« iepriekšējāTurpināt »
make any question, whether the new part, thus far, is better or worse than the corresponding part was before the injury. If it could be made to appear that in general, and as applied indiscriminately to a long series of losses, a deduction of a third for new from the gross expense of the repairs would come more nearly to an actual indemnity, than a like deduction from the net expense, or that the former rule would operate more uniformly and proportionably to the actual damage in the particular respective cases, this would, no doubt, be a reason for adopting it. But I apprehend that the contrary is the fact. However this may be — on whichsoever side, this mode of comparing the two forms of adjustment may preponderate — it seems to me that it ought to determine the question.
If it were found that one of the two proposed modes of adjustment would be more convenient in practical application than the other, it would be some reason for adopting it, but there is no argument of this sort in favor of the deduction of a third from the gross expense, for it is just as practicable and convenient to deduct a third from the net, as from the gross, expense of repairs.
Nor is there any greater propriety in adopting the rule for deducting the third from the gross expense, in reference to any assumed principle of indemnity, for if it be assumed that the new part is worth more than the old, either by one third of the gross expense of repairs, or one third of the net expense, then, by adjusting by either mode, which is assumed to be the right one, the assured will, according to such assumed rule, be exactly indemnified. If, for instance, we say that the new part is in general worth more than the old for which it is substituted, by one third of the net expense of repairs, after deducting the proceeds of the old materials, then it follows, of course, that by adjusting a loss in that manner, exact indemnity is given. There is no inconsistency or contradiction in principle or in appearance.
One objection to the deduction of the third from the gross expense, is, that, in some cases, which have actually happened, it would entitle the underwriters to receive something from the assured, instead of paying him any thing, on account of an injury to the ship. In some cases of injury to the copper sheathing, and so in some cases of chafing off or cutting a cable, where the old materials would sell for more than two thirds of the
expense of replacing the articles injured, the underwriters would, upon the principle of deducting a third from the gross expense of repairs, be entitled to receive something from the assured on account of the injury that the vessel had sustained. The fact, that this would, in any case, be the result, strikes me as a very strong objection to this mode of adjustment. Any rule may result in giving the assured in some cases less and in others more than an indemnity, but certainly no rule followed out in any of its consequences, ought even theoretically to make the party, who is paid for indemnifying another, the one to claim something of that other, upon the very contract of indemnity.
Another objection is, that it varies the indemnity in the same case very widely, according to the mere form of making repairs. Suppose, for instance, old materials to be left, which may be used in refitting, as often happens. Take the instance of one third of a good chain cable being lost, where the remaining two thirds will sell for just as much in proportion to the length, as the whole would. Now if the cable is mended, the cost of the repairs, is, the expense of a cable one third of the length of the one injured. But as the vessel is not, in every case, repaired at a port where a chain cable can be mended, and as it often happens, that the vessel cannot conveniently wait for the purpose of repairing the thing injured, a sale of the old and purchase of new being more expeditious, the rule seems preferable, that leaves the assured at liberty in such case, to refit in the most convenient way, without making any sacrifice on his part for the purpose. And the rule of deducting the third from the net expense, gives him this liberty, without exacting any sacrifice; for under that rule, the result is the same to him, whether the thing injured is mended, or a new one purchased, and the proceeds of the old one applied towards making the purchase.
The case supposed is one, in which the old is equal in value to the same quantity of new, and it may be objected, that this is not generally true; but the fact does not vary very widely from this supposition, in those cases where the question arises, whether to use or sell the old materials, since it is not for the interest of the assured or the underwriters, that defective mate
als should be used in repairs, nor is it the practice to use such. All those cases, therefore, in which a question would arise, whether to use the old materials or procure new, are cases in
VOL. VI.NO, XI.
which the old are as good, or nearly as good, as new.
As applied to such cases, it seems to me that a rule, which should leave the assured to choose that manner of refitting, which is most convenient and expeditious, at the particular place where the vessel may be, without thereby varying his indemnity very materially, is, in its practical application, preferable to one which might subject him to a disadvantage by adopting such a mode.
It is another objection to making the deduction from the gross expenses, and another reason for making it from the net, that if it be made from the gross, it will follow that the better the quality of the materials is, and the less the injury done to them by the peril, the less proportional indemnity the assured obtains for the damage, since the better the quality of the old materials sold, or the smaller the injury they may have sustained, the higher price they will bring; and yet by this rule, the assured is not at all benefited or relieved; for his loss, or rather his part of the loss, is the same, as if there had been no old materials saved, or, as if those saved, had been of poor quality or materially injured, and of little comparative value. It is true, that it is not a decisive objection to any principle, that it operates unequally in different cases, to which it may be applied, since all general rules are liable so to operate. But in choosing between two rules, that which will operate most equally and adapt the indemnity most nearly to the varying actual circumstances in individual cases, is entitled to preference. The rule of making the deduction from the net expenses seems to me to have this advantage. The degree of indemnity is thereby adapted more nearly to the real and entire damage done by the peril, taking all the circumstances, and all the savings that can be made, into consideration. If owing to the goodness of the quality of the materials, or their escaping from the effects of the perils, they are of more value, it appears to me to be a more equal and more equitable construction of the policy, to adopt a rule of adjustment, whereby the indemnity shall be proportionally affected by these circumstances.
There is one other reason for making the deduction from the net expense, which ought perhaps to have some weight with underwriters. The French ordinance prohibited a party from insuring over seven eighths of the value, that he might still have an interest at stake in the property. One reason, for this very allowance of one third, is, that it may not be for the interest of the assured to make a loss. There is the same motive for giving the assured an interest in saving the old materials and turning them to the best account.
On the whole it seems to me, therefore, that the deduction of a third new for old, ought to be made after the deduction of the proceeds of the old materials; and that the rule as construed and applied by the decisions in New York and Massachusetts, will be found in practice to be the most equitable, the most analogous to the other doctrines and usages of insurance, the most equal in its operation, and most consonant to the principles of indemnity
ART. IV.--THE NATURALIZATION LAWS.
GREAT complaints are often made of the condition of the naturalization laws. No less than six statutes are now in force, all of which must be consulted before the proper course of proceeding in naturalizing a foreigner can be ascertained. The adding, repealing, and amending, which every new statute makes, and the perpetual references from the new statutes to those which preceded them, are very troublesome to the practitioner. We have therefore thought that a view of the naturalization laws, with some suggestions for their revision, might not be entirely useless.
The constitution has given Congress the power to establish a uniform rule of naturalization throughout the United States.' This power, it is now well settled, is exclusively vested in Congress, so that no state has now the power to bestow citizenship on foreigners.
In 1790 an act was passed which permitted any alien, being a free white person, to become a citizen of the United States after two years residence. This act was repealed in 1795, and a new law passed, requiring five years residence, and approaching very nearly the present system. In 1798 another statute was passed, which prevented any alien from being naturalized until after fourteen years residence in the United States, and
1 Const. art. 1, s. 8, 4.
2 United States v. Villato, 2 Dall. 370; Chirac v. Chirac, 2 Wheat. 259 ; Houston v. Moore. 5 Wheat. 48.
five in the State in which the court before which he applied for naturalization, was held. These two last acts were repealed by an act passed in 1802, which reduced the term of residence to five years.
greater part of this act is still in force. The present law on the subject of naturalization, is to be found in the statutes of April 15, 1802, March 26, 1804, March 3, 1813, s. 12, March 22, 1816, May 26, 1824, and May 24, 1828.
No alien, except a free white person, can be naturalized.
An alien, except in the cases hereafter mentioned, two years before he can apply for naturalization, must declare on oath or affirmation, before the supreme, superior, district, or circuit court, of one of the states or territories, (every court of record in a state having common law jurisdiction and a seal, and a clerk or prothonotary, being considered as a district court,)' or a circuit or district court of the United States, or the clerk of one of such courts, that it is, bona fide, his intention to become a citizen of the United States, and to renounce forever all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, whatever, and particularly, by name, the prince, potentate, state, or sovereignty,' whereof he may at the time be a subject.
No such previous declaration of intention is required of aliens who were residing within the limits and under the jurisdiction of the United States, before January 29, 1795,9 or of those who were residing within the limits and under the jurisdiction of the United States, at any time between June 18, 1798, and April 14, 1802," or between April 14, 1802, and June 18, 1812, and have since continued to reside therein.8
No such previous declaration is required of any person who has resided in the United States, three years before arriving at the age of twenty-one years, but instead thereof, at the time of his admission as a citizen, he is required to declare on oath, and prove to the satisfaction of the court, that for three years next preceding, it has been his bona fide intention to become a citizen of the United States.
i See the statutes on the subject passim. 2 St. 1824, c. 186, s. 4.
6 St. 1802, c. 28, s. 1. 3 St. 1802, c. 28, s. 3.
7 St. 1804, c. 47, s. I. 4 St. 1824, c. 186.
8 St. 1828, c. 108, s. 2. 5 St. 1802, c. 28, s. 1.
9 St. 1824, c. 186, s. 1.