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assertion. The records are before us and can be searched. Look to the judgments of the Supreme Courts in the States of Pennsylvania, New York, and Massachusetts, upon questions of maritime and commercial law, as they stand in the reports of Messrs Tyng, Binney, Johnson, and Sergeant, and Rawle. It is impossible not to feel, that the arguments in these causes and the judgments, which followed them, would do credit to the tribunals of any country. They are full of learning, fine reasoning, acute distinctions and solid principles, such as might well guide the sober sense of Westminster Hall, and cast a strong light upon its oracles. Look to the Chancery decisions of New York. Where shall we find in our times a more thorough mastery of the civil and maritime, of the common and equity law, where a more untiring research, a more critical exactness, a more philosophical spirit, than is displayed in the elaborate arguments of her late Chancellor ?
We think, therefore, that in recommending the labors of the American lawyers and judges to the attention of English lawyers, we do them a service, by which they may greatly profit ; and in this manner we may make a suitable return for the many aids, which America received from the parent country, when her own jurisprudence was loose, unforined, and provincial.
The progress indeed, that has been made in America, in the knowledge and administration of commercial law, since the Revolution, is very extraordinary ; and in no branch more striking than in that of Insurance. Before that event, policies of insurance were of rare use among us.
Our intercourse with the mother country was so direct and so dependent, that most of the important risks were underwritteu in London, through the instrumentality of agents. Our printed reports do not reach far back beyond the revolutionary period ; but the manuscripts we have seen, and the absence of references to cases in the arguments, even of ante-revolutionary lawyers, establish to the satisfaction of all accurate observers, that the subject was new to the studies of the bar. The earliest, and indeed the only case we recollect in any of our books, before the Declaration of Independence, is that of Story and Wharton v. Strettell, in 1764, reported by Mr Dallas in the first volume of his Reports. It was not until the French revolution, by opening new and extensive sources of profitable trade, gave an impulse to our maritime enterprise, that the contract struggled into notice from a state of languor, and became common in our commercial cities. It immediately advanced with almost inconceivable rapidity, and became so profitable, that it may truly be said to have laid the foundation of many fortunes in our country. The profession soon felt the necessity of an entire mastery of the subject, and applied itself with a most commendable diligence to the study of all the English and other foreign authorities. And within the last thirty years, probably, as large a number of cases of insurance have been contested and decided in the American courts, upon points of difficulty and extensive application, as in the courts of England in the same period. We do not hesitate to assert, that these cases have been argued with as much learning and ability, and with as comprehensive a view of the true principles of the contract, as any in the brightest days of the English law. And we are greatly deceived, if, upon a general examination, they will not be found by English lawyers and judges to be full of useful instruction, and worthy of their deliberate study. Many of them discuss questions arising from the complicated state of our commerce, as a neutral nation, which have not as yet undergone any adjudication in the English courts.
We will close this topic with a very short historical sketch of the principal modern English treatises on insurance. We pass over at once without any particular notice, the remarks on the subject contained in the work on Bills of Exchange and Insurance ascribed to Mr Cunningham, and in Mr Parker's Laws of shipping and insurance, as they were so imperfect as to have sunk into obscurity. Mr Weskett's book is a mere collection, in the form of a dictionary of all the beads of maritime law, and contains little more than an index to foreign ordinances and usages. The title, Insurance, in the collections of Postlethwayte and Beawes are of the same character. The first treatises, correctly speaking, are those of Mr Millar, a Scotch advocate, and Mr Park, (now Mr Justice Park of the Common Pleas, both published in the year 1787. Mr Millar's work is certainly creditable to his talents and industry, and exhibits considerable research and habits of observation. It has not, however, received a great share of public favor, nor, as we believe, reached a second edition, probably, because it has been superseded in practice by the very superior treatise of his rival, both in method and materials. Mr Park, indeed, deserves much praise for the judgment, accuracy, and general excellence of his system of the Law of Insurance. The best testimony of its value is the continued approbation of the profession, which has already carried it through seven large editions. As a collection of authentic cases in the fullest and most accurate form, it still remains unrivalled. Although it professes to be principally “a collection of cases and judicial opinions,' the learned author occasionally discusses general principles with a good deal of ability. In 1802 Mr Serjeant Marshall published his Treatise on the Law of Insurance, and again in 1808 published a second and improved edition. His work professes to be, not like Mr Park's, a collection of cases, but an examination and collection of principles. It is certainly a work of high merit, analysing and criticising the cases with great acuteness and vigor; and citing the foreign authorities, with which the learned author appears familiar, with a creditable liberality. Whenever he ventures to give his own comments, they indicate perspicacity and closeness of observation. But after all, the work seems to promise more than it performs. It contains little of doctrine or discussion, beyond what the English decisions exact or furnish. We look in vain for any attempt to extend the boundaries of the law beyond actual adjudications, and for any satisfactory argument upon topics, which yet remain unsettled by the courts. And a great defect, in the work, as indeed in all others—a defect, which has been but imperfectly supplied by the late treatise of Mr Stevens, is the want of a practical treatise upon averages and the adjustment of losses. We believe, that the learned author is now dead, so that there is little probability, that the work will be rendered more complete.
But whatever may be the value of the English treatises on insurance, it is most obvious, that they are inadequate to supply the necessities of the American Bar. They embrace no cisatlantic decisions; and every work for our use, which does not contain them, is infected with a fatal infirmity. From what has been already suggested, it is clear, that the actual administration of commercial jurisprudence in our own courts must, for argument, for authority, and for practice, be far more important to us, than any foreign opinions ever can be. In respect to insurance, although the law in most commercial states rests on the same basis of general principles, these principles admit of considerable diversity of judgment in their application, and are often controlled by the known policy or ordinances of each particular government. This is so true, that there are probably no two civilised nations, in which the law of insurance is exactly the same in all its outlines and details. Although our own !aw of Insurance professes to be, and in fact is, the same in its general structure and principles as that of England, yet without any statuteable provisions, we already find many conclusions embodied in it, which are at variance with those of Westminster Hall. In some of these cases the English decisions may be more just and satisfactory than our own. In others we have no hesitation in declaring the American more solid, rational, and convenient. If it would not lead us into too prolix a discussion, we should incline to enter on the task of enumerating the leading differences, in order to enable the profession to form an exact judgment on the subject. But we must pass from these topics, and hasten to the close of an article already extended far beyond the limits, which we had originally intended. We will just mention, however, the point, that the right of abandonment depends npon the state of the fact at the time, when it is actually made, and when once legally exercised, it is not divested by any subsequent change of the facts, as one, in which we differ from English Courts; and we are entirely satisfied, that our rule has the justest foundation in principle as well as policy. The same conclusion has been more than once intimated by the great mind of Lord Chancellor Eldon.
From what has been said, our opinion may be readily conjectured, as to the indispensable necessity of a new treatise on insurance, for the use of American lawyers; and Mr Phillips has done a most acceptable service to the profession by the publication of that, the title of which stands at the head of this article. One of two courses only could be pursued; either to republish the best English work, and append the American decisions in the shape of perpetual notes, which would have formVOL. XX.-NO. 46.
ed a very inconvenient and bulky commentary, not easily reducible to specilc heads; or to recast the whole materials, and produce a new work, which should contain in one text the mass of English and American authority. Mr Phillips has chosen the latter course, and in our opinion, with great sagacity and sound judgment; and he has executed bis task in a manner, which will obtain the general confidence and respect of the profession. His work is arranged in a very lucid method, and embodies in an accurate form, the whole system of the law of insurance, as it is actually administered in the courts of England and America. It iseminently practical and compendious, at the same time that it is full of information. Whenever he has introduced any comments of his own, of which he has been somewhat too sparing, he has shown sound sense, and a liberal juridical spirit. In respect to America, his work will probably supersede altogether the use of Mr Marshall's; but Mr Park's, as the fullest repertory of all the cases, will continue to retain the public favor. The labor of such a compilation must unavoidably have been great, and required the most patient research and various study. The author, as a scholar, a gentleman, and a lawyer, has now put himself before the public and the profession for their patronage of bis labors; and we are satisfied, that he will not be disappointed in the result. He need not blush for his authorship, nor fear the scrutiny of dispassionate criticism. His work has a solid character, and will sustain itself the better, the more it is examined. In a modest and well written preface he has expounded his design and method, and we extract from it the following remarks, which we think are characterised by a sobriety of judgment, and justness of thought, that cannot fail to insure general commendation.
When the inquiry does not relate to the probable decision of any one tribunal, different persons must necessarily adopt different modes of determining what is law. If a person supposes himself not to be skilful and well informed, in regard to the subject under consideration, he can only adopt the opinion of the judge or writer, whose judgment he thinks it the most safe to follow. He must decide upon authority merely, and be implicitly guided by the opinions of those men whom he supposes to have had the best means, and to have been the most capable, of judging, and to have formed their opinions the most deliberately, and after the most thorough investigation. In proportion as a person considers himself skilful