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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 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 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 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 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 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. 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
and competent to judge, he is the less determined by mere authority. But very few persons consider themselves to be so perfectly masters of any branch of legal science, as to throw off all restraint of authority; and those who are, with good reason, the most confident of their skill and knowledge, are usually, in forming their opinions, influenced, more or less, by authority, according to the particular subject of inquiry. In most cases it is necessary to take into consideration what has been practised and decided, since the mere fact, that a thing has been decided or practised in a certain manner, is, in itself, a reason of greater or less weight, for continuing the same practice, or adhering to the established doctrine.
In many branches of the law, precedent, as such, and independently of the reasons upon which it was formed, is entitled to great respect, and is not unfrequently conclusive of the law. But where a decision or opinion rests upon a certain principle, the applications of which, in different instances, must be consistent, and also conformable to other acknowledged principles; precedent has less weight. Concurrent decisions, however numerous they may be, cannot establish a conclusion, which is drawn from insufficient premises; or cause inconsistent propositions to be law. A very great part of the law of insurance consists of deductions from certain principles, which constitute a science, in regard to which, mere precedent cannot have very great influence, since deductions inaccurately made, lead to contradictions and inconsistencies, which no authority can vindicate. In some branches of this subject, precedent is of authority and weight, but the great part of the doctrines comprehended in this science, must stand exclusively upon the reasons and fixed principles, from which they are inferred. The inferences, which may be clearly drawn from those principles, are not made to be law, and cannot cease to be law, in consequence of any number of decisions, by whatever authority they may be supported. Notwithstanding a diversity of opinions and judgments, those doctrines still remain the unvarying and unalterable law, and they need but to be presented with the reasons on which they depend, to receive the assent of a mind, which is capable of perceiving their mutual connexion and dependency. No branch of law can more properly be denominated a science, than insurance; and since this contract is substantially the same in different countries, and continues to be the same now that it was formerly, the decisions of courts, whether ancient or modern, and the opinions and reasonings of writers, whether American, English, Italian, or French, arc equally applicable to it.'
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 mere 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, Emerigon, 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.
ART. III.-Notes on Mexico made in the Autumn of 1822; accompanied by a Historical Sketch of the Revolution, and Translations of Official Reports on the Present State of the Country; with a Map. By A CITIZEN OF THE UNITED STATES. Svo. pp. 352. Philadelphia. Carey
& Lea. 1824.
THE author of this volume is understood to be Mr Poinsett, representative in Congress from South Carolina, well known both for his services as a legislator in the national counsels, and for the generous zeal with which he has for many years embraced and supported the cause of South American emancipation. His residence in Chile thirteen years ago, at the dawn of the revolution in that country, as accredited agent of the government of the United States, gave him an opportunity of learning from personal observation the innumerable evils inflicted on the people by the oppressive policy of Old Spain, the causes which roused among them the spirit of resistance, and the tone of feeling and opinion naturally growing out of their situation. His Report to the Secretary of State, which was drawn up and laid before Congress in the year 1818, affords abundant proofs of his vigilance in watching the progress of events, and his industry in collecting information; and, if rumor has told truth, he was not an idle spectator of the scenes that were passing around him.
With these advantages no man was better qualified, probably, than Mr Poinsett, for undertaking the tour of observation and inquiry, the particulars of which are recorded in the work before us. At the present crisis this book is a valuable acquisition to the slender stock of knowledge, which exists in the United States on the subject of Mexico, a country becoming every day clothed with new and increasing interest, and which promises at no distant period to hold an eminent rank among the nations of the earth. The prospects of Mexico were certainly never so good as at this moment. The internal dissensions, which have thrown perpetual and serious obstacles in the way of reform, seem of late to have been subsiding, and a fair hope may now be entertained, that the pillars of government will be erected on a basis, which no future convulsion will demolish, however it may be unsettled or weakened by temporary agitations. The fate of