ARTICLE 17.

ATreatife on the Law of Infurance. In four books. I. Of marine infurances. II. Of bottomry and refpondentia. III. Of infurance upon lives. IV. Of infurance against fire. By Samuel Marfball, ferjeant at law. Firft American, from the English edition; two volumes in one. Boston, printed by Manning & Loring for Daniel Johnfon, of Portland. 1805. THE works of the ancient writers on the law fo much abound in technical terms, and are fo much broken by the repetition of quaint maxims, that though they may roufe the attention, they will never fafcinate the love of the ftudent. But those writers were the original mafters of the profeffion, and from their productions, as from living fountains, we may draw copious and healthful ftreams of legal fcience. It muft be confeffed, that the principal excellence of a treatife on the law will forever confift in the fidelity with which the author reports the principles and decifions, which belong to his fubject. If he has with laborious research fought for truth, if he has difcovered what was before unknown, or illuftrated what was before imperfectly understood, he will by his work have rendered an acceptable fervice to fcience, although it fhould be deficient in the charms of elo

quence. Formerly it was fuppofed, that the dry and abstract subjects of the law were incapable of the graces of diction: but who has read Sir William Blackftone's Commentaries on the Laws of England, or the Effay on the Law of Bailments, by Sir William Jones, and will not confefs, that they will be read both with profit and delight by the lover of refined and elegant compofition? To give intereft to fuch fubjects is, to be fure, a difficult task: but

fuccefs in one inftance proves the capacity of the fubject to receive the impreffion of elegance; and therefore, in future, the writer of law reports, the commentator on ftatutes, and even the harmless lexicographer of the profeffion, must not feel themselves freed by heir fubject from an observance of the ordinary rules of criticism.

The ftyle of this elementary work is clear, nervous, and elegant. The author fees things in their native forms, and defcribes them with admirable facility, and with juft difcrimination. But willing that our readers fhould, by their own diligence and obfervation, form their opinion of the treatife, we fhall proceed to ftate, that the author treats, ift, of marine insurances, including the fubject of bottomry and refpondentia; 2d, of insurances upon lives; and, 3d, of infurances againft loffes by fire. The firft chapter is intended as an intro

duction to the work, and contains an historical sketch of the origin and progrefs of this fpecies of contract. Its origin, like the first beginnings of all the arts, is involved in much obfcurity. Whether it was known to the ancients, or whether it was invented by the Jews on their banifhment from France in the twelfth century, are queftions of curiofity, and admit of much difpute. This author has avoided perplexing himfelf with the controverfy, and confidering infurance as the attendant of commerce, and as flowing from its neceffities, he undertakes "to trace the progrefs of commerce, till it attained that height which rendered insurance neceffary to its further advance

ment."

The Phonicians, the Carthaginians, and the Greek states, "carried on foreign commerce to an extent which would have rendered it a fubject of infurance, had this contract been already in ufe among them. But it feems extremely probable, that their maritime commerce was never of fufficient magnitude, nor fufficiently perilous, to oblige them to refort to infurance as a means of enabling private adventurers to carry it

on."

The Romans were a nation of warriours, and being devoted to the acquifition of military glory, they naturally defrifed the arts of peace. It fhould excite in us therefore no furprife, that the pages of their claflick writers contain no term defcriptive of a contract, the protectrefs of an inferiour art, which was carried on by their flaves and by the freedmen of the great.

To the modern nations of Europe, and to those events, which tended to revive learning and civilization, must we look for the caufe of the revival of commerce, Wealth being the principal fource of national power, its acquifition by peaceable and honeft arts became an object of the ftudy of ftatesmen, and the honours, which were formerly conferred exclufively on the foldier, now began to be fhared by the merchant.

During the dark ages which fucceedto the twelfth century, all was Gothick ed the fall of the Roman empire, down barbarifm in the weft of Europe. Science, literature, commerce, were things unknown, or wholly neglected. Many caufes at length contributed to revive the fpirit of commerce, and renew the intercourfe between nations.

The crufades, about the close of the

eleventh century, opened a vast communication between Europe and the

Eaft. Conftantinople, the capital of caped the ravages of the northern barthe Eaftern or Greek empire, had efbarians who had overthrown that of the Weft. It was ftill a great and commercial city, where the elegances of polished life yet remained; and this became the place of general rendezvous for the chriftian armies on their way to Paleftine, or on their return from thence. And though the object of thefe expeditions was conqueft, and not commerce, and though the flue of them proved un

fortunate to thefe romantick and infatuated warriors, their commercial effects were beneficial and permanent. The crufaders brought back with them a tafte for the refinements and luxuries of the Eaft; and this foon created a demand, which could only be supplied by an extenfive commerce with thofe parts.

The clofe of the holy war was followed by the invention of the mariner's compafs, or at leaft its introduction into Europe, about the year 1960. This, with the confequent improvements in navigation, opened a wide field for maritine enterprife.

The feudal fyftem which had been eftablished in all the western parts of Europe by the northern conquerors, had, about this time, attained its greatest height, and the overgrown power of the nobles, its natural concomitant, while it held the great body of the people in flavery, controlled or gave law, even to the fovereign himself. To create fome power that might counterbalance that of thefe potent vafials, it became the policy of the monarchs of Europe to erect communities or corporations in the confiderable towns, with exclufive jurifdiction, and privileges which might protect the inhabitants from fervitude, or dependence upon the neighbouring barons, or any other than the fovereign himself. This expedient was firft adopted by Lewis the Grofs, about the beginning of the twelfth century; and though an ancient French author calls it a new and wicked device to procure liberty to flaves, and encourage them to shake off the dominion of their mafters, yet the effects of this meafure foon juftified the policy by which it was dictated. The towns became the afy lum of the oppressed, the acquifition of liberty produced a fpirit of industry; and commerce foon began to establish an intercourse between different nations. The free ftates of Italy, which arofe out of the ruins of the western empire, fought, by the arts of peace, to raise themselves to that eminence, which others had obtained by arms and conquet. During the 12th and 13th centuries, the commerce of Europe was almoft entirely in the hands of thefe Italians, more generally known in thofe ages by the name of Lombards, of whom companies or factories fettled themselves in almost every state in Europe, where they became the only confiderable merchants and bankers, and in thofe times rivalled even the Jews themfelves in the arts of ufury. One of thefe companies fettled in London, from whom Lombard-street, in that capital, took its name. The rival republicks of Venice and Genoa, at this time, took the lead in commercial adventure. They brought the rich productions of India at firft by a northern circuit, through the Cafpian Sea to Astracan, and from thence by the Black Sea to Europe. The Venetians afterwards,hav

ing obtained permiffion from the Pope to trade with the infidels, and from the Calif of Egypt, the liberty of trading on the coafts of Egypt and Affyria, opened a more direct communication with India, the trade of which they now wholly engroffed, and continued the most powerful maritime ftate in Europe, till the Portuguese doubled the Cape of Good Hope in 1497, and established an uninterrupted communication by sea, between Europe and the Eaft-Indies.

Mr. Marshall then ftates the extreme probability, that infurance came into ufe in Italy about the end of the 13th century; and that after the advantages attend. ing it came to be underflood, it of the countries, where the Lomwas thence tranfplanted into most bards had established their trading companies. He then traces the progrefs of commerce among the cities in the north of Europe, which affociated together for their mutual defence, and extended their wealth and their political importance under the auspices of the Hanfeatick confederacy.

The Lombards continued to engrofs the carrying trade with England, notwithtanding the parliamentary attempts in the times of Edward III. and Richard II. to encourage the English navigation, and in oppofition to the jealoufy and remonftrances of the Commons. But

It may be recollected alfo, that England, from the time of the cnqucft, down to the time of Henry VII. was almoft conftantly engaged in foreign or domeftick wars. The arts of peace were, during that time, exiled, as it were, from this country, and fo remained, until they found in the comparative tranquillity of the reign of that cautious prince, a degree of protection, under which they began to acquire fome por, tion of ftrength and stability.

Two great events alfo, which hap,

policy and expedience, than from any principle of law. Lord Mansfield thought, that fuch infurances were, in point of law, void; but he confidered that the law of England was, in this respect, impolitick and unwife, and therefore in trials on policies on enemy's property, he did all in his power to prevent, what he confidered fo difhonourable a defence being made.

However grateful it is to our indolence, to recline on the authority of precedents, more efpecially when they are fortified by great names; yet it must ever be recollected, that judicial decifions are the fentiments but of men, and that there may be incorporated in them a portion of human errour. A lawyer is bound to examine the foundation of folemn judicial decifions, and likewife the fimple opinions of eminent judges; and when he finds that they were not originally fupported by good reafon, or that their authority has been weakened or overthrown by time, he ought with modefty, but with firmnefs, to ftate the refult of his investigation. In the long lift of judges, who have adorned Westminster Hall, no name is more renowned and venerable, both at home and abroad, than that of lord Manf field. But ftill we heartily approve of the following obfervations of Mr. Marfhall on the fentiment and conduct of that judge on the above subject.

From this statement of the learned judge, (Sir Dudley Ryder) it is evident that he himself doubted, at leaft, of the legality of insurances on enemy's property, and that the opinion which he fo anxiously fought, and which lord Manf

field fo ftudioufly withheld, was, that, in peint of laru, they were void; but that he thought the law of England was, in tertaining this opinion, it was certainly this refpect impolitick and unwife.-Encompetent to him and Sir Dudley Ryder, as members of parliament, to argue against the policy of the law, when the question was agitated there, whether thefe infurances fhould be reftrained by an ex

prefs ftatute or not; becaufe every member of parliament has an undoubt ed right to call in queftion the wisdom, or the policy, of any rule of law, when he oppofes the paffing of a bill which is meant to enforce the obfervance of it. But to avow or infinuate, that it might, in any cafe, be proper for a judge to prevent a party from availing himself of an indifputable principle of law, in a court of juftice, upon the ground of fome is a new doctrine in Weftminster Hall, notion of fancied policy or expedience, and has a direct tendency to render all law vague and uncertain. A rule of law once eftablished, ought to remain the fame till it be annulled by the legiflature, which alone has the power, to decide on the policy or expedience of repealing laws, or fuffering them to remain in force. What politicians call expedience, often depends on momentary conjunctures, and is frequently lations of vifionary theorists, or the fugnothing more than the fine-spun fpecu geftions of party and faction. If expedience, therefore, fhould ever be set up as a foundation for the judgments in Westminster-Hall, the neceflary confequence muft be, that as different men

muft often entertain different notions of

expedience, that which to-day would be deemed law in one court, might be thought contrary to law to-morrow in another, or even in the fame court. Indeed the learned judge himself has given us an instance of this; for he says, that in the prefent var, he thinks the infurance of enemy's property would not be expedient, and yet he informs us, that lord Mansfield was of opinion that it was for the intereft of the country, in his time, to encourage such infurances.

The third chapter is occupied "on the subject matter of marine infurances." No contract of in