surance.* This doctrine is evidently unjust in a belligerent nation that insures for neutrals and both unjust and impolitic in a neutral nation that insures for its own citizens. I might also animadvert upon the doctrine by which the owner of a ship is allowed the benefit of the clause in a policy of insurance against barratry of the master,† thus enabling him to throw upon third persons the responsibility which the law imposes upon him for the acts of his servant; also that which impairs the obligation of a first contract of insurance, by compelling successive underwriters to contribute, when the property is overinsured; the narrow construction given to

* Bernardi v.Motteux, Dougl. 554. Lothian v.Henderson, 3 Bos. & Pul. 499. † Havelock v. Hancill, 3 Term. Rep. 277.

Marshall on Insurance, 146. There is no maxim better established in English jurisprudence and, indeed, in that of all the world, than that Judges are not to make the law, but to expound it, and that they are by no means to substitute for it their own ideas of right or wrong. But here is a very strong example to the contrary. The law had been settled in England in the case of the African Company v. Bull, (1 Shower, 132. Gilb. 238,) and the custom, says the reporter, had been proved plainly and fully by all the exchange, that the first underwriters in a case of over insurance, were to pay the loss to the extent of their policy, and the others successively, until the whole loss was satisfied. Yet, Lord Mansfield, yielding to a sudden notion of superior equity, in two successive cases at Nisi Prius, Rogers v. Davis, and Davis v. Gilbert, (Beawes L. M. 242) thought proper to set aside the established law, and to introduce the principle of contribution, because there was something equalising in it that struck his fancy. If he had taken the trouble to consult the foreign writers, with whose works at other times he appeared familiar, he would have found that the rule which he thus abolished, was not only the law of England, but that of all the commercial world, and if he had reflected upon the subject, which he was well able to do, he would have been satisfied that he was not at liberty to modify the contract between the insured and the first underwriters, it being a complete bargain and sale of eventual profit on the one side and of indemnity on the other. (Roccus, de assec. note 3.) His reputation, however, sanctioned the new principle, I am sorry to say, not only in England but in this country, and the con

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the words "perils of the sea"* and a multitude of other anomalies differing from the general law received by all the commercial world besides, and which in theory, at least, is a part of the common law."+

sequence has been that our underwriters are compelled to insert in their policies, a special clause which makes the old doctrine the rule between them and the insured. I presume that the same thing takes place in England. Mr. Marshall remarks that the custom proved by all the exchange seems now to be forgotten. (Marsh. 149.) They may, however, do in England as they please; but the question in this country is, are we bound by such decisions? I leave the answer to those who are competent to give it.

* Marshall, 487.

† Mr. Ingersoll, in his interesting Discourse on the influence of America on the mind, delivered before the American Philosophical Society, on the 18th of October last, has justly observed that "British commercial law is, in many re"spects, inferior to that of the continent of Europe." p. 35. When it is considered that Great Britain is beyond a doubt the first commercial nation in the world, this assertion may appear very bold, and yet it is perfectly correct. A great number of mistaken and erroneous decisions and opinions of the English tribunals in cases of commercial law may be pointed out in the books of Reports, going no farther back than Lord Holt's decision in Clerke v. Martin (2 Ld. Raym. 757,) in which that great Judge, who in other respects is highly entitled to our veneration, thought he had discovered that promissory notes or notes to order, were not within the custom of merchants, but had been invented by the brokers in Lombard street; while it is well known that even the canon law recognised them as mercantile instruments and as a species of bills of exchange, so early as the year 1571. (See Pragmatic of Pope Pius V. De Cambiis;) and it is also known that at the time, when Lord Holt declared these instruments to be a late English invention, the celebrated commercial ordinance of Lewis XIV. of the year 1673, had been thirty years before the world, in which promissory notes were recognised and classed with bills of exchange, and in fact they had been in use for more than one hundred years among merchants throughout Europe. And yet at this day it would, perhaps, be error in an English Court to declare on these notes as on the custom of merchants. Lord Mansfield is celebrated for his improvements on English mercantile law; he was certainly a man of the most extraordinary genius; but he was not sufficiently acquainted with the subject either by study or by experience, and so committed a number of mistakes, and his successors have done the same, often by pretending to correct his decisions in cases in which his luminous mind had directed him right. It is important to Americans to know these truths: If I am allowed life and leisure, I may one day develop them in such a manner as will leave no

Whatever may be the cause from which these defects arise, they disfigure a system which, without them, would be the most perfect, and even with them, is, taken all in all, the noblest in the universe. It is in our power to correct these faults, to shew to a great, learned, and intelligent nation their own common law improved by their sons, and thus to repay them for the benefit they have bestowed by imparting it to us.

It is understood that Congress are seriously thinking of exercising the various and important legisla tive powers entrusted to them by the Constitution. A criminal code is said to be in contemplation. It is to be hoped, that under their general power to regulate commerce, they will enact an uniform maritime and commercial code, and that in preparing it they will avail themselves of the wisdom of all the commercial nations. They will remember what was said by the great Lord Mansfield in the case of Hamilton v. Mendez, "that the daily negotiations of merchants ought not to depend on niceties and subtleties, but on rules and principles founded on the dictates of common sense."*

doubt of the correctness of Mr. Ingersoll's assertion. All this has proceeded from endeavouring to apply to the liberal system of mercantile law, the quaint and subtle theories of the old common law jurists, and from disdaining to obtain knowledge from the works of foreign legislators and juridical writers.

* 2 Bur. 1214. Sixteen years afterwards, the same illustrious Judge, in the case of Buller v. Harrison, in an unguarded moment, ventured to assert, that "it is of much more consequence that mercantile questions should be fully set"tled and ascertained, than which way the decision is." Cowp. 567. This last opinion has been but too much followed, while the first seems to have been almost entirely forgotten, and yet, nothing is more certain than that of all the branches of jurisprudence, there is none more easily reducible to clear principles than mercantile law.

If American jurists wish to obtain the respect of those of Great Britain, it is not by servilely echoing their decisions and opinions; it is by shewing them that the science of jurisprudence is not exclusively theirs, by decently contradicting them when a proper occasion offers, and by correcting their errors when discovered, at the same time submitting to their just correction of our own.

It must not be believed that the writings and opinions of our jurists are not noticed by the men of mind of our profession in that country. In the year 1803, the doctrine of conclusiveness of the sentences of foreign Courts of admiralty was to all appearance finally and solemnly settled, on long and elaborate arguments, in the House of Lords, in the case of Lothian v. Henderson.* About that time this doctrine, fatal to our neutral interests, was much discussed in this country, and its discussions drew forth the talents of Judge Livingston, Judge Cooper, Mr. De Witt Clinton, the late Mr. Dallas, and several others. In the year 1808, notwithstanding the solemn determination that I have mentioned, we find this doctrine shaken almost to its foundation by two decisions of the Court of King's Bench in Fisher v. Ogle and Donaldson v. Thompson† In one of those cases, Lord Ellenborough observed,that "it was by an overstrained comity that foreign sentences had been received as evidence of the facts which they averred;" and in the other, that "he should die with Lord Thurlow in the opinion

* 3 Bos. & Pull. 499.

† 1 Campb. N. P. 418. 429.

that they should not have been so received." This sudden change of sentiment in the English Supreme Bench can only be ascribed to the effect of the writings of American jurists. About the same period, but before these decisions were given, Sir Charles Abbott, now chief justice of that Court, was writing his able treatise on the law relative to merchant ships and seamen, in which this doctrine of the conclusiveness of foreign sentences came in. cidentally under his view. After stating, as usual, that it is founded on an "established rule of the law of nations," he concludes, nevertheless, with saying, that the Courts of justice in his country have adhered to it "with the dignity belonging to regular and permanent establishments." It is impossible not to perceive that this apology and the sarcasm that accompanies it were not meant for his countrymen. If the doctrine in question was founded on an established rule of the law of nations, it wanted no apology of any kind, much less was it necessary to speak of the "dignity of regular and permanent establishments." This was evidently meant as a proud answer to the American jurists who had written on this question and had demonstrated the injustice which was done to neutral sub

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"It would be unjust to charge the master or owners for some cases of "omission, upon which ships were condemned in France during the late war, although the terms of the condemnation were such as to discharge the insu"rers from their responsibility, according to the rule of the LAW OF NATIONS, "which holds the sentence of a foreign Court to be conclusive of the fact on "which it is founded, and to which rule the Courts of justice in this country "adhered with the dignity belonging to regular and permanent establish"ments." Abbott on Shipping, 263. See above, p. 15.