scientific investigation; nor is it now, in some of its relations, well understood; but it is found to be in universal operation. It may be stated simply as the rule, that irregularities of all kinds tend to compensate for each other. Wherever there is a law, there are exceptions to it; and these exceptions seem to be lawless; but it is not quite so. They are connected together by a kind of law among themselves, which, in the end, and viewing them in the mass, subjects the exceptions themselves to rule and measure and calculation. This law, not yet well understood, is nevertheless distinctly perceived. We find it wherever we look for it. We know not what the temperature or weather of any day may be; but the months of one year differ from the corresponding months of another year within far narrower limits; and a whole year differs from any other still less; and thus the average rainfall, heat, or cold of any place is determinable; and the variation from it in different years is very slight in comparison with the difference from day to day. In a great city like London there is a marvellous uniformity, year by year, not only in the gross number of letters mailed, but in the several exceptions which would seem to be purely casual; the percentage of letters unsealed, not directed, or illegibly directed, or not delivered because addressed to persons who cannot be found, being very nearly the same in every year. So it is with crimes, with accidents, with diseases, with life and death.

It has been already said, that this law is not yet well understood; but its universality compels its recognition. And it is difficult to believe that this uniformity in accidents and exceptions, as in the weather of a long period, in the London letters, in diseases and births and deaths, and in the fact now asserted by science, that while every planet moves abnormally, and affects every other irregularly, these abnormalities do so exactly compensate each other as to give stability to the system, it is difficult to believe that these and all facts of like kind are not governed by some underlying and all-embracing principle.

This law is applied to the business of insurance, and becomes indeed its foundation, in this way. If a ship sails from New York for Calcutta, it would be impossible to predict with any certainty whether she would ever return, or what or where would be the cause of her loss, if she did not return. Take ten ships, and there

arises some probability as to all of them. Take a hundred, and this probability becomes far greater. Take a thousand, and this probability becomes a rule. And if we could take the whole commerce of this country, we should find this rule cognizable, definite, and entirely trustworthy.

A consequence of vast practical importance to the business of insurance is this: the greater the extent of the business, or the greater the number of risks insured, or, in yet other words, the greater the mass of risks on which the rate of insurance is calculated, the safer and more trustworthy is that calculation.

It follows, obviously, that the rules and methods of insurance should be so adjusted, and so construed, as to give the greatest possible enlargement to the business. And I have ventured to dwell at some length on these principles, because they have had a most important influence upon the laws and practice of insurance.

Take, for example, the great subject of sea-worthiness, which must occupy many pages in this work, and in regard to which the cases are very numerous. The general rule is, that a ship must be sea-worthy; and this is a condition precedent, without which the policy does not attach. Then the general meaning of seaworthiness is a fitness to encounter safely the ordinary perils of the voyage, or the time, for which the ship is insured. Now, when a loss occurs, and brings up this question of unseaworthiness, it is plain that the decision may be erroneous in either of two ways. Let us first suppose that it is too liberal, or lax, in favor of the insured. What would be the tendency of such a decision, or of many such, if they became numerous enough to constitute a rule? Such a rule would, of course, favor the careless, if not the fraudulent ship-owner. A vessel so far weakened by age or previous misfortune, or so imperfectly manned or provided with the necessary equipment, that she is not sea-worthy in any just sense of the word, goes to sea because she can be insured, and imperils her cargo and her crew. A ship which has done her work, and ought to be broken up, goes on still, with the purpose, or the hope perhaps, of the owners, to "sell her to the underwriters," to use a common phrase. Now it is obvious that insurers must be paid for their risks. Premiums are not specifically adjusted to each case, except in some slight degree. They must, on the large scale, be founded upon general rules and estimates. And any such unfit

vessels as enter into the business of insurance must have some effect in raising the premiums. Then it will follow that the tendency of this rise is to keep out of insurance the most careful ship-owners. Such men will feel that the price demanded is more than is required to cover the risk of a vessel so strong and well found as their vessels are. Just this process of reasoning may not be gone through; but the tendency of this course is obviously in this direction, and cannot but produce some effect. And as the vessels which can be safely insured on low premiums are withdrawn from insurance, the general estimate or calculation must be founded in a still larger measure upon poorer risks; and therefore the rates of premium become still higher, and the effect goes on increasing.

But now let us suppose that the decisions, and the rules and practice founded upon them, are too severe and stringent, and protect insurers from liability for some deficiency or defect which, while it places the vessel low in the scale, would not suffice to brand her as unseaworthy, if that word received a just and rational construction. Such a course of construction would exclude from insurance many vessels which might still be usefully employed, and insured on fair terms, with safety; and vessels excluded from insurance can hardly continue to be instruments of commerce. Such a course of decisions would favor the best class of ship-owners; for it would found the rate of premiums on the safest risks, and thus bring it so low as to make it their interest to be insured. But it would do this at the cost of the lower and poorer classes; and the exclusion of their vessels from insurance would not only narrow the beneficial reach of the practice of insurance, but diminish the number of cases taken into consideration in estimating the value of the risk, and thus diminish the certainty and regularity of the business, by diminishing the basis on which the average is founded.

Where, then, is the exact medium? It is impossible to answer this question by a positive rule or a precise definition. When we treat, in subsequent pages, of the subject of sea-worthiness, and consider the authorities which relate to it, it will be seen that there is much fluctuation and uncertainty in the cases. But it will also be seen, if we mistake not, that there is a constant effort, as well by merchants in their usages as by courts in the construction

and application of law, to find a just medium, and stand upon it; and any argument founded upon the acknowledged necessity of avoiding equally the extreme of laxity or that of severity has great weight, and the practical conclusion to which it seems to lead is generally adopted.

Many similar remarks might be made in reference to the great topics of general average, and of constructive total loss and abandonment. And it will be seen that in some instances courts, for a certain period, have gone in a direction which favors one of the parties to the contract of insurance at the expense of the other; and then that the disposition of courts, or their judgment of the expediency of such a course, has changed, and perhaps, for a time, a tendency to go to the opposite extreme is manifested. And nothing can be more certain than that the law of insurance, as a science and a system, will advance and improve in proportion as it reaches the just medium in all questions of this kind, and founds its conclusions upon principles which cover the whole ground, and from their reasonableness and moderation may hope for stability.

The earliest distinct intimation of marine insurance effected in England is found in the papers recently published by Mr. Rawdon Brown, in a collection of Venetian state papers relating to trade with England. In one of them occurs a representation by a Venetian merchant, made in 1512, that insurances were effected in England on property from Candia, generally at a premium of ten per cent. Guicciardini, in his History of Italy, published in 1561, speaks of an immense commerce as then existing between England and the Netherlands, and says that they have fallen into a way of insuring their merchandise from losses at sea by a joint contribution.2 The business of marine insurance seems to have grown very rapidly in England. The státute of 43 Eliz. ch. 12 (1601), begins: "Whereas it hath been time out of mind an usage among merchants, both of this realm and of foreign nations,

1 I am indebted for this fact, and for some others of much interest, in relation to the early history of marine insurance, to a work recently published in

England by Mr. Manly Hopkins, entitled "A Manual of Marine Insurance."

22 Anderson's History of Commerce, p. 109.

when they make any great adventure (especially into remote parts), to give some consideration of money to other persons, which commonly are in no small number, to have from them assurance made of their goods, merchandises, ships, and things adventured, or some part thereof, at such rates and in such sort as the parties assurers and the parties assured can agree, which course of dealing is commonly called a policy of assurance, by means of which it cometh to pass, upon the loss or perishing of any ship, there followeth not the undoing of any man, but the loss lighteth rather easily upon many than heavily upon few, and rather upon those that adventure not than upon those that adventure; whereby all merchants, especially of the younger sort, are allured to venture more willingly and more freely," &c. After this brief but very clear statement of the principles of and the reasons for insurance, the statute goes on to say that few controversies have arisen, and these have been settled by "certain grave and discreet merchants appointed by the Lord Mayor of London"; but that of late suits had been brought in courts of law, and then the statute provides that, "for the determining of causes on policies of insurance," a standing commission shall be appointed yearly by the Lord Chancellor, to consist" of the Judge of the Admiralty, the Recorder of London, the doctors of the civil law, two common lawyers, and eight discreet merchants, or any five of them." The commission to determine all such questions, with an appeal to the Lord Chancellor by bill in Chancery. No commissioner to be either assurer or assured. This commission, or "court of policies of insurance," as it was sometimes called, continued a considerable time, but gradually fell into disuse; and Blackstone, writing something more than a century ago, said, "no such commission has of late years issued." And all questions under policies have been since then tried, as they now are, by the courts of law and equity.

It was not until 1720 that charters of incorporation were granted to the two companies which, under the names of "The London Assurance Company" and "The Royal Exchange Assurance Company," have ever since transacted, and still do transact, a large proportion of the insurance business of England. Mr. Marryatt, a member of the House of Commons, in a speech delivered there in 1810, says, "the existing companies [being the two