insurance be void ab initio, or the risk has not been commenced, the insured is entitled to a return of premium. If the insurance be made without any interest whatsoever in the thing insured, and this proceeds through mistake, misinformation, or any other innocent cause, the premium is to be returned. So, if the insurance be made with short interest, or for more than the real interest, there is to be a ratable return of premium. If the risk has not been run, whether it be owing to the fault, pleasure, or will of the insured, or to any other cause, the premium must be returned, for the consideration for which it was given fails." If the vessel never sailed on the voyage insured, or the policy became void by a failure of the warranty, and without fraud, the policy never attached; but if the risk has once commenced, though the voyage be immediately thereafter abandoned, there is to be no return or apportionment of premium. And if the premium is to be returned, it is the usage in every country, where it is not otherwise expressly stipulated in the policy, for the insurer to retain one half per cent. by way of indemnity for his trouble and concern in the transaction."

The insurer retains the premium in all cases of actual fraud on the part of the insured, or his agent. So, if the trade be in any respect illegal, the premium cannot be reclaimed. If the voyage be divisible, there may be an ap portionment of the premium, and if the risk as to the onc part of the voyage has not commenced, the premium may

a Tyrie v. Fletcher, Cowp. 666. Loraine v. Thomlinson, Doug. 585. 8 Term Rep. 156. arg. Holmes v. U. Ins. Co. 2 Johns. Cas. 329. Taylor v. Sumner, 4 Mass. Rep. 56.

b Emerigon, tom, ii. 154. Phillip's on Insurance, 503. Code de Commerce, art. 349. Hendricks v. Com. Ins. Co. 8 Johns. Rep. 1. c Tyler v. Hern, Park on Insurance, 285. Chapman v. Fraser, Marshall on Insurance, 652.

d March v. Abel, 3 Bos. & Pull. 35. Van Dyck v. Hewitt, 1 East's Rep. 96.

be proportionally retained. But the premium cannot be divided and apportioned, unless the risks were divisible and distinct in the policy. If the voyage and the premium be entire, there can be no apportionment. It is requisite that the voyage, by the usage of trade, or the agreement of the parties, be divisible into distinct risks; and, in that case, if no risk has been run as to one part, there may be an apportionment of premium.

The French code provides for the apportionment of premium, in the case of an insurance on goods, when part of the voyage has not been performed. M. Le Baron Locré, in his commentary upon this article, vindicates it by very ingenious reasoning, which M. Boulay Paty thinks, however, does not remove the difficulty, and he contends, that such a provision is contrary to a principle of the contract, that when the risk has once commenced, the right to the entire premium is acquired.

IV. Of the writers on insurance law.

I have now finished a survey of the leading doctrines of marine insurance, which is by far the most extensive and complex title in the commercial code. There is no branch of the law that has been more thoroughly investigated, and more successfully cultivated in modern times, not only in England, but upon the European continent. Maritime law, in general, partakes more of the character of international law, than any other branch of jurisprudence; and I trust I need not apologize for the free use which has been made, for the purpose of illustration, not of English authorities only,

a Stevenson v. Snow, 3 Burr. Rep. 1237. Long v. Allen, Marshall on Insurance, 660. Donath v. Ins. Co. of N. A., 4 Dallas' Rep. 463. Ogden v. Firem. Ins. Co. 12 Johns. Rep. 114. Phillips on Insurance, 503-510.

b Code de Commerce, art. 356.

c Cours de Droit Commercial Maritime, tom. iv. 98, 99.

but of the writings of other foreign lawyers, and the decisions. of foreign tribunals, relative to the various heads of the law merchant. I am justified, not only by the example of the most eminent of the English lawyers and judges, but by the consideration, that the law merchant is part of the European law of nations, and grounded upon principles of universal equity. It pervades every where the institutions of that vast combination of Christian nations, which constitutes 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.

The general principles of insurance law rest on solid foundations of justice, and are recommended by their public utility; and yet 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." It was equally a stranger to the early maritime codes compiled on the revival of arts, learning, and commerce, at the conclusion of the middle ages. The Consolato del Mare, the laws of Oleron, and the laws of the Hanseatic association, were all silent upon the subject of the contract of insurance. The first allusion to it is said to have been made in the latter part of the fourteenth century, and where we should not, at that early age, have first expected to find it : in the laws of Wisbuy, compiled in the Teutonic language, on the bleak shores of an island in the middle of the Baltic sea. It is so necessary a contract, that Valin concludes,

a 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. Bynk. Quæst. J. Pub. lib. 1, c. 21. Emerigon, des Ass. Pref.

b The allusion to marine insurance in art. 66, of the Laws of Wis

maritime commerce cannot well be sustained without it, for no prudent ship-owner would be willing to risk his own fortune, and that of others, on an unprotected adventure at sea. The business of uncovered navigation or trade, would be spiritless or presumptuous. The contract of insurance protects, enlarges, and stimulates maritime commerce; and under its patronage, and with the stable security which it affords, commerce is conducted with immense means, and unparalleled enterprise over every sea, and to the shores of every country, civilized and barbarous. Insurers are societies of capitalists, who are called by their business to study, with profound sagacity, and with exactness of calculation, the geography and navigation of the globe, the laws of the elements, the ordinances of trade, the principles of international law, and the customs, products, character, and institutions of every coun

buy, is so obscure or equivocal, that the most celebrated jurists have differed in opinion, as to the origin of the contract. Cleirac, in his commentary on that article of the Laws of Wisbuy, applies it directly to insurances; and he had studied that compilation thoroughly, for he translated it into French, from the old German, or Tudesque language, in which the code had been preserved to his day. In the collection of Sea Laws, published at London under Queen Anne, the article, as translated, applies to marine insurance. Emerigon, also, in the preface to his treatise, gives that construction to the article, and he and Cleirac are great authorities on the point. On the other hand, Emerigon admits that Stypinannus, Gibalinus, Ansaldus and Casaregis, would not allow that the use of insurances was introduced into commerce until towards the fifteenth century; and Valin intimates, that the contract of insurance came from the Italians, and passed from them to the Spaniards, Dutch, and other commercial nations. Malynes, as early as 1622, traced the practice of insurance from Claudius Cæsar to the inhabitants of Oleron, and then to Antwerp and London. Cleirac's les Us et Coutumes de la Mer. p. 155. Malynes' Lex Mercatoria, part 1, 105. Emerigon, Traité des Ass. Pref. Valin's Com. tom. ii. 27. Bynkershoeck said, he had no evidence that the contract of insurance was in use in Holland in the fifteenth century, though he found it to have been in established use by the middle of the following century. Quæst. J. Priv. lib. 4, ch. 1.

try, where tide waters roll, or to which winds can waft the flag of their nation."

Many of the states and great commercial cities of Europe, in the early periods of modern history, made and published ordinances relating to insurance, and most of them have been collected in Magen's Essay on Insurance, published in 1755. The most important of these compilations, were the ordinances of Barcelona, Bilboa, Florence, Genoa, Antwerp, Rotterdam, Amsterdam, Copenhagen, Stockholm, and Koningsberg, as well as royal ordinances of the kings of France, Spain, and Portugal. They are authentic memorials of the prosperity of commerce, and evidence of the early usages in respect to a contract governed by general principles of policy and justice. We may also refer to the decisions of the Rota of Genoa, (of which so much use is made by Roccus,) to show how early and extensively insurance questions became a source of litigation and topic of discussion in the courts of

a The French lawyers have described the contract of insurance in strong and eloquent language. C'est une espece de jeu, said Emerigon, truly and gravely; qui exige beaucoup de prudence de la part de ceux qui s'y adonnent. Il faut faire l'analyse des hazards, et posseder la seience du calcul des probabilities; prévoir les ecueils de la mer, et ceur de la mauvaise foi; ne pas perdre de vue les cas insolites et extraordinaires ; combiner le tout, le comparer avec le taux des primes, et juger quel sera le resultat de l'ensemble. But the French counsellors of state, Messrs. Corvetto, Bégouen, and Maret, in their report to the legislative body, on the 8th September, 1807, declared, that Ce beau contrat est le noble produit du génie de l'homme, et le premier garant du commerce maritime. Il a consulté les saisons; il a porté ses regards sur la mer; il a interrogé ce terrible element; il en a jugé l'inconstance; il en a presenti les orages; il a épié la politique; il a reconnu les portes et les côtes des deux mondes; il a tout soumis a des calculs savans, à des theories approximatives, et il a dit au commercant habile; au navigateur intrepide: certes il y a des desastres sur lesquels l'humanité ne peut que gemir; mais quant à votre fortune allez, francissez les mers, déployez votre activité et votre industrie : Je me charge de vos risques.