been made by the courts in introducing the principles of the foreign sea-laws, or moulding the English customs into any thing deserving the name of a maritime code.

We accordingly find, in these decisions of the king's bench in Lord Mansfield's time, fewer authorities cited, than in any other cases, and in many of his opinions on important questions of commercial law, not a single case or book is referred to. It is this circumstance which gives his opinions, upon this subject, their great interest to the reader, since they necessarily deal in general principles. But if we examine the decisions of Lord Mansfield in this branch of law, we shall find that his reputation as a commercial jurist, does not depend upon the number of his opinions upon important questions, but rather upon the liberal and extensive views with which he met all questions of this description. He has been called the founder of the British commercial law, and so he is, in one sense, for he set the proper example for forming the system, but he himself did not construct a great portion of it, and the part formed by him is not. without its defects. The system, itself, is, to this day, very imperfect, and we venture to say that the United States are materially in advance of England in the science of commercial law; and yet what shows the still subsisting illiberal and jealous spirit of the English common law, although our books contain many cases applicable to questions brought before the English courts, and founded upon principles common to the two countries, and referring, in fact, to English authorities, yet we do not now recollect any reference to our decisions, in any English court, except that of the High Court of Admiralty, in which Lord Stowell presides.

Lord Mansfield presided in the king's bench thirty-two years, from November 8th, 1756, to June 4th, 1788. The opinions of that court, during this period, are reported in Burrow, Cowper, Douglas, and the first volume of the Term Reports.

In these reporters there are some thirty-six to forty cases on insurance, not involving a greater proportional number of important, or, at the time, new, questions, than a similar number of cases taken from the reports of the more respectable courts of the United States during the last twenty years, nor discussed more learnedly or decided more liberally or satisfactorily.

We propose to take a cursory view of these decisions, and

also those upon other branches. of commercial law, without regarding their chronological order or adopting any other specific arrangement.

Taking, then, the first case that happens to come upon the list we have made out, it is decided that liberty to cruise six weeks in a policy, during a passage, means six weeks successively.'

In another case, where insurance was made for twelve months, at one entire premium, and the vessel was lost at the end of two months, the assured was held not to be entitled to a return of any part of the premium; that is to say, the premium cannot be apportioned. And yet in a previous case, (Stevenson v. Snow)3 not easily reconcilable with the last, where the insurance was from London to Halifax, with warranty to sail with convoy from Portsmouth, and the vessel arrived too late for the convoy, and thereupon the owner requested the underwriters to continue the risk, without convoy, at a higher rate of premium, or to return a proportional part of the premium, terminating the risk at Portsmouth, and they refused to do either, Lord Mansfield and the other judges were of opinion that here were two distinct voyages, one to Portsmouth, and the other from thence to Halifax, and that, as the risk on the latter voyage had not commenced, the assured was entitled to a return of a proportional part of the premium. The equity of the case seems to have been in favor of the assured, but the decision, as well as the principles laid down by Lord Mansfield, in giving his opinion, seem to be very questionable. He says, for instance, These contracts are to be taken with great latitude, the strict letter is not to be so much regarded as the object and intention.' 'It has been objected that the voyage being entire, the premium cannot be apportioned; but I can see no force in this objection. This is not a contract so entire that there can be no apportionment.' This is, we believe, inconsistent with what is generally understood to be the law, and accordingly, in the very next case that came up on the same question, namely, the one above-mentioned, the position was not adhered to. The very boldness which led Lord Mansfield to depart from prece

6

dents, and, no doubt, to the amelioration of the law in some respects, also induced him, in other cases, even to depart from principles, for the sake of what he supposed to be the equity of the particular case. So it seems to have been in this case of Stevenson v. Snow.

Another case' pretty late in his judicial administration, shows the imperfect knowledge of the court and the parties, of the effect of the different modes of adjustment of losses. An average loss being proved, in an action on a policy, it was not easy to ascertain its amount, and the court, without any objection by the parties, entered a verdict for a total loss, it being agreed that the assured should account for what he had saved. This would make it what is called a salvage loss, instead of an ordinary partial loss, and might vary the amount to be paid materially; and yet the case was disposed of in this manner, as if it was a matter of mere form, though the underwriter afterwards objected, but the court held him to what he was understood to have agreed to. The parties, as well as the court, would, at this day, very readily understand the difference of these two modes of adjustment, and be in no danger of making or imposing an agreement for adjusting a loss in one way, which ought to be adjusted in the other.

In Lilly v. Ewer,2 in a policy on a ship from Gibraltar to England, there was a warranty of convoy. It however happened that there was no convoy at the time at Gibraltar for the whole voyage, the only convoy there being one that was going to stop at Lisbon. The vessel sailed with it, and arrived safely in England, but the assured demanded a return of the premium, on the ground that the warranty had not been complied with, and so that the risk had never commenced. The judges were, however, at first of opinion, that, as this was the only convoy that could be had, the sailing with it was a compliance with the warranty, and so the underwriters were entitled to retain the premium. But learning afterwards that the 'people in the city were dissatisfied' with the decision, the court granted a new trial, and a contrary one was given.

3

Of the two cases of Goss v. Withers, and Hamilton v. Men

des,' Lord Mansfield afterwards says, 'I took great pains in delivering the opinion of the court. I think that from those cases, the whole law between insurers and assured, as to the consequences of capture and recapture, may be collected.' The point decided in these cases is, that a capture and recapture do not constitute a total loss, unless the voyage is broken up thereby. In one respect these cases made a great advance in mercantile law, namely, in discarding all the old subtile, inconsequential speculations, and jargon, as to the prize being carried infra præsidia of the enemy, and as to the change of property by the capture. This was a great step in jurisprudence, but still the cases, so far from settling the law on the questions involved in the facts, left some of them quite afloat, and one of these, and a very important one in practice, remains unsettled in England to this day; unsettled, we say, because the decisions and the dicta have been diverse and inconsistent. The question we refer to, is, whether the claim for a total loss depends upon the state of the facts, at the date of the last intelligence, the time of the abandonment, the time of bringing the action, or that of the trial. This question was directly presented by the case, and has come up in many subsequent cases, and it has been distinctly settled in the United States, that the right of abandonment is to be determined by the state of the facts at the time of abandoning. But the law in England, if we are not greatly mistaken, remains still uncertain on this point.

Though the point really settled, as above stated, in these cases, is no doubt correctly determined, and is not now disputed, yet it is a very indistinct point. To settle that the capture and recapture do not constitute a technical total loss, unless the voyage is broken up, without settling the time to which reference is to be had, and also without defining, with more precision, what is a breaking up of the voyage, leaves the law very uncertain. The cases present no definite, practical doctrine, which may be easily applied in others. But this is not their greatest defect. In the free discursive arguments of Lord Mansfield, in giving his opinion, he throws out some loose propositions, of a very general character, in unqualified terms, which admit of applications in support of positions which are by no means tenable. Few cases have, accordingly, been more often quoted,

or in a greater variety of applications. In questions arising on policies, in case of capture and recapture, in those on valued policies, and those on the right of abandonment generally, Goss v. Withers, and Hamilton v. Mendes are, one or both, sure to appear in the argument of the counsel, and the authority of the same case is not unfrequently claimed by both sides; and that of one, in opposition to the other, by each side, very often. As few cases have been cited so frequently, so few have been cited less conclusively. This is owing to the defect already mentioned, a defect which is spread through the opinions of the same judge; his impatience of the technical jargon and scholastic refinement of some of his predecessors, carried him too far into loose and sweeping generalities. In this respect Lord Kenyon makes a very striking contrast to Lord Mansfield, as he is always circumspect, close, qualified, and pointed. Though he would not, perhaps, have been so useful a judge in the time and place of his predecessor, he was certainly a better successor to Lord Mansfield, than a judge similar to the latter in character, would have been.

But

In the case of Godin v. the London Assurance Company,' it is decided that a party may insure his ship or goods as many times over as he pleases, but that he can obtain but one indemnity, so that the effect is only the paying a premium to the second insurer, to guaranty the solvency of the first. another position is taken in this case, as it appears to us, rather hastily. It is said that if one set of underwriters pay the whole loss, they may claim a proportional contribution from the other set. We believe there never has been any instance of such a claim, and there would obviously be some difficulties in enforcing it.

2

The distinction of a valued policy from a wager, is very accurately taken in Lewis v. Rucker, namely, if the valuation in the policy is bona fide, and not a mere cover for a wager, it is valid, though it varies from the market value of the subject insured. This case is now good law in the terms in which the opinion of the court is expressed. Though we have no law in the United States, as there is in England, against wagering policies particularly, yet, in some of the states mere wagers, in