« PreviousContinue »
judications. This is not said, we hope they will believe, from vanity, under a false estimate of our own attainments. American lawyers are in the constant habit of reading all the English Reports; and it would be worse than affectation to attempt to disguise, that we are greatly instructed and improved by thein. They present to us the fruits of great experience, industry, intelligence, and ability. But we also are painters.' The American Courts, collectively considered, embrace a large proportion of talent and learning, and they are perpetually engaged in many of the discussions, which perplex the English tribunals. Of course, there is a great diversity in the attainments of the judges and lawyers in the different States composing the Union, arising from local circumstances. But in the principal Atlantic States, the system of maritime law is of daily application to business, and is studied with earnest diligence.
In one respect there is a striking contrast between the state of the English and that of the American bar. In England, the profession is broken up into distinct classes. The civilians engross, exclusively, the admiralty and ecclesiastical courts, and even these are separated into proctors and advocates. The Chancery Courts have their own solicitors and counsellors. The barristers and serjeants of the common law generally confine themselves to the practice of their own particular courts. The attorney is a being, who deals with processes and proceedings in suits, but is shut out from the rights of arguing counsel. The conveyancer pours over his own peculiar studies for chamber practice; and the special pleader, if he wins his way to a lucrative practice, sits under the bar a quiet spectator of forensic disputations, unless the niceties of his own craft come into play. In America all this is different. The same gentleman acts, or may act, (with scarcely an exception,) in all these different capacities; and in the course of a single term of a court may assume many of the functions of all of them. He is, or may be, at once, proctor, advocate, solicitor, attorney, conveyancer, and pleader; he may draw libels and bills, frame pleas and answers, direct process, prepare briefs, sketch drafts of conveyances, argue questions of fact to the jury, and questions of law to the court; and find himself quite at home in all these various employIf it should be thought, that this singleness of occu
pation and subdivision of labor give to the English lawyer more accuracy, minute knowledge, and perfect facility in the use of his materials, they carry with them on the other hand some disadvantages. The general tendency of such close pursuits is to narrow down the mind to mere technical rules; to exhaust its powers upon subtle distinctions and dull details; to make professional life an affair of collections and recollections; to create an acute and nice discrimination, rather than a solid and comprehensive understanding. What is gained by skill in the manipulation, is lost in the vigor of the blow.
The course of the American lawyer does not, it must be confessed, generally lead to such exact inquiries, and such perfect finish, although there have been eminent examples to the contrary. But a survey of the whole structure of the law conducts him to large and elevated views, to brilliant and successful illustrations, to reasonings from various contrasts and analogies of the law, and to those generalisations, which invigorate eloquence, and shadow out the finer forms of thought. His learning must be deep, and various, even if it is not in all respects exact; and will be tinctured with the hues of all his studies. His law silently acquires the tone and spirit of equity; and his commercial discussions urge him to search for and adopt in argument, whatever of excellence the genius and erudition of foreign jurists have brought to his notice. He knows too, that in the American courts there is no disposition to discourage the study of foreign jurisprudence. There is a freedom from restraint, and an habitual eagerness to expand our law, which favor every attempt to build up commercial doctrines upon the most liberal foundation. We do not mean to affirm, that American lawyers in general cultivate such extensive studies, or are distinguished by such elevated attainments. What we mean to assert is, that the general tendency of our system is to excite an ambition for such studies and attainments, and that the genius of the profession is perpetually attracted in its researches and reasonings to those general principles, which constitute the philosophy of the law. We could point out living models, who exemplify all, that we have suggested in commendation of the American system; and among the illustrious dead within our own brief career, we fear no rebuke in naming Hamilton, Dexter, Pinkney, and Wells. But it is unnecessary to trust to as
sertion. 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, unformed, 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 underwritten in London, through the instruinentality 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 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, how
ever, 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