stronger reason, to the wages of the mariners, whose interest cannot be too closely connected with the preservation of the ship.

An important observation also occurs on article 331. of the project, and the last of the title which relates to contracts of bottomry.

If there be a contract of bottomry and of insurance on the same ship, or on the same cargo, article 331. establishes a joint interest between the lender on bottomry and the insurer on the produce of the goods saved from shipwreck it even allows some advantage to the latter, whereas the ordinance, on the contrary, granted a privilege to the lender on bottomry.

It is to be observed, that the contract of bottomry was, at the period of framing the ordinance, much more in practice and more useful than it is in our days. The system of insurance having been much improved since then, the relations between these two contracts have entirely changed. It would now be impossible for an extensive commerce to subsist without insurance, and it would be equally impossible for it to subsist for a long time with contracts of bottomry. The reason of the preference given to this latter species of contract, has therefore ceased, and it has been necessary to return, by an almost opposite road, to this same system of equity which the ordinance had established under different circumstances.

We come, gentlemen, to the contract of insurance, and I ap proach the conclusion of the observations which I was charged to submit to you.

It is agreeable to repose the weary attention an instant on this distinguished contract, noble production of genius, and first guaranty of maritime commerce.

The chances of navigation obstructed this commerce. The system of insurance appeared; it consulted the seasons; it directed its attention to the ocean; it interrogated that terrible element; it judged of its inconstancy; it anticipated its storms; it penetrated the politics of nations; it surveyed the ports and the coasts of the two worlds; it subjected every thing to wise calculations, to probable results; and it said to the prudent merchant, to the bold navigator, assuredly there are disasters over which humanity can only sigh; but as to your fortune, go, traverse the seas, display your enterprise and your industry; I take upon myself your risks. Then, gentlemen, if I may be permitted to use the expres sion, the four quarters of the world approached each other.

f

Such is the contract of insurance. In tracing the provisions which relate to it, with how much pleasure we have entered into the fine system of the ordinance! It forms, in this respect, almost the common law of nations.

A few modifications have appeared to us necessary; I shall indicate only the most important.

We have required in article 332. the mention of the day on which the contract of insurance is signed: we have even directed that it should be stated whether the signing took place in the forenoon or afternoon. These provisions are new, but they are not the less necessary.

It is generally admitted to be extremely useful to date the contract. Insurance, which, covering all the risk, is found anterior to other insurance, which shall have been subsequently made on the same risk, annuls this latter. The period of the contract, the fixed point, the hour even of this period, would besides be necessary to be established, in order to regulate the cases where there might be a presumption of the news of the arrival or the loss of the ship, at the time of the insurance; and in general to regulate the rights of all the creditors who might have an interest in the vessel, or the subject insured.

It must be admitted that this reasoning leads us to require the indication of the precise hour on which the contract should be signed. But here, the strict severity of principles ought to yield to the liberal and easy forms of commerce. In practice, a greater precision than we have demanded, cannot, without much inconvenience, be required.

We have said, in article 334. that every interest susceptible of a valuation in money, and exposed to the risks of navigation, may form a subject of insurance.

This regulation has appeared to us to correspond more exactly with the spirit of the ninth and tenth articles of the ordinance, which permitted insurance on the personal liberty of men, but forbad it on their lives. Personal liberty may be estimated at the price of money; life cannot. However, there is an exception to this second principle; the lives of African slaves may be valued