INSURANCE. 



known in IJO?' "''^s" the ordinances of the Hanfeatic 

 lie were framed, nor in 1614, when fevtral new regula- 

 ; were added ; bccaufe, though the coiitraft of bot- 

 r\- is mentioned in thefe regulations, there is not a word 

 !.o fub'ieft of infurance, nor does any thing certain occur 

 th > collection of maritime laws, intitlcd " II Confolato del 

 M.irc," written in the Catalonian dialeft, partly framed in the 

 I ith, bat for the moll part in the 15th century, and pub- 

 lilud at Leyden in 1704. (Sec Marine Law.) Some 

 . ■ faid, without fufficient authority, that the pradice of 

 ance was introduced by the Jews in 1182 ; and others 

 ■ fought its origin about the year 1560, in the great 

 woollen commerce that fublifted between England and the 

 i Netherlands. But as the maritime commerce of the Ita- 

 [ lian ftates appears to have been carried on to a very coniider- 

 \ able extent about the end of the I ^ih century, it is very 

 f probable that infurance came into ufe in Italy about that 

 ' time. From thence it was tranfplanted into all the coun- 

 l tries where the Lombards had eltabliihed their trading com- 

 i panics. One of thefe companies fettled in London, and 

 ! TTom them Lombard-ftrcet in that capital took its name. 

 According to Malyne infurance was introduced into Eng- 

 land by the Lombards fomewhat earlier than into the neigh- 

 bouring countries on the continent ; and in proof of this, he 

 fays, that even Antwerp, in its meridian glory, borrowed 

 infurance from England ; and that, do\vH to the time in 

 which he wrote (1622), there was, in every policy made at 

 Antwerp, and other places in the Low Countries, a claufe 

 inferted, that it fhould be in all things the fame as policies 

 made in Lombard-llrcet, in the city of London ; the place 

 where the Lombards are known to have firll fettled, and 

 carried on their commerce in England, and where the mer- 

 chants of London ufed to hold their meetings before the 

 Royal Exchange was built. Anderfon ( Hill, of Com- 

 merce) fays, that the vaft commerce carried on about the 

 middle of the l6th century, between England and the Ne- 

 therlands, introduced the practice of infuring from lolTes by 

 fea, by a joint contribution. But the preamble to the 

 flatute 43 Eliz. c. 12, already cited, which ftatute was 

 pafled in 1601, dillinctly ftates, that it had been an '• imme- 

 morial ufage" among merchants, both Englifh and foreign, 

 when thev made any great adventure, to procure infurance 

 to be made on their lliips or goods adventured. From this 

 it m.ay be reafonably fuppofed, that infurance muft have been 

 in ufe" in England long before the middle of the preceding 

 century. The law of infurance, fays Mr. Marlhall (ubi 

 infra), is cenfidered as a branch of marine law ; and it is alfo 

 a branch of the law of merchants (fee Law) ; and it may 

 be coUefted from thefe two fources in the ordinances of dif- 

 ferent commercial ftates, in the trealifes of learned autliors 

 on the fubjett of infurance, and in judicial docifions of this 

 countrv, and alfo of others profcfung 10 follow the general 

 marine law and the law of merchants. The earlieft ordinance 

 jiow extant on the fubjeft of infurances is that of Barcelona, 

 fuppofed to have been publiflied about the year 145 J. The 

 next ordinance on this fnbjciSt was publilhed at Florence in 

 the beginning of the year IJ23. The emperor Charles V. 

 in 1551 publilhed feveral regulations concerning maritime 

 commerce, called the " Caroline" code,- to which his fon 

 Philip 1 1, added anumberof new ordinances in 1^63 and 1565. 

 Magens, in his "Treatife on Infurance, Average, and Bot- 

 tomry," publirtied at Hamburgh in 1753, has collected 

 many of thefe ordinances ; but the moft complete fyilem of 

 pofitive law for the regulation of infurances, that has yet 

 appeared in any country, may be found in t-he celebrated 

 ordinance of the mariuc of Louis XIV., pubbllicd in 1681. 



The ftatutes pertaining to thia fubjca, which have been 

 enaded in England, have not been numerous ; and, fherefi);-c, 

 the praftice among us has been found moft conforraable'to' 

 the general ufage of trade. As to treatifes on infurance, thfc 

 earheit now extant is that entitled " Le Guidon de la Mcr," 

 \yhich is found in the colleaion of marine inC.itutions, pub- 

 liflied at Rouen in 1671 by Cleirac, under the title of " Les 

 Us et Coutumes de la Mer." This is fuppofed to have been 

 written about the jjth century. In France, Valin, Pothier, 

 and Emerigon, have written on this fubjed. The treatife 

 of the latter is, in the judgment of ferjeant Marlhall, the moil 

 ufeful to an Englifh lawyer of all the foreign publications 

 on this fubjcft. Roccus, Cafaregis, Locennius, Bynkerf- 

 hock, and Santerna, have alfo pubhlTied treatifes oa this 

 lubjed. We have alfo in England detached obfervations 

 on mfurance in the treatifes of Malyne, Molloy, Beawes, 

 Poftlethwaite, and fome other.? of lefs note. Mr. Marens' 

 a merchant, in 173,-, republilhed in two volumes 4tot his 

 "Effayon Infurance," which he had before pubhihcd in 

 German at Hamburgh. Mr. Millar, a learned advocate at 

 the Scots bar, pubhflied at Edinburgh, iu 1787, the " Ele. 

 mcnts of the Law relating to Infurances ;" Mr. Park has alfo 

 given to the world his excellent " Syftem of the Law of In- 

 furances;" and in 1802 the public was favoured by Sa- 

 muel Marlhall, ferjeant at law, with his " Treatife on the Law 

 of AITurance," in 4 books, containing an ample account of 

 every thing that is elTentially neceftiiry to be known on this 

 fubjed. As to judicial decifions, none of thefe are con- 

 fidcred as binding authorities in our fuperior courts, exccnt 

 fuch as have been there determined ; and even thefe may b?? 

 re-confidered and over-ruled. Before the pafling of the ad 

 of queen Elizabeth, above cited, alnioft all difputes, arifmg 

 upon contrads of infurance, were fettled by arbitration, and 

 without recurring to any legal proceedings. And there 

 feems to have been a particular tribunal for fuch arbitrations, 

 eftabhflied in London, compofed of perfons annually ap- 

 pointed by the lord mayor. From Malyne we learn that 

 there was an '< office of alTurances," on the weft fide of the 

 Royal Exchange, where infurances were made ; and to this 

 office belonged certain commifltoners, who were annually 

 appointed. The authority of thefe commifiioners was co::- 

 firmed by ad of parliament, in the latter period of the reign 

 of queen Elizabeth. (See Court of rolicies of AJurame.) 

 This court gradually funk into diirepnte, and all fuits on 

 policies of infurance were preferred in the courts of common 

 law. After fome of the decifions of the courts of Weftmin- 

 fter, on queftioiis of infurance, came to be generally known, 

 the confidence which the juftice, impartiality, and ability 

 of thofe courts infpired through Europe, foon induced the 

 merchants of all countries to prefer Englifli infurances to 

 thofe of any other country. 



The parties to the contrad of infurance are the infured 

 and the infurers. In this country, all perfons, whether Bri- 

 tifii fubjeds or aliens, may, in general, be infured. The 

 principal, if not the only exception to this rule, is the cafe 

 of an alien enemy. The infurance of the (hips and mer- 

 chandize of France, during a war with that country, 19 

 prohibited by 21 Geo. II. c. 4; and by 33 Geo. III. 

 c. 27. j 4, which latter ftatute not only declares fuch in- 

 furances to be void, but alfo fubjeds the parties concerned 

 in them to three months' imprifonment. The policv of this 

 prohibition was liowcvcr difputcd in 1741, by fir John 

 Barnard, and in 1 748 by fir Dudley Rider and Mr. Murray, 

 then attorney and folicitor-gencral. But their objedioi'is 

 were ovcr-rujed. Neverthelcfs, it appears that a neutral, 

 though rcfiding in tJie enemy's country, and carrying on 

 D d 2 trade- 



