Billeder på siden
PDF
ePub

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 heads 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received a great share of public favor, nor, as we believe, reached a second edition, probably, because it has been superseded in practice by the very superior treatise of his rival, both in method and materials.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 to 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, analyzing 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 civilized nations, in which the law of insurance is exactly the same in all its outlines and details. Al

though our own law of insurance professes to be, and in fact is, the same in its general structure and principles, as that of England; yet, without any statutable 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 upon 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 in 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 formed a very inconvenient and bulky commentary, not easily reducible to specific 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 his 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 is eminently practical and compendious, at the same time that it is full of information. Wherever 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 his 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.

Of a work confessedly professional, it cannot be expected, that we should enter upon a minute review, for the purpose of detecting slight faults, or contesting particular opinions. The task would be irksome to ourselves, and so heavy and technical, as to afford very little satisfaction to our readers. It is impossible to include in a single volume the opposite qualities of brevity and copiousness, a condensed summary of principles, and an elaborate discussion of the minute details and distinctions of cases. Whoever writes a merely practical treatise, must leave much matter worthy of observation to more exhausting authors. In this age, books, to be read, must be succinct, and direct to their purpose. The business of commercial life will not stop, while lawyers plunge into folios of a thousand pages, to ascertain a possible shade of distinction in the construction of contracts. If, therefore, there should be any persons disposed to think, that cases and comments should have been given more at large, the true answer is, that such was not Mr. Phillips's plan; and that his work is to be judged of, not by its adaptation to other purposes, but by its actual execution of his own design. In this respect it has our hearty approbation, and we sincerely recommend it to all, who are interested in commercial jurisprudence, as merchants, lawyers, and judges. We think, however, that in a future edition, Mr. Phillips will do well to enrich his work with extracts from Valin, Emérigon, and Pothier, upon points, which have not yet received any adjudication, and occasionally to introduce some of their speculative reasonings. We should be glad, also, to have more full practical information upon the adjustment of averages and losses, and the items, which are to be admitted or rejected; having had occasion to know, that nothing is more various,

uncertain, and anomalous, than the modes of settling losses in different insurance offices. Even in the same office, a departure from the principle assumed as to one subject of insurance is not uncommon as to another, upon some fanciful notion of its inapplicability. The form of Mr. Phillips's Index also might be advantageously changed, so as to make it more easy for consultation, by the use of a larger type, and breaking it up into more paragraphs, with short subordinate titles.

« ForrigeFortsæt »