Denham or a Parry's success." Panatius was the original author of the substance of Cicero's Offices, as Cicero himself acknowledges; and that consummate work, in its turn, became the foundation of all that Grotius, Puffendorf, Cumberland, and a thousand other writers, have laid down as the deductions of right reason, concerning the moral duties of mankind. No person would think of compiling a code of ethics without at least visiting the shades of Tusculum, and still less would he think of erecting a temple to jurisprudence, without adorning it with materials drawn from the splendid monuments of Justinian, or the castellated remains of feudal grandeur. The literature of the present day, "rich with the spoils of time," instructs by the aid of the accumulated wisdom of ages.

a In the immense collection which was published at Amsterdam in 1669, of the various works of Straccha, Santerna, and others, on nautical and maritime subjects, we have laborious essays, replete with obsolete learning, on different branches of commercial law, of no less than twenty Italian civilians, whose works are now totally forgotten, and even their very names have become obscured by the oblivion of time. Subsequent civilians may have erected stately tomes from the matter which their ruins have furnished.

LECTURE XLVII.

OF THE LAW OF MARINE INSURANCE.

MARINE insurance is a contract whereby one party, for a stipulated premium, undertakes to indemnify the other against certain perils, or sea risks, to which his ship, freight, and cargo, or some of them, may be exposed, during a certain voyage, or a fixed period of time.

In the consideration of a title in the law of such extensive concern, and upon which so many learned volumes have been exhausted, it has been found difficult to bring the subject within manageable limits, and suitably restricted for the object of these lectures. It has been my endeavour to state the leading principles of the contract, and to dwell upon such parts only as are best adapted for elementary instruction.

The subject will be considered under the following arrangement (I.) Of the formation and subject matter of the contract. (II.) Of the voyage in relation to the policy. (III.) Of the rights and duties of the insured in case of loss.

I. Of the formation and subject matter of the contract. (I.) Of the parties.

All persons, whether aliens or natives, may be insured, with the exception of alien enemies, for it is a contract authorized by the general law and usage of nations."

It was

a Pothier terms it a contract du Droit des Gens.

for a long time an unsettled question in the English law, whether the insurance of enemy's property was lawful. In the year 1741, a bill was brought into Parliament to prohibit insurances on the property, of the subjects of France, then at war with Great Britain; and the propriety of such a restriction was much discussed, and the bill was dropped. But in 1748, such a bill passed into a law." It prohibited, under a penalty, the assurance on ships or merchandises belonging to France, and the contracts for such policies were declared void. The statute of 33 Geo. III. c. 27, was to the same effect," though much more severe in its penalties. Those statutes were temporary, and applied only to the then existing war, and they left the question still undecided as to the legality of such insurances independent of statute.

Lord Hardwicke, in the year 1749, declared," that there had been no determination that such insurances were unlawful, and that it might be going too far to say, that all trading with enemies was unlawful, and that there had been several insurances of that sort during the war of 1741. But in Brandon v. Nesbit, the Court of K. B. gave a fatal wound to the opinion, that the insurance of enemy's property was lawful, though that opinion had received considerable currency under the sanction of the great name and influence of Lord Mansfield. It was certainly without any just foundation, either in the English, law, or in the established policy and principles of the law of nations. That case was a suit on a policy of insurance, brought in the name of an English agent, for his principal, who was an alien enemy; and it was adjudged, that no action could be maintained either by, or in favour of an alien enemy. The case of Bristow v. Towers

a Stat. 21 Geo. II. ch. 4.

Henkle v. The Royal Exchange Assurance Company, 1 Vesey's Rep. 317.

c 6 Term Rep. 23.

d 6 Term Rep. 35.

was still more directly on the point, and the legality and expediency of insurances of enemy's property were discussed very much at large, and with great ability and learning. The decision of the court was put upon the strict ground, that the insurance of enemy's property was illegal, and no action could be sustained on such a policy. A distinction was afterwards taken in Bell v. Gilson, where it was held, that the insurance of goods purchased in an enemy's country during war, by a British agent, and shipped for British subjects, was a lawful insurance. But every distinction of that kind was subsequently abandoned; and in the case of insurances on French property previous to war, they were held not to cover a loss by British capture after the war was renewed, even though the action was not brought until after the restoration of peace. It was declared, that an insurance of enemy's property, as well as all commercial intercourse with the enemy, was, at common law, unlawful, and that an insurance, though effected before the war, made no difference, as a foreigner might otherwise insure previous to the war, against all the evils incident to the war. Insurances of enemy's property had been indulged, but never were legal. The judicial language at last was, that such insurances were not only illegal and void, but repugnant to every principle of public policy. The former opinion in favour of the expediency of such insurances, had never yet produced one single judicial determination in favour of their legality.

All the continental ordinances and jurists, concur in the illegality of such insurances. Bynkershoek, in a chapter

a 1 Bos. & Pull. 345.

b Furtado v. Rodgers, 3 Bos. & Pull. 191. Gamba v. Le Mesurier, 4 East's Rep. 407. Brandon v. Curling, ibid. 410.

c Lord Ellenborough, Kellner v. Le Mesurier, 4 East's Rep. 396. Lord Erskine, Ex parte Lee, 13 Vesey's Rep. 64.

d The ordinances of Barcelona, as early as 1484, declared such insurances void. Consulat de la Mar. par Boucher, tom. ii. 717. See also, Le Guidon, ch. 2, sec. 5, in Cleirac, Us et Coutumes de la Mer.