determined in accordance with the customs of merchants, and by merchant courts. It was not until the middle of the eighteenth century that the common-law courts began to take adequate cognizance of insurance causes.

Insurance among the Ancients.

It seems remarkable that the merchants who were engaged in the extensive commerce that in ancient times was carried on upon the Mediterranean Sea between the Phoenician and the Levantine cities, and between the several ports of the Roman Empire, should not have invented so simple a method of providing against the hazards that must have attended commercial enterprise at that time as the contract of insurance. Indeed, some means of mutual assistance against the misfortunes to which every merchant engaged in commerce by sea is exposed would seem to have been imperatively necessary for the conduct of such extended commerce as is known to have existed during the period of the Roman emperors. But, with the exception of references to bottomry and respondentia bonds, there are to be found in the Roman treatises no traces of the contract of insurance. If the practice of insurance was known to the ancient Romans and Phoenicians, the extensive use to which it would probably have been put should have induced some treatment of the rules of law respecting it in the civil-law treatises, but none are found. It is reasonable to presume, therefore, that insurance was unknown either to the Romans or the Phoenicians.

The Earliest Traces of Insurance.

The earliest indications we find of any transactions between merchants similar to insurance are to be found in the laws of the ancient Rhodians. In this collection of maritime regulations there are provisions for contribution and general average in case of loss by a shipowner, requiring that all of those having an interest in a common venture, and subject to a common peril, shall make contribution to that one whose interest had been sacrificed to protect or save from loss the whole venture. Out of this practice, apparently inaugurated by these Rhodian merchants, there was gradually developed the

4 Occasional doubtful references found in the writings of Cicero, Livy, Suetonius, and other Latin authors have led some authorities to conclude that insurance was known and practiced among the Romans. See Emerigon, c. 1, § 1; 1 Duer, Ins. pp. 7, 8. But the better opinion gives other meanings to these passages.

5 These laws consisted of a compilation of maritime rules and orders promulgated by Rhodes when that island was the foremost commercial state of the world. They were said to be wise and just, and were adopted by Augustus and subsequent Roman emperors as a part of the Roman law, so far as not repugnant to any of its positive rules. Cicero, Pro Lege Manilia. See 1 Duer, Ins. 24.

law of marine insurance, which is thus seen to be the earliest, just as for a long time it was the most important, branch of insurance business.

Insurance as Practiced by the Italian Cities during the Middle Ages.

The first satisfactory evidence that we have of any extensive use of the contract of insurance is to be found in the history and records of the medieval maritime states of Italy. From the twelfth to the sixteenth centuries the Italian republics of Venice, Florence, and Genoa flourished greatly by reason of their extensive maritime commerce, and it was among these Italian merchants that the contract of insurance first received that attention which the manifest benefits to be derived from its use would justify. Insurances were certainly effected as early as the beginning of the thirteenth century, and probably in the tenth century. From Italy the custom of making mutual contracts of insurance spread rapidly over the whole of commercial Europe, and early came to be practiced extensively by the merchants in the towns forming the Hanseatic League. As early as 1310 there was a chamber of assurance in Bruges, and there is record of a statutory form of policy in Florence as early as 1520. In fact, the word "policy" is a monument to the Italian origin of insurance, it being derived from the Italian word "polizia."

Part of the General Law Merchant.

It is thus seen that during the fourteenth and fifteenth centuries the practice among merchants of making insurance contracts had become general throughout all the maritime states of Europe. The contracts seem to have been confined to those merchants engaged in the more extensive international commerce, and this fact rendered necessary uniformity in the regulations of insurance as practiced in these different countries. Thus there was impressed upon these insurance regulations, just as well as upon other commercial rules growing out of the custom of merchants, a certain international character, and the whole body of rules intended to govern these commercial transactions became known as the "law merchant." These rules bore a peculiar relation to the respective systems of law existing in the several countries in which the law merchant, by vir

• So stated by Pardessus. See opinion of Bradley, J., in New England Marine Ins. Co. v. Dunham, 11 Wall. (U. S.) 1, 34, 20 L. Ed. 90, in which is to be found a brief but excellent account of the early history of insurance, and of the sources of insurance law.

7 See Richards, Ins. p. 6, where this interesting document is set forth in full. This work also contains an excellent outline of the early history and development of insurance.

8 This appears to have been derived from the Low Latin "politicum," a corrupt form of "polypticum," derived from a Greek word meaning a folded writing. Skeat's Etymological Dict.

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tue of the customs of merchants, prevailed. During the Middle Ages these merchants engaged in international commerce, being much more enlightened than most of their countrymen, and better capable of governing their own trade, were naturally unwilling to leave the determining of their rights with respect to such trade to the crude forms of law and the rude courts that administered the local laws of Continental Europe. From this fact arose the custom among these merchants of leaving all questions arising under the law merchant to be settled by conventional courts established by themselves, and having only such powers as were derived from the consent of the parties appearing before them. Nevertheless, these informal tribunals of merchants, who were, in effect, but committees of arbitration, and who had no means of enforcing any order that might be entered, were by the mere force of custom enabled to settle satisfactorily all causes arising out of the law merchant during those centuries. And it was not until the increasing refinement and better education of the people generally had brought the law courts to a higher state of efficiency that these informal mercantile courts were superseded.

The law merchant, of which insurance law is a part, is said to be a part of international law, but it is international only in the sense that the principles applicable are those that are recognized in all civilized. nations. The positive rules of law themselves are but part of the municipal law in the several countries in which they are enforced, and do not in any wise affect international relations; that is, the law merchant is a portion of the jus gentium, but not of the jus inter gentes. On account of its international character as thus understood, the sources from which the rules and customs are to be derived are found in the various compilations of commercial rules and regulations promulgated by the several maritime nations of Europe, and in the treatises by lawyers and merchants in the nature of commentaries on these customs and regulations. While any one body of commercial laws was, of course, binding only upon the courts sitting in the country by which these laws were enacted, yet the similarity of such regulations throughout Europe caused all of these various compilations to be treated as persuasive authority in determining the rule of decision to be applied to any cause that might arise, in whatever jurisdiction.

It will be well to mention a few of the most famous and important of these compilations of commercial laws and usages. The Consolato del Mare is the Italian name for a Spanish compilation first published at Barcelona about the middle of the thirteenth century. This body of rules had great vogue in all of the commercial countries of Europe, and has powerfully influenced the subsequent development of maritime and general commercial law in all of the Conti

nental countries. It contains, however, no distinct reference to insurance law. The Laws of Oleron, a small island off the northwestern coast of France, were first published about the year 1266, and although rather crude, and sometimes harsh, they yet achieved great reputation among merchants, and were regarded as of great weight throughout Europe on all questions involving the law merchant. The Laws of Wisbuy, a flourishing commercial town of Southern Sweden, were published at the end of the thirteenth century, and, on account of the extensive commerce carried on by merchants of Wisbuy, were frequently relied upon for determining maritime rights. In addition to these older sets of laws, all of the Hanse Towns established mercantile codes, governing mercantile transactions in their respective jurisdictions, which were often cited in courts in other parts of Europe. Probably the most skillfully compiled and adequate collection of mercantile regulations was the famous Marine Ordinances of Louis XIV, published in 1681. The excellence of these laws is probably due not only to the sagacity of the great French monarch, Louis XIV, but also to a clear insight into the commercial needs of the day possessed by his illustrious minister, Colbert. The influence of these Ordinances of Louis XIV extended throughout Europe, and even to the British Islands, and afforded the principal source from which Napoleon compiled the famous "Code de Commerce" of a later date, which is now the most important and extensive repository of modern commercial law on the Continent of Europe. In addition to these collections of laws, several earlier treatises obtained great authority in commercial countries, and greatly aided in the proper development of the law merchant. Among these, probably the earliest of importance is the Guidon de la Mer, published by Cleirac, a distinguished lawyer of Rouen, in 1671. In later times, a distinguished trio of French writers, Emerigon, Valin, and Pothier, contributed valuable works upon the various subjects of mercantile law. These writers are regarded as of great authority on all questions treated in their works, not only on the Continent, but in England and the United States as well."

The Introduction of Insurance into England.

Although it is now seen that the law of insurance is but a part of the general law merchant, it has yet become a part of the common law. As said by Bradley, J., in New England Marine Ins. Company

For an appreciative account of these works and writers, see 3 Kent, Comm. 348. That they are still regarded as authorities in general maritime law, see "The Osceola," 189 U. S. 158, 23 Sup. Ct. 433, 47 L. Ed. 760, where the Supreme Court cites the Marine Ordinances of Louis XIV, the Laws of Oleron, of Wisbuy, and of the Hanse Towns. See Appendix to 30 Fed. Cas.. where these ancient laws are reprinted in part.

v. Dunham,10 "the contract of insurance is an exotic in the common law." It will therefore be of interest to trace briefly the early development of insurance law in England, and to note the causes resulting in its adoption into the common law. It seems well established that the Italian merchants coming from the flourishing commercial centers in Northern Italy, and generally known as Lombards, founded trading houses in London in the twelfth century; and it is manifest that they introduced into their English trade the custom of insuring their adventures, which had proved so beneficial to the growth of commerce in their native Italian cities. Lombard street in London is now a monument to these earlier Italian mercantile adventurers, and marks the locality in which their trading. houses were located. These Lombards brought with them to London not only their Italian custom of insuring against hazards of trade, but they also brought with them their merchant courts, or, rather, the custom of submitting all contests involving mercantile rights to courts of merchants, established by themselves, and having no relation to or sanction under the common law of England. These merchant courts, which had their analogues in the well-known piepowder courts of the early English fair towns, seem to have been amply adequate to dispose of any litigation that arose among merchants during several centuries, and the preamble to 43 Eliz. c. 12, the first statute passed by the English Parliament that recognizes the practice of insurance, contains a striking tribute to the honesty and fairness which had characterized the dealings of merchants with reference to all contracts of assurance. This fact explains the absence of insurance cases in the earliest English reports, but there is abundant evidence that the business of insurance among English merchants was well established long before the date of this statute, and had attained considerable volume.11 Thus, at the opening of Elizabeth's first Parliament, in 1558, her Chancellor, Lord Bacon, said, "Doth not the wise merchant in every adventure of danger give part to have the rest assured?"

The first reported appearance of any question involving insurance in the common law of England occurred in the thirty-eighth year of the reign of Henry VIII (1546), in the case of Crane v. Bell,12 in which a common-law court issued a writ of prohibition, forbidding a court

10 11 Wall. (U. S.) 1, 20 L. Ed. 90.

11 In the preamble to the Statute of 43 Eliz. c. 12, it is said: "And, whereas, it hathe bene, tyme out of mynde, an usage among the merchants, both of this realme and of forraine nacyons, when they make any great adventure (especiallie in remote parts) to give some Consideracion of money to other persons (which commonlie are in no small number), to have from them assurance," etc.

124 Coke's Inst. 139.