16 Laws of Oleron. Laws of Wifbuy. law of nations. This made it neceffary for the different The collection of fea-laws, next in point of time, as (a) Grot. De jure bel, lib. 3, c. 1. (. 5, n. 6. (b) Emerig. Pref. 6. that Su page 17 to 20 leaver feather on . to regulate it, than in any other country; and hence the practice of it with us has been found moft conformable to the general ufage of trade. Some few statutes have paffed, from time to time, to reftrain the abufes of infurance, but not one has yet been made, either to afcertain any old principle, or to fanction any new one. This may be accounted for, not by fuppofing, with a learned writer on the law of infurances, that this law was already well fettled, and its principles understood in moft of the neighbouring commercial countries, before the ufe of it became extenfive in England (a); but be caufe the law of merchants is confidered as a branch of the common law (b), and therefore the custom of merchants, in any one particular, being once clearly afcertained in any of the fupreme courts, acquires from thenceforth the force of law, without the fanction of any higher authority. It would therefore have been an ufeleis labour for the legislature to enact those very ufages, by positive law, which are already confidered as part of the law of the land. Befides, what is or is not the custom of merchants is much better afcertained in the investigation of particular cafes, in courts of juftice,, than it could be by parliament, with all the information and affiftance it could obtain. Magens, indeed, wonders that the legislature had not laid down fome complete fyftem of regulations concerning infurances; and yet he acknowledges, "that whenever a trial at law takes place between an infured and an insurer, the wisdom and impartiality of the judges,in fumming up the evidence, and directing the jury, leaves no room to doubt that the verdict will be according to right and equity (c)." Still, however, he feems to have conceived a strong defire to have a grand fyftem of marine jurifprudence erected in this country, and it is probable that he meant himself to have been the principal architect, But he appears to have been unable to engage thofe at the head of the government to enter into his views, and he peevishly tells us, that "it feems to be the common maxim of thofe who fit at the helm in thefe kingdoms, when things are not very urgent, to leave merchants to agree among them(a) Vid. Millar on Infu. p. 12.-(6) Winch. 24.—(c) Magens, ref felves, Foreign treatifes. Le Guidon. Cleirae. Valin. Pothier. felves, and work on." A perfon lefs fond of erecting new systems might fay, perhaps, that he could not have given a better proof of their wisdom. 2. As to treatifes, the earliest now extant on the subject of insurance is that entitled Le Guidon de la mer, which is found in the collection of marine institutions, published at Rouen, in 1671, by Cleirac, under the title of Les us et coutumes de la mer. This work is evidently the production of a much earlier period than that of its publication by Cleirac; and yet its contents plainly fhew that it could not have been written till after the practice of insurance had become pretty general, and most of its principles well understood. We may therefore reasonably conclude that it was written about the 15th century. Cleirac informs us, "that it was originally compofed for the use of the merchants of Rouen, and is fo complete in itself, that it fully explains all that it is neceffary to know on the subject of marine contracts and naval commerce; and that nothing is wanting to it but the author's name." Many faults which had crept into it, through time, and the carelessness of copiers, have been corrected by the editor, who has enriched the whole by a very learned and excellent commentary of his own. France has, in more modern times, produced three very valuable treatises on the subject of infurances. Valin's commentary on the ordinance of the marine is of the highest value upon every topic of marine law. On the branch which relates to insurance, his commentary is clear, acute, and inftructive. Pothier, in his treatise on contracts, unites the moft profound learning with the pureft morals and the most comprehenfive judgment. That upon insurance, is neat, concife, and masterly. Emerigon, whofe treatise is confined to the subject of infurance, unites great learning with great practical knowledge. His book is, of all the foreign publications on this fubject, the most useful to an English lawyer. Many other publications on this subject have appeared in different countries, and in different languages, the most confiderable of which are Roccus, Cafaregis, Lecennius, Bynkerfboek, and Santerna. To these we fhall have frequent occafion to refer in the courfe of the prefent work. It is not a little fingular, that in England, where the Engi authors. practice of infurance has been more extenfive than in any other country, fo little was published on this important subject, till within the last twenty years. Malyne, Molloy, Beawes, Poftlethwaite, and fome others lefs worthy of notice, have each in their refpective publications, given a fhort chapter or two on the fubject of insurances. Mr. Magens, a merchant, in 1755, republished in two volumes quarto, his Effay on Infurances, which he had before published in German at Hamburgh. The effay itself occupies but a small portion of the first volume. It fhews, however, a confiderable degree of practical knowledge of infurances, derived from the ordinances, of different countries but the book would have been much more valuable had the author been better acquainted with the general treatises on this fubject. The rest of the work confifts of a number of calculations of averages, of letters and ftate papers relating to commerce, a collection of marine and commercial ordinances, treaties of commerce, and other matters, which are often of great utility. Mr. Wefket, a merchant, has, in a fort of alphabetical arrangement, put together a large quantity of materials on the fubject of infurances, and of a variety of other matters little connected with insurance. Mr. Millar, a learned advocate of the Scotch bar, published at Edinburgh, in 1787, the Elements of the law relating to infurances, in which he difcovers great knowledge of his fubject, derived both from foreign and English books. To Mr. Park, the profeffion of the law and the commercial world are much indebted for his Syftem of the law of infurances; a book fo generally known that it will be unneceffary for me to fay more of it upon the present occasion. 3. With refpect to judicial decifions, none are confidered as Judicial deci binding authorities in our fuperior courts, but fuch as have fons. been there determined, and even thefe may be re-confidered; and if, upon a full examination, they are found to militate against any clear and indisputable principle of law, they may, as in other cafes, be overruled. As to foreign decifions, though they are of no authority in our courts, yet some few will be found cited in this work, in order to fhew, upon doubtful points, how learned men in er countries When actions on Westminster. Arcient mode of have understood the principles of that law, which is fuppofed to be in force in this. Valet pro ratione, non pro introducto jure. Though foreign commerce increafed confiderably in the reign of Queen Elizabeth, and infurance probably increased in a like degree, yet it appears to have furnished but few subjects of litigation in the courts of Westminster, till towards the clofe of that reign. The first cafe upon infurance which we find in any book of reports is mentioned by Sir Edward Coke (a), and he notices it as a mere novelty.-It appears to have been an action brought in the 30th year of Queen Elizabeth, on a policy on a ship, from Melcombe Regis to Abbeville. The lofs alledged was by detention of the King of France in the river Scane. After a verdict for the plaintiff, the defendant moved in arreft of judgment, on the ground that the fact in iffue, namely, the detention, arofe out of the realm, and therefore could not be tried in London. But it was refolved by the court, that the promife, which was the ground of the action being made in London, the caufe might be tried there; and that the detention, which was the fact in iffue, was not the ground of the action, but a breach of the affumpfit. The reafon why fo few actions at common law were brought on policies of infurance before the above period, is very diftinctly fet forth in the preamble to the ftat. 43 Eliz. c. 12, which recites, that Whereas heretofore af'furers have used to stand so justly on their credits, that few or no controverfies have arifen thereupon; and if any have grown, the fame have, from time to time, 'been ended and ordered by certain grave and discreet merchants, appointed by the Lord Mayor of London, as men, by reafon of their experience, fittest to understand, and fpeedily to decide, thofe caufes.'-It further recites, that of late years, divers perfons have withdrawn themfelves from that arbitrary courfe, and have fought to draw the parties affured, to feek their monies of every feveral affurer, by fuits commenced in her Majefty's C courts, to their great charges and delays.' From this recital it appears that, before the paffing of fettling difputes. that act, almoft all difputes arifing upon contracts of in |