Page images

overlooked; and it is not improbable, that, in some instances, cases have been misunderstood, and opinions inaccurately represented. I have endeavoured to prevent such omissions and mistakes from being very numerous. Although I have not hesitated to express my opinions and reasons without reserve, and without, at the same time, testifying my respect for those from whom I have differed, not thinking that the occasion required any declaration of this sort; yet I have not thought it necessary, in all cases, to state what I understood to be the law. In many instances, the diverse opinions of judges, and of writers, are given without any comment, or any intimation in regard to the preponderance of authority or reasons, in favour of either side of a question. It would doubtless have been more prudent, on my part, and perhaps not less acceptable to my readers, had I more frequently pursued this course. Where different opinions are thus cited in regard to particular doctrines, and so, in many cases, where opinions are cited without any comment, or reference to opposite opinions, it is left wholly to the judgment of the reader, to adopt or reject the doctrine in dispute, or the opinion stated, as he may be determined by the reasons or authority. I do not wish to have the mere circumstance of stating a doctrine or practice, considered as necessarily implying my own opinion respecting it. In many cases the reasons stated by the judges or writers quoted, and the comparative authority on the different sides of a question, leave the mind free from any doubt, in judging of what is the law. Some parts of the subject of insurance have not, as yet, been pursued beyond the mere rudiments, and still rest upon broken hints, and general and hasty suggestions; in such cases, to arrive at any satisfactory conclusions, would require elaborate investigation, and a longer argument and more discursive speculation, than can conveniently find a place in an elementary work. In considering a proposition to be law, or not to be so, the mind is necessarily determined by the reasons and the authority, in its favour, or against it. If the inquiry relates to a disputed point of which a particular court has jurisdiction, the question is, not merely what reasons or weight of authority there may be in favour of either side, but, also, what would probably be the decision of that particular tribunal. In such a case, and for the purpose of the inquiry, the authority of that tribunal outweighs all opposite authority and reasons.


When the inquiry does not relate to the probable decision of any one tribunal, different persons must necessarily adopt different modes of determining what is law. If a person supposes himself not to be skilful and well informed, in regard to the subject under consideration, he can only adopt the opinion of the judge or writer, whose judgment he thinks it the most safe to follow. He must decide upon authority merely, and be implicitly guided by the opinions of those men whom he supposes to have had the best means, and to have been the most capable, of judging, and to have formed their opinions the most deliberately, and after the most thorough investigation. In proportion as a person considers himself skilful and competent to judge, he is the less determined by mere authority. But very few persons consider themselves to be so perfectly masters of any branch of legal science, as to throw off all restraint of authority; and those who are, with good reason, the most confident of their skill and knowledge, are usually, in forming their opinions, influenced, more or less, by authority, according to the particular subject of inquiry. In most cases it is necessary to take into consideration what has been practised and decided, since the mere fact that a thing has been decided or practised in a certain manner, is, in itself, a reason, of greater or less weight, for continuing the same practice, or adhering to the established doctrine.

In many branches of the law, precedent, as such, and independently of the reasons upon which it was formed, is entitled to great respect, and is not unfrequently conclusive of the law. But where a decision or opinion rests upon a certain principle, the applications of which, in different instances, must be consistent, and also conformable to other acknowledged principles; precedent has less weight. Concurrent decisions, however numerous they may be, cannot establish a conclusion, which is drawn from insufficient premises; or cause inconsistent propositions to be law. A very great part of the law of insurance consists of deductions from certain principles, which constitute a science, in regard to which, mere precedent cannot have very great influence, since deductions inaccurately made, lead to contradictions and inconsistencies, which no authority can vindicate. In some branches of this subject, precedent is of authority and weight, but the greater part of the doctrines comprehended in this science, must stand exclusively upon the reasons and fixed principles, from which they are inferred. The inferences which may be clearly drawn from those principles, are not

[ocr errors]

made to be law, and cannot cease to be law, in consequence of any number of decisions, by whatever authority they may be supported. Notwithstanding a diversity of opinions and judgments, those doctrines still remain the unvarying and unalterable law, and they need but to be presented with the reasons on which they depend, to receive the assent of a mind which is capable of perceiving their mutual connection and dependency. No branch of law can more properly be denominated a science, than insurance; and since this contract is substantially the same in different countries, and continues to be the same now that it was formerly, the decisions of courts, whether ancient or modern, and the opinions and reasonings of writers, whether American, English, Italian, or French, are equally applicable to it.

Although much has been written, and a very considerable number of cases decided, upon the subject of losses, still this branch of insurance is not very satisfactorily investigated, and settled, in the books. I have endeavoured to acquaint myself more fully with it, by communication with experienced and eminent insurers. In this respect I am under great obligations to several gentlemen; in particular, to CHRISTIAN MAYER, Esq. President of the Patapsco Insurance Company of Baltimore; and especially to the late Hon. GeoRGE CAbot, President of the Boston Marine Insurance Company, who, during his life, took a friendly interest in my labours, and was always ready, in the most obliging manner, to discuss the subjects of inquiry which I proposed, and gave me, as far as he could, all the advantage of his scientific views, accurate discrimination, and long experience. I do not, however, wish that any particular parts of the work should be understood to have the sanction of his authority, nor that any of the other gentlemen above alluded to, should be considered responsible for any of the doctrines laid down, or any of the statements respecting usage and practice.

W. P. Boston, August 7th, 1823.

« PreviousContinue »