circulated among all the commercial cities of the neighbouring nations, were strangers to the jurisprudence of England. In fact, they were not introduced into general use, until near the close of the reign of Charles the Second. Lord Holt, in the case of Buller v. Crisp, (6. Mod. Rep. 29,) decided in the second year of Queen Anne's reign, said, "I remember when actions upon inland bills did first begin; and there, they laid a particular custom between London and Bristol, and it was an action against the accepter. The defendant's counsel would put them to prove the custom; at which Hale, Chief Justice, laughed, and said, they had a hopeful case of it." Lord Holt himself stubbornly denied the negotiability of promissory notes; and, in this very case of Buller v. Crisp, it was proved, that these notes had then been "used for a matter of thirty years." It is familiar to the profession, that an Act of Parliament was found necessary to put promissory notes upon the same footing as inland bills of exchange, although “this laudable custom," as Malynes calls it, had been long established on the Continent. Malynes devoted five chapters, containing in all about fifteen folio pages, to the subject of insurance. We do not recollect, that, in the whole of the discussion, a single reference is made to any English adjudication. It is, indeed, sufficiently apparent, that the author drew almost all his materials from foreign. sources. The earliest case, indeed, that is to be found on a policy of insurance, is cited by Lord Coke in Dowdale's case, (6. Co. 48,) as having been decided in 30th and 31st Elizabeth; and from the manner, in which he refers to it, as well as from the point in judgment, it is manifest, that the action was then a novelty.

In 1651, Mr. Marius, a notary public, published his book, entitled," Advice concerning Bills of Exchange," which went through several editions, and was the only work of much reputation, that appeared on this subject in England, until after the lapse of a century. It is altogether a practical treatise, referring for authority to the common usages of merchants, and pretending to no aid from any acknowledged doctrines of the English law. At the distance of fifty years after Malynes, Mr. Molloy, a barrister-at-law, published his work, De Jure Maritimo et Navali. The subject of insurance is despatched in one short chapter; and, though here and there a few short notes of English cases are interspersed, the substance is essentially what is found in Malynes. So that it may be fairly inferred, that, during the intermediate period, little progress had been made in the true understanding of this branch of the

law. Indeed, its real importance was so imperfectly estimated by the common lawyers, that Molloy triumphantly observes, “The policies now-a-days are so large, that almost all those curious questions, that former ages and the civilians, according to the law marine, nay, and the common lawyers too, have controverted, are now out of debate. Scarce any misfortune, that can happen, or provision to be made, but the same is taken care for in the policies, that are now used; for they insure against heaven and earth, stress of weather, storms, enemies, pirates, rovers, &c., or whatever detriment shall happen or come to the thing insured, &c., is provided for." This would be strong language to use even in our days, when the legal construction of the terms and the risks of policies has been settled, after very numerous and expensive litigations. But for that day, and from a lawyer too, the language is most extraordinary; and could arise only from gross ignorance of the vast extent and variety of the subject.

In respect to navigation and shipping, which now form so large heads of commercial law, the information given by these treatises is miserably defective. It is given in three or four chapters, containing little more than abstracts from the laws of Oleron, and from the short maritime titles in the civil law and its commentators. And yet these treatises, for we need hardly advert to Mr. Magens's Essay on Insurances, published so late as 1755, contain the substance of all English elementary collections of maritime jurisprudence, down to the period, when Lord Mansfield succeeded Sir Dudley Ryder, as Chief Justice of the King's Bench. Nor was this deficiency owing to the want of talents or industry on the part of the compilers. They accumulated most of the valuable English materials within their reach. The reports furnished very few principles, and still fewer illustrations of general application. It is true, that Lord Holt, in his famous decision in the case of Coggs v. Barnard, in which per saltum he incorporated the whole civil law of bailments into the common law, led the way to a more exact understanding of the law of shipping; but the actual application of his principles belongs to a later age.

That there is no exaggeration in this statement of the uncertainty and defects of the English law on maritime subjects, will be still more fully evinced by reference to some of the best authors. Mr. Justice Blackstone, in his very elegant and classical Commentaries, a work professing to contain a summary of the principles of English law, treats the subject of insurance in a single paragraph;

and, after defining the contract, and showing it not to be usurious, briefly adds, "The learning relating to these insurances hath, of late years, been greatly improved by a series of judicial decisions, which have now established the law in such a variety of cases, that, if well and judiciously collected, they would form a very complete title in a code of commercial jurisprudence. But, being founded on equitable principles, which chiefly result from the special circumstances of the case, it is not easy to reduce them to any general heads in mere elementary treatises." Such was the view of a very competent judge, on the state of the law in the year 1765. Mr. Park, in the introduction to his system, after adverting to the history of the establishment of the court of policies of assurance in the reign of Queen Elizabeth, and its having subsequently fallen into disuse, and probably into disrepute, observes," But, though the court of policies of assurance has been long disused, though it is near a century since questions of this nature became chiefly the subject of common law jurisdiction; yet, I am sure, I rather go beyond bounds, if I assert, that, in all our reporters, from the reign of Queen Elizabeth to the year 1756, when Lord Mansfield became Chief Justice of the King's Bench, there are sixty cases upon matters of insurance. Even those cases, which are reported, are such loose notes, mostly of trials at nisi prius, containing a short opinion of a single judge, and very often no opinion at all, but merely a general verdict. From hence it must necessarily follow, that, as there have been but few positive regulations upon insurances, the principles, on which they were founded, could never have been widely diffused, nor very generally known." Mr. Marshall in general terms confirms these observations. After referring to the establishment of the two great English insurance companies by the statute of 6th George I., ch. 18, he proceeds to say, "From this time, it may be reasonably supposed, that all suits on policies of insurance were brought in the courts of common law; and yet but few questions on this subject appear to have been determined in the courts of Westminster, before the middle of the last [eighteenth] century. Whether this arose from the number of insurances in England being inconsiderable, compared to what it has since become, or from the parties being still in the habit of settling their difference by arbitration, or from both these causes united, it is not now easy to determine." Mr. Miller gives a similar view of the English law, and in marked terms attributes its great improvement to Lord Mansfield; and

then, speaking of his own country in 1787, adds the following remarks: "In Scotland, the improvements of this branch of law have been still later than in England, as might be expected from the slower growth of its commerce. Although the decisions of the principal court of justice have been pretty regularly collected, for more than a century; yet the first decisions, which, strictly speaking, relate to insurance, are all, except one, within the course of the last ten years. During this period, however, the trade of insuring has risen to a very great height; and the decisions of the Court of Session upon that subject have become proportionably comprehensive and systematic."

What renders this state of the English law the more extraordinary, is the fact, that almost all the important general principles of commercial jurisprudence had, for more than three quarters of a century, been reduced to a very clear and practical code in France. The very early treatise on insurance, called Le Guidon, was republished by Cleirac, in his Us et Coutumes de la Mer, in 1671. In 1673, Louis the Fourteenth published his Ordinance upon Commerce, which, among other things, deals largely upon the doctrines of bills of exchange and promissory notes and orders. This was followed by the truly admirable Ordinance of 1681, in which the whole law of navigation, shipping, insurance, and bottomry is collected in a most systematic and masterly manner. It would be a very narrow and unjust view of these ordinances, to consider them. as mere collections of the municipal regulations of France. They are, more properly, collections of those commercial principles and usages, which the experience of merchants had found most wise and convenient in their intercourse, and which the habits of business, and the necessities of trade, had gradually introduced into favor among all modern maritime nations. Yet the English common lawyers, if not profoundly ignorant of the value of this code, then passed it by with obstinate indifference, and contented themselves with a proud reliance on the old doctrines of Westminster Hall, as adequate to all the exigencies of modern society.

It seems to have been thought somewhat difficult to account in a satisfactory manner for this state of things, especially as Mr. Magens, referring to the period when he wrote, states, “It must be allowed, that the business of insurance is carried to a much greater extent in London than in any other country in Europe. Insurances are daily made here on adventures by foreign ships, as well as others, whose risks are wholly determinable in foreign do

minions." Mr. Park and Mr. Marshall obviously consider the subject as involved in much obscurity, and prudently, if not warily, abandon it to the conjectures of the reader.

To us it appears to admit of a very simple solution, although one, which the pride of the profession might not choose to point out, without confessing the fallibility of the system. It is, that the common law was an utter stranger to the principles of commercial jurisprudence, and slowly and reluctantly admitted them into its bosom; so that the age was always greatly in advance of the doctrines of the judicial tribunals. The ancient law dealt altogether in feudal tenures and doctrines, abounding in scholastic subtilties and refinements, and nice and curious distinctions, much better fitted for the times of chivalry and feudal burdens, than for the manhood of commerce. It had a narrow and technical mode of expounding contracts, and a still more narrow and unsatisfactory mode of enforcing them. Instead of widening its channels to accommodate the active business of life, the whole was compelled to pass, as it might, within the ancient boundaries. The subtilties of pleading, the difficulty of enforcing various defences, and the inconveniencies of screwing down general merits into established forms, embarrassed every remedy upon contracts of a special nature, and drove the parties to seek redress in the then infant, and of course very imperfect, administration of equity.

When the spirit of English commerce had embarked vast interests in trade, it found itself without any encouragement from the law, and endeavoured to work its way to its rights and its duties, by the aid of lights reflected from other countries. English merchants became familiar with foreign usages, and soon adopted them into the habits of their business, for want of a more certain guide. These usages soon became general; and, first, as a matter of honor, and, then, as a customary law, they fastened themselves upon all the transactions of trade. But it was very gradually, that the common law recognised them in any shape, and always with a cold, hesitating, and jealous caution. Slade's Case, in 4th Coke's Reports, shows how unwilling the courts of common law were to entertain the action of assumpsit in the plainest cases. They clung with obstinate reverence to the old forms of the action of debt, and found the Benchers of the Inns of Court always ready to sound the alarm against innovations. But the doctrine, now universally admitted, of giving equitable defences in evidence, and sustaining equitable claims in the action of assumpsit, would