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But France felt the
the Mediterranean with their wealth. invigorating influence of trade, and began to court with respect, what she had previously cherished only as a source of revenue. Above all, British commerce, during this period, enjoyed the most signal triumph. Her merchants and mariners were familiar with the whole Globe, with the Baltic and the Levant, the Black and the White Sea, the Atlantic and the Pacific, with the Americas and the Indies, with the fisheries of Newfoundland and Greenland, the fur trade of the Indians, the timber, hemp, and manufactures of the North, the cottons, spices, and teas of the East, and with the gums, drugs, ivory, and flesh, of Africa. It is probably short of the real state of the case to assert, that the commercial capital of Great Britain was quadrupled during the reign of George the Third. Of the causes of this vast increase it is beside our present purpose to enter into an examination. But there can be no doubt, that her navigation has been essentially aided by the improved state of her manufactures, arising as well from superior skill and workmanship, as from her wonderful inventions in cotton machinery. She now exports to the East Indies and China cotton goods of her own manufacture, to an immense value, which she formerly imported from those countries. And the unrivalled beauty and excellence of her fabrics, have not only suspended the use of those of foreign origin within her own dominions, but have enabled her in a great measure to command all the open markets of the world.
Under such circumstances it would be a natural inference, that there had been a correspondent advancement of her commercial law. The conclusion would seem natural, if not irresistible, that a people, distinguished for centuries by their commercial activity and enterprise, must have been under the protection of a well settled system of commercial jurisprudence. Philosophers and practical jurists would ask, how it would be possible for the infinite variety of business growing out of an extensive foreign trade to be adjusted, without resort to some well known rules and general principles? Strange, however, as it may seem, it is undeniable, that England had made very little progress in commercial law, at so late a period as the commencement of the reign of George the Third. Yet she had been a commercial nation, to a considerable extent, from the reign of Elisabeth; and
for more than a century had possessed plantations and colonies, whose population and trade perpetually invigorated her navigation.
A slight historical review will put this matter beyond any reasonable controversy. One of the earliest English works on maritime law is Malynes' Lex Mercatoria, published in 1622, in the reign of James the First. Welwood had a few years before printed his Abridgment of the Sea Laws; but it is principally a collection of the rules and ordinances of foreign countries. It is remarkable, that Malynes refers to no antecedent English writer on the subject of his treatise, and except in a very few unimportant instances, to no English adjudications. His work is principally a compendium of commercial usages, not confined to England, but supposed by him to be common to all the maritime states of Europe. It is quite a meagre and loose performance, and contains few principles, that are now of any practical importance. He has two or three short chapters upon bills of exchange, which show, that the doctrines upon that subject, then familiar on the Continent, were not much known in England, except as usages among merchants. He laments, that negotiable promissory notes, which then circulated among all the commercial cities of the neighboring 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 acceptor. 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. 47. 6. as having been decided in 30th and 31st Elisabeth; 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' 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 belong 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 her 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 shewing 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
Elisabeth, 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 Elisabeth 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 differences 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 courts 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 Sessions upon that subject have become proportionably comprehensive and systematic.'