or in the Latin language, even a name for this contract; the word accuratio being a barbarism adopted in Italy, about the twelfth or thirteenth century, when insurance probably came into use in that country. Nor does the history of that people anywhere afford a wellfounded reason to believe that the contract was ever in use among them."*

Chancelor Kent is equally clear: "It is a remarkable fact, that none of the nations of antiquity, though some of them were very commercial, and one of them a great maritime power, appear to have used, or even to have been acquainted with this invaluable contract. Bynkershoeck, and Emerigon both agree that the contract of insurance was not to be found in the Roman law, though some traces of it have been supposed to be perceived in the Roman history."†

Duer, an eminent jurist of New York, who is now engaged in the preparation of an elaborate work on Insurance-the first volume of which only has reached us, and promises, from its diffuseness and the comparatively small ground it covers, to be followed by several other volumes before the subject is exhausted-Duer, with much ingenuity and zeal, broaches a new hypothesis, and maintains it by extended argument. The opinion of the writer is, that there are evidences enough to show that insurance, as now understood, did in fact exist before the Christian era; or, in any case, that the evidences are not strong enough to found a presumption upon, that it did not exist. We shall give his language: "Whether maritime insurance was known to the ancients must remain a question of mere probability. That it can ever be decided by positive evidence, we have little reason to expect. In supporting the affirmative of this question, it is a presumption only that I have sought to establish. I have meant only to affirm; and I have endeavored to prove that this presumption is fair, reasonable, and consistent; and that its force is scarcely weakened, far less is it annulled, by the hostile arguments that have been arrayed against it."

We shall now proceed to examine the history of insurance, so far as it can be traced with clearness; fixing its origin, and developing its progress, among the various civilized and commercial nations of modern ages.

The word policy, applied to the instrument of the contract, is a derivative of the Italian polizza. Cleirac, a French jurist, asserts, on the authority of Villani, an Italian of note, who lived in the thirteenth century, that insurance was invented by the Jews, at the same time that they invented bills of exchange, viz.: when banished from. different countries, they sought refuge in Italy, and continued in divers ways to transport their effects thither without loss. The Italians were pleased with the invention, and adopted it at once extensively in their business transactions. This theory has been sometimes objected to, and others attempted in its place; but we regard it as the most plausible of all.

In the year 1436, at Barcelona, in Spain, an ordinance of insurance was drafted, in which it was stated, that, from long and loose usage, the contract had grown defective. It has been inferred from this, * Marshall on Insurance, p. 4. + Kent's Commentaries, vol. iii. The Law and Practice of Marine Insurance, vol. i., p. 27.

INSURANCE IN THE MIDDLE AGES.

6

that insurance must have been known at Barcelona, at least one hundred years before this time, or, viz., about the year 1300; which is the earliest mention of the subject which history furnishes.

Those celebrated codes of maritime law, which were fostered into being, and into enlarged and vigorous growth, by the commerce of the Middle Ages-the Consolato del Mare, of the eleventh centurythe Judgments of Oleron, of the twelfth or thirteenth-the laws of Wisbuy, of the thirteenth, and the Hanseatic Ordinances of later date, are all silent upon the doctrines of insurance. In the Laws of Wisbuy, there are, to be sure, a few obscure hints, which certain writers regard as applicable to insurance, but others as warmly deny. By the time the Hanseatic regulations were enforced, insurance was certainly known in Europe; and the fact that it is not mentioned in them, is accounted for on the supposition that the ordinances of Philip II. on the same subject, were admitted generally in the North of Europe, and deemed entirely adequate to meet and settle all the controversies which might arise. The silence of most of those important codes upon the subject before us, is good prima facie evidence, but not conclusive, that it was very little adopted and applied at the riod when they were formed. All the later ordinances-particularly those of Florence, Antwerp, Spain, Genoa, Middleburgh, Rotterdam, Conningsburgh, Hamburg, and Stockholm, collected by Mr. Magens contain regulations upon insurance.

pe

The French ordinance of Marine, drawn up in 1681, under the reign of Louis the Great, and under the direction of the famed Colbert, among its admirable provisions upon almost all subjects of maritime law, contains very many upon insurance. This branch of jurisprudence is treated in a masterly manner; and the principles there embodied have been little affected by all the changes of time and circumstances. This fact, thinks Mr. Duer, amounts to a direct admission, by men admirably qualified to judge, that such were the comprehensive views, such the prospective wisdom, of the authors of the original work, that, in the execution of their plan, they at once foresaw and reached the limits of theoretic excellence. The great commercial code of Napoleon Bonaparte, which is felt all over Europe, is merely based upon its notable predecessor, the ordinance of the XIVth Louis.

Insurance, having originated in Italy, would, of course, be carried away with any colonies which might migrate thence, and be introduced into other places. The Lombards are said to have carried the usage to London in the thirteenth century; a statement confirmed by a clause in the London policies of insurance, preserved down to the present day, viz.: "It is agreed by us, the insurers, that this policy of assurance shall be of as much force and effect, as the surest writing or policy of insurance, heretofore made in Lombard street." This street received its name from the merchants conducting business in it. There is no statute law in England regulating insurance, until the year 1601; when the statute of 43 Elizabeth was passed, the preamble of which refers to the practice, as one existing time out of memory, and regulated according to the usages of merchants.

Within the last two hundred years, insurance has become a great head in every system of commercial jurisprudence. Its principles,

for precision and accuracy, have almost rivaled the definitions and demonstrations of science. There is no portion of the law better constructed and more beautiful in its proportions. There is no branch of law, says Kent, that has been more thoroughly investigated, and more successfully cultivated, in modern times, not only in England, but upon the European continent. Maritime law partakes, in general, me of the character of international law, than any other. It pervades. everywhere, the institutions of that vast combination of Christian nations which constitute one community for commercial purposes and social intercourse; and the interchange of principles, and spirit, and literature, which that intercourse produces, is now working wonderful improvements in the moral and political condition of the human

race.

Treatises upon insurance are to be found in all languages. We shall hastily enumerate a few, of highest authority. The most ancient is that of Cleirac, entitled, "Le Guidon de la Mer." He was followed by those famed civilians, Pothier, Valin, and Emerigon. Benecke, a German merchant, and Rosetti, an Italian merchant, have both contributed valuable and practical works upon the subject. Malines, a London merchant, published a similar treatise in 1621. Mr. Park's work was published in 1786, Sergeant Marshall's in 1802, and Mr. Phillips', of Boston, in 1840. The third volume of Chancelor Kent's Commentaries contains several admirable chapters upon the same head; and the new work of Duer, of which we have already spoken, completes a library of insurance which leaves little, indeed, to be desired. The English and American reports almost exhaust the subject; particularly those under Mansfield, Sir William Scott, and Story. In fact, says Mr. Duer, the adjudged cases in the reported decisions of the courts of common law, in England and the United States, constitute by far the richest and most abundant source whence the law of insurance, as it now exists, is or can be derived. The subject, divested now of all question of history, presents itself for minute dissection and examination. Our original intention was to go over, in the present article, the whole field of joint-stock and mutual insurance, in their three great divisions of,

I. MARINE INSURANCE,

II. FIRE INSURANCE,

III. LIFE INSURANCE;

but the ground is so extensive, our space so limited, and the information we desired to receive from different sources, in answer to our interrogatory letters, not yet entirely received, that we have concluded to complete only the first head, at present, and leave the others for future numbers of our Review. In these, we shall refer particularly to cach company and agency in our city; and, in the mean time, would be happy for any suggestions which might be made us, in addition to what has already been afforded through the kindness and attention of several individuals in the city, engaged in this depart

ment.

MARINE INSURANCE is defined to be a contract of indemnity against the perils of the sea. The insurer, in consideration of a certain premium, undertakes to make good to the assured all losses, not exceeding a certain amount, that may happen to the subject insured, for the

POLICY OF INSURANCE.

risks enumerated or implied in the policy, during a certain voyage or period of time. The policy, then, is the instrument which regulates respectively the rights, duties, and responsibilities of all the parties. We shall examine this.

1. Form of Folicy. This is for the most part arbitrary, and varies materially in different countries, and among individuals of the same country. The essence of the policy is, however, matter of general law, and is interpreted according to the usual understanding of merchants of all countries. Ambiguous clauses are explained, upon reference to the usages of particular places, and the testimony of merchants is let in for the purpose. On the continent of Europe, the form of the instrument of insurance is regulated by strict law, to which it must accord in every particular. In England the case is otherwise; and so loose has been the custom, that an insurance policy has been over and over chastised, in Westminster, as "a most incongruous and absurd instrument.” Justice Lawrence "wondered" at its "laxity." Mansfield congratulated himself that length of time, and a variety of decisions, had cleared away its ambiguities, and reduced it to certainty. Our own Marshall thought it the most informal instrument ever brought into a court of justice. In England the policy must be in writing, according to statute; and so it ought to be presumed to be, in the United States; but there is no law which prohibits a verbal policy of insurance; nor have we a decision on the point. The printed policy is, however, universally used, with blanks, to be filled out according to the terms of each particular contract. As a general rule, if there be any incongruity, or a conflict, between the written and printed parts of a policy, the written part prevails; being the supposed intention, in the particular case. The mere ordinary form of words is applicable to all cases, indiscriminately. When an insurance is agreed upon, it is frequently the case, before the policy is completed, that a memorandum is made up, and signed by the insurer. This memorandum will be given effect in courts of justice, equally with the regular policies, if the minds of parties appear to have fully met, and the evidences of this accord are expressed in intelligible terms. If the minds of parties meet in any other way -as by correspondence-where one, in plain language, offers an insurance, and another, unequivocally, and without any reservation, accepts, the insurance will be a good and valid one. "The contract is not perfected by the assent of the applicant to the terms offered by the insurers, if that assent be accompanied by any new conditions. The assent of the underwriters to any modification of the terms proposed by them, generally speaking, must be established by the same

The differences that exist betwen the policies in use, says Duer, in different parts, or cities of the same country, or of different countries governed by the same law, are generally significant of a different intent; and affect, not merely the form, but the substance of the contract. Thus, the differences between the policies of Boston, and those of New York, vary, materially, the interpretation of the agreement. The Boston policies restrict, in some respects, the liability of the insurers, and diminish, proportionably, the rights of the assured. The policies of Philadelphia, Baltimore, and Charleston, also differ from those of New York; and, so far as we know, there is not an exact correspondence between policies in use in any two cities in the Union, In New York, the forms of the policies in use for the different subjects of insurance, are distinct and separate; and the practice deserves to be commended, as highly judicious.-Duer, pp. 64-5.

evidence as their original offer; although, under special circumstances -as when the applicant has transmitted a note for the premium-the silence of the underwriters, in their omission to inform him in due season of their dissent, and to return the premium note, might be justly held to conclude them."

Condition of the Policy.-For a premium, generally a per centage upon the whole value involved, the safety of the subject insured is guarantied. Entire good faith must exist between the parties; the insured must misrepresent nothing, nor conceal anything which would increase the risk and enhance the premium if known to the insurer. His representation must be perfectly full and fair, though he need not reveal everything, as for instance, his own impressions, or the general impressions of others, or those things which the insurer is presumed to know, etc., etc. He must answer fully every interrogatory at his peril. There are certain implied conditions in every insurance; viz. that the ship is seaworthy, that she will pursue the usual route and in the usual manner, that she will be properly officered and provided, &c.; to which are often added express conditions, that she will carry such a crew, such a number of guns, touch at certain ports, carry letters of marque, &c. Double insurance upon the same values is not allowed, unless the first insurance was of too small an amount, and in this case the second insurer is liable for the difference. Where there are two insurances on the same effects, the first insurances must be exhausted, before the second can be come upon. The solvency of a first insurer may, however, be insured. The premium need not be paid in advance. A most frequent mode is a note of hand, payable after a certain number of days. If the risk be not incurred, the premium is returned, except a small commission of some half per cent., which the insurer takes for his trouble. A clause in most policies exempts the insurer from liability for certain small losses, for instance, from those under five or ten per cent., and in some instances even from those under thirty and thiry-five per cent. If the vessel be condemned for rottenness, the insurer will be discharged. He is discharged from liability for certain perishable articles, if the loss be under a total one, such as corn, rice, tobacco, &c. ; when they are expressed in the policy by way of memorandum, and receive the name of memorandum articles. A policy like every other chose in action, says Mr. Marshall, may be assigned in equity; that is, it may pass out of the insurer with the goods and effects which it covers. Sometimes, however, a clause of the contract expressly forbids its assignment. A policy will be rendered altogether void, if altered in the slightest material manner by the insured without the assent of the insurer. A clear mistake in the wording of a policy will be corrected in Chancery. The terms of a policy of insurance are always construed in reference to the usage of the place where it is made, but the usage must be general, and thus within the supposed knowledge of both parties.

And now as to the insured and the insurer. Every man, with an interest however small at stake, however remotely, may effect insurance. Insurance, flagrante bello, of enemy's property, is a species of trading with the enemy, and favoring his cause, most reprehensible and contrary to the best understood principles of international law.