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Robert E. Gross Colle£tion

A Memorial to the Founder of the

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Robert E. Gross Collection

A Memorial to the Founder of the

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Business Administration Library

unirefiilii <^ (yauMi'-nia' Los Angeles

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COMPLETE DIGEST

O F

THE

Cfieorp. I»ato0, and jBrattite

O F

I N S U

A N

Compiled from the belt AUTHORITIES in difierent Lahguages^

which are quoted and referred to ihrou^hoid the Work; and arriiii^ed

IN ALPHABETICAL ORDER,

Under many JekB HEADS, with ample REFERENCES, and a general INDEX; affording immediaie and full Information, en every diJIiuB Matter, Oueflion, or Point.

C O N T A

S. The PRINCTPLES, DOCTRINES, anj USAGES,

touching all mmteis of Infiffance.

II. All the CASES of Infmance that have been ADJUDGED in our Conns ot Law and Equity, colle6l. cd from tlie numerous Reports, and other law books extant, down to the prefent time; — with fevcral others which have never before been printed; — and fonie material Cafes adjudged in foreign Courts.

III. E-vtrafts from all the sTATU'Tts relating toln- furjnce, and matters immediately conncfled therewith.

IV. The nioft ufefid Articles of all the forkigm OKDiN.\NC£S and REGULATIONS upon this fubjcft.

V. Extrafls from treati es of commerce, &c. with regard to Freedom ot Navigation, Contraband, Neutral Ships and Property, War, &.c.

VI. The refpefcfive Kigiits and Duties of insu- rers, INSUREDS, BROKERS, AGENTS, OWNERS,

FREIGHTERS, MASTERS of Ships, &c. as rela- tive to matters ol Infurance.

VII. Tlie Nature, Objcil, and feleft Forms of POLICIES of Infurance, Bottomry diwd llefpond<iUia

I N I N G

BONDS ; — the irue conflmflion nnj opcrjiiuii of tTieir feveral Terms and Clav.fes; with Cautions and Remarks concerning zvritten claufes.

VIII. Rules intcrfperfed throughout, for guarding againlf, and dete£}ing fraud and impc>sition.

IX. The curious 0_wjiion dircnd'ed, with regard to the advantage, difadvaniage, and legality, o{ infunng the Ships and Property of enemies; with new and interefting Obftrvations thereon.

X. Accounts of the feveral companies & soci- eties in England, lor Infurance; their Plans, Terms, Sic. with critical and uleful Rcmaris : — alfo ol the CH,\MiiERS of assurance abroad ; their Regula- tions, .Authority, and fummary Modes of Decifion.

XI. Concerning the maritime and other COURTS; — the maritime laws; — the LAW of nations; — the LAWS of England; — the lex mercatoria; — alfo Trials, V'erdiBs, and Arbitrations ; with regard to Infurance.

XII. Various new matters, Rules, Ca/cs, Methods, and Remarks, not in any other Book.

W I T ti

A PRELIMINARY D I S C 0 U R S E;

Wherein ai<? dtlineaicd the very, great DISORDERS which prevail in Affairs of Infurance; their piincipal causks explained; and methods pvopofed for better rf.oulation and prevention.

		By	JOHN W E S K E T T, Merchant.
			Ex Eiinio dare Liican. Hor.

I. 0 K i> 0 N : Printed b v F R Y S, C O U C H M A N, & COLLIER:

And Solo by RICHARDSON & URQUHART, Royai.-Ejccbance ; J. SEWELL. Cor.nhill; WIIIELDOM & WALLER, J^'leet-Street ; and W. FLEXNEY, HolboL.

M D CC L X .K X I. \

T O

HIS ROYAL HIGHNESS

E 0 R

E,

PRINCE OF WALES.

SIR,

CO M M E R C E, — to which this nation owes It's eminent rank of power and fplendour, and upon the proteftion of which, efpecially in the prefent dangerous conjunfture, even it's exiftence depends, — is amongft the moft material objefts, if it be not aftually the moft important, that can engage the attention of an Illustrious Prince, apparently deftined to fway the fceptre of the Britifh Empire.

From a tranfient view of the various matters Vx^hlch relate to the fubjeft of the following fheets, Your Royal Highness will difcern it to be fo intimately conne6led, and clofely inter- woven with every circumftance of mercantile and maritime afiFairs, that, in proportion as a due regard fhould be wanting to the true principles, and juft praftice of infurance, commerce, of which it is the main fupport, would neceffarily decay, and finally perifh.

To obviate, in a confiderable degree, efFe£ls of fo fatal a tendency to the effential interefts of the community, as well as of great numbers of it's refpeftable and moft ufefid members, of divers clalTes, by an ample elucidation of thofe principles, and the proper means of eftablifliing the pra6lice of them, was the genuine motive to a new and arduous undertaking, which is, in it's nature, of very ferious concern to the creneral welfare.

• o

Some

DEDICATION.

Some of the heads of it, m particular, treat of matters of highly national import; fuch as Admiralty, Civil Law, Colony, Contraband, Embargo, Enemy, Flag, Freedom of Navioation, Law, Law of Nations, Maritime Law, Navigation & Navigation- Aft, Pveprifal, Sea, Sliip, 7Yeaty, War; and may, thsj-efore, occalionally attraft Your Royal Highness's notice, and lead to larger fpeculations on the like topicks.

Your augufi: progenitors, Sir, have ever made the public good their chief regard; and approved themfelves the friends of fcicnce, the benign patrons of produ6lions calculated to advance the Ikfety, the profperity, and the honour of our country.

To Your Royal Highness, equally inheritor of their virtu'es as heir to their throne, this work is, therefore,

With the profoundefl; Veneration,

DEDICATED, by

YOUR ROYAL HIGHNESSES

MioPi luimble, mofl obedient,

and devoted Servant,

JOHN W E S K E T T.

R E F A C E.

"T^HEfpirit of traffic never pojfejfed all nations, in any age, mdrejlrongly than theprefen t : modern politicians place the happinefs of a people in thefourifiing flate of their trade ; and public affairs are combined upon that principle. In Jhort, trade is the phjeEl of our xoarsf'—But, maritime commerce, tohile it produces the niofi copious and diffufve benefits, is alfo continually liable to innumerable accidents and unfortunate events ; xohich have, at all times, rendered Infurance indifpcnfably neccffary : and this contraEt, operating according to the nature and various circumfances of thofe cafualiies, is, of all tranfictions among mankind, the mojl abundant four ce of difputes and perplexities, where the principles of Infu- rance are not xoell and generally underfiood, and it's practice duly regulated. — To effed thefe purpofes, is therefore of the utmojl confequence to every commercial nation.

It was, however, with equal regret andfurprife, the author of the following work, and fever al attentive perfons obferved, during the late zoar with France and Spain, that in this his native country, where navigation, commerce, and the bufinefs of Irfurance, were carried to a much greater extent than in any other, the pradice of the latter had fcdlen into a fate of great irregularity, error, and fraud: which have unhappily continued; and which, in the prefent complicate and perilous war, more than ever reign, without any adequate check or control ; to the certain detri- ment, ultimately, of all parties, and a perpetual increafe of litigations, already beyond all experience numerous and mutually dcfiruclive.

Fully convinced that thefe enormous evils originate, chiefiy,from an almof general defect of acquaintance with the principles and dodrines, by xohich the affairs of Infurance ought to be conduded ; oxoing to the total want of proper means of attaining it; he refolved, at theclofe of the lafl war, to enter upon a full invefiga- tion, and to form as complete a Digeft of the Theory, the Laws, and the Pradice of Irfurance, as hefhould be able ; in the view offurnifiing to the public more ample and fatisfadory information upon thefe matters, and in a more familiar and pradical manner, than has hitherto any xohere appeared. — To this end, he has ever fince employed an unwearied attention and affiduily, accompanied xoith continual experience and refiedion ; and has confiantly direded his rcfearches xoherefoever the proper materials could be obtained, abroad as well as at home, from the mofi efteemed books, and the mofi enlightened men ; nor has he let any opportunity, or any means efcape, that xoere in, his poxoer, of acquiring a thorough knoivledge of zohatever relates to thefubjed, at large.

a In

11

E F A C E.

In the Frdiminary Difcourfe, publijlicd above a year before^ the Digejl, are fpccifically delineated the various diforders xvhich daily prevail in tranfaElions of Injur ance, uith their pernicious covfcquences ; the principal caufes of thofe di/orders are explained; and the outlines given of eligible methods for better regulation and prevention.— The plan, the execution, and the utility of the Digef, arc Ukexoife diJlinElly fct forth in that introduclion : a previous pcrifal of which xoill greatly facilitate, efpecially to men of pratlical bufinefs, the proper compre- licnfon and ufe of the xchole.

The author is happy in having been honoured xoith many fpontaneous tejiimonies

oj cordial reception of the preliminary publication, from fever al of the mof refpeEl-

able and judicious merchants, infurcrs, and others, both in foreign parts and in

England ; fome of xohom have alfo favoured him (agreeably to his general

invitation at the conclufion of it) xoith ftxndry material communications and

hints, of xchich he has endeavoured, xoith due regard, to make afuitable ufe. — He

oxoes the mojl refpedful acknoxolcdgmcnts for the eafy accefs xchich has been granted

him to fome of our public libraries ; efpecially the large ayid valuable colleElion of

ancient and modern learning, in Doclors-Commons, upon the Jus Gentium, Jus

Maritiinum & Nauticum, the Lex Mercatoria, and other commercial and marine

fubjeEls, entirely adapted to his purpofe. — His thanks are no lefs due to fome

gentlemen eminent in the laxo, of as liberal fentiments as extenfve learning ; to

our principal laxo bookfellers and others ; and to many of his particular and

experienced friends ; for the great readinefs and civility xoith xchich they have,

from time to time, anfxoered his enquiries, and fup plied hmi xoith fuck books, papers,

and informations, as have greatly contributed to the progrefs and improvement

of his undertaking.

Several of the books in foreign languages, mentioned in the annexed lifl, are in great cjlccm and ufe among intelligent and prudent merchants abroad, as xjoell as among lawyers ; and contain divers very intercjling matters exprefsly on thefubjeCl of hfurance ; although they are but little knoxvn, and fome of them not to be met xvith, in England. Yet, quejlions upon policies of hfurance ought to be decided by the large principles of the Maritime Law ; xjohich is not the laco of a particular country, but the general laxv of nations: non erit alia lex Roma:, alia Athenis, alia nunc, alia pofthac ; fed apud omnes gentes, ct omni tempori, una eadem- quc kx obtinebit:*-/or, from the fame prejivifes, the found conclufions of reafon . and jiifice mujl univerfally be the fame.

* Vide title, Frei<^ht, p. 8^8.

LIST

L

1

O

The principal AUTHORITIES confuked and quoted in the Courfe of this Work.

Abridgment {general) ofCaJa inEqmly.

AiTZEMA Of State AJJairs, and of War.

Anderson's Chronohgical DcduHion oj Com- merce.

Bacon's Abridgment of iJie Law.

Baldwin's Survey of the Britfh Cuftoms.

Beauwes's Lex Mercatoria rcdiviva.

Be L LU s ( Pctrinus) De Pojllminii Jure revcrfis.

Blackstone's Com7nentaries on the Laws of England.

Bollard Differ tatio de Affecuratione.

Borough's Sovereignly of the Britifli Seas.

Brooke's Abridgment of the Law.

Buller's Introduction to the Law relative to Trials at Nifi Prius.

Burlamaqui's Principles of Natural and Politic Law.

Bynkershoek Obfcrvationes Juris Civilis.

Quacjliones Juris Puilici.

"■ Quafliones Juris Privati.

Cantillon's Analyfs of Commerce, ^c. Gary's EJfay on Trade. Casa Regis Opera omnia de Commercio. Cay's Abridgment of the Statutes. Chambers's DiElionary of Arts and Sciences. Child's (Sir Jofiah) Difccurfe en Trade. Clark's Praclice of the Court of Admiralty. Clark's Epitome of the Cormnon Law. Cleirac's Guidon de la Mer.

Jurifdiclion de la Marine.

Coke's Inflitutes. • Commentary upon Littleton.

Collection of all the Marine Treaties between Great-Britain, (3c. (See Title, Treaty). Complete Arbitrator.

CoMYNs' Digejl of the Laws of England. Confolalo del Mare.

Cunningham's Law Dictionary.

-— Merchant's Lazoyer.

Law of Infurances, &c.

Daven ant's Political and Commercial Works.

De Foe's Works.

D E M o I V r E 's Valuation of Lives, Annuities, &c.

Den IS art's ColleBion de Decifions nouvdles.

De Witt's (Penfionary) Letters. Diclionnaire du Citoyen. Digcjl of Adjudged Cafes in the King's-Btnch, from the Revolution to theprefent Period. Dodso.n's Mathematical Repofitory. Domat's Loix Civiles. Du Fresne's Gloffarium. Du Moulin De Ufuris. Encyckpedie.

Falconer's UniverfalDiBionary of the Marine. Ferretus De Jure (3 Re Navali. Ferriere's Didionnaire. Finch's Law. Florio's Dizionano. Furetier's Diclionnaire Univcrfel. Gee's Trade & Navigation of Great-Britain. General Treatifc of Naval Trade and Commerce. Gentilis (Albcricus) Qucefiiones Maritimce. Gilbert's Civil Actions in the Common Picas. I Gilbert's Law of Evidence.

Glin (Taco Van) Over de Zee Rechten.

Godolphin's Admiralty JurifdiElion.

GreeneweCtEN De Legibus abrogatis et invfi- tatis in Hollandia, vicinifque Regionibus.

G.ROTius De Jure Belli ac Pacts.

—Mare Liberum.

Hale's Pleas of the Crown.

HeIneccius Opufculorum variorum Syllog.

Elementa Juris Civilis.^

HuBN ER Dela Saifie des Batimens Ntidres.

Jacob's Law DiBionary.

Jenkins' (Sir Leonine) Memoirs.

Johnson's (Dr. Sam.) DiHionary.

Journal de Commerce.

Kaims* {]-.oxd) Principles of Equity.

King's Britifli Merchant.

KippAx's Theory and Practice of Commerce, and Maritime Affairs.

KuRicKE Ad Jus Hanfeaticum, cum Notis, (3 Diatriba de AJfecurationibus.

Lambard's Archaionomia.

Langenbeck Op deSchip 6? ZeeRechten: On

Marine Laws & Infurances. Lilly's Modern Entries.

LOCCENIUS

IV

LIST OF AUTHORITIES.

Maritime Laws,

LoccENius De Jure Maritimo (3 Navali.

Mag ens' Ufay rni Injurances.

Malynes' Cuiifueludo vel Lex Mercatoria.

Rhodian, Raman, Oleron, Wijlniy, Hanfe Towns.

MarquardusD? Jure Commerciorum, ^c.

Meier Dc AJfecuratimibus Mercatorum.

Mercure de France.

M 1 N sn E u 's DiBionary.

MoLiNus (Lud.) De Jufiilia'in Dijpulaiione.

MoLLOY De Jure Maritimo et Navali.

Montesquieu's Ejprit des Loix.

Morgan's DoBrine of Annuities and Inju- rances on Lives.

Mo rt I M E r's DiBionaryofTradeaniCommerce.

Elements of Cominerce, &c.

Ordinances (foreign) (See Title, Ordinance).

Parker's Laws of Shipping and Infurance.

Peckius Ad Rem Nauticain.

Pereira da Castro Decifiones.

Postlethwaite's Univerfal DiBionary of Trade and Commerce.

. Dllfcrtations on the Commer- cial Inter efl of Great-Britain.

Price's (Dr.) Objervations on Reverfionary Payments, Injurances on Lives, iSc.

PuFFENDORFF Dc Jurc NatuTcE ^ Gcutium.

Rccopilation de las Leyes de las Indias.

Reports * of Cafes adjudged in our Courts of Law and Equity, and in Parliament (See Title, Cajes Adjudged).

Ricard's Negoce d'Am/lerdam.

Ricard's Traite general de Commerce.

Roccus t De Navibus et Naulo, item de AJfc- curalionibus, Nolabilia.

RoLLz's Abridgment of Cafes and Rcjolutions of Law.

Rolt's DiBionary of Trade and Comm,erce.

Ru F F I! e ad's Index to the Statutes at large.

R utherforth's Inflitutes of Natural Law.

Santerna TraBatus de Affecurationihus. S AV A ry's Dictionnaire univerfel de Commmerct. Savary's Parfait Negociant. ScAcciA De Commerciis i3 Cambio. Scriptorum de Jure Nauiico & Maritimo Faf-

ciculiis. Selden Mare Claufum,feu de Dominio Maris. SuuBACK Commentarius de Jure Littoris. Simpson's SeleB Exercifes on Annuities &c. Spelman's (Sir Hen.) Gloffary. Stath am's Abridgment of the ancient Law, Statutes at large (See Title, Statutes). Statutes of Lubcck.

Straccha De Mercatura, (3 Affecurationihus. Stypmannus De Jure Naulico (3 Maritimo. Targa (Carlo) Ponderazioni fopra leContrat-

tazioni Maritime. Temple's (Sir William) Letters. Treat fe of Equity. Tremaine's Pleas of the Crown. Trevoux's DiBionnaire univerfel. Us ^ Coutumes de la Mer. V A L I N 's Nouveau Commentaire fur I'Ordonnancc

de la Marine du Mois d'Aout i68i.

Traite des Prifes.

Verwer Over de Zee Rechten: On Marine

Laws and Bottomry. Vine r's General Abridgment of Law and

Equity. ViNNius Inflitutionum Imperialium Commenta- rius, cura Heineccii.

Commentarii in Peckium. Welwood's Abridgment of all Sea-Laws. Weytsen (Q. Van) Treat fe of Averages, Wiseman's (Sir Rob.) Law of Laws. Wood's Inflitute of the Laws of England. ■ ■ Inflitute of the Civil Law.

Yorke's (Sir Jofepli) Memorials to the States

General. ZoucH Jus Fcciak.

* Particularly, Atkyns, Barnardifton, Brown (Cafes in Parliament) Bulftrode, Burrow (Including his 5ih and lal volume) Carthew, Cafes in Chancery, Cafes temp. Lord Hardwickc, Cafes temp. Holt, Cafes temp. Lord Talbot. Coke. Comyns, Croke, Godbolt, Hardres, Hobart, Keble, Leonard, Levinz, Lof', L-icas, Modern Reports, Precedents in Chancery, Lord Raymond. Rolle, Salkeld, Saunders, Savile. SI ower (Cafes in the King's-Bench, and in Parliament) Siderfin, Skinner, Strange, Style, Ventris. Vernon, Vefey, W. P. Williams, Wilfon, Yelverton.

+ This authors name is erroneoufly written Roccius by fome reporters of cafes adjudged in our courts.

PRELIMINARY

PRELIMINARY DISCOURSE.

AMONGST the innumerable Books which, from Time to Time, have iffued from the Prefs, none have been deemed of greater Ufe and Confequence, to maritime Nations, than thofe which have been judicioufly compofed on Trade and Commerce. — They are, how- ever, I beheve, notwithftanding the very great Extenfivenefs of the Subjeft at large, much fewer, in Proportion, than the efleemed Writings upon the other Arts and Sciences: — and the Reafon may be that, as Men of Science merely, whofe Studies are confined to Theory, cannot be confidered as com- petent to treat, with Propriety and Satisfa6lion, on Matters which are, in their Nature, chiefly practical; {o, on the other Hand, few Merchants efpeciaUy whilfl; deeply engaged in Purfuits of aftual Bufinefs, have either Leifure, or can fufficiently detach themfelves from partial Views, even though they were adequately verfed in Literature, to enter fcientifically, and .a-t the fame Time with a due Regard to the Public Good, into what, never- thelefs, affords an ample Field for the Exercife of Talents, to the o-reat Ad- vantage of the Community, as well as of Individuals.

Not only every diftinft Art and Science, but each refpeftive Branch there- of, has been fo particularly confidered, and fo fully difcuffed, in every Point of View, that the Public have been often difgufl:ed with Minutenefs, and -even naufeated with Repetition.

But it is not fo, with Refpcft to Treatifes on Commerce; whofe per- petually aftive Nature, various Fluftuations, and Changes, like the reftlefs and inconflant Elements through which it is conduced, are continually pro- 43u6iive of neti) Objects of Contemplation, and unprecedented Circumflances ; from which to draw ufeful and pradical Improvements, as well as the Means of eradicating pernicious Errors.

B And

M

PRELIMINARY DISCOURSE.

And although, as well in our own Country as abroad, there have fometimes appeared, from amongfl the refpcftable Body of Merchants, Names, which ought ever to be revered, and held in grateful Remembrance for the valuable Liirhts which they have very ably throv/n on the Subject in general; there are, liowevcr, undeniably fome Departments of it, which have never yet been thoroughly examined, or fuitably elucidated: — and, particularly, the very neceffarv and elTential one of Insurance has, of all others, had the lead Attention.

The great Ulility o^ Infurancc, by Means of which the Value of Property, in almofl: every Situation, howfoever precarious, may be rendered fafe againll Accidents, is fo univerfally acknowledged, that there needs no Attempt to prove, or explain it.

Commerce is indubitably the grand Source, from whence is derived all that enriches, ftrengthens, and adorns a State. — Without an extenfive and flourifliing Commerce, this Nation could never have arifen to that fuperla- tive Degree of Grandeur in Arts, Arms, and Wealth, which have made her the Enw, and, till lately, the Veneration of all other maritime States ; and without Irifurance, that Commerce could neither have been promoted, nor carried on •, — nor can it ever proceed, unfupported by Infurance ; and, confequently, the national, as well as private Advantage of well-regulated Infurance is obvious and indifputable.

But, whenfoever the Difficulties, Difcouragements, and Want of reci- procal Confidence, which naturally arife from Ignorance and Chicanery, — Deceit and Impofition, — ftiall fo far prevail, between Merchants and Infurers, as to be a Check to the Spirit of honourable Enterprize on the one Hand, and to a Liberality of Sentiment and Conduft on the other ; not only the laudable, and even the mod judicious Exertions of Individuals, on both Sides, to preferve and improve their Property, through a harmonious Com- mixture o^ mutual Interejl, will be defeated and rendered nugatory ; but the national Confequence mull neceffarily decreafe, with the Declenfion of it's Commerce.

The vafl Variety, — the Extent, — and the Importance of the Matters

which relate to Infurance, unquellionably merit the ferious Attention, and

are capable of exciting, in no inconfiderable Degree, the conftant Curiofity,

of all Perfons whofe Situation, or Connexions, lead them to Tranfaftions,

which mav have Affinity with that Subjeft.

Those

PP.ELIMINARY DISCOURSE. vii

Those Matters are become oi^ To great Magnitude in this Country; and the Circumftances thereof, in divers Refpefts, fo extraordinary, as well as numerous; yet, are for the mofl; Part fo liltle, or fo ill imdcrjlood ; — the Ideas which are entertained regarding them are fo limited, or confufed ; and the Opinions, even of many Perfons -who arc the mofl concerned about them, and whom it therefore the more behoves to be v/ell acquainted v.-ith them, are often ^o crude, erroneous, ^nd jarring ; that it is, in Truth, €arneftly to be wifiied, nay indifpenfably requiiite, as well for the Honour of this great trading Nation, and the Interefts of it's Commerce, as for the mutual Eafe and Advantage of all thofe Perfons efpecially, whofe ProfefTioas and Employments are more immediately connecled with maritime and mercantile Affairs, that fome eligible Means were devifed, whereby the true Principles and Doctrines of Infurance might be better fettled, more familiarly inculcated, and more generally adhered to, than they feem hitherto to be : fince it is prefumed that very few, even amongft thofe who have a large Experience of this Bufinefs, would be difpofed to denv that, with Regard to the Practice of it, the fame Imputation, of "glorious Uncertainty,'' may be too aptly applied, which has been fo long, io re- proachfully, and yet fo jufUy made, — I do not fay, upon the Lazes of

England themfelves, which certainly deferve the highell Encomium, but,^

on the Exercife and Adminijlration of them.

AhL tho^G fuperjicial, and therefore incoherent, vague, and contradictory Notions, which are perpetually occurring amongft the Bulk of the Perfons concerned in Matters of Infurance ; and, the almofl Infinity of Irreguhritics; Errors, and Deceptions, which take their Rife therefrom, and, in Faft, re- ceive daily Promotion and Encouragement thereby, — proceed undoubtedly from an almojl general DefcEl of Acquaintance with the Subject ; and the en- tire Want of an adequate, elemental Clew, which might lead to, at leaft, a tolerable Acquihtion of it.

It fhould feem, therefore, that little Argument is neceffary to fliew, that

every poffible Countenance and Aid, both public and private, ought to be

given to the Attainment and Cultivation of the Know^ledge and jujl

Practice of Infurance; as the primary and principal Means by which the

maritime and commercial Interefts of ihefe Kingdoms can be maintained,

cherifhed, and enlarged ; and the Property of the Merchants, and, confe-

quently, of all the other Traders, Manufaclurers, and Artifans, who depend

on, or are immediately conne6led with them, can be rendered fecure

and permanent.

From

VIU

PRELIMINARY DISCOURSE.

From \he general Reafons here advanced, and others which I mean more particularly to adduce in the following Pages, it will not be difficult to per- ceive how very necefTary it is, in every maritime Country, and of how great public Benefit it would be efpecially in our own ; where the Bufinefs of Infu- rance, bv being carried to a m.uch greater Extent, is attended with infinitely- more numerous and complicated Circumflances than in any other whatever ; to have a clear, intelligible, and well digefted Code, or System o[ Prin- cipUs, Rules, and Injlru^ions, for a Guide, as far as Experience may have hitherto taught, in every Thing liable to occur in relation to Affairs of Infu- rance in general; in order that every one, who may be in any Wife interefted. therein, might be enabled to acquire readily a competent Knowledge thereof, and become mutuallv well underftood in their various Tranfaftions to- gether ; — and that the Contrariety, Perplexities, and Impofitions, which are i'o prevalent, and fo loudly and juftly complained of, — and from whence are generated thofe perpetual Difputes, and Litigations, which are not only highly detrimental to the Interells, but difgraceful to the Charafters of thofe en- gaged in them, — might be, in a great Meafure, prevented or diminiffied.

It is, however, very remarkable, and much to be lamented that, amongft all the maritime Nations of Europe, in Great-Britain only, where it is mofl needful, there fhould be neither any fuch public Code, or Ordinance, comprifing every requifite Direftion and Regulation; — nor any Chamber, Court, or Perfons whatfoever, appointed by Authority, for the adjuffing of Loffes, Averages, &c. and deciding in a certain, judicial, dindifummary Way, all Matters of Difference : — but that, on the contrary, through that extenfive Ocean of Affairs and Incidents which Infurance embraces, every one is left without any fafe Chart, or intelligent Inllruftor, to be governed merely by his own private, and, in general, uninformed Opinion : — and, confequently, it is not at all furprifing that Diforder, and Diffatisfaflion, more than ever, prevail in this truly intricate and dangerous Line of Bufinefs : — where, not only allufivcly, but indeed literally fpeaking, " We appear all to be adrift, without Pilot or Compafs, driving before the Wind of Accident, amidft Ouickfands and Rocks ; — fo that if we long efcape Shipwreck, we fliall have wonderful good Luck."

No Art, Science, or Profeffion whatever can be tolerably underllood, •without a true Comprehenfion of the Nature and Effeft of its Fundamentals, or full Principles. — The fundavif.ntal Principle of Infurance is, fimply, IndeiN'kity ; 1. e. An Obligation on the Part of the Ijjfurer, for a Conf dera- tion

PRELIMINARY DISCOURSE. ix

tion received, to reinflate the Infared, in /A^ Value of the Property lie may Iqfe, or

be damnijisd, according to the Terms and Intent of the Contrail. Almoft

every one imagines he hath a clear Conception of this Propofition ; but, the afcertaining, in the great Variety of Cafes, and the nice and complicate Cir-

cumftances thereof, which now frequently happen, \Jl, The Fact and

Truth of fuch Lofs, or Damage, or the Fallacy of the Claim ; that is. Whether any Lofs or Damage, happened, or not; — and to which the Infurer is liable? — and odly, The jufl and precife Quantum of the Indemnification which ought to be made? — require, undoubtedly, clearer Perception and Penetration, more quick and acute Reafoning, and a founder Judgment, not to mention more Reading on the Subjeft, than is, perhaps, commonly to be found, or at leaft exercifed, amongft Men who adapt themfelves merely to the Row tine of this Bufinefs : — and the lefs fo, the more they are deprived of Time and Inclination for Enquiry and Reflexion, by their greater Employment, and more continual Hurry, in the neceffary and current Execution of it.

The Intention of this Difcourfe is by no Means to give even the flightefl;

Difpleafure ; but yet general, impartial, and neceffary Information : ■

Should This occafion to any Perfon whatever a difagreeable Senfation, it ought to be afcribed to the Exiftence of the FaEU themfelves, not to a true Reprefentation of them ; which being for the Ufe of future, as well as prefent Readers, the entertaining a falfe Delicacy, in Refpeft of Perfons, would be to deprive the Pw/^/eV of thofe very Lights, of which it, unhappily, (lands but in too great Need : — and which, therefore, it is profeffedly defigned hereby to communicate.

I WELL know how irritable, in Regard to the Matters of which I am about to treat, zre Paffions, Humours, and Prejicdices ; but, fully convinced of the Neceffity of being equally undeterred, as uninfluenced by them, on this Oc- cafion ; and trufting to the as v/ell known Candour, which always prevails with Men of Underflanding, as foon as thofe fubfide, in preferring general Utility to private Punftilio, I proceed.

It is one Thing, to be in a conRant Round of plodding Exercife of any Branch of Bufinefs, or of any Art or Science, palling through it with the Crowd, merely by Habitude, or Example, very probably mifconceived, if not utterly fallacious : — but quite another, to underftand it radically, to be verfed in its Principles, and to apply them expertly in Pradice.

C It

X PRELIMINARY DISCOURSE.

Ir miMit be deemed rather invidious to fay, how fmall a Proportion of the laro-e Body of Underwriters and Infurance Brokers have been of the latter Clafs ; but, it is certain that there have not been wanting fome Inftances of thofc i\\\td great, and leading \JndeT\f Titers, from their Avidity of beginning, or fubfcribing almofl every PoHcy that appeared to them, who, far more bold than zvi/e, feemed to depend, in every Refpe6l, on jnere Chance; and to follow intirely the ridiculous and vulgar Adage, that " an Ounce of Luck is worth a Pound of Judgment ;" — and, who have not only underwritten almoft every Policy, but adjuflcd every Average, Lofs, Return, &c. jufl; as they were exhibited to them, or as they have been requefted, with little, and very often no Infpcftion, or Examination, and without a fingle Document, or Paper produced ; till they have, in the End, fatally experienced the infal- libly bad Confequences of their Inattention, or Incapacity : — for, was it poffi- ble that they fliould have been otherwife than conftantly and grofly impofed upon ; and caufed many others to be fo too, who were induced, from enter- taining falfe Ideas of the Knowledge and Abilities o^ fuch Leaders, to follow their illufive Pattern? — By Leader, I mean, more precifely, every Perfon who Jirjl underwrites, oxjirjl figns an Adjufl.ment on, a Policy.

Neither would it be fhort of Truth to intimate, that there have been fome confiderable Underwriters, as well as Brokers, who were totally igno-, rant of the true Import and Effed, even of fome of the common, printed Tervis, in Policies o^ Infurance ; nay, who never read a Policy throughout in their Life ; — as many Perfons pafs for very good Chriftians, who never perufed a fingle Epiftle, or Gofpel in the Bible.

In Truth, what Monfieur Savary fays, in his Parfait Negociant, with Refpeft to the Qualification of a Merchant, may, with ftill greater Pro- priety, be applied to an Infurer ; viz. " II eft impoflfible qu'un Negociant rcufciffe dans fes Entreprifes, s'il ne fcait pas parfaitement fa Profeflion." — • And, one may venture to affirm that, if thofe who engage in a Courfe of Underwriting do not, previoufly, obtain, at leaft, an Initiation in the Theory of Infurance; and, efpecially, if they purfue the mere Routine oi , the Eufmefs, without conftant Enquiry, Obfervation, and Refleftion, as alfo fome Reading on the Subjecl ; they will be, on numerous Occafions, feverely fleeced ; and during a long Time acquire, very dearly, but a flendcr Proportion of fuch Knowledge, through the undue Advantages which will be ever taken of them ; — and, that mere Self-Intereft will, too generally^

be

PRELIMINARY DISCOURSE. xi

be the governing Principle on the Side of the AJlireds, their Agents, and Brokers, in Defiance of every Suggeftion of Honour and Juftice.

The numberlefs Inftances, daily occurring, of very extraordinary Un- Jkiljulnefs, Negligence, and £?Tor, together with atrocious i)(?c«i and 7?;^- pojition, in the claiming, ftating, and fettling of Lofies, Averages, Salvages, Returns, &c. — even on Policies of large Amount, are, in Reality, amazing ; and demand a very ferious Regard. — They are, likewife. Evils the more^ to be lamented, as, in many Cafes, the great Sums, fo wrongfully drawn from our Infurers, go into the Pockets of Foreigners ; and are, therefore, not only individually, but nationally injurious. — On the other Hand, it is alfo true that the very fame Mifconception and Inexperience redound fome- times, though not often, to the Prejudice oi AJfureds themfelves ; by calcu- lating and recovering lefs than their Due.

It has been, for a confiderable Time paft, a very ufual, though a very difgraceful Obfervation, in our Courts of Judicature, amongft the Council employed in Infurance Caufes, that " Underwriters are like a Flock of Sheep " — alluding to the Inconfideration, Indolence, or Incapacity, with which many of them perform their Bufinefs ; and their Aptitude to follow implicitly the Example of a. Leader ; or any one who, perhaps with as little Judgment, or Information as themfelves, Jirjl fubfcribes a Policy; — or without Enquiry, frji figns thereon an Adjuftment of a Lofs, Average, &c. — and afterwards, when fome one or other whofe Attention may have been awakened, — his Fears alarmed, — or his Eyes opened, by a Difcernment of fome Fallacy, or Difcovery of fome Fraud, the whole Flock, too late, take Fright ; — and, being puzzled in the Maze of their confufed Ideas, but fall bound in the Pen, Difpute fucceeds ; and they find themfelves obliged to run wildly into a Court of Juftice for Redrefs ; which, however, is feldom to be found there, from the great Difficulty of afcertaining Fa^s, and of bring- ing forth the real Merits of an Infurance Caufe ; and the Occafion for which, by Q^ previous, moderate Acquaintance with, and an habitual Attention to what they were about, and to the Nature and Circumjlances of the Rilque, or Demand, — might have been intirely avoided ; as well as the illiberal Garrulity of certain Pleaders.

■ N"6TrMiNG 13, however, more common, in Cafes where dn Underwriter nappehs to find that there is Something wery en'oneous, or injurious to him in the Demand, the Accounts, the Rating, or making \ip of an Average, Lofs,

Sec.

xu

PRELIMINARY DISCOURSE.

8cc. <m a Policy; and even Something \cry fraudulent in the Tranfaftions concerning it, which has not been perceived by feme one or more, perhaps leading Underwriters, who may have unfkilfully, or negligently figned an Adjudment on it; and whofe Cuftom probably it is, never to look into any Thing, but to take all Things on the Faith of Infureds, or the Affurance of Brokers ; or leave them to the profound Wifdom and Sagacity of a Clerk; — I fay, Nothing is more ufual, in fuch Cafes, than for the Brokers to fay, — in order, merely through Impatience, to attain their End in getting the Policy adjufted, however wrongfully, — or to favour the Affureds, their Employers, — " Why, Sir, fuck an one, and fuch an one, or/o many have fettled it; — Why fliould you objefcl? — Well, 'tis always better to follow Exaviple ; — to do as others do ; — to fall in with the Crowd ; — not to be fingular ; or fufpicious ; — to cavil, — or pretend to know better than others ;" — and a great Deal more of fuch Gihbcrijh! — But, this Manner of proceeding, befides the palpable and immediate Injullice of it, evidently tends to, what only can be effecled by it, the finn EftabliQiment and Increafe of ^;zor^7if^. Error, and Fraud, in the Courfe of all Matters whatfoever in this Bufinefs.

Wherefore, every fenfible Underwriter ought, indignantly and refolutely, to fct his Face againft, and contribute to root out, henceforth, fuch ridicu- lous Pofitions -, and fuch an iniquitous Mode of Afting, whenfoever, and in whomfoever it is obferved, as would conftantly hoodwink his Underflanding, even to his Ruin ; — and to infill on what every koneji Broker doth, and ouHit, without the lead Hefitation, or Need of Importunity, to acquiefce with, on every fuch Occafion, viz. the inftantly fetting about to produce Papers, reftify Errors, to deteft Deception, or Mifreprefentation ; and to do immediate and impartial Juftice, towards thofe, whofe Confidence in his, and his Employer's Probity, or even whofe Inexpertnefs, or Indolence, may have led them to be fo impofed on and wronged, and to put others in Danger of being fo, by their idle Example : — for, without this, and if fucli fenfelefs and difhonourable Notions and Praftices continue to prevail, what can be expected to prove the neceffary Confequences ? — Not Veracity, Harmony, and mutual Benefit ; — but continual Finejfe, Overreaching, Dif- content ; and their Concomitants, Difcord, Litigation, Bind general Iii/ecuri'y ; which, in Fact, is become already but too much the Cale.

Why (hould not all needful Papers, Documents,- Proofs, &c. between Merchant and Infurer, be made put and produced^- habitually, as Matters- of Courfe ; or, at leaft, on Requifition ; and with as much Regularity and

Explanation,

PRELIMINARY DISCOURSE. xiU

Explanation, as in Affairs betw^een Merchant and Merchant? who are, not- withftanding, in general, reciprocally conufant of the Circumftances of their Tranfaftions together ; whilft, on the contrary, an Iifarer muft always depend on the Infured for a Communication of them ; — and, why fhould Gentlemen be intimidated, or fuffer themfelves, without due Rcfentment, to be fliled litigious, for requiring that Satisfaction only, to whicli they have a juft and undeniable Right? or, why fubm;t, as many atlually do, to be a conftant Prey to Subtilty and Impofition? — And, when fuch reafonable Requi- fitions and Enquiries concerning Fa6ls, Papers, Sec. arc, as tJiey often are, on frivolous Pretences, refufed, evaded, or unfatisfaHorily anfwered ; and the Brokers, or Affureds, pretend to grow angry, nay, fomctimes rude and caiforious ; doth it not induce a flrong Sufpicion of j/f;2?/?i:r Praftices and Intentions ? — The Truth is, tln'fe are generally at the Bottom, in fuch Cafes.

But it may be, and ufually is objefted that, to produce Papers, when an Adjuftment on a Policy hath been figned by one or two, or more Under- writers, would frequently be too troublefome; take up too much time; give Difgufl to Affureds ; make the Infurer who requires an Infpeftion into them, a Difclofure of FaUs, and to exercife his own Judgment thereupon (no Matter from what Degree of jult Sufpicion, or even Certainty of Error, or that lie has been, or is about to be defrauded, or impofed upon) appear mean, or cavilling ; — when, by a contrary Conduft, by fubfcribing and fettling z';?/'/jaV.^V and without any Oueflions afked, he may underwi-irc as many Policies as be pleafes, or as the aforementioned great and leading Underwriters do. — In this Manner do many Gentlemen fuffer themfelves to be alternately ai/wr^(j^ and alarmed, not only out of their Property, — but out of their Common Senfe !

Are theff, however, fufficient Pretences, or Motives, to itiduce Men of Underllanding, and Knowledg^c A their Bufinefs, to yield to fuch Modes of Condu61 in it as are utterly iauacious, ruinous, and fubverfive not only of all Power of exercifing private Judgment and Experience, but of n-.jardino-,, in the leaft Degree, even againft intentional, reiterated, and. confummate Frauds? — Surely ! if it be worth the While to go, frequently, into Courts of Juftice, at an enormous Expence and Trouble, for the Difcovery, or Deter- mination of 2i Jingle Fa'Sl ; or to afcertain the Expofition, or Operation of a Jingle Word ; of wiiich feveral Inftances might be produced ; it would be far more eligible, fave more Time, prevent Sufpicion, be more becoming the refpeQable Charafters of Merchant and Infurer, and of more general Benefit and Eafe to all Parties, to be always ready to explain and difcufs all Matters

D candidly

xiv PRELIMINARY DISCOURSE.

candidly and impartially ; to reftify Errors currently ; and to be open to Truth, Honour, and Juflice ; than to abandon thefe, and give up the Reins to Fallacy, Prejudice, and Litigation.

When either Individuals, or a coIlc6live Body of Men, of any Clafs, Profeffion, or Rank whatever, once fet out, and for fome Time proceed, in Ignorance, and Error, M'ithout due Enquiry, Inftruftion, or enabling themfelves to form a right Judgment of what fiiould be the Objefts of their Attention ; but take them merely by Precedent, or upon Truft, or depend on others who are interefted to deceive them ; fuch Error foon takes Root, grows '-[nio Habit, and generates Errors as innumerable as the human Progeny r On the contrary, thofe who acciijlom themfelves to right Methods, can- not, with that implicit Facility, which is in general ufed, and, therefore,, ever looked for in this Bufinefs, fall in with zorong ones.

Considering, however, the infinite Variety of Circumftances to which Infurance Matters are liable ; and that, confequently, many of them muft prove, from Time to Time, of a novel Kind ; particularly, from the unufual or uncertain Cafualties of War ; it is naturally to be expefted that a Diverfity of Ideas and Opinions will, on fuch Occafions, fometimes arife, efpecially be- tween the Parties who may be interefted therein : — but, were they, on both Sides, more intimate than they ufually are with the DoEirines, Principles, and Laws of Infurance ; and the right Application of them to the hitherto known Cafes and Occurrences; fuch Contrariety, fuch unmanly, and mutually hurtful Altercations, as are frequently difgracing Lloyd's Rooms, would foon fub- fide; and Men's Minds, by being pofreffed of a competent Knowledge of what has been already done, and underflood, in divers Inftances the mofl fimilar to their own, would be reciprocally more open to Conviftion, and better prepared to let Partiality and Selfifhnefs give Place to Reafon and Equity: — for, it is commonly Ignorance, united with Self-Intereft, that are the Parents of Difpute ; and that prompt Perfons who are aftuated by them to endeavour to fligmatize others, who are better informed, with the Appellation, always ready for fuch Infurers, of Caviller ; which, in Fa6l, properly and only belongs to themfelves, — who thus add Infult to Injury.

Those, of whom there are feveral, who have taken Pains to underRand- what they are employed about, to obtain a Proficiency in the Knowledge of Things which concern their Profeflion, and in their refpeftive Avocations, to conneft a fair and regular Pradice with ajuj Theory; and who, thereforei.

cannot

PRELIMINARY DISCOURSE. xv

cannot fubmit to repeated Depredations upon their Property and Fortune ; are generally obnoxious to Malevolence, and looked upon ungracioufly by all thofe who govern themfelves by no other Rule, or Motive, than their own Advantage and Conveniency ; or, who ufually aft at Random: befides the Confufion of Ideas, and clafliing of Notions, which occur with Perfons who attempt to difcufs what they do not comprehend ; and the Difticuhy of convincing one lefs intelligent, or lefs candid than yourfelf ; whofe Pre* judices inftantly begin to operate, upon the flighteft Overture to that Eifeft.

But wherefore, in any Situation whatever, (hould Folly take the Lead of Good Senfe? — Can it be for the true Intereft and Happinefs of Mankind, that Error and Deception fliould predominate? — Shall Truth yield to Fal- fliood, Probity to Craft, and Honefty to Knavery, even in thofe Walks of Life where Gain, or the Purfuit of Property, is the primum Mobile? — Can the Merchants and hifurers of London, who have hitherto flood in tlie moft refpeftable Light, in the Eye of all Nations, be indifferent with Regard to what kind of Principles and Practices prevail in any Branch whatever relative to Commerce ; and not think it for their own, and for the common Benefit, to countenance every well-meant Attempt towards a Regulation of them ; and to check the Courfe of great, nay, I am well authorifed in fayinf^, ENORMOUS and growing Abuses! Abufes, -which prevail to a Pitch un- known before, — chiefly becaufe they are in general unattended to, or unob- ferved, or tamely fubmitted to, — in a Department fo indifpenfably neceflarVj^ and of fo much Confequence as that of Infurance.

How much foever the conftant Occurrence, in various Refpefts, of the Diforders alluded to, is to be regretted ; ftill more fo is the entire Want of thofe highly eligible Modes of Regulation and Redrefs, which are eftabliflied, in feveral Parts of Europe, under the Denominations of Judgc-Con/uIJiiips, Chambers, or Courts of AJJiirance, &c. formed of private Perfons, flcilful in the Affairs of Commerce and Infurance ; and invefled with Power to decide fpeedily, and at a fmall Charge, all Difputes and Differences concernin<T them. — It is, indeed, truly lamentable that the only Means of Remedy, in fuch Cafes, provided in this Country, fiiould be Juch as are attended with in- finitely more pernicious Effefts than even the Difeafe itfelf. Thofe Evils,

hov\^ever, with Refpe6l to the Affairs o{ Infurance, in particular, might un- queftionably be, in a great Meafure, obviated and redreff'ed, with fome Degree of fuitable Deliberation, much more efficacioufly, and v/ith much more general Saiisfaftion (as haih been fully evinced, by long Experience, in

other

xvi PRELIMINARY DISCOURSE.

other Countries) amongft Merchants and In/urers them/elves, than by rerorting, even on very petty Occafions,* where the Mifchief, inftcad of Reftraint, evidently derives continual Accumulation : I mean, to Courts of Law : — Avhofe priftine Dignity and Authority, in the Judgment of the difccrning Part of the Public, have been far from receiving either additional Weight, or Lujlre, by \\\c extraordinary Procedure which, in later Times, hath diilinguiflied fome of them, in divers Cafes of Momeat..

What, in any Country, could be more prepofterous and intolerabfy grievous; or more reproachful to a great commercial Nation, in particular; than that the Adminiftration of private Judicc, in the Affairs of Merchants, fhould be folelv in the Hands of Lawyers; and marked by total Uncertainty, frequent Mj/lake, and Inconclufivenefs. I — that, great as mud be the Danger of palfrng wrong and fallible Judgments, where the Power of judging fhould reft in, or be, in Effect, affumed by, or yielded to, one Perfon only ; yet, through an Alfectation, or a Neceffity of Difpatch, a Rapidity of Proceeding in a Multiplicity of Suits of different Natures, the Deci/ions pronounced fliould be not feldom erroneous, fometimes contradictory ! — that thefe fiiould often be the Kffect of mere immature Opinion ; taken up, and thrown out precipitately, and adhered to lenacioiijly, from the very Opening of a Caufc ; nay, perhaps, previoufly thereto : or, formed upon Iomega? /zVz/, mi/conceived, ox mifreprt- fented Ground, without a proper Difcvjfwn of Merits; and, therefore, preg- nant with further Diffention, leading the Suitors into Perplexities, and the Public, fometimes, into fatal Error, by eftablifliing that as Law, which afterwards ffiould be found not to be fo ; but the Refult of Discretion !f — that, in a Court of Law, not the known, fettled Principles of Law, but general Rules of Equity fhould be made the Guide ; fuch Equity too as an

* Such as, for Inflance, to determine " Wheilier a Rftttrn of Piemuim agreea, in a Policy, to be xn^Ae^ox Convoy, means onTv, \n Ca^t o^ Convoy for the Vnyage ; or, for dny partial Convoy ?" — Upon whicli Qiieflion a Trial was lately had, and decided for the latter and literal laterpreiaiion : — but, this being unfaiisfattory to the Utiderwriters, it was in Agitation to have a new Triul thereupon; becaufe the Return, ftipulated in the Policy, was the fame as was to be made on other P.)!ici(.s, on the like Adventure, yi>r the Voyage; and becaufe in fome other Policies, there was expreird a [mailer Return in Cafe o\ partial Convoy ; and the OmiJJion ol the Words, " for the Voyage," if not merely a Trap on tlie Part of the Alfured, was an Overfighl of the Infurers: Nay, it was quite common for the Brokers to fay to the Infurers, on the latt«r obferving the OrailTion of ihofe Words, at the Time of Under^ writing, that " they were to be z/n^<r/)!(7ai." -Lilly ^nA Roberts \. Ewer, at Guildhall, Mick. 1778.

+ There is Something truly noble in the following Words of the honeft Ld. Camden, in his Argument in the Cafe of Hind/on and Kerfey, p. 53. Quarto Edit. i77t- — " Difcretion is the Law of Tyrants} it is always unknown ; it is different in different Men ; it is cafual, and depends on Conflitution, Temper, and PafTion : in the bcft it is ohcnumes Caprice ; in the wuril, every Vice, Folly, and Pafliion, to which human Nature is liable."

Individual

PRELIMINARY DISCOURSE. xvii

Individual might be difpoied to apph' pro re naiaf — that this Equity fiiouid be afTumed in an extraordinary Latitude of conftruing and deciding upon clear and p\dL\n Statutes ; not as they arc, and as the Makers of them expreffed them, and the Public underftand thcni ; but, as fuch an Individual might conceive they ought to be : fo that what might be delivered fliould, inflead of Law, he Legijlaiian ! — that, confequently, the bed and wifefl Men, no not the ablefl Projcjfjr oS. Law amongil them, in Spite of Reafon, Juilice, and the beft Opinions previoufly had, could fcarcely ever fay, what zf, or v.hat is not Law ; or foretell on what Grounds any Caufe w'ould be taken up ; or take

upon him to determine what v.'ould be the Event of an A6lion or Suit ! •

It hath, hov\'ever, been remarked tliat, this was not a diiHcult Matter, in England, for Men of Knowledge and Experience, in the Times of Lord Hardwicke, and other eminent Judges : — v/ho, revering the Lav/s of their Country, ftudied Uniformity in their Decifions ; prefering it to the vain Admi- ration attending the Appearances of fuperior Genius, or the Applaufe of thofe who might profit by the Deviations from eflabliflied Principles.

One of the mod; ancient and boaOed Rights of Engliflimen is Trial hy Juries: — and "the Property, Liberty, and Life of every Perfon, depend upon maintaining it in it's legal Force."* — 'Tis a weighty Concern, and Qiould be managed ferioufly, and co7rJcienlio7{/ly : and, therefore, every Man ought to be acquainted with thofe Lazos and Cujloms, at leaft, v/ith which he is im- mediately concerned ; fince in the Solution of fome Ouedions of Lninortance the Law and the Facl are intimately blended together.— Yet, would it not be deplorable to obferve juries of Merchants, frequently appear to be [o ijiconi- petent (efpecially as to Matters of Infurance) or fo pajfive, as to fubmit to the mofl fubtile Preclujion of, and Ufurpation over their unquellionable Jurif- diftion, in hearing, eftablifliing, and judging even of Fails; although the Law niould have provided that every Matter in Iffue fiiall be fo clear and in- controvertible that twelve Men fliall concur in Opinion to decide it ! Would

it not be pitiable to behold even fuch Men, fometimes, as it were, fafcinated hy an injinuating Elocution, a refined Plaujihility, an impofing Manner; and feduced, fuddenly or inadvertently, almpft into Perjury, by giving a VerdvSi upon jVf(?n7i which they had not comprehended, becaufe not entered into, nor even permitted to be dated to them ! — In fliort, what a miferable Con- fideration, for the injured Parties, and how difgraceful were it not to this noble and vaunted Mode of Trial, if there fliould be Reafon to believe that

many fuch Verdifts flood on Record! Alas ! are not even the greatcft

Lawyers, however eminent their Abilities^ or juft their Intentions, being Hill

* 3 BlacL Com. 351.

E frail

xviii PRELIMINARY DISCOURSE.

frail Meii like ourfelves, often at an entire Lofs to decide — and how fhould it be otherwife, in commercial Cafes — till they have fearched Books, Prece- dents, Ordinances; enquired of Merchants ;* and thofe, perhaps, not the moft impartial, nor the mofl enlightened as to the Ufage, in fuch particular Cafes ?

If, in the extenfive Range of general Jurifprudence (whofe ObjeQs are as uncircumfcribed as thofe of human Agency) the moft celebrated Judges have, not rarely, mifdireEled, and miftook the Lav) ; — how much more liable are they, and Juries, to be deceived as to Fuels? — and, '\{ thcfe be fup- preflTcd, falfely reprefented, or mifapprehended, the Judgment thereupon muft, neceffarily, ht falfe : — for, " Ex Y^Ro oritur Jus."

But, how much more aggravated, ftill, muft be the Mifchiefs of Proceedings at Law, between the mercantile Part of the Subjefts of any State — where Juflice could not be had, nor even a Hearing obtained (although, perhaps, of a few Minutes only) but upon the moft vexatious and blood-fucking Terms ! — • where the Laws fliould feem as if they were made folely for the Emolument and Aggrandizement oi \\\c Laxcycrs: u^on ■^sho^e Opinions , neverthelefs, from their frequent Fallacy, and Repugnance to each other, no Reliance what- ever could be made : and, whofe Learning and Oratory, inftead of being reftri^ed to the Cause of Truth, fliould be conftantly debafed with Levity and I.iceniioifnfs ; and made the common Engines of Strife and Calumny! — where a/fW leading Advocates fliould, from Seniority, arrogate the Ma- nagement and Pleading of almoft fw?;)* Caufe : ^n(\ junior Counfel, whatever might be their Standing, their Knowledge, and Abilities, fliould be fo much overawed, as not to dare to exert them ! — " where, befides (as Sir Jofiah Child juHly remarked) after great Expence of Time and Money, it would be well if we (as Merchants) could make our own Counfel, being Common Lawyers, underfiand one Half of our Case :"— and, through whofe Inatten- tion, Mifapprehenfion, and even NegleEl o[ InJlruElions, the principal Merits of it fliould remain uncommunicated, and confequently unheard !

To what Extent Wit and Humour, and the fporting with the delicate Point of R.cputaiion, — by Men who have fliook Hands with Modefty, and difcarded common Decency, — may be tolerated in the fober, judicial Inveftigation

* Ld. Mansfield faid, " As I cxpeflcd the other Caufe would be tried, I thought a good Deal about the Point, and endeavoured to get what A/fiflance 1 could, by conversing with fome Gentlemen of Expfrience in Adjullnients." — Lewis v. Ruc/ter. a Burr. 1 167. — May not a Judge be as often imjled as adiftcd, by tbefe extrajudicial and ex parte. Convcrfalions ; and be fomctimes induced by them to make >;p his Opinion too early and immaturely?

of

PRELIMINARY DISCOURSE. xix

of the Right of Property, I leave to the Gravity of the Bench to deter- mine ; — but, were declamatory Invectives, and wanton Infults, permitted to be ufually or frequently praclifed at the Bar, with Refpe6l to Parties and WitnefTcs, — who are not in a Situation to repel, or puni/li them, — they would become sen. inquijiiorial Tyranny; a national Dilhonour; and ever refleft an immediate Difgrace, nay, fix a Criminality on the Magijlrate, how- ever elevated his Seat, who (hould fo far pervert, or forget the important Funftions of his Office, as to give a Sanfiion to them by his Silence, and even promote them by his Smiles or Gejlures : — fince their profeffed, and only Ufe is, "to make the worfe appear the better Part ;" to R'lile Fa^s ; confound the Merits of the Caufe ; and, by deluding the Minds of the Auditors into a Mi/^ conception of them, propagate further Mifunderftandings, Prejudices, and Mifchief : — nor can they ever ferve more honell Purpofes than, on the one Hand, to intimidate and d:;ter Men of Senfibility, and averfe to mere Wrano^le, from attempting to explain, affert, or proteft their Rights, however bafely violated; — and, on the other, to furnilh Encouragement to defigning and rapacious Knaves, to harafs the unwary, and thofe who had confided in their fuppofed Truth and Honefty.

A CELEBRATED Writer,* of the prefent Time, makes the following very pertinent and feeling Remark (a few Words of which are here omitted) — " No Oppreffion is fo heavy and lading as that which is inflifted by the Perverjion and Exorbitance of legal Authority ; — the Robber may be feized, and the In- vader repelled, whenever they are found ; they wlio pretend no Right but that of Force, may by Force be punifhed or fuppreffed ;— but, when Plunder is perpetrated by a judicial Sentence, Fortitude is intimidated, Wifdom con- founded, and the Villain remains fecure in the Robes of the Magillrate."

If, therefore, Merchants, through Defeft of Knowledge, Narrownefb' of Sentiment, or even Indolence, with Refpeft to their oion Affairs, (loop to render themfelvcs dependant on the crude Notions, and precarious, incon- clufiveDecifions of Lawyers, concerning the various Points, and Oueftions, which muft, from Day to Day, unavoidably occur; — can any Thing elfe be expefted to arife and predominate, in the Courfe of Bufinefs, particularly Infurance, but Diforder, vague Opinion, Contention ; and continual Obfiruc- tions to that fedate, and amicable Procedure, which accompanies mutual Intelligibility; which is indifpenfably neceffary in the Profecution of mercan- tile Tranfaftions ; and without which they cannot be profperous?

* Dr. JoJinfon.

From

XX P RE LI MI NARY DISCOURSE.

From tvheJice is it that the mod profound Adepts, and Sages of the Law, derive their fancied Superiority of Skill, in the Rules of JuUice, in Matters of Commerce and Infurance?—B.^\\\ it not, always, been from the Informations and Explanations of experienced and judicious Merchants and Infurers ; from Time to Time given, in the feveral Cafes, which have been introduced, dif- cuffed, and decided in Courts of Judicature ?— and, what lamentable Ab- furdity, and Confufion of Ideas, might not have been often obferved, in the Argumentations there, upon fuch Matters !— yet, do \vc not, fometimes, idly look up to, as Oracles, thofe, whom intelligent Men amongft ourfelves have, in Reality, in/lruBed s^

Those Affairs are often accompanied with fuch new and various Circum- fhmces and Contingencies; and depend fo much upon nice Diftinflions of fpccial Cii/Ionis and U/agcs; that the Common Law of England tacitly ac- knowledges it's own Imperfeftion, in this Refpe6l, by allowing the Lex MfRCATORiA, i. e. the Cuftom of Merchants, — wherein Thenifclves, only, are properly (killed ; and of which, confequenily, Themfelvcs, only, can be the proper JiiJgcs, — to pafs as Law.

The frequent Futility, therefore, of Trials, and the Invalidity of fundry De- cihons, AT Law, in m^rcfln/t/tr, and efpecially //</u7'rt'ir(? Cafes, are as evident as the Vexation, and Embarraffment (yet, unavoidable Neceffity which, hitherto, there often isj of Recourfe to it : owing as well to Caufes already alfif'^ned, as to the formal, dilatory, defedive, and circuitous Modes o^ Proceed- ing ; fometimes from Court to Court, — or for new, and repeated Trials, in the fame Court, on one and the fame Policy, Oueftion, or Point; very fimple perhaps in itfelf; which migh.t cafily, in much (horter Time, more effcSlually and certainly, in almoft every Inflance, be elucidated and decided by and amongft Merchants iherd/tlves ; were they to acquire that Judgjnent in their refpetlive Branches, and to deport themfelves towards each other with that Moderation, Candour, and Patience, which befit their Station.

With ihefe Difpofitions, furely the abominable Frequency, Expence, Inefhcacy, and divers other ill Confequences of Law Suits, might, m great Part, be obviated; by inflituting fome Sort of amicable, yet folcmn Judicatory, for the yii?;i77zar)' Dccijion of difputed Matters oS. Infur ance : at leaft, fuch as might not be of a very abflrufe Nature, to confifl of fuch a Number of Perfons as might be deemed requifite (with proper Afhftants, or Clerks) to be elefted, from amongft Gentlemen of Sagacity and Refpec- tability, and who have had a large Experience of thefe Affairs ; annually,

or

PRELIMINARY DISCOURSE. xxi

or for a longer Term ; or three new ones each Year ; by all fuch Merchants, Infurers, and In/urance Brokers, who might be inclined to refer their Differences thereto, and to fupport the Charges thereof, even with proper Salaries, by Subfcription.

The Members, who might compofe this Court, fliould fit at dated Times, weekly, monthly, or otherwife, and aft on Oath, as do the Judges, and Juries, in the Law Courts : — Parties, their Agents, and WitneJJes, fliould alfo, pre- vioufly to their being heard, make proper Affidavits before a Judge, or other Magiftrate (which fhould be filed) to give true Information : — The Mode of Proceeding might be duly regulated, and open : — The Decifions rendered ab- folutely, or only occafionaily final, according to the greater or lefs Importance of the Cafe, or Quefi:ion, by the Parties agreeing, in Bonds oi Submiffion, that they fhould be made a Rule of the Court of Kings-Bench, as is now done with Refpeft to Awards, in common Arbitrations.

Most of our Litigations turn upon difputed FaEls: and thefe, as well as Perfons, Papers, Evidences, &c. would be much more fpeedily and effeftually difcovered, and examined, than can be done by Means even of all the Courts of Law and Equity together (whofe tardy and intolerably €x/(?M/^z/^ Operations abfoIutely/rw/Zriiiif this neceffary End) and, therefore, ill-defigning and fraudulent Perfons would be kept, by the Method propofed, in greater Awe ; and few, except fuch, would be indifpofed to contribute to the Support, and to refer themfelves to the A.uthority of fuch an amicable Judicature.

Parties, not annual Subfcribers, might be admitted to recur to it occa- fionaily, paying a flipulated Sum, or fuch neccjfary Charges, by Way of Coffs, as fhonld be awarded by the Judicatory : — whofe DifcufTions and Determinations, however defeftive, and even erroneous they might fomctimes be ; yet it is highly probable they would, in general, be lefs fo, and lefs unequitable (for the Reafons before mentioned) than jnany, in Infurance Cafes., which now fland on Record in Courts of Law : to which, however, a Recourfe might, flill, be left open, in Cafes of abfolute Need, and very great Confequence, or Intricacy, as already intimated ; and the Parties ena- bled, at leafl, to go thither much better prepared, to obtain, at once, a jufl and final Decree.

The Necejfity, Advantage, and general Convenience of an Inflitution of the Kind here fuggefted, are too obvious to be denied,

F I AM

xxii PRELIMINARY DISCOURSE.'

I AM aware of the Objeftions which might be ftarted, with Refpeft to fuch an AMICABLE Judicature as I have propofed ; but they might be foon remo- ved, with proper DeUberation : — the Knowledge and Praftice of the;z^ Principles of Infurance would naturally become, thereby, more generally

difu/ed: and ihek brief Hints, if taken up with fome Degree of Public

Spirit, by fage and judicious Men, might, undoubtedly, be greatly improved, and foon carried into very good Effeft : — in which I prefume to think that what I (hall have further to offer might prove of no inconfiderable Afliftance.

For, as to the common Mode of Arbitratioii, of three Perfons, who are ufually, or often, chofen as being interelled, biaffed, or predetermined Friends ; it fiiould feem, at prefent, from the continual and direft Refort of Merchants and Infurers to Courts of Law, that Matters are come to fuch a Pafs that, except in Affairs of very fmall Moment, they can neither rely on the Knowledge, the Experience, nor the Impartiality of each other ; — ■ and, therefore, that Litigation is become fo rife, there is a Neceffity, how- ever ftrange it may appear, for the almoft daily Attendance, which may be obferved, efpecially in Term Time, of no lefs than 4 or 5 Attornies at Lloyd's Coffee- Hoife ! — What a Degradation is this of mercantile Charafter and Abilities, even in a fingle Branch of Commerce ! '■

Prevention is, howevei", on all Occafions, better than Cure: — and the moft effeftual Way of preventing, in any Refpeft, the Evils herein mentioned is, for every one to endeavour to attain a clear Comprehenjion of the feveral Matters that relate to the Undertakings which he engages in, and of the true Principles by which they are governed ; without which he had better not embark at all, and more efpecially in the very dangerous Affairs of Infurance ; in Order that every one may imbibe the fame uniform, and con- fijlcnt Notions and Rules concerning them ; which is far, very far from being the Cafe, except in a few very common Inflances.

On the Contrary, many Perfons become Underwriters and Infurance Brokers, efpecially in Time of War, or Hoflilities, without any previous Knowledge whatever of the Kind that is requifite to qualify them ; and feve- ral, who have aftually employed themfelves in thofe Capacities many Years, and fome, during even the greater Part of their Lives, having always been either of a too indolent and inattentive Caft, or too deeply immerfed in the Bufinefs itfclf; being more bent on the Quantity than the Propriety of it ; or, being defective in commercial Education, Difcernment or Capacity ;

'' "- have

PRELIMINARY DISCOURSE, xxiii

have never given themfelves the Trouble to enter into a proper Difcrimina- tion of the Circumftances of the various Matters which came before them ; nor of the Rules, DoElrines, or Laws applicable thereto.

We fee not a few Inftances even of Trade/men, Shopkeepers, &c. lured by the golden, but delufive Bait of A't'/wmw^, efpecially in Time o^War, drawn like Gudgeons, into the Vortex of this perilous Abyfs, Infurance ; from

which they can, rarely, afterwards extricate themfelves ; for, engaging

as Underwriters, with an intire Deprivation of that Sort of Skill, and general Intelligence of commercial and maritime Affairs which, befides what pecu- liarly belongs to Infurance, are requifite to form a judicious Infurer ; Tkey, in particular, muft at all Times be, inevitably, expofed to every Danger, every Artifice, and every Impofition ; if not devoted to certain Deffruc-

tion. To fuch of them, however, who are already engaged, and who

are refolved to perfift in Underwriting, the inftrufting themfelves in the general Principles of Infurance muff be ferviceable : — to thofe who are not, it is advifeable, by all Means, to keep out of the Way of almofl infallible Hurt to themfelves and Families: — and to reft content with their Acquire-" ments, in a Road more fuitable to their accuftomed Line of Life ; or to enjoy, with Tranquility, the Comforts to be drawn from them, in Retire- ment; without lanching into what, in all Probability, they never will,

nor ever can properly underftand. There are Inftances of fome of thefe

Gentlemen, fo uninformed of thefe Matters, as to fign their Partner- Jhip Firm to Policies ; — alfo, of Brokers and Infureds, who know not that the underwriting of Policies of Infurance " on the Account or Rifque of Per- fons afting in Partnerftiip" (except the two incorporated Companies) is pro- hibited, hy Statute, 6 Geo. i. c. 18; dind. void prima Facie.

And, with Refpeft to thofe Gentlemen who may be ambitious to become what are called great Underwriters ; eager to take the Lead ; to begin, or fubfcribe almoft every Policy that prefents itfelf, and to be the Jirfl to fettle Loffes, Averages, &c. it would not be to their Difcredit, but might be well for themfelves, and far lefs injurious to others, if they, previoufiy, made themfelves converfant with, at leaft, the general Rules, fettled DoSirines, Laws, Ufages, and decided Cafes, relative to thofe Matters: fince there needs be noHefitation to fay that, within our own Remembrance, there have been fome of fuch Underwriters, who made but an indifferent Figure, from their great Deficiency in fuch neceflary Knowledge :— and, if they would alfo give fome Attention to Papers, Documents, Proof,

and

xxiv PRELIMI NARY DISCOURSE.

and enquire into Facts, they would neither be themselves fo liable to be plunged into irremediable Mifchiefs ; and, finally, to become Vitlims o^ their omi Unjkilfulne/s and Credulity; whkh are coniiant Incitements and Invitations to Malpradices ; nor be the Means of entangling others, who either blindly tread in their Steps, or purely for the Sake of Tranquility, and avoiding Difpute, though often intirely againft their better Judgment, and even certain Conviftion, fubmit to follow and confirm their weak, imprudent, and very hurtful Precedents.

Such Underwriters, ever open at all Points, mufl abfolutely be the very Eleci of all Fortunes Favourites if, upon the winding up and ultimate Clofe of an Account, which, during a few Years, (hall have been hourly fo fliAc- tuating, and complicate, as to be always utterly incomprehenfible, and probably never infpe6led, even by themfelves, the Balance thereof, efpecially upon the Termination of a War, like the prefent, fliould not prove, heavily, on the ruinous Side ; after having not only finiftied the Career of a fantaftick Repute ; but alfo infenfibly facrificed, what ought to be held much dearer, their Health, by an incefiant Refpiration of tlie pcfl:iferous Air of Lloyd's Rooms. — Such an Account may, not unaptly, be compared to a Canal; whenfoever it's Supply, of high Premiums, as during a War, ceafes, it's Difcharge, on a Return of Peace, by the Drain of Loffes, Averages, Returns, Allowances, Difcounts, Douceurs, Sec. foon leaves it exhaufl:ed.

In Truth, if this Bufinefs were, in general, better underflood; and carried on with more Propriety, Regularity, Temper, and Honour, on all Sides ; — were Errors, when difcovered, or pointed out, readily and fairly corre6ted ; — Frauds more endeavoured to be detected ; and when fo, the Parties guilty of, countenancing, or fecreting them, duly punifhed, or ftigmatlzed ; every Thing would proceed with more Facility, more mutual Satisfaftion and Harmony, and unfpeakably more for the general and true Interefl of all Per- fons concerned.

But, whilfl Things are fufFered to go on as they do, the Confequence xrm^ flill be, as it has already hetn, fatal, not only to many Infurers ; but even thofe very Merchants, Infureds, and Brokers, Avho exercife and promote the irrational, erroneous, and culpable Proceedings herein adverted to, do, and muft frequently feel, in the End, the like ill Efiefts thereof recur upon' themfelves.

On

PRELIM IN ARY DISCOURSE. xxv

On the Contrary, were fair, equitable, and correft Rules, Methods, and Principles invariably, or commonly purfued, it would not only be for the Advantage of our Commerce in general ; but would, unqueftionably, render the Security of private Underwriters much better than it is, or ever can be, by the prefent abfurd, catching, and overreacking Modts of Praftice : — for, the Defeft of Qualification, Penetration, or Attention, which is, in general, too manifeft on the one Hand, is fo fure a Temptation and Encouragement to reiterated Malverfations on the other, that all together continually cooperate to the certain Danger, and Damage of ^// Parties,

There is fcarcely any other Occupation, or ProfeOTion, though far more unimportant, and lefs abftrufe or complicate than that of Infurance, amongft the whole Circle of Arts and Commerce exercifed in this Kingdom, where fome Method of InJlruElion is not looked upon as requifite ; and, where the Perfons employed in it are not pretty well verfed in the Grounds and Theory, and the greater Part of them expert in the Pra6liceoHh& Principles on which it ought to be profecuted : — but, one may venture to affert that, in no other Clafs is there to be perceived fo great a Proportion of a numerous Body of Praftiiioners, who are fo incompetently (killed in the Nature of the Matters about which they are occupied, and of the Laws, and Rules, by which they ought to be governed, as amongfl; thofe who are in the aftual Employment of, and whofe Avocations and Concerns are immediately connefted with. Affairs of Infurance : — and, hence it happens that although, in the tran- fafting them, there is, undoubtedly, much real Fairnefs and Honour ; yet there is alfo, undeniably, a great Deal of mere Pretence of thefe ; and much infignificant Talk of honeft Connexions, &c. which, upon a Scrutiny, would often be found to ferve as a Cloak for Subtilty and FineflTe ; and that, in Faft, no other Bufinefs whatever is, on the whole, conduced, or rather JJiicffled through, with fo much Precipitancy, Fallacy, and Injujlice.

But it is, indeed, to be lamented that the general, and moft diflinguifhed Features of the prefent Times are Frivoloufnefs, Oftentation, and Rapacity ! — the public Mind is debafed with Duplicity ; and almoft dead to all Exer- tion, and even Conception of rational, folid, comprehenfive Principles of Aftion : — Every Thing is become Matter of Chance, or full of Collufwn, in the greater Part of the Purfuits and Tranfa6lions of Life ; and They who come off the mod fuccefsful, in thefe Refpefts, are the moft efteemed : — and, therefore, very few, comparatively, are They who at all concern themfelves about, or, indeed, find fuflicient Incentives to aim at, any Degree of

G Judgment,

xxvi PRELIMINARY DISCOURSE.

Judnnent, much lefs to excel, in the KnozoleJge of Things appertaining to their particular Profeffion, or Station .-In fhort, Men, in general, of every Rank, arc led away, governed, inthralled by 7»^r^ Opinion, and fpeciou^ or pmipous Appearances :— few think for themfelves :— and many will not fee, even the moft palpable Abfurdities and Fallacies, 'till they feverely feel the Effefts of them ; and have alfo involved others in equal Calamity,

It is in this prevalent Futility and Venality, this marked Chara^er of the Age, that lies the real Cause of all the Diforders, all the Misfortunes, under which this Nation, coUeaively, as well as individually, now labours; and they will not, cannot ceafe, until fome preeminent Genius, of innate Honejly, intirely regardlefs of Party, Prejudice, and Self-Intereft, (hall arife, to rouze, reanimate, and reinvigorate the native Senfe, and manly Spirit of our Countrymen ; which have been, for fome Time paft, drooping, under the Influence of corrupt, delufive, and grovelling ExA^fPLE, in almoft every Clafs ; and, by ftriking at the Root of predominant Crimes and Follies, reflore the long loft, but rightful Sovereignty of Common Sense.

The grand, and moft effential Point to be guarded againft, in all Matters

of Infurance, is Fraud. Under this Term is comprehended not only

every direft, intentional, and palpable Deceit, Cheating, and Impoftion ; but alfo, and as having the fame Effect, or Tendency, every Kind of Collufon, Mifeprefentation, Equivocation, Concealment, Refervation, and every De- parture from T/wi'A, din A good Faith : — for thefe ever have been, are, and ever will be praftifed, in a vaft Variety of Modes, and Degrees, by a great Number of Perfons, who are either immediately, or indirectly interefted, or conne61ed with thofe whofe Interefts are benefited by the Perpetration of, or ferved by a Connivance at them.

The very Nature and latent Circumftances of Infurance, more efpecially in Time of TlY7r, or Hoftilities, afford but too conftant Temptations, and too frequent Opportunities, fcarcely to be refifted by Men not of ftricl Honour and Principle, in almoft every Cafe, for the Commiffion of thofe Crimes ; and for taking, in fome Shape or other, undue Advantages of

Infurers. And the Experience of all former Times, in all Countries, even

whilft Matters of Infurance were limited to very narrow Bounds, has fticwn the Neccfjity there always was of ufing Means of Dete&ion, and enafting Laws for the Prevention, or Punifliment of them : and, in Faft, all thofe Parts of the Foreign Ordinances, which relate to Infurance, have thefe Obje6ls

chiefly

PRELIMINARY DISCOURSE. xxvii

chieOv in View. — The few Statutes which have been made in England, exprefly concerning Infurance, are likewife principally direftcd to the fame End.

And, indeed, fo unavoidably expofed to thofe Evils is the Situation of Infurers, notwithftanding the utmoft Precautions which they may be able to ufe, that they ought, unqueftionably, to have all the Proteftion and Aid againfl: them, that is in the Power of Government, and the Laws to fupply,

and of every judicious and honefl Man to contribute : for, otherwife,

the Property of every Individual of a large, ufeful, nay, indifpenfibly necef- fary Body of, in general, the mod liberal, honourable, and confiding Men in the whole commercial World, would be conftantly at the Mercy of an.Infi- nity of enierprijing and crafty Perfons, of divers Denominations, through the extenfive, and almofl indefinite O'^exdiiion of Policies of Infurance; and efpecially the artful, and enfnaring Manner in which the zoritten Claufes of them are, now, frequently worded.

We find it remarked, long ago, by Gerard Malynes, even when Commerce and Infurance might be faid to be but in their Infancy, in this Country, that " AITurers are very fitly compared unto Orphans ; becaufe they may endure much Wrong, but cannot commit any." — Lex Merc. p. 107. — And, RiCARD, inhisNEGROCE d* Amsterdam, quotes, from the famous Quintin Wysten, who wrote a Treatife on Averages, that, "the Infureris regarded by all as a Pupil: that is to fay, that they are prote6led in Juftlce, as Orphans ; and never condemned to the utmoft Rigour: — and he advifes all thofe who have any Difference with them to agree it amicably ; — for, that Infurers had always rather grant Something than be profecuted, becaufe this makes them decried as Wranglers ; — but, if too much is demanded of them under this Belief, they rather chufe to go to Law ; in which, it muft be confefTed, they are not quite wrong."

But, with how much more Reafon might thefe Obfervations be applied in later, and efpecially in the prefent Times ; when, by Means of the extra- ordinary Increafe, and Variety of novel Circumflances, of our Commerce, and confequently of Infurance ; the Extent of our Navigation ; and enter- prifing Genius of our Merchants ; not to mention the Recourfe continually had to very great Amounts, from the Merchants of all other Countries, to the Infurers in England; together with \\\t precipitate dLV\d. fiovenly Manner in which the Bufinefs of Infurance is, in general, executed; Under- writers

xxvlii PRELIMINARY DISCOURSE.

writers are not only liable to every Sort of Fallacy and Perfidy, which the Ingenuity and Corruption of Mankind can contrive and put in Praftice ; —but, even to be wfulted with the Epithet of litigious, if they com- plain of it.

It is not a long Time fince an eminent Merchant, in London, received Orders, at different Times, from a Man, in Holland, to make Infurances, on Ships, &c. which never exified ;—and, by Means of Oj/Zm/owj with pre- tended Mafters, and other Perfons, y^/^ Protefts, Affidavits, &c. fent from thence, they fucceeded, through the known Facility of our Underwriters, in recovering fome confiderable Sums, as Loffes. — I have been told that other Houfes, in England, have alfo detetled fimilar Frauds.

The enormous Circumftances of the late Affair of the Friend/kip,

D y, Mafler, bound from Cadiz, for London (wrecked off the Bar

of Li/ion) wkh falfe Bills of Lading, as for a great many Thoufand Pounds Value on Board, in Dollars, Cochineal, &c. which were never fiiipped, though infured in London, Amjlerdam, &c. are too recent, and univerfally known, to need any Detail.

It has always been a conflant Ride, eftablifhed and confirmed by a great Number of Determinations in our Courts, with Regard to all Policies of Infurance, That " the Sugge/liofial/i, or Sup prcjjioveri, i.e. Mifreprefentation, or Concealment^ of any one or more Circumftances, relating to the Rifque, and which might be material for the Infurerto form his own Judgment upon, makes void the Policy." — for. That "thofe Things are to be confidered in the Situation of them at the Time of the Contraft, and not to be judged of by fub/equent Evems." — Cleeve and Ga/coigne ; — Seaman v. Fonnereau; — Green, v. Bozvden ; and many other Cafes. — And Lord Mansfield, in ex- plaining this Doftrine, very fully, in a remarkable Cafe, Carter v. Boehm, Eaft. 6 Geo. 3, expreffed the following Words ; viz, — '* Ihtfipecial Fa6ls, upon which the contingent Chance is to be computed, lie moft commonly in the Knoxoledge of the Infured only ; the Underwriter trufts to his Repre- fentation ; and proceeds upon Confidence that he does not keep back any Circumftance in his Knowledge, to miflead the Underwriter into a Belief that the Circumftance does not exift, and to induce him to cfiimate the Rifque, as if it did not exifi. The keeping back fuch Circumftances is a Fraud ; and therefore the Policy is void. — Although the Suppreffion fliould happen through Mt/lake, without any fraudulent Intention ; yet, ftill the

Underwriter

PRELIMINARY DISCOURSE. xxix

Underwriter is deceived, and the Policy is void ; becaufe the Rifquc run is really different from the Rifque underjlood, and intended to be run, at the Time of the Agreement. — The Reafon of the Rule which obliges Parties to difclofe, is to prevent Fraud, and to encourage good Faith. It is adapted to fach FaEls as vary the Nature of the Contraft ; which one privately knotvs,

and the other is ignorant of, and has no Reafon to fufpeft." " The

Oueftion, therefore, mull always be. Whether there xoas, under all the Circuvi- Jlances, at the Time the Policy was underzvritten, a fair Reprefcntation ; or a Concealment ;— fraudulent, if dejigned ; — and though not dejigned, varying materially the OhjeEl of the Policy; and changing the Rifque underfood to be run."

Now, whoever is acquainted Muth the loofe, hajly, and often crafty Manner in which Infurances are effefted in Lloyd's Coffce-Hoife ; and con- fiders the frequent Want of Penetration, Judgment, ox Attention, on the Part of Infurers ; and of Explicitnefs, or right Information, on the Part of Alfureds and Brokers ; and efpecially the affcEled Ignorance, Silence, and Indifference, or apparent Confidence of the latter, as to material Fafts and Circumflances, on fame Occafons ; and their Infinuation, Plaufibility, and ar^w/ Diverfifi- cation of them, on others ; mufl be perfe6lly convinced of the great and conftant Danger of Deception, in the very firfi hftance, by the ufual Method of mere wr3a/ Communications. — ^ — Therefore, the Mode of repre- fenting Circumflances to the Infurer ought always to be, as far as micrlit be prafticable, in Writing, either upon, or annexed to fome Part of the Policy itfelf ; containing an Extraft, or Minutes of every material Circum- ftance and Intelligence whatever concerning the Rifque : which, fo far from being liable to any Difficulty, or Trouble, as might be pretended, would on the contrary, be quite eafy in Praftice ; and, not only very much facilitate thefe Tranfaftions, by rendering Interrogatories unneceffary, as certainly they ought to be ; but, alfo prevent that juft Sufpicion, which there is, at prefent, fo much Need of keeping continually awake, at the Time of underwriting Policies ; as well as the Room, which is now left to Brokers and Affureds, afterwards to deny, or, at leaf!, forget, their Concealments and Mifreprefentations.

And, notwithflanding I do not mean to enter, in this Place, upon ^o delicate, although very interefling a Part of my Subjeft, except in a gene- ral Manner ; yet Truth, Jujlice, and the common Good demand, and render it indifpenfibly requifite, to animadvert, with fome Degree of Earnellnefs, on

H what

XXX PRELIMINARY DISCOURSE.

^vhat is, undoubtedly, the Canker- Worm that corrodes, and undermines the mutual Intereft and Welfare of Mankind, throughout almoll every Depart- ment of Life ;— and in none of the Concerns of it whatfoever fo much as in Affairs of Infurance :— I mean Fraud!— or Deceit l—Z'r^W/— the Com- pofition of every Thing that is bafc, nefarious, and d'mhoVic -.—Deceit .'— the deadly Bane of all Confidence, Goodwill, and Harmony in Society :— and, therefore, in all Tranfaaions of Infurance, in particular, there ought to be a conftant Jealoufy of, and lively Attention to them ; and, in every Indance \vhere they appear, or can be difcovered, the Parties concerned in them ought not to efcape that Stigma, and Deteltation, which are judly due to- them ; not onlv as it regards the Perfons and Affairs immediately in. Queftion, — but as a Terror and Prevention in future.

And, it would be well, and highly proper, if the Law were much lefs defeclive than it is, with Regard to providing an adequate Punijhment, in all Cafes o^ clear and pofuive Fraud, or Deceit, in Matters of Infuranee : — but, as the Law (lands at prefent, except in a very few Inftances, every artful, and diftionelt Adventurer has it continually in his Power to rob Infurers, with Impunity, even if detefted : — fmce, if he happens not to fucceed, in his original Attempt, by Concealment, Mifreprefentation, &c. in making the Infurance ; or, by fallacious Papers, collujive Evidence, &c. when he goes to Trial : — he fuffers no other Hurt than the vacating his Policy ; and is in general fure of obtaining a Return of the Premium ; which is, ufually, paid into Court, on fuch Occafions ; whilfl the Underwriter is infallibly damnified in a Part of the Cofts, heavy Fees to Council, &c. although he may prove, ever fo demondratively, that he has been violently deceived and impofed upon.

A Law, therefore, ought to be made, inflifting Penalties, if not worfe, on every Perfon, of whatever Quality or Denomination, guilty of grofs and evi- dent Fraud, Deceit or Craft ; — as is wifely enafted by the Ordinances of fundry foreign maritime States ; — where, all Perfons, including Infureds, Captains, Shippers, &c. fo guilty, " {liall not only reap no Advantage, of their Fraud and Deceit; but fhall, befides, be obliged to make good all LofTes, Damage, and Intereft, occafioned by them ; and be publickly, and corporally, chaftifed and punifhed, for a Terror, and Example to others ; nay, even with Death, as Pirates, Public Robbers, and manifeft Thieves, if it be found that they have ufed notorious Malverfation, or Craft," — Ordi- nances of Middleburg, and Amjlerdam.

Again;

PRE LI M I NARY DISCOURSE. xxxi

Again ; — " Any Pcrfon foever making Ufe oS. Artifices, Fraud, and Fallacy, in any Matter o^ Infiirance, or Average, fhall not only make good to all Parties concerned all the Inconveniences, and Damages, they may have received thereby ; but likewife, on Account of his Offence, fhall, according to the Circumjlances of every particular Affair, and the Prefcription of the Penal Laws, enaftedin our Ordinance againft Criminals, ht punijliedin his EJlate, Honour, and Life." — Ordinance of Stockholm*

And, again; — " If any one that is affured\\imk\^, or a fworn Broker, or any Mqjler, Mates, and Seamen, fliould di^ fraudulently ; and, with Delign, Deceit, or out of Wantonnefs, impofe upon the Affurers, either in the Contraft, or Policy of Affurance itfelf ; or aft difwnejily by the Ships, Goods, Cargoes, that are infured, and run them into extraordinary Hazards, whereby the Affurers become to be Lofers ; fuch a Cheat and Impoftor, if any malicious Intention can be proved againft him, fliall not only be liable to make Satisfaftion for all Loffes, Damages, and Charges, although the Lofs did NOT adually happen; but more particularly, when a real Prejudice is arifen from it ; — but fhall, moreover, according to the Nature and Circum- ftances of the Crime, be profecuted, as a Criminal ; and fuffer fuch exem- plary Punilhment as the Law ffiall inflift." — Ordina?ice of Hamburg.

Seeing, therefore, that thefe Enormities, do indifputably and univerfally occur; and are, in the prcfent Times, too notorioufly pradifed to pafs unnoticed ; — the Nature of them, and of my Delign in what I fhall have further to offer to the Confideration of the Reader, in the Sequel of this Difcourfe, does not admit of being too fparing in thefe Striftures ; nor over nice in confidering who, or what Perfons, in particular, may fuppofe them- felves thereby affe6led : In Truth, I believe, there are too many con- cerned in the bafe Pra6lices alluded to, for any Perfon to imagine that He in particular is pointed at; and, therefore, none can be offended but thofe who are too confcious of their Culpability: — "Qui capit, ille

TACIT."

It may, perhaps, be fuppofed, by fome honourable and unfufpeclino- Readers, that, with Pvcfpect io fraudulent, or deceitful Fradices, Thefe c<in, furely, happen only amongfl Perfons of no Charafter, Eftimation, or Rank : — but, however reluftantly it be faid, it is neverthelefs true, that there are not wanting feveral Inftances, which might eafily be produced, of Perfons, in different Places, wlio, although they pafs for Merchants, Ozoners,

Freighters^

PRELIMINARY DISCOURSE.

Freighters, Mojlcrs, &c. of eftablidied Reputation, fcruple not, for intereaed andlvaricious Purpofes, to avail themfelves of the prevalent Opinion of them, and the well-known Credulity and SupiNENESs oflnfurers, to be guilty of very foul Deceit and Craft ;— whilfl the injured Underwriter, fometimes even ^vith his Eyes open, fettles, pays, and moft wrongfully parts with his Property ; not chufing to contefl againft the common Prejudice in Favour of fuch Peifons, or the FarLiality of Infurance Brokers; whofe private Intereft and Conneaions, too often, induce them to aid, fmother, or wink at fucli Proceedings.— There are alfo Inftances of Underwriters, themfelves, who fometimes eafily acquiefce with, and connive at fallacious Adjuflments, for the Purpofc of taking, as Affureds, the like unjull Advantages on their own Policies.

Hen'ce, it is not wonderful that divers Perfons, in fundry Parts, fhould be endeavouring, by various indirect Means and Manoeuvres, to enrich themfelves, and fome of them but too well fucceed, by the Plunder of Infu-

rers. It would, indeed, be impofiible for fuch Perfons, with other Views,

to cno-age in fuch apparently improvident Enterprifes, and to pay, on many Occafions, fuch very high Premiums, as they do ; and which are merely the Snares by which they entrap their unwary Game : yet, their Defigns are fometimes fruftrated by an unexpefted Recapture, or fome unwijlied for Event ; or, through the illicit^ or defedive Operation of their Scheme, and confequently of their Policy.

It is a Maxim in the Law that — Fraus nan prcsfumenda : — '"' Fraud fliall not be prefumed, nnXth proved :'' — and this is adhered to, mofl flriflly, by- cur Courts, in Favour of the Affured, in all Infurance Caufes : — where, let the Prefumption of Fraud be ever fo violent, and well founded ; and, although every Man's Mind be fatisfied of it ; yet, unlefs the Infurers can fully prove, and make it out to Dcmunjlration, they are fure to be cafl : whereas, on the Contrary, the crafty Infured, — (taking Advantage of the unequal Situation of the Infurer, in this Refpecl ; the Onus probandi always lying upon him ; althougli the Infured, or his Agents, have in their own Poffefllon, Power, or Cognizance, all the Fatls, Circumftances, and Documents, of a Kind often dilhcult to be imagined, or queflioned about, by Parties not in the Secret ; and therefore effeftual Means cannot eafily be ufed for unravelling them — ) is generally able to outwit, by interejled Witnelfes, a partial Y.xh\- h\\\o\\ o[ Papers, and vl Pcrverfion ol FaEls, an unprepared, and uninformed Infurer; who, neverthelefs, may think himfclf very fortunate if, whilft

aftually

PRELIMINARY DISCOURSE. xxxiH

aaually choufed out of his Property, together with enormous Cofts, under Colour of Law, his good Name efcapes from the malignant Breath o^ De- famation unblafted, for attempting, even on the moft rational Grounds, to proteft his Right.

In mod of the Cafes of Fraud, or Concealment, there is hardly a Poffibi- lity of obtaining a Difcovery thereof, even by the circuitous Means of a Bill in Equity ; for the culpable Parties, with the Affiftance of their Lawyers, will in general frame their Anfwers fo evajively that, were they produced as Evidence at Law, they would need no other in their Favour ; not to mention the great Expence of fuch Bills and Anfwers, extending through the Ingenuity of Lawyers to 200, and even to 400 Pages, or more, each, in fome Inftances, merely to get at bl Jingle material Fa^ ; or to afcertain a fingle Quejlion; which might be refolved in half a Dozen Words ; or, by producing fome one particular Letter, or Paper only ; and which, after all, remains unexplained, and as much in the Dark as before.

iNfliort, the ww>yZ Treatment, which /?2/iir^rj receive, in various Refpefts, calls aloud for Redrefs. — It is certain that not a Day, not an Hour pafTeth, but there are to be heard Exclamations, on the Part of Infurers at large, of the repeated Wrongs done to them : and, it is as certain that thofe continual Complaints are but too well founded : nay, thofe Wrongs are now become fo glaring, fo evident, and fo numerous ; yet are in fo many Inftances either unobferved, through that habitual Indolence, Inexperience, or Incapacity, as before remarked, of fome Underwriters ; — or, too eafily and frequently acquiefced with, through the Pufillanimity of others ; that all poffible En- couragement is, thereby, given to the open and increafing Praftice of Impo- fition ; and, often, to the very Promotion of the ranked Fraud and Perjury.

But, wherefore do Gentlemen exclaim againft Abufes, which fb iniquitl- oufly, and may, in the Y.x\d, fatally affeft their Interefts, and the future Welfare of their Families ; — without duly reflefting upon the very great Danger of their Situation, or maintaining the real Confequence of their Charafter ; and without ufmg any Means, either to correft, remedy, or fligmatize fuch Enor- mities, when they occur; or taking any Steps whatever to prevent the

Perpetration of them in future ? Is it not prepoflerous, to the laft

Degree, that Under^vriters fliould, as many of them certainly do, in the feveral Refpecis herein alluded to, ?LB.u'A\\y adminijier to their own Dejlruc- tion? Is it fitting that fuch abfiird, andi diJJioneJl Praftices, and the Alterca-

I tions.

xxxiv PRELIMINARY DISCOURSE.

tions, Difputes, and Litigations, which daily and naturally arife from them, fliould reign amongft Men of fo refpeftable, and fo important a Station in the Community, as Merchants and Infurers ;— upon whofe Ability, Probity, and Spirit, depends not only their own mutual Advantage ; but alfo, in a great Degree, the very Profperity, Credit, and Permanency of the State ?

If the feveral Obfervations herein contained are juft, and founded on- Truth, as undeniably they are, it is high Time that fome adequate Means. were devifed, and adhered to, that might counteract the abominable Dt/^

orcifrj complained of : for, otherwife, they will not only flill proceed, but

even multiply; and to a Degree that muft abfolutely deftroy all private Se« curity in this Bufmefs, by rooting up all good Faith, and mutual Confidence.

To fay that thefe Things do not admit of Remedy, or Prevention, would be, indeed, a ftrange Infatuation f — Of moft Difeafes, it is but to penetrate, clearly, the Cause, and the Cure is often at Hand : — Sublata Caufa tollitur EffeElus. — Here, the Caufe lies primarily, and principally, with the Gene- rality of Infurers themfelves ; in that defeBive Knowledge of their Bufinefs, that Inattention, Credulity, and Passiveness, which have been fo earneftly dwelt upon throughout this Difcourfe. — I fay, the Generality of Infurers ; becaufe, there are, unqueftionably, amongft them, feveral Gen- tlemen, as already mentioned, of great Knowledge, Experience, and Prudence ; who, accordingly, exercife a conftant and judicious Regard to the Circumjlances, and the Propriety or Impropnety^ of all the Tranfaftions which pafs under their Cognizance.

And fmce, with Refpeft to the infinite Variety of Occurrences in Affairs relative to Infurance, it would be impofhble for the wifeft Legijlature, aftifted by the moft intelligent and judicious Informations, to frame Laws ; — or, for the ableft Magijlrates to execute them, in a Manner adequate to either the Prevention, Cure, or Puniftiment, of fuch Evils and Enormities as have been intimated ; fome other more eligible and effeaual Means, unattended with that Difficulty, Vexation, and Expence, which Individuals, and even any Set of Underwriters of a fingle Policy, now experience, ftiould be con- trived, and put in Practice, for the general Good, amongft Merchants and Infurers themfelves ;—hy forming a fuitable Plan, and Methods o^ Deteaion, and Stigma. — This would do more, towards Reformation and Redrefs, than

any

PRELIMINARY DISCOURSE, xxxv

any pofitive Laws can ; which it is commonly very eafy, as hath been fhewn, in Infurance Matters, of all others whatever, for the wicked to evade.

The Inftitution of the Office forthe Survey and Regiftering of Shipping, in all the principal Porii of Great-Britain and Ireland, eftablilhed and continued for feveral Years paft, by a general Subfcription of Infurers, &c. including the two Corporations, of the London AJfurance, and the Royal- Exchange AJfurance, has been, and ftill is of confiderable Utility, fo far as regards the profeflTed and limited Defign of it ; in preventing, or difcovering Deceptions and Impofitions, formerly much praftifed with Refpeft to the Built, Age, Quality, Fitting out. Repairs, &c. of Ships. — But, as thefe Circumftances, however needful, at all Times, to be well informed of, are, in Times of Wa r, and efpecially the prefent War, of lefs Moment than vari- ous other Species of Fraud, affecling Infurers ; this Inftitution might, un- doubtedly, be greatly improved and extended ; or, a new and fomewhat fimilar Association, or even 2 or 3 diftinft Affociations, entered into, for effe6ling the like defirable Ends, as to what regards Matters of Infurance in general.

A small Addition to the prefent annual Subfcription, would be fuflficient to compenfate for the additional Expence, Trouble, and Aftiftance, requifite to execute the Purpofes fuggefted ; — which might be delineated, at firft, m. a general Manner.

A DISTINCT Committee might be elefted annually, or a ftandingone;

To receive, at Hated Times, clear and fhort Informations, in Writing, of all plain and evident Frauds, Deceptions, Impoftions, Collufons, Conceal- ments, Baratries, Deviations, Illegalities, Running from Convoys, and all other Malpractices, in whatfoever Manner, and by whomfoever committed,, abetted, or contrived, to the Prejudice of Infurers :

To give Direftions to the Society's Surveyors, in the refpeftive Ports ;

and to correfpond with other Perfons, in other Places, for obtaining fucli Informations and Evidence; — all Papers to be always open in the Office^ regularly and conveniently arranged, for the Recourfe, and Infpedioii: of every Subfcriber:

To advertfe, monthly, or otherwife. Encouragements, and Rewards, to

all Mariners, and any other Perfons, where and whatfoever (except Members

of

xxxvi PRELIMINARY DISCOURSE.

of the Society) who might ^('^a"/, difcover, or produce authentick Proo/, or Information to the Committee, of any Crimes, or Mdverfalions, affeaing Infurers: but, even without advertifing, fuch Difcoveries would, fre- quently, be made, and Informations voluntarily given, were fuch an AJfociation and Committee eltablilhed, profejjedly to receive them :

To confider, and report the fame, with their Opinion, to the Society,

at quarterly, or monthly Meetings ; who might, thereupon, come to fuch general Refolutions of Reprobation, Difcountenance, or Admonijlimcnt (fome of which it might be proper to publiJJi) — Subfcriptions for profecuting. or defending Suits, in particular and grofs Cafes ; — and fuch other well adapted Regulations as might be judged to be for the common Benefit, at the common Charge :

To make a lliort Note, or Abjlracl, in general Terms, of each of the

moft remarkable and clear Cafes, or Inftances, to be entered, as well as the Refolutions, in a fair Regijler Book, by the Secretary ;* to which Subfcri- bers might refort at Pleafure, for Information, &c. and which, perhaps, it might be proper to print, annually, or oftner, for their Ufe, and as a public Caution.

These Suggejlions, properly improved, and put in Execution, would in- fallibly be attended with very beneficial Effefts ; and operate, in a great De- gree, as a Preventive, if not a Cure of Malpraftices ; and even as a Stimulus

to a fair and honejl Condufl. And, as the true Intereft of Merchants and

Infurers is, in it's Nature, reciprocal, no Man of Honour amongft them could be indifpofed to unite in Means fo likely to promote it ; and to obviate, or dellroy the very Temptations to thofe foul and infidious Circumventions,

which neceflarily lead to Litigation. But, if Gentlemen will remain

inaElive, and indifferent about fuch Matters ; they may be awakened, too

late, by Confequences irremediable. In the mean Time, the Remark is

not more trite than juft, that Cujiom familiarizes the worft of Evils ;— and, the more obvious the Truth, the lefs Mankind are apt to regard it.

It will not be expefted that, in this Difcourfe, which is only introdu&ory, I fhould anticipate any Part of what is intended to follow it ; or flate Inftances, in Point, of the feveral Allegations I have herein made : — nor can there be

* See the Specimens in the following Pages.

but

PRELIMINARY DISCOURSE. xxxvu

but few, if any of my Readers, in the leaft concerned in the PraElice of Inr-

furance, who ftand in Need of Proofs thereof. In Reality, thofe Inflances

are, in each Kind, fo numerous, of fuch daily Growth and Increafe, and of fo continual Occurrence ; that a few Examples, befides the Difficulty of felefting them from fuch a Multitude, could anfwer but little general Purpofe ;

and to defcribe them, at large, would be utterly impra6licable. However,

it may not be amifs, juft to prefent the following recent Specimens, merely in Corroboration of what has been advanced ; — and, in Delicacy, with Refpefl to the Parties who were concerned in them, I forbear to infert, at length the Names of the Ships and Majlers : — viz,

1. £^500 were infured, on Goods, an open Policy, in the P y.

Captain F d, hom London X.O Senegal ; and, on the fame Policy, £^1 50

more, on the Mafter's Wages, Books, Cabin Furniture, &c. the latter Sum without further Proof of Intereft than the Policy. — The VefTel, with upwards of 100 others, after lying about a Month Wind-bound in the Downs, put to Sea ; — was the only one amongft them which returned, through bad Weather, as the Majler alleged ; and was, with her Cargo, totally loji, not far from

the Downs. The Broker recovered fpeedily the aforefaid £i^O; — and

alfo/'400, fromy^M?- of the Underwriters, of the £"500, without the leafl; Proof of Intereft ; or any Documents whatever being produced; but barely on an AfTurance, and a plaintive Tale, from the Broker, that the poor Mafler (for whofe Account it was, now, faid this Infurance alfo was made) had loft in Value £^750 ; which was ftated in 3 or 4 Lines, in the Lump ; — befides the

faid £^150. Three of the Underwriters were confiderable, and often

leading ones : — The ffth, happening not to be fo credulous, required an

Account of the Goods aftually //lipped by the Mafter; but after two or

three Meetings, within as many Months, not the fmalleft Satisfaction beinj^ given, but continual Evafion on the Part of the Majl.er, and even Abufe by the Broker ; who Hill pafTes for a very honcjl Man ; the former confeffed that he had very little more than £^100 Value on Board; of" which, however no Proof at all was given ; — although he had, at firft, offered to make Affidavit that

he had lofl full £^750 in Goods. He, therefore, expreffed himfelf intirely

content to receive £'26, inftead of /^loo; — and, through Remorfc or Fear, returned to the other four Underwriters £'74 per Cent, each ; near /'qoo,;

after having been four Months fraudulently in Polfeffion of the fame. The

£^150, however, of which not £^30 Value was loft, he kept. The Mafer

K and

xxxviii PRELIMINARY DISCOURSE.

and the Broker* were alfo, in" fome Proportion, interejled in the Ship and Car0:o generally ; on which, all the Underwriters, with as great Facility, and as little Enquiry, as the aforementioned four, paid a Total Loss of between three and four Thoiifand Pounds. \

2. Insurance was made, the End of July, and firft Week in Auguji,

on Goods, in the U , Capt. B , from the River MiJfiJJippi to

London : the Broker received no other Information, or Inflru6lions, from the Merchant, who gave him the Order, than that, by the laft Letters received, the Ship was beginning to take in her Cargo, and i\\a.\.J}ie was in very good Time,

A little While afterward. Advice arrived in London that flie had been taken

bv a Privateer ; a total Lofs was accordingly fettled, very readily, by all the Underwriters, except two ; who, on perufing attentively the Papers, obferving the Dates of her Departure, Capture, and other Circumjiances ; and making Enquiries refpefting the Departure and Arrival of other Ships, about the fame Time, for the like Voyage ; found Reafon to fufpeft that there was Deception, and Concealment, with Regard to the Infurance on the U , Accordingly, it came out, on further Examination, that the Mer- chant had, fo early as the \&ihjune, received a Letter, dated Bourdeaux 5th lune, from a Relation of his, who was juft arrived therefrom the MifpJJippi, in a French Ship ; and who was Proprietor of an Half of the Cargo on Board

t}^e U ; ordering Infurance of the fame (which w-as accordingly effeded)

and alfo advifing, that he expefted (he failed 10 or 14 Days after him : — it alfo appeared that his faid Relation arrived in London, and delivered to him per- fonally, on the 6th July, a Letter which he had brought from Capt.

B , dated 25th March, ordering the firft mentioned Infurance (being

on the other Half o^ the Cargo, and for the Captains Account) and advifing that " the Cargo would be on Board in 14 Days, and that hefiouldfail in about

fix Days after," Now, it was acknowledged that the Voyage from the

MinTifTippi to London, required no longer Time, than from the fame Place to Bourdeaux; and, confequently, the Ship ought to have been deemed as m fling, a confidcrable Time before the firft Week in Auguft (being near 4 Month from the intended Time of her Departure) and might have been ex- pefted to arrive at London, fooner, or at leaft as foon as the aforefaid Letter, brought by Way of Bourdeaux, i. e. 6th July. — When the Captain himfelf

* Such are the lioneft Gentry, who go dhoM Jcantializi-i<^ Underu-rlteis, who will not be p!und,rfd, with the Cry of Caviller, litigious, &c. and thofe, who have not Opportunity to be rightly informed of the Facts, are too apt to believe theni.

+ From Motives of the abovementioned Nature, hme foreign Ordinances forbid the infuring of Ships, Goods, &c. if the Owners, or Proprietors, go to Sea with them, as Majlers, Supercargoes, &c.

came

PRE LI MI NARY DISCOURSE. xxxix

came to London, he brought Aftions againft the faid two Underwriters, who had refufed to pay, and they paid the Premium into Court ; but he declined profecuting them ; and afterwards fued the Merchant, his Agent, who had neglefted, for Reafons beft known to himfelf, to make the Infurance in

proper Time. All the other inattentive Underwriters, however, who

had paid, remained with the unjvjl Lofs of their Money.

3, Insurance of about £3000 was made, on Goods, m a French Ship,

the G T , from Martinico to Bourdeaux ; as on French Weft-India

Goods. — On her Voyage, flie was feized, and brought in, by a Privateer, having a Commiflion againft Amn-ican Ships and Goods, and before Letters of Marque were granted againft the French. — "When it was required to fettle the Lofs on the abovementioned Goods, they appeared, by the Papers, to be American Tobacco, belonging to a Briiijh Subjeft, then in London ; but ■who had been to Martinico, for the Purpofe of obtaining the fame from America, and ftiipping it for France : for which Tobacco, when the whole Matter of the Ship and Cargo was difcufled in the Admiralty Court for Con" demnation, the Mafter fwore " he had figned falfe and colourable Bills of Lading, wherein were exprelTed Sugar and Coffee, inftead of Tobacco ; that the Laders of them at Martinico informed him, this was done to prevent the fame htva^feized by the Englijh, it being the Produce of North America ; and that he remonjlrated with them on the Danger of lofing the Ship and Cargo, by fuch Seizure, on Account of fuch American Goods," — Notwith- ftanding no Information had been given to the Underwriters, by which they might imagine that the Goods were American, liable to the Rifk of Seizure and it's Confequences ; which the Laders, and confequently the Affured, as well as the French Captain, had, thanfelves, ^o ]\x^\y feared ; — and, notwith- ftanding no extra Premium had been given, in Confideration of fuch extra Rifk, but barely the then current Premium on Goods o^ French Growth and Property ; — feveral of the Infurers, following a Leader, xcithout infpedino- the Papers, paid the Lofs ; /^200 and £^300 each ; not perceiving, or not con-

fidering that there was manifeft Collusion, and undue Concealment ;*

and alfo Illegality (as furely it ought to be deemed) on the Part of the Britifi Affured, by an Infringement, or tantamount Evafion, both of the Prohibitory, and Navigation Acls ; wOiich was the Caufe of the Seizure, &c. as declared on Oath by the Captor,

* Of Circumftances " varying materially the OhjeB of the Pohcy, and changing the Rifk underftcod to be run." — See Pag- <; 28 and '29. — Had the Infurers been informed fas they ought to have been] that the Goods were y4/«fnVa/?, efpecially ToBACCu, it is not fuppofahle that they would, at that Time Lave uadcrwruien them j — at lea!l, not without a muck larger Fremiumy as well as "Jree of Avera-re"

4. Sevzral

j,l PRELIMINARY LIS COURSE.

A. Several Veflelsj taking prohibited, or unliceTifed Goods, for our garrifoned Ports in North America : efpecially when fuch Goods, or Part thereof, were (hipped for the Majlcrs Account, and infured as legal and Ucenfcd Goods ; have not unfrequently gone intentionally out of their Courfe, and in the Way of being taken ; knowing that, if they arrived, the Goods would be liable to Seizure .-—nay, it has been proved that fome of fuch VefTels, although without Guns, have actually, on the moft fliameful Pretences, made all the Sail they could, during 4 or 5 Hours, to get up zoith Privateers of confiderable Force, and have accordingly been taken ; and Infurers have thereupon, with little Difficulty, or Examination, paid total Lofles ; and left the Perpetrators of fuch Iniquities intirely free to repeat them.

5. An Order, by Letter from L, was fent to London, for Infurance on the F , Capt. B , from Jamaica to faid L : — the Letter only men- tioned that " fome Ships (Part of the Fleet, with Convoy) were jufl arrived

at L, and that the F xoas in the Fleet." The Letter being fhewn,

and the Policy offered to a leading Underwriter, at only 5 Guineas per Cent, (although the current Premium on the Ships, warranted with that Convoy, had been 10 Guineas) he readily took the Idea which was intended, by the Words of the Letter, to be fuggefted ; viz. that the Ship was near homCf and might be hourly expefted to arrive ; — and, accordingly, he underwrote £'300; feveral other Gentlemen, as readily followed him, fome fubfcribing /"300, and others /'200 each ; — but, a few, more wary, reflefting that nearly all the Ships of that Fleet were then aftually arrived, at the different Ports of their Deftination ; and that the Letter made no mention where

tlie F had been left, or in what Part of the Voyage flie was lajl

fcen ; which the AlTureds (who 'tis prefumable had been in Hopes of faving the Infurance) might naturally have enquired, and been informed of, by the Ships then arrived ; fufpefted fhe muft have been left in an early Part of the Voyage, rather than near home ; and, probably, fcparated from the Fleet, and expofed ; and, therefore, refufed to underwrite the Policy, afking

20 to 25 Guineas per Cent. The next Pofl, another Letter came from

the Owner, with thefe inticing, but dark Words; " The B (a Veffel

arrived at L.) left the Fleet a Week ago : I am told ih^^.fome of her People

faw the F in the Fleet, a fcio Days before they left it." — The faid

leading Underwriter, therefore, aftually continuing under the fame delufive

Idea, of the F being left near Home, underwrote £^200 more, at 15

Guineas per Cent, on the fame Policy ; and was followed by feveral other

Gentlemen. The Event was, that theF , had been wrecked in the

Gulf of Florida ; even in Sight of fome Part of the Fleet (as appeared by

the

PRELIMINARY DISCOURSE. xli

the Captain's Prctefl) — and there was about £^94 per Cent, on upwards of £"4000, fettled as a Lq/s, on the faid Policy.

6. A Ship, the R , Capt. G '-, infured from LoJidon to Lime- rick and PenfdCoLa, was taken, after her Departure from Limerick. — A Total Loss was readily fettled by all the Underwriters, following each other, without Examination, except 3 or 4 ; who, upon looking Into Papers, were led to make Enquiry, and found that, previoufly to going to Limerick, fhe had been aftually 3 Weeks at Cowes, taking in Goods ; — which was a

Deviation that forfeited the Policy. The Affured prudently refted fatif-

fied with what he had received from all the other indolent Underwriters; and never molefled thofe 3 or 4, who refufed to pay. — The AJfured, and the Broker, however, had, at firft, ignorantly and warmly infifted that, by the printed Terms o^xht Policy, the Ship might " touch and flay at any Ports and Places" where the Mailer fliould think fit»

7. The Ship, C N , Capt. W , and her Freight'r

valued together at £goo, were infured, from Dover to Cadiz, tiience to Petty

Harbour, in Labrador e, and back to GzaVz, or a Market, and London. The

Ship-proceeded to Cadiz, and from thence arrived near Petty Harbour; but the Agent o^ the Freighters being (as the Mailer fet forth) removed from Petty Harbour to another Place, called Merchant's Ship's H.vrbour, 12 Miles dijlant from Petty Harbour ; to which only the Ship, both by the Policy and Charter Party, was bound ; the Mailer, after waiting fome Days on the Coafl, and fending on Shore tofeek for the Agent, fuffered the latter to pilot the Ship to Merchant's Ship's Harbour : where, after the Crew had been employed 5 or 6 Weeks mjijliing, for the Benefit of the Freighters, the Ship was taken by- armed Boats, fent from an American Privateer, then lying off the Harbour.

' — It appeared alfo, finally, on infpefting the Charter Party, that the Mailer and Crew were obligated tojijh, during 20 Weeks, in Petty Harbour, through the Winter: of which the Infurers were not informed; but underflood a Cargo was to be ready for her, on Arrival there. The Ship was retaken, carried to Hallifax, and there fold to pay the Recaptors, &c. — a Loss of above £'80 per C^t was demanded from the Underwriters, and fettled by feveral of them: the red refufed, alleging that there was a manifeil Devi- ation ; — that the Captain fhould have proteRed againft going to any other Place, than that to which his Ship was bound, and infured; — that, more- over, they did not undertake the Rifque of the Ship's Stay, during 5 Months fjhing: — and that, even if the Lofs had been fach as they were liable to, there

L was.

xlii PRELIMINARY DISCOURSE,

was by no Means a total Lofs of Freisht (as claimed) Regard being had to the Terms of the Charter Party.

8. A Cargo, of different Mercliandifes, of almoR/'ioooo Value, was

fliipped in the T , Capt. N , at St. Peter/burg, for Leghorn:—

half the Intereft was infured for a Houfe in London: — an Average was flated, and readily fettled, at near/'i2 per T^ni, by all the Underwriters, about 30 in Number, follozoing implicitly a Leader, except two: — Thefe foon perceived, by a little Obfervation of the Papers, that there muft be confider- able Error ; and upon further Examination, and reforming the Adjuftment, proved to the Afl'ureds, beyond Contradiction, that they were intitled to no more than £g 11s. per Cent ; which, after much Relu6lance, they acknow- ledged themfclves fully convinced of : — but they never returned to the other Underwriters the £6 gs. per Cent, which they had received too much; amounting to above /"soo.

9. Insurance was made, on Ship, the B P ce, Capt.

W ce, from Senegal to London, and on the Cargo ; both in the fame

Policy, and underwritten by i\\e fame Infurers : — the Ship, valued at/'i200; and the Value of the Cargo, confiding of different Articles, was about £^6800 ; one of which. Value about £"4900, was flated, by the Affureds, as having luffered Damage to the Amount of £'962 : — and they claimed from the In- furers on Ship and Cargo, an Average Lofs at very near £^20 per Cent ; having calculated it on the £^4900, only ; without any Regard to the Value of the Ship and the whole Cargo, infured together at /'8000, as above- mentioned ; on which Sum, the Average would have been but about £\2pex Cent. — And, notwithftanding fo very ^/an'n^ an Error in the Demand, if it deferves no worfe Name, all the Underwriters of the greater Part of the /'Sooo (the whole not being fubfcribed) following implicitly a Leader's Clerk ; except 5 or 6, who were more attentive ; actually Ggned the Adjuft- ment, at nearly £^20 per Cent : — fo that the Affureds received about /'8 per

Cent more than their due, by the erroneous Mode of Stating only. There

were other confderahle Errors in the Calculation, further injurious to the Underwriters ; which, for the Sake of Brevity, I omit to notice.*

10. A

* The Affartd, neverthelefs, brought Anions againfl thofe 5 or 6 Underwriters abovementioned,. and proceeded therein, noiwithflanding an immediate Offer was made by them to leave the Affair to Arbitradon; by which Mode the Average v/m, at lad, determined at/"i2 per <?««/; but not till the Un- derwriters were aifo, previoiijly, fubjefted to between £g and/'io ^tr Cent, Law Charges, which ihey were obliged to pay :— for, although there fhould be only 40 Skitlings per Cent due on a Policy, from the

Underwriters,

PRELIMINARY DISCOURSE. xliii

10. A SMALL Cargo of Provi/ions, on board the G I , Capt.

S , was infured, from Dublin to Bourdeaux ; including the Rifque of

Captures and Seizures, by Britifli Men of War (on Account of the Embargo, then in Ireland). — The Ship and Cargo were feized, by two VefTels, havincp only CommiJJions of Marque againft American Ships and Property, and brought into Plymouth : the Owners whereof, finding they had no Authority for what they had done, propofed to the Proprietors of the faid Cargo, that the Indemnification of Damages, in Confcqucnce of the Seizure, fhould be fettled by Arbitration ; which the faid Proprietors, with the Approbation of

the Infurers, agreed to. The Arbitrators awarded upwards of £^270, as a

full Indemnification ; which was accordingly paid to the Proprietors. — ■ And the Ship having Clearances for England, the Cargo (confifting of Beef, Pork, &c.) was relhipped at Plymouth, for London; where, on Arrival, there was but little Demand for Irifli Provifions ; and befides, through the Delay, they were much hurt : fo that, after their being fold at publick Auftion, a Claim was made upon the Infurers, as for a Lnfs, of about £^54 per Cent (not- withftanding the aforefaid Indemnification, which had been received by the Proprietors) — and was paid by the greater Part of the Underwriters : the reft refufed, faying, they had Nothing to do with it, efpecially after the Award of the Arbitrators ; who certainly had taken into Confideration (as was intended) the whole of the Damages ; which were intirely con/equential

of the Seizure. 'Tis true, that thofe Underwriters only, who paid the ft:, a

per Cent, had, inconfidcrately, figned a fubfequent Agreement, for the Pro- vifions to be fent to London, and fold : the others confidered the Azoard

as conclufive.

11. Goods, to the Amount of/'iooo, were infured in the T and

M , Capt. F , from Ireland to Newfoundland: — they appeared,

afterwards, to be Beef, Pork, Bifcuit, &c.— the Biscuit, Value about £120, was (hipped loofe; and, during the Voyage, totally^oz/^^^by Sea Water. —An Average of about £12, per Cent was, therefore, demanded; on the

Underwriters, zdijlione/} znAlitigioui A^mei\\?is\t, always, mUsVovrer to demand {^o ^er Cent, or any Sum he pleafes ; and, even without any Demand, to caufe Ailions to be brought againft every one of tlum ; who are, unavoidably, liable to pay the Co/Is, to the Time of their pleading to the Declaration, and paying into Court fuch Sum as they acknowledge to be due— This conftant Praaice of kungall the Underwriters on a Policy, whereby they are often made fubjea to pay £^a, £60, and fotnetimes more, each, as Cofls (although the Caufe be tried againfl one of them only; and although their Sub- rcnptionsbebut/"ioo each) is a very great Gwwaw* ; for, it feldom happens that the Parties, in an Injur ance Caufe, have Confidence enough, with Regard to the JufliceQ[\.h& Decifion that may be made, to agree, previoujy, that one Trial only fhall determine the Matter,

Pretence

xliv PRELIMINARY DISCOURSE.

Pretence that Bread, or Bifcuit, is not mentioned in the Policy, as frse of Average; and was paid by all the Underwriters, excepts; who objeaed, very juUly, that Bifcuit, as alfo Med, though not literally msntioned in the Policy, is of the Nature of Corn or Flour; as much as Salmon, though pickled, Herring, though cured. Char, though potted. Caviar, &c. are Hill Fi/Ji:— nay, that Bifcuit was much more fubjea to be fpoiled than either Corn or Flour :— and that Flour, Salt, Fruit, &c. being by the Policy free from Average, fo would any Thing, which might be a Compound of all thofe Articles.

12. Insurance of £"300 was made, in London, on the Ship H ,

(an open Policy) from B, to N :— on the Voyage, (he was taken by a Pri^

yajggj-. a Total Loss was demanded, and implicitly paid by two of the

Infurers, £^100 each. — The other, on examining the Papers, and making Enquiries, found that, when the Order was fent to London, the Ship had been 14 Days departed from B. (which was two Days Pod from London)

. that fhe had, two Months before that Departure, been out, a firft; Time,

received Damage, and put back to repair (neither of which Circumftances the Underwriters of the £^300 had been informed of) ; — alfo, that £^400 had been

infured on her at B, before her Jirjl Departure ; and, that the Value o^

the Veffel, covered, was only £566. — Therefore, as the Underwriters of the prior Infurance of £^400, at B, were liable to a total Lofs, had it hap- pened, during the tzvo Months, before the fubfequent Infurance of £"300 was made, when the Veffel was under different Circumftances ; the Underwriters of this Sum, at London, ought neither to pay a total Lofs, nor be brought in to eafe the fnjl Underwriters at B; but only to pay the remaining £166, making about £'55 per Cent ; and return a Proportion of the Premium, on £^134 cver-infured, on the fccond Policy. — It was alfo alleged, that the London Underwriters ought to have been made acquainted with the Circuni' /?flnai aforementioned ; efpecially That of her having been 14 Days departed, when the Order was fent from B ; that they might have judged for themfelves thereupon, — as to the then Rifque of Privateers, &c.

13. A Cargo o( Sugars was infured, from London to Ireland, and Part of them much damaged; their Invoice Coll was low; on their Arrival, the Market Price was advanced, fo as to give a Pmjit of £'30 per Cent on what

arrived found. The Affared, in ftating the Average, dedufted fimply the

Sum, which both the found and the damaged Sugars, together, had pro- duced, from the Amount of the Invoice covered ; and claimed from the

Underwriters,

PRELIMINARY DISCOURSE. xlv

Underwriters, as a Lofs, only the Difference ; — and fo gave them, ignorantly, the Gain, of a very profitable Market, which belonged to himfdf ; receiving only an Average of about £'] per Cent, inftead of upwards oi £10 per Cent,

14. On the Contrary, — divers Goods, in feveral of the Ships, from Ports in Great-Britain to New-York, in 1777, M'ent to a very losing Market, and were alfo damaged more orlefs : — feveral Letters from New- York mentioned, that, if the leaft Damage appeared, whole Packages were put by, and fold for Account of the Underwriters ; and thefe, on feveral Poli- cies, being charged with the Lofs, by ftating it as the Difference between the Invoice Amount of thofe Goods covered, and the 721?^ Produce thereof, were egregioufly impofed upon, by adually paying the Lofs of the Market, befides the true Proportion of the real Damage.

15. The Manner in which Ships with Letter of Marque have beeit infured, and LoflTes paid on them, is very extraordinary ; viz. .'. .1.^. •

One of fuch is infured, fuppofe fimply for the Vovage (as was the Cafe of

the M F '■ , Capt, C ) from Liverpool to Jamaica; no

Liberty being inferted in the Policy to chafe, cruize, &c. — At Sea, fhe perceives a Ship, which is fuppofed to be a French Eafl or Wefl-Indiaman • and which fhe cha/es for 4 or 5 Hours, out of the Track of her Voyage, and attacks; — but finds, at laft, that it is a French Frigate o? War; to which the Letter of Marque flrikes, and is taken. — Underwriters have, with very little Refletlion, fettled fuch Loffes : — but, was there not, in the above Cafe fuch a Deviation from the Voyage, folely with Intention for the Owner's Benefit, ^% forfeited the Infurance ?— or, where fhall the Line be drawn at

which a Deviation, on fuch Occafions, commences ? If the Ship infured

could chafe, out of her Track, an Hour, or a Mile, purpofely for vtaking Prize, might fhe not purfue it for a Day, a Week, or a Month, even into the North Seas ; nay, quit her Voyage repeatedly, at the Rifque of the Infurers? —The Extent of the Authority, by the Letter of Marque, or any other Authority, or Commilhon which the Ship may carry, is a Matter extraneous, or di/lina from the Contract with the Infurers, as fpecified'm the Policy, which is limited to the Voyage ; and if the Mailer, wilfully, and for the Benefit of the doners, not of Neceffity, or for Defence, commits a Breach of fuch Contract, by going out of it's Limits, it ought to be at their Peril, not the Underwriter's Rifque.— ' Pis faid, they infure her, knowing fhe has a Letter ofMarque:— True, knowing her to be a Ship of Force, they underwrite

M her,

xlvi PRELIMINARY DISCOURSE.

her, even at a fmallcr Premium ; becaufe flie is able to make Deftna ; but, is it to be inferred from thence that (lie may dX^o chafe, attack. Sec. ad

LIBITUM? Surely not at the Rifque of the Infurers. This feems to be

confirmed by the Affureds requiring a Return of Part of the Premium, on fuch Ships as have dtviated, taken Prizes, put feveral of their Men aboard fuch Prizes, and, quitting their Voyage, have returned Home :— which Returns of Premium, though made by feveral Underwriters, were however

no more due, in fuch Cafes, than in others of Deviation. The Liberty,

and additional Premium, exprefsly given, in the following Inftances, is alfo a further Corroboration of the abovementioned Doclrine.

\6. Other Ships, with Letter of Marque, are infured for a certain Voyage, " with Liberty to chafe, and make fuch Prize, as fhe may meet with \x\\\trWay;" — others, "with Liberty to cruize ^ — others, " \^i\.\\ Liberty to cruize one Month," or two Months, or more ; — others " with Liberty to touch and flay at, and to conduft fuch Prizes as (he may make, to any and all Places where and whatfoever, during her Cruize in her Voyage out;" — and in feveral other novel, vague, or indefinite Modes, to which many Underwriters give very infuflicient Attention, and for which they receive very inadequate Premiums; — neither do the AJfureds feem to perceive the Dangers which may arife to themfelves, in fome particular Events, from a Diverfity of Opinion, with Regard to afcertaining the Time and Place of chafing and cruizing, and the Operation and Confiruftion of fuch Claufes, unitin<r Voyages and Cruizes. — Much Comment might be made thereupon ; but it is here only meant juil to hint the great Probability of fuch Contrarieties happening : — Time will fhew if this Conjefture is well founded ; for many Ships with Letters of Marque, infured as above, will afiTuredly, during the prefent Spirit of privateering, t\\\\cr take, or betaken; the Performance of the Voyage, being an Objeft o^far lefs Regard.

17. The Ship M r, Capt. D (with Letter of Marque) and

Goods on board her, were infured, about the Middle of July, for the Voyage, from Liverpool to Jamaica, at 5 Guineas per Cent; afterward, an additional Premium of 10 Guineas per Cent was given to the fame Under- writers, for Liberty to cruize one Month. — The Ship was fo fuccefsful as, near the End of Oaober, to make Prize of the C c, French Eafi- India- man, eflimated to be worth upwards of /'200000, which fine alfo conduQed fafelyto the Downs; where they arrived about the Middle of November;

and the Owners of the M- r, thought fit to lay afide the further Profe-

cutioa

PRELIMINARY DISCOURSE. xlvii

ciuion of the Voyage to Jamaica. — But, notwithftanding the Underwriters had run the Rifque, not only of the Month's Cruize, but aifo of the Voyage ; and that the Deviation from the latter, by the Ship's Return home, was a Matter, folely, for the Benefit of the Owners, and to fecure the Prize;

and notwithftanding, in Cafe the M r had been loft, or taken, during

afly Part of the Time flae was at Sea, it is highly probable that the Affureds would have endeavoured to fix the Lofs upon the Underwriters, as hap- pening either within the Month's Cruize, or the Voyage ; — yet the poor, generous Owners, required, and aftually obtained from much the greater Part of the Underwriters, a Return of all the firft Premium, o^£^ per Cent, on about £^9000 ; which the Insurers were, hov/ever, indifputably entitled to keep; having abfolutely run the Rifque of the Voyage, during all T^c^ Part o( 4 Months, as was exclufive of the Month's Cruize, and of the few- Pays Deviation in returning Home : — befides that This did not give the Owners even the leafl: Title to any Return of Premium ; efpecially in a Cafe fo profeffedly, and extremely for their Benefit.

18. Insurance was made, on the 25th May, on the Freight, of the

S , Capt B , from Jamaica to London ; the Broker reprefented

the Ship to be in Port in regular Time, and no Advice received to fuppofe

the Contrary : foon after. News came of her hemg Jiranded on the Coaft

of Florida, throwing overboard great Part of her Cargo, and getting off; other Accidents alfo happened to her ; and, finally, after having twice put back to unload, repair, &c. flie arrived in the Thames. — An Average of about £^0 per Cent was fettled, on Freight, by all the Underwriters, except one ; — who, from fufpicious Circumfl^ances, in Refpeft to the Time of making the Infurance, made Enquiry, and foon found that the Owner v/as in PofTefiTion of a Letter from the Captain, dated in Jamaica, the 3d March (which he had received 3 Weeks before the 25th May — other Ships arriving in the Interim) which advifed fhe was that Day on the Point of Departure : — which Letter was concealed from the Underwriters; but which, any of them, with a little Attention to Circumftances and Papers, when the Lofs was demanded, might have eafily difcovered : — however, the Alfured lept the £^0 per Cent, received from all the Underwriters but one ; whom he very prudently declined to moleft.

19. Insurance of /'5000 had been made, in London, by Order from

Granada, in 1776; being the whole Value oi: the Ship S G .,

Capt. P , and her Cargo from G , to Africa, and back to

G 1

dviii PRELI MI NARY DISCOURSE.

;; : — May 4th to the 9th 1777, another Policy was underwritten on the

fame, for £700 ; and May 28th, 1777, another Policy, for /'800 ; both

from Africa to G : The Underwriters, on thefe two laft Policies,

were exprefsly affured, that the Ship was in very good Time ; and that flie

could not be expe61ed to arrive at G , at the Time the lad Letters

came away from thence. — Not long after. Accounts came that the S

G , had been taken by an American Privateer, and carried into

Martinico, in March 1777: accordingly, 7£)?7ze of the Underwriters, on the two Policies in May, fettled and paid the Lofs ; but the others, on attending to Papers, Circumftances, and Dates, foon found Caufe of ftrong Sufpicion of Deceit, and on further Enquiry, the following /^(^j appeared ;

viz. That the AJJured, Correfpondent here of the Houfe in G , had

received no Orders for making any further Infurance than the ^^5000 ; — That he was, however, in Poffeffion of the following Letters from the faid

Houfe at G ; viz. dated 11th January 1777, with thefe Words,

" We'll be looking for the S G , about the 25th Inft. if no-

unforefeen Accident happen to her on her Paflage : there is now an amazing Number of Privateers cruizing to the Weftward of Barbadoes ; in Fa£t, it will be juft there the Danger begins." — (N. B. This was at the Commence- ment of the American Hoftilities.) — Another Letter, dated 7th Feb. 1777, with thefe Words, " We cannot Account for the long Delay of our Brig,

S G :" other Letters, of the 4th, gth, 14th, 17th, and

21ft Feb. and 18th March; wherein no Mention was made of the Brig's Appearance ; — -likewife, other Letters, of 12th March, mentioning " Reafons

to believe the Brig was loft, or taken ;" and, of igth March, that, "it

was then beyond a Doubt." Another Letter, of 2d April, advifed that,

" the Brig left the Coaft 14 Weeks ago" [i. e. 15th Dec. 1776; which was indeed 15 Weeks before): " we fear fhe has fallen into the Hands of the Americans : we have £^5000 infured on her, which is the full Coft of her,

and Cargo;" (meaning the aforefaid /ry? Infurance; — for the Houfe at

G knew Nothing of the two Policies, in May). Now, no Part of

any of thefe Letters had been communicated to the Infurers of the laft ttoo' Policies ; and, therefore, thofe who refufed to pay, being fued at Law, filed a Bill in Equity, to caufe the AJfured to give an Account, on Oath, of the Times of receiving thfe faid Letters : — and he fxoore that, " the Letter of nth Jan. was received 19th Mar. — and, that of 7th Feb. m M'ly (but mentioned not what Day; — though he had, in Converfation with fonie of the Underwriters, after the Lofs, accidentally faid that it had been received a Month before either of the two laft Policies were made) ; — that the Letter of

4th

PRE LI MI NARY DISCOURSE. xHx

4th Feb. was received 19th May; that thofe of 12th and igtli Mar. and 2d April, were received in May; and that the Letters of gth, 14th, 17th, 21ft Fd. and 18th Mar. were received previous to the underwriting the two Policies, in May ; that he had dejlroyed the Covers of thofe Letters, and that of 7th Feb. ; and could neither recollect the precife Days on which, nor the

Ships by which, fuch Letters had been received." The faid AfTured hath

not fince profecuted his Aftions at Law againft thofe Underwriters, who refufed to pay ; and the Reafons are very obvious : — befides, that there was no Authority for making the laft two Policies at all ; and, that the Interejl

was underRood, by the Houfe at G , to be fully covered, by the Jirjl

Infurance of /^sooo. N. B. The Letter of the 2d April, muft have

been received before the 28th May; becaufe the Underwriters difcovered

Proof that the Aflured then knew, that the S G , had departed

from the Coall the 15th Dec. 1776. Moreover, there was atlually

arrived in London, an Antigua Gazette, of 19th April 1777, wherein was printed a Letter from Granada of 22d Mar. mentioning that the faid Brig

S G , as alfo another Ship, called the St. George, Capt-

Moore, had been taken, and carried into Martinico ; which latter Capture was, accordingly, inferted in Lloyd's Book, 26th May ; but that of the afore- faid Brig, S G , was not inferted.

o>

20. A Cargo of i?MJ7^ was infured, in the H — 1 — ry, Capt. B g

from Jamaica to Limerick. It appeared, afterwards, from the Papers and Letters exhibited, that fhe was a very old, and very bad Veffel : the AJfured himfelf ftiled her, in one of his Letters, to his Agent in London, " a mere old Tub ;" — but, it happened that no other Ship could then be engaged at Jamaica, to take the faid Cargo. — The Mailer's Protejl fet forth that, " incoming out of King/Ion Harbour, fhe touched the Ground, got a little Damage, and put back to repair it ; foon failed again, was very leaky during all the Voyage ; they were continually in Fear of her foundering ; pumped out great Quantities of Rum, from Time to Time ; that, even after fhe arri- ved at Limerick, fhe was fo crazy that fhe overfet at her Moorings : — and,

that about 12 Cq/ks, Part of the Cargo, were landed empty.'' -On the

whole, the AfTured flated a Deficiency of Rum, between the original Quan- tity, Zipper Invoice, and the Quantity aftually landed, of nearly 14 perCm^; — which he demanded, and infifled iipon, as a Lofs from the Underwriters : — two or three of whom, having examined the Accounts and Papers, refufed to comply with it ; alleging that, befides the DeduElion which ought to be made of the cuflomary AUowa7ice, for Leakage, they were of Opinion that

N no

1 PRELIMINARY DISCOURSE.

no Part of the Deficiency could be juftly chargeable to them ; becaufe it was natural to fuppofe, even from the Words of the Protejl, that the whole Lofs arofe from Leakage, bad Cajks, the Crazine/s and Labouring of the Ship, at Sea, &c. — However, the Underwriters offered to pay the Deficiency, after deducting the vfual Leakage; but, the Affured caufed Aftions at Law to be ferved upon them, even in Lloyd's Coffee-Room; and fome of them, not chufino- the Trouble, &c. of a Litigation, nor even to make a Calculation,

were intimidated, and paid the whole Demand ; and the Attorney was,

in Confequence, proceeding againft the others, who would have done the fame ; but one of them went, and warmly remonftrated to him, and the Affured's Agent, againft fuch a Conduct (efpecially as they had refufed a

Propofition from the Underwriters, for an Arbitration) and, at laft,

although he did not convince them that Nothing was juftly due from the Infurers ; yet, he fucceeded in terminating the Difpute, by fettling £^ 15s. per Cent, including the Charges already occurred (which, otherwife, might foon have been exorbitant) inftead of 14 per Cent, as an Average,

upon the Amount of the Cargo, which was about £ 4500. The Infurers,

on this Policy, had underwritten £^200 each.

21. Impositions have been frequently praftifed, in obtaining Returns of Premium, for Convoy, by Means of Sailing Orders, or Inftruftions, which though T^n^^ by Captains of Men of War, yet, fometimes, not being direfted to any Majlcr, nor having any Ship's Name mentioned, nor any Date, have been procured, collufively, by Mafters, &c. whofe Ships have aftually failed without Convoy ; and, who have inferted, or caufed to be inferted, in fuch Sailing Orders, Directions to themfelves. — Such Returns have alio been fometimes made, barely on Letters, and on Certificates from Mafters of Ships, known to have failed with Convoy ; purporting that other Mafters have done the fame; which has, afterwards, been difcovered to be falfe. — It would be eafy to remedy thofe Deceptions, by the Admiralty giving Direftions for a more certain and regular Mode o^figning, dating, direHing, and delivering fuch Sailing Inftruftions, by the Captains of Men of War ; — and by the Underwriters requiring fliort Affidavits to be made at the Foot of them, by the Mafters of Ships, of their having obferved them, to the beft of their Power: — as well as by authentick Lijls (which are, now, ordered to be procured from the Admiralty; whereunto are annexed Remarks, by the Captains of the Men of War, on the Mifbehaviour and Non-obfervance of

Mafters) of Ships which have departed with Convoy. It is likewife a

Faft, that Returns of Premium for Convoy have been wrongfully obtained,

where

PRELIMINARY DISCOURSE. H

where the Policy was originally underwritten at a certain Premium, profeffedly in Confideration of there being, then, no Return inferted ; but which has been foijled into the Policy, long after; the Ship happening to have failed with Convoy, cpntrary to the Affureds firft Expectation ; who meant to fave 2 or 3, or more per Cent, by the Underwriters taking the Chance of the Vo}'age, toith or without Convoy, at fo much lefs than the full Premium.

22. The B P — , Capt. B , (orCapt. W , being

maficd, and having two Mailers) infured from Dublin to Bourdeaux, had Provifions on board, contrary to an Embargo, and being chafed near Bourdeaux by an Englifli Man of War, returned ; and came, at laft, 4 Months after her Departure from Dublin, to London ; having Clearances for this Port. — The Underwriters, without being informed of the Rifque they had run, by the Vefiel having adually been near Bourdeaux, narrowly efcapino- the Man of War, and being 4 Months at Sea, were requeued to make a Return of Premium o^ £2 per Cent, on the Pretence of /g/5 Rifque to London than to Bourdeaux; and, as if fiie had come directly from Dublin. — Several of them made the Return, without any Enquiry; — others refufed, feeino- too plainly the Imposition.

23. Very great Errors, and unjuft Demands, are continually made, and acquiefced with, in Regard to Sailors' Wages, in Cafes of Wreck and Salvage : — for the Elucidation of which, as well as of all other Matters, the Reader muft be referred to \htir proper Places , in the fubfequent Work.

Tnz foregoing are only a [ew plain, and lafe Specimens (accurately flated) where Underwriters have been greatly injured, by implicitly following EACH other ;— having it, at the fame Time, in their Power to avoid it, had they given a little fuitable Attention to Fafts, Papers, Circumftances Dates &c. — or tolerably underfood the Nature of the Affairs before them.

If many fmilar Inftances, and a Variety of others, as remarkable, liavc

occurred, and are daily occurring particularly, and amazingly, in

Matters of Average even within the Knowledge o{ one Perfon ; — what

Volumes oS. this Nature might not be formed, could Communications be obtaiued of fuch Tranfafitions with the Generality of Underwriters .^ — ^and, how much more fo, of the numerous concealed and undifc over able Frauds, and

Impofitions upon them ; befides all fuch as they do deteft, and oppofe?

It would be a very curious Colleclion ; and, perhaps, of itfelf, like a Mirror,

more

lii PRELIMINARY DISCOURSE,

more than any Thing elfe, expofe the Crimes and Follies, which

reign in the Bufinefs of Infurance. But thefe Things, even when dif-

covered, being generally fuffered to pafs into Oblivion, without meeting with that Indignation, and Refentmcnt, which they merit, perpetually recur.

The following is, however, one ftriking Inflance of the Contrary; and may ferve to prove, inconteftably, the great Propriety and Efficacy of eflablifhing fome fuch Association, and alfo amicable Judicature,* as have been herein before fuggefted ; fince more was effefted at only one Meeting of the Infurers, Merchants, &c. hy ^ Refolutiomimor\g^ them/elves, than could have been done by Jifty Law Suits.

A VERY extraordinary Innovation was lately attempted to be made in the long edablilhed printed Form of Policies of Infurance ; by caufing the following Words to be inferted {printed) in the Body thereof; immediately

after the Words " Rate and Quantity of his Sum herein affHred ;" viz.

" And it is agreed by us the Infurers, in Cafe any Lofs, or Average (or Return of Premium) fhall happen to the Ship, or Goods, hereby affured, that we will allow the Balance of our refpcBive Accounts, due to us from the Perfon or Perfons to whom we fhall underwrite this Policy, towards the Payment of fuch Lofs, Average, or Return ; or fo much of fuch Balance as

the Lofs, Average, or Return may amount to." Alfo, at the Bottom of

the Policy, in fmall Print, the following Words, viz. " It is particularly

agreed that any hifujfficiency of the Ship, or Deviation of the Mailer, un- known to the Affured, fliall not prejudice this Infurance."

These Clavfcs, efpecially what relates to Deviation, had been very injidi- oujly, and very fraudulently foijled into fome Policies ; which were under- written to large Amounts : and not the leaft Intimation thereof was given to the Underwriters of them ; 'till, having accidentally difcovered them, they were very juflly alarmed at a Proceeding which ought to cover the Authors and Abettors of it with Shame and Confufion ; whatever might be their Rank, as Brokers, or otherwife.

Accordingly, thofe Innovations have been intirely exploded, and loudly reprobated, by the general Voice ; and the long accuftomed printed

• When the Plan of fuch a Judicature fhould be duly formed, and improved ; it would be very proper to apply to the Legtflalurc for an Eftabliniment of it's Authority, by an Aa of Parliament.

Form

PRELIMINARY DISCOURSE. liii

Form of Policies confirmed, at a numerous Meeting of Merchants, Infurers, and Brokers, held at Lloyd's Coffee-Houfe, 12th January 1779, for that Purpofe : — for, were they in the leaft countenanced, or could fuch occajional and crafty Interpolations, even of a fingle Word, or Variations from the general, fettled, printed Form of Policies, receive a Sanflion in our Courts, it would unhinge the whole prefent S^ftem of Juri/J>'rttdence reCpeSi'ing them ; which has been founded on thatjettled Form : — and this, being notorious, and generally underflood, is not fuppofed, or expected, to be read by Underwriters, when they fubfcribe it ; but the Honefty of the Broker is always relied on, that there is no Forgery impofed upon them, in that Refpeft : — otherwife, it would become abfolutely neceffary, for every indi- vidual Infurer, to examine very narrowly, and even verbatim, every Policy, before he underwrites it, left veto Terms fhould be added, or old ones altered ; which would not only be impracticable, but quite fruftrate the Execution of the Bufinefs itfelf.

Without animadverting upon the feveral private, fubtile, zx\^ felf- interejled Purpofes, defigned to be anfwered by the beforementioned, or fimilar Interpolations ; or, how far they might, or might not really operate in Law, or Juftice ; W'hich is very queftionable, with Regard to feveral Cafes that might happen ; and, particularly, with Refpeft to third Perfons, as Aflignees of Bankrupts, &c. I think it may be aflerted, that they would be an Inlet to ftill more frequent and violent Frauds, Confufion, and extraordi- nary Litigation: efpecially the Introduction of the Words, " any Deviation

of the Majler unknown to the Affured fhall not prejudice this Infurance," would be big with certain and conftant Collufion, Deceit, and Perjury ; and, productive of ruinous Injuries to Infurers.

The Claufe, relating to " Infufficiency of the Ship," though it had been inferted for fome Time before, at the Bottom of fome Policies, was by no Means general : — it took it's Rife from the ftrongly and repeatedly contefted, and remarkable Cafe oii\\e Mills Frigate, in 1764; the whole of which, with all the Arguments and Reafons, pro and con, relative thereto, are in the Authors PoffefTion, and will be communicated in their proper Place.

In the mean Time, it might be afked, as to the Interpolations which have been complained of,— Whether cmmQnx. Brokers, Sic. of extenfive Bufinefs, who have commonly large Balances in Hand, due to Underwriters, might not, in/ecret Connexion, or Participation, with other Perfons, become alfo

O Builders^

liv PRELIMINARY DISCOURSE.

Builders, Owners, Dock Majiers, Repairers and Patchers up of Ships, Con- traaors. Merchants, Freighters, &c. &c. and, a^mg m all or fever al oi thefe Capacities at the fame Time, infure their own Ships, and Cargoes, at hijrh Valuations • avail themfelves of the aforefaid Claufes, refpefting Infuffi- ciency, and Deviation, unknown to them ; grow very rich indeed, by Means of thofe and other advantageous Claufes; and by detaining and fecuring, in their own Hands, the Balances which might be due to the unfortunate Dupes, the Infurers? — who might, as many would, inevitably, through fuch Ma- nceuvrcs, become infoK ent :— for, Majlers of Ships, who now, frequently enouo^h, deviate without Detection, might then, and certainly would, collu- fively or otherwife, make fever al Voyages inllead of one ; or, with Letters of Marque, cruize half over the World, af the Rifque of the Underwriters :— and, fuch Brokers, privately fo interejled in many Ships, &c. on which they made Infurance, might, in Cafes of Difpute, even have Opportunity, unfuf-

pefted, to appear as Evidence in their oion Caufes. Divers other ferious

Evils would, from Time to Time, grow out of fuch entrapping Innovations, and Interpolations.

With Regard to Infurance Brokers, in general; the Conduft of

fcveral of them is, undeniably, in many Refpefts, very reproachable : and, no inconfiderable Part of thofe Diforders, and Difputes, which occur, and have already been enlarged upon, may be juftly attributed to their Inability, Difingenuoufnefs, and III- Manners ; or, to their Sef-Interejl, Partiality, and Collufion, in favour of the Infureds, their Employers, or otherwife ; coun- tenancing, abetting, and taking, in numerous Inflances, every Advantage, howfoever unreafonable, to the manifeft Prejudice, and often very great Wrono- of Infurers ; as well in the procuring Policies to be underwritten, as in

the fubfequent Tranfaftions, refpefting Loffes, Averages, Returns, &c. ■

in all which, fo far are divers Brokers from afting with that due Regard to Equality, and Jujiice, which is their incumbent Duty, \\\ obtaining and giving yiizr 2ind t^xo^qx Informations, nnd Explanations ; and, in Attention to the jit/Z Requifitions, Complaints, and Reafons of Infurers ; that fame o£ them become, not unfrequently, though on feveral Occafions unperceived, the very Injlruments of the greateft Deception, and Injury ; and, confequently, the Promoters of Difcord, and Litigation.

Ik other Countries, the RcfriElions which all Brokers are laid under, by Law, touching their Competency, and Condud, render them, as they ought

to be, the Agents, or Servants, of the mercantile Public : but, in

England,

PRELIMINARY DISCOURSE. \v

England, Infurance Brokers are permitted to afTume the Afcendency, as Principals ; and to become, in Faft, the Majlers, who prefcribe, ditlate, and govern, almofl every Thing, relative to that Bufinefs ; with but little Regard to any certain Principles, Rule, Method, Order, or Control, what- foever. — In fhort, thofe Affairs, in great Part, run riot : Brokers are, at the fame Time, Merchants and Infurers ; and. Merchants and Infurers are, at

the fame Time, Brokers. Why do not Apothecaries aft, alfo, as

Phyficians; Parfons, as Clerks; Attornies, as Counfellors ; diXid vice verfa ? — • The Law, for the moft Part, confines each of thefe to his particular Sphere.

It is not within the intended Limits of this prefatory Difcourfe, to enter into an Enumeration of various Inftances of the Irregularity, InexpertnefSf and Culpability of fundry Brokers ; nor, to expatiate on the proper Means of Regulation, and Reformation ; which are, however, indifputably very needful, relative as well to their Qualification, and impartial Execution of their Bufinefs, as to their Accounts, Payments, Allowances, and perfonal Behaviour ; their Connexions, Participations in Ships, and Cargoes ; their underwriting to each other ; and feveral other Particulars : — all which, it has been thought abfolutely neceffary, in foreign maritime Countries, precifely and refpeftively to prefcribe, or prohibit ; and to regulate, by public Authority, under the Obligation of an Oath: as alfo, in extraordinary Cafes, fevere Pains, or Penalties, heCides Difmifioji from Office , &c. for Non-obfervance ; — but, in which, the Laws of this Country are intirely deficient.

I SHALL, therefore, referve the fundry very inter efiing Matters, and Obfervations, which I have to communicate, concerning Brokers, for

a more fuitable Place : making Ufe, however, of the prefent Opportunity

of bearing Teftimony, and doing all due Juftice, to the Honefiy, Integrity, and Abilities, of feveral Gentlemen, now employed in this ProfeflTion ; whofe Demeanour, in the Exercife of it, merits the highefl Efieem of the Parties between whom they tranfaft, and the Imitation of the Reft of their Brethren.

It would be highly im.proper, on Occafion of thefe Animadverfions, to let another great Evil, which by far too much prevails in Lloyd's Coffee- Houfe, and, fometimes, fatally for thofe who are concerned in it, efcape Remark: — I mean, what is called Speculation, or gaming Policies; — often fet on Foot, and promoted, for many Thoufands of Pounds, even by Merchants, Infurers, and Brokers, who in other Refpefts ftand fair in the

Eye of the mercantile World, as Men of Rank, and Reputation. Thefe

Things

Ivi PRELIMINARY DISCOURSE.

Thio^^s are, undoubtedly, not only difgraceful to the otherwife Refpeftability of the Characlers engaged in them ; but are of very hurtful Example ; tend to fap, and do really much affeft, not only the Solidity, and Credit, of private Perfons in the commercial Clafs, but the national Interefl : — for, they render Infurers fufpefted, — Foreigners apprehenfive, — the Security of Com- merce precarious, — contaminate Probity, — create lU-Will, as amongft other Gamblers,— ^xo&ucQ Lame Ducks, — and may in Time introduce, at Lloyd's as veil as Jonathan's, fuch appofite and polite Appellations as 5a// and Bear: — and, therefore, this Sort of Contrafts, or Wagers, ought not only to be intirely difcountenanced, and rendered null, by Law, — as is done, by the late Act 14 Geo. 3. c. 48; making void all Infurances on Lives, or any other Event, or Events, except for the Value of the Interejl of the Infured therein ; and, unlefs the Name of thofe who are to be benefited by fuch Infurance be inferted in the Policy ; — but, fome proper Stigmas, or Penal- tics, fhould alfo be inflifted upon thofe concerned in them.

Long before that Statute, Infurance was confidered, incur Courts, as may appear by feveral Adjudications, as an " Indemnity only for real Lojfes ;. and not as the Means for defigning Men to make improper Gains :" — and. Lord Hardwicke faid, " Infurance implies an Interefl, a Property in the Thing infured ; — is no,t to cover an imaginary Profit, but to fecure real In- terejl : and, that he remembered that Policies made Intere/l or no Interefl,

were cdWedi fraudulent ; and were, latterly, allowed only with Refpeft to

foreign Commerce, for political Reafons ;" which he ftates. — Sadlers' Camp.

V. Badcock. — Again ; "Infurance was fijft fet up for the Benefit of Trade,

Sec. but if fuch ill Praflices (as infuring without Interefl) were ufed, it would

turn to the Ruin of Trade." — Wittingham v. Thornborough, in Chan.

Divers other Authorities might be quoted to the like Effett ; — and, provinp- that "Engagements of the Nature of Wagers, under the San6lion, and Form of Infurance, tlie Fruits of Idlenefs, without Relation to what may be called Bufnefs, were, formerly, deemed not to Merit the Countenance of

Law." However, the Matter of Infurance, Interefl or no Interefl, with

Refpe6l to Ships, and Merchandifes, was, on Account of the great Frauds, and Deceit, praftifed therein, exprefly prohibited by Statute, 19 Geo. 2..

c. 37 ; except on private Ships of War, for Account of the Owners ;.

and, on Effects from any Ports in Europe, or America, in the Poffeflion of the Crowns of Spain, or Portugal.

From all that has been faid, let it not be imagined that it is intended, in the fmalleft Degree whatever, to promote or favour any Thing, on the

Part

PRELIMINARY DISCOURSE. Ivii

Part of Inficrers, of the Nature of Cavil, Difpute, or Want of current

Condua. Alas ! to what End fhould they cavil ^ to an infliUible, and

heavy Expence of Litigation, as well as incurring the meaneft Malevolence, if without x\\& mo^ {oM 2.n6 irrsfragable Grounds :— on the Contrary, the profefled Drift of this Difcourfe, and of what is to follow it, is to remove, as much as poffible, the Prevakncy of thofe Causes, from the very Nature of which Difpute mujl frequently arife, and cannot be avoided :— but, in every Inftance where Circumftances appear /azr, open, and unfufpicious ; and that Infureds and Brokers are candid, communicative, honejt ; — the former, in their original Intlruftions, Orders, and Informations ; the latter^ in being willing and difpofed. to re61.ify Midakes, and Errors; s^ndi both, to deteft Fraud and Impofition ; — Then, and in every fuch Cafe, Infurers ought always to give them the Advantage ; and, intirely difregarding fmall Matters, fettle and pay every jii/i Claim readily, freely, generovjly: — without which, no more than without Good Faith, and Honour, on the Part of the Affureds, their mutual Interefl, or Safety, cannot be preferved.

But, in the Name of Common-Senfe, and for the Sake of common Ho- nefty and common Juftice, let Infurers have, at leaft, fair Play : — let them not be deceived, tricked, fometimes infulted, and even defamed, when That only is what they require : — fince it muft be acknowledged that an Infurer always refts on very unequal Ground ; is fubjeft to every Species of Illufon, Sophijiry, and Subterfuge, from all the Parties combined, or concerned on the Side of the Infured ; — that he flands alone, relying on, confiding in, the Truth and fair Dealing of the Contraftors with him ; afts merely on the defevfive ; has it not in his Power to ufe any Sort of Deception ; or take any fecret Advantage whatever of them ; and can neither elude, nor alter the Force and Obligation of his Signature,

In Truth, I believe that, be the Cry even as loud as that of Hounds after a Hare, which is fometimes the Cafe, the Inflances are very few, where Under- writers are fo weak, and regardlefs of the Confequences, as to litigate, or difpute without any real, or apparent Caufe ; — or where there is no Evafion, and Denial of fair and fatisfaftory Explanations, on the Part of the Affured, or Broker : — although, from what has been remarked, it cannot be deemed extraordinary, if they be fometimes miftaken.

That all thefe Things are ^o, as have been herein reprefented, cannot be denied.— It muft, therefore, I think, appear evident that Nothing could

P have

Iviii PRELIMINARY DISCOURSE.

have a greater Tendency to reclify, and remedy the various Inconveniences and Abufcs complained of; and Avhich fo much affeft all Parties, either direftly or confequentially ; than for all Perfons concerned in Matters of

Infurance to endeavour to make themfelves well acquainted with them :

and, to this End, that every Thing theoretical and praaical relating to that Subjea, were colleaed, mmhodifed, and publiOied, in a Manner well adapted for immediate Infpeftion, and general Comprehenfion, as far as may be praclicable, in every Point that might occur.

And, although the Laws, Doctrines, Rules, Ufages, and Praclice of Infu- rance, will now be found to form, in the toholc, a very extenfive, complicate, and difficult Science; requiring much Study to attain completely ; neverthelefs, from the Commencement of the Praftice of Infurance, to the prefent Time, the Legiflatures, eminent Lawyers, judicious Merchants, and others, of all the principal maritime States of Europe, have furnilhed us with many wife Ordinances, prudent Regulations, and ufeful Inftruclions, founded on their refpeclive Knowledge and Experience, touching a very great Variety of Par- ticulars : — from which, as well as from the Laws, numerous Decifions, and valuable Books of our own Country ; and, from an attentive Obfervation, and due Refle6lion upon what is actually pafiing in our own Times : may be deduced a comprehenfive, practical, and very ample Inftitute of every Thing that is needful to be known, concerning the very fruitful, and indeed inex- haujlible Subje6l in Oueilion.

'•Great Alterations have been made in the Adminillration of private

Juflice, in the Courfe of the prefent Century : amongft which, the great

Syftem of marine Jurifprudence, of which the Foundations have been laid, by clearly developing the Principles on which Policies of Insurance are founded ; and, by happily applying thofe Principles to particular Cafes^ — 4 Black. Com. 435.

" The Learning relating to marine hfurances hath, of late Years, been greatly improved, by a Series o^ judicial Decijions ; which have elbblifhed the Law in fuch a Variety of Cafes, that they would form a very complete Title in a Code oi commercial Jurifprudence" — 2 Black. Com. 431.

That no Merchant, ox Infurer, in England, of Erudition, Experience, Judgment, and Candour, hath hitherto undertaken to execute the ufeful and neceffary, though very laborious Talk, abovementioned, is Matter of much

Rrgrct,

PRELIMINARY DISCOURSE. lix

Jlegret, rather than Wonder ; confidering the great Expence of valuable

Time, and even Health, abfolutely requifite for fuch a Compilation : the

Tedioufnefs and Difficulty of procuring, examining, comparing, and felecl- ing all the needful Materials ; the conftant Interference of it with other more immediate and daily Avocations, in the Profecution of current Bufinefs ; . — and above all, — and than which Nothing is more ungrateful, nor more intimidating, — the Prejudices, Envy, or Ill-Will, and efpecialiy the partial Interejis, to be combated ; and <iivers other difcouraging Circumftances.

And, therefore, notwithftanding all my Refearches, I have not been able to difcover, either in our own, or any other Language, any fuch Work, com- pofed profefledly on the Subjeft of Infurance in general.

Mr. Magen's EJfay (publiflied in 1755, in two Volumes, Quarto) is properly fo called ; feeing that, the few Pages, in the fiid Volume, of which only it confifts, though very judicioufly felefted, contain merely the general Rudiments of Infurance; — and thofe, chiefly, as obferved in different foreign Places; being, at firft, publiflied in Hamburg, 1753: — but by no Means that full, and circumflantial Information, on the very great Diverhty of Matters, and Points, which, efpecialiy fince that Time, is become ne-

ceflary in this Country, The Reft of his firfl; Volume is principally taken

up with particular Cafes, or Adjujlments of Lofles, Averages, &c. which happened within his own Cognizance ; ftated with extreme Prolixity, and Minutenefs of Figures, Calculations, Tedioufnefs of Accounts, Forms of Invoices, Bills of Lading, Protefts, Certificates, &c. &c. with Marks, Numbers, Items, &c. all at large : a great Part of which very few Men of Bufinefs can think it otherwife than embarrafling, and Time loft;, to perufe.

The 2d Volume is filled, intirely, wath a Colleftion of fundry foreign

Ordinances, Englifli A6ls of Parliament, and feveral of our Treaties with forergn Powers : — a confiderable Part of all which relates to various Matters unconnefted with Infurance ; and, fome other Parts are now obfolete, expired, or no longer in Force ; — together with feveral Forms of Policies, and Bot- tomry Bonds ; — the whole, with their Titles, Preambles, Formalities, intermixed Matters, &c. vit full Length,

The Infufficiency, therefore, of that Work (which has, neverthelefs, great Merit, and been of much Utility ; and of wdiich I fliall, by and by, take further and due Notice) to anfwer, efpecialiy in the prefent Times, the

Intention

Ix PRE LI MI KARY DISCOURSE.

Intention of thofe mw^fi^zfli^/y ufefu], praftical, and exteri^ve Purposes, to all Perfons, which I have already fuggefted an Idea of, muft be obvious.

In divers Books, on the Subjects of Lata, Trade, Sec. are to be found, in- termixed and difperfed, {hort Matters and Cafes relative to Infurance : — fuch as in Malynes's Lex Mercatoria; — Molloy de J^ire Maritimo et Navali; — Beauvi'es's Lex Merc, rediv. — PosTLETHVl^MTE's DzS. — Cunningham's Laios of Bank Notes, Bills of Exchange and Infurances ; — Parker's Latos o^ Shipping and hifurance, &c. — but, fome of thefe, comprifing merely Notes, Abftrafts of Ads of Parliament, and adjudged Cafes; and others fome Cafes at large; are, of Courfe, very defeftive, in Refpeft of the vafl

Variety of Matters concerning Infurance in general : the laft mentioned

Book being fimply a ColleElion of fundry Statutes ailarge, and fome adjudged Cafes, relating to Shipping, Navigation, Trade, Fifheries, Colonies, In- furance, &c. The Index to them is remarkably negligent, inaccurate, and

in many Refpefts ufelefs.

Such fmall Portions of various other Books, which contain any Thing relative to Infurance, are fo confufed, by being fluffed with mifcellaneous, incoherent, or antiquated Matters, that whoever fearches therein, though with great Trouble, inflead of finding Satisfaftion, is only bewildered and confounded.

In Reality, it is difionourable for our Country, difcreditable to her Mer- chants and Infurers, and very inconvenient for all Perfons who are dire6lly, or relatively, concerned about maritime, mercantile, and Infurance Affairs, to have continued, even in the Zenith of her commercial Splendour, without any well compofed Code, or Ordinance, confilling of Articles which might apply to the Occurrences of Infurance in general, eftablilhed by public Au- thority; or any other authentic and comprehenfive Syflem of Regulations, or Inftruftions whatever, compiled and digefted by able private Hands ; to which conftant Recourfe might be had, on all Occafions : and which might have, in a great Meafure, the happy Efteft of preventing thofe perpetual Mifunderftandings, Altercations, and the feveral odious Litigations that, in every Term, take Place ; many of them even with Regard to Points, and Queftions, which it might appear, f^vom fuch a Recourfe as abovementioned,

had already, long before, been difcuffed and decided in our Courts : but

which, through the /uperfcial, random, and infnaring Manner in which this Bufinefs is ufually performed ; and the little Care that is taken, unlcfs by

afem

P RE LI MI NARY DISCOURSE. \\i

a Jezo Perfons, to underfland, even the general Principles of it, are for the mofl Part unknown, or difregarded ; and, by the very Perfons too who are chiefly interefted in tiiem ; except when occafionally fought for, on their Behalf, by Lawyers^

Thz Joregoing Conjiderations, derived from the deliberate Attention, Expe- rience, and conflant Obfervation of many Years ; founded alfo on a Con- viftion of the Truth and Certainty of all that hath been reprefented, with Regard to the numerous Evils which are fo aJioniJJiingly prevalent, and daily increajing in the Practice of Infurance ; and, of the con^G<\\xtnt public In- convenience, as well as private Mifchiefs which arife from them ; thofe Con- fiderations, I fay, conftitute the genuine Motive of this Addrefs : which is not intended merely to defcribe, and deplore thofe Evils ; but, to offer what it is prefumable may prove, in a confiderable Degree, the Means of Remedy, or Prevention, for the future ; by fubmitting to the Attention of the Public the ^oWoWmg fiimmary Account of an entirely new and copious Work, which- will fucceed this Difcourfe, on the Subjeft of Insurance in general.

I. Of the D E S I G K

'TP H E very great Variety, Intricacy, and uncertain Circumflances of the Objefts of Insurance, render it incapable of being reduced to a regular System, like the general and fundamental Arts and Sciences: — ■ we muft, therefore, be content with " tracing the wandering, though true. Outlines of it, as accurately as tlie Nature of it will admit ; and marking, the /al/e Ways, and dangerous Paths, which ought to be avoided."

I PROPOSE, then, to form an ample, yet /elc6l Digest of all the Matters whatfoever, which in any Wife relate to Infurance : — by entering into this Subjeft at large ; and by reducing to a compaft, methodical, and convenient Form, and Order, for general and common Ufe, all the requifite Parts of the confufcd Mafs of Learning and Materials relative to it ; which lie indifcriminaiely difperfed, and blended with an Infinity of other Matters, quite unconne6led with it, in a great Number of Books, as well in foreign Languages as our own : — and, to illuftrate the fame with fundry new

and curious Particulars, praflical Obfervations, and Remarks. The

whole intended to form a complete Body of elementary, judicial,

Q and

Ixii PRELIMINARY DISCOURSE.

and EXPERIMENTAL Knowledge of Insurance; — difpofed in fuch Man- ner as may be the beft adapted to convey to every Reader immediate, full, and fatisfatlory Information, upon every Head, or Point, that may be

needful, or likely to occur ; and calculated to alTift, fettle, and render

correcl and uniform, the public Judgment ; by a clear Inveftigation, and Elucidation, of the jtijl RuLzs, and /rwe Principles of Infurance, in all probable Cafes and Circumflances ; and by a Deteftion, and Refutation of xar'wus erroneous, ^nd pemicioics Pkacticks therein.

Such is the ^^?i^ra/ Scope of the Undertaking: — of which, what follows will convey a more comprchenfive Idea of the Extenjivenefs of

II. The PLAN'.

Which zvill compri/e,

1. A N Arrangement, in ALPHABETICAL ORDER, of all the Subjea Matters, under the refpeftive Heads, or Titles, to which they pro- perly belong: — This Method fceming to be, of all others, the befl; adapted for clafling and comprehending, and the moft fuitable and eafy Vehicle of communicating, every Thing which relates to each particular and diflinft Obieft, which may be fought for ; — and far preferable to a more fyjlematic, diffufe, or formal Treatife ; which few, efpecially Men of Bufinefs, would have Leifure to read, fewer retain, and wherein none could readily find the

Information he might be in fearch of. Nor is any other Method what-

foever more ufeful, in general, than the Alphabetical, to raife Contributions for the public Service, and to collect all that is worthy of being known on any Subje6t, into an agreeable, and immediate Point of View : — and, efpecially, with refpeft to Matters of Infurance, on Account of the Quantity and Variety oit}i\em ; often feeming unconnefted with each other; but which, neverthelcfs, appertain to the fame Head or Title.

This Form is alfo the more eligible, as it affords Opportunity for the occafional Definition, and Explication of fundry technical Terms, or par- ticular Words, and Things : which hardly any other Mode would admit of, fo as to be difcerned, or found, without great Difficulty. — I have, therefore, chofen that Method of Communication, by which every one interefted in the Subjefl of this Book may, even without much Study, or Application, fupply himfelf injlanth, by Infpedion only, with that particular Informa- tion

PRE LI M I NARY DISCOURSE. Ixui"

tion which he may want, as from a conftant livhig Companion and Remembrancer ; and, to render That attainable with Eafe, and little Lofs of Time, which could not otherwife be acquired, during a whole Life, by thofe who are merely in the Employment, or Rotation of current Bufmefs.

2. Not only the Alphabetical, or Di6lionary Form is judged to be the mofl proper for this Work ; but the HEAD S or TITLES, fo arranged,

will be chofen with due Care and Confideration : and will alfo be fuffici-

ently numerous, for the Purpofe of enabling the Reader to fmd fpeedily, and with Certainty, any Information and Inftruftion which he may ftand in Need of; as under each of thofe Titles will be inferted, and difpofed in the mod convenient Order polfibfe, every Thing which diredly, materially, and principally belongs thereto ; and under which it will mofl naturally, or likely be looked for. — And, whatfoever other and farther Information, or Matters, relative to the Subjeft of fuch particular Head or Title, may be requifue, will be fupplied and readily found by Means of

3. R E F E R E NC E S from fuch diftinft Titles, to all fuch other Heads-, or Titles, under which may appear whatfoever is even collaterally, indireElly, and J?/?fl«i^/y connefted therewith. — Thefe References will be very copious; and fo attentively adapted, as to lead the Reader to obtain full and fatisfaftory Intelligence, and Inftruftion, on whatfoever Matter, Oueftiar^ or Point he may be in fearch of.

4. All thofe Matters and Objefts which ufually, and at all Times, are liable to prefent themfelves, in the common Occurrences of INSURANCE, will, befides what will appear under this general Title, in an efpecial Manner be fully treated of, as praftical Points, branched out under their particular and refpe£live Heads ; — fuch as, for Example,

Abandonment, Adjustment, Bankrupt, Barratry, Bottomry, Bounty, Commencement (of Voyage, or Rifque) Commission, Con- tribution, Cutting, Demurrage, Departure, Deviation, Dis- charge, Discount, Distress, Dock, Document, DoubleInsurance, Drawback, Duties, East-India Ships, End (of Voyage, or Rique) Estimate, Event, Evidence, Fire, Freight, Goods, Illegality, Insolvency, Insufficiency (under which Head will be inferted the remarkable Cafe of the Mills Frigate) Insurrection, Interest, In- terest OR NO Interest, Jettison, Landing, Leakage, Lighter,

Lives,

Ixiv PRELIMINARY DISCOURSE,

Lives, Loading Port, Loss, Lost or not Lost, Lottery, Market, Mutiny, Necessity, Notice, Order, Overloading, Outfit, Perish- able Commodities, Piracy, Premium, Prior Insurance, Profit, Prohibited Goods, Proof, Protest, Provisions, Quarantine, Register, Regulation, Reinsurance, Repair, Respondentia, Restraint, Return, Risque, Running foul. Sailors' Wages, Salvage, Sea-worthy, Ship, Ship or Ships, Shipwreck, Short Interest, Slaves, Smuggling, Stowage, Stranding, Theft, Time, Total-Loss, Touching, Unloading, Usage, Valuation, Voyage, Wager, Warranty, Wear and tear, Wreck, Written Clause; and many others.

And, as the Muhlplicity of Particulars and Circumflances, often very complex and Intricate, which concern AVERAGES, and all partial Lojfes, are the moft difficult, and thorny, of any Thing belonging to Infurance ; and the moft apt to produce Contrariety of Opinion, and Difpute ; and, in the calculating and dating of which, enormous Errors, Deceptions, and Impojitions continually occur, to the great Prejudice and Wrong of one Party or another; particular Attention will be given to infert under the Titles, Average, General Average, Particular Average, Petty Average, Adjustment, Cutting, Damage, Interest, Market, Rep air,Salv age, STRANDiNG,andfeveralotherHeads,immediateIy relative thereto, the moft needful and pra6lical jRw/^i, Methods, and Objervations :^ alfo ufeful Remarks under the general Title, Commodities, with refpeft to their greater or lefs Rifque of Damage ; as well as under the refpeftive Titles of fome particular Kinds of Commodities : — and efpecially under Title, Average, will be found an approved general, ox fundamental Rule, for Rating every partial Lofs, or Average whatfoever, on Goods ; — which hath

never appeared in any other Book : and for Want of a clear Idea of which,

many confiderable Underwriters, Merchants, and Brokers, are very frequently engaged in warm Altercation ; and pay, or receive, much more or lefs than they ought to do : — very extraordinary Inftances whereof daily happen ; and, of crron^OMJ andyi^ Adjuftments, even to the Amount of lo, 12, and fometimes 20 per Cent, or more, on large Policies.

5. As particularly incident to WAR, or Hostilities: — befides what will be inferted under thefe Heads generally ; — all Matters arifing therefrom, and concerning or relative therto, will be fully ftated, under the refpeSive Titles, Cap.ture, Contraband, Convoy, Cruize, Cruizer, Deten- tion,

PRELIMINARY DISCOURSE. Ixv

TiON, Embargo, Enemy, Hostage, Invasion, Letter of Marque, Masked Ship or Property, Navy, Neutral Ship or Property, Privateer, Prize, Property, Ransom, Recapture, Reprizal, Sea, Seizure, Ships of War, and fundry others.

The curious QueJIioJi, with Regard to the Advantage, or Difadvantage, as aifo, as to the Legality itfelf, even without parHamentary Prohibition, of infuriiig ihc Skips, or Property of Enemies, in Time of War, or Hoflilities, will be difcuffed, under thefe general Heads : — all the Reafons which have been urged for and againft it, colle6led and abftratled : with fome new, and interefling Obfervations, and other Particulars of great Importance.

6. As it fliould be a material Part of the Aim of all wife Regulations concerning Infurance, to guard againft, detect, and punifh DECEPTION, IMPOSITION, and FRAUD ;— thefe, throughout the whole Work, and in each refpeftive Department of it, will be the conftant Objects of Expofition ; and, in the various Shapes they affume, efpecially in Time of War, fpecifically combated : all the C^j, Rules, anA Obfervations, feveral of which are intirely new, will have a Tendency to enable the Reader the more eafily and expertly to perceive, prevent, or redrefs them : — and, to this Effeft, befides what will be contained under the general Head of Fraud, there will be fee\i under fundry other diftinft and feparate Heads, to which it refers, — fuch as Commission, Concealment, Date, Deceit, Devia- tion, Document, Evidence, Intelligence, Lives, Misrepresen- tation, Order, Out-Ports, Profit, Proof, Repair, Ship or. Ships, Touching, Valuation, War, and divers others, — various In- ftances, Methods, Hints, &c. concerning them; and towards the Deftruction, or Prevention, in a great Meafure, of that Hydra, Fraud! — And, to this Effect, alfo,

. 7. Under the Titles A G E N T, BROKER, FREIGHTER, INSURED, INSURER, MARINER, MASTER, MATE, OWNER, PILOT, TRUSTEE, &c. will be compnfed many ufeful and important Matters, Laws, Rules, Cafes, &c. touching their refpeftive Rights, Conduti, Duty, and Obligations, in all Tranfaftions and Circum- flances, bearing Relation to Matters of Infurance, which have hitherto occurred, or may probably arife : — not only with refpeft to the Heads referred to in the feveral preceding Seftions ; but efpecially Account, Bar-

R RATR'Y,

Ixvi P RE LI MI NA RY DISCOURSE.

RATRY, Damage, Deviation, Embezzlement, Illegality, Neg- ligence, Payment, Policy, Thept, Wages, and fundry others.

8. Concerning POLICIES of Infurance; and the various Matters and CircLimftances which peculiarly appertain to them, their Nature, Objeft,

Utility, Effecl : the ConJlru6lion, or true Import, and Operation of

their feveral Terms, and Clauses, printed or written ; the legal Stamps ;

and fundry other Particulars requifite to be known : full Information will

be given, under Title Policy, and the other refpeftive Titles, Heads, and Terms, to which it will refer, or which may have Affinity therewith ; interfperfed with fundry Rules, Iii/lruBions, Cautions ; and Remarks, con- cerning the novel, loofe, vague, and catching Manner of wording the

written Clauses on feveral Occafions : the EfFeft of Blanks

frequently left, and of Alterations, Erafures, Interlineations, Miftakes,

inconfiderately, and otherwife, made in them ; from which Circum-

flances, much Inconvenience, Deception, and confequently Difcontent, Difputes, &c. from Time to Time, arife.

g. It is intended to exhibit a few fele6l FORMS o^ Policies, Bottomry Bonds, &c. as ufed at fome of the principal maritime Places of Europe,

and by public Companies, ox Corporations : not only as they are in

ihemfelves curious ; but, as furnifhing Matter for Speculation and Refledion,

compared with each other, and with the Forms in Ufe in England.

They will appear under the Titles, or Names of fuch Places, and Com- panies refpeftively ; — it being thought that this Work, defigned to convey the fulled, and moft general Information poITible, would be dcfcftive Avuthout them.

lo. Accounts will be given of the feveral COMPANIES, CORPORATIONS, and S O C I E T I E S, eftablifhed, particularly

in London, for Infurance ; whether on Ships, Merchandife, Goods, Fire,

Lives, &c. under their refpeftive Titles: — their Rife, Defign, Progrefs, Propofals,. Terms, Methods, Advantages, &c. with fome curious, critical, and neceCTary Remarks thereon : — from all which, much ufeful Matter jnay be drawn, for the Benefit of private Perfons, and Infurance in general ;

efpecialiy under the Titles, London Assurance Company, —

Royal-Exchange Assurance Company, — Union, — Sun-Fire,— ^

Hand in Hand Offices; — Amicable, — Equitable Societies; &c.

Some

PRELIMINARY DISCOURSE. Ixvii

Some collateral Matters, regarding the Eaft-India Company, and Eajl-hidia Ships, will be noticed in their proper Places.

11. Of the CHAMBERS of ASSURANCE, in >m;g-7i mari- time Countries: their Plan, Methods, Regulations, Authority, and Ufe ;

in taking Cognizance of, flating, adjufting, fettling, and determining upon, all Affairs relative to Infurance ; and to all Perfons concerned therein : — likewife further Information under Titles, Foreign Adjustment, Foreign

Court, Foreign Owner, Foreign Ships, &c. and, as fimilar

to the abovenientioned Inftitution, a.r\d fummary Mode of Deci^on, will be inierted, in their proper Places, fome Account of the Court of Policies

OF Insurance, formerly eftabliflied in London, and of its Decifipns ;

likewife every requifite Inftruftion, and the Rules of Law, in regard to Arbitration, Award, &c. with a particular View to Infurance Matters.

12. In the fam.e View, will be communicated — whatfoever may be re- quifite to be known concerning our own MARITIME and other COURTS

of JUDICATURE: particularly the Admiralty Court, Cinque

Ports, Commissioners of Appeals, &c. — and herein will be ftated and confidered what is neceffary, relating to Appeal, Claim, Condemnation, Contraband, Droit of Admiralty, Neutral Property, Prize, Reclaim, Restitution ; and other Matters, branched out under, and referred to, their refpeftive Heads.

13. The MARITIME LAWS: particularly fome of the ancient

Sea Laws of Wisbuy, Oleron, — the Rhodian and Civil Law, &c. will be briefly noticed, inafmuch as they immediately concern Affairs

relative to Infurance ; and as being, Jlill, in many Cafes regarded, and

frequently quoted, by our Courts ; and indeed the Origin from whence ali modern maritime Laws, Ordinances, and Regulations have fprung.

14. As to LAW in general : the Law of Nations ; — the Laws of

England ; — the Lex Mercatoria, &c. — fome very ufeful and neceffary information, and Obfervations, will be introduced ; as well concerning them, as with refpeft to Lawyers, Law-Suits, Juries, Verdicts, &c. relative

efpecially to Matters of In/urance ; and with which, therefore, it is very

peedful, on many Occafions, that all Perfons who are concerned thereia. ihould be acquainted.

25. Ali;

Ixviii PRELIMINARY DISCOURSE.

J

J-

All the CASES which have ever been ADJUDGED in our Courts, in Matters of Infurance, which are to be found in the Books, down to the prefent Time ; and fome others, in which Perfons concerned in Infurance, and efpecially Infurers, are materially interefted ; will be feverally arranged in the moft convenient Manner pofTible, under the various and re/pedive Titles, according to the Qucjlion, Point, or SuhjcEl Matter of each particular Cafe. — This will, doubtlefs, be confidered as a very effential, and valuable Part of the Work ; — as the Cafes are very numerous, and in general fettle the Law, with refpeft to the Matter of each Cafe, in a very great Variety of

Oueflions and Points; fome of them of an important Nature. They are

taken, with great Care, from all the numerous Books of Reports, and other Lav) Books extant ; where they lie promifcuoufly fcattered, amongfl an Abun- dance of other intirely foreign and unconnefted Matters : which necefiarily caufes a great many of them to be not at all, or but little known.

Such of the Cases as are on Subjefts of the moft Importance, will be given at large, as they ftand in the Reports, with the learned Arguments of Counfel : others abridged, or abftrafted ; or the full Sabjlance of them only taken : but, in general, what was delivered by the Judges is tranfcribed at full Length : — the Name of each Cafe, the Reporter, Term, and Court in which it was tried, will alfo be regularly quoted, and referred to : — and, under the general Title, Cases adjudged, will be inferted a complete List of the Names of all thofe Cafes, -wiih References to each Title, as the particular and diilin61: SubjeEl Matter, under which each Cafe is immediately to be found.

In Order, however, that every Reader may form a right Idea of Trials, and Decisions at Law ; and how far they are, or ought to be of Validity and Authority, as Precedents ; I have inferted under this latter Title, fome curious, as well as ufeful Information, and Obfervations.

As it is a Maxim of the Law, that " Ignorantia Juris non cxcufat" —

tind, " Every Man is bound to take Notice of the Law," it were to be

wiflied that the Laws, and all the Cafes adjudged in our Courts (which Adju- dications, w'hilll unreverfed, are deemed and taken as Law) relative to Trade and Commerce ; and alfo each other diftinft Clafs ; were annually, periodi-i cally, or occafionally, colle6ied and publiflied, as they ought to be, at the public Expence, in as fuitable a Manner as polhble, for the due Information of all Perfons concerned in each Branch, or Clafs : inllead of being jumbled together, confufcdly, amongft an Immcnfity of all other Matters, as they

{land

PRELIMINARY DISCOURSE. Ixix

fland in the voluminous Mafs of Reports, &c. This grand Defect, with

reo-ard to Infarance, will be fully fupplied and remedied, by Means of thjs, and the next following Article of this Work.

16. Divers STATUTES, or Claufes thereof, are indifpenfibly requifite to be known, by all Perfons concerned in commercial and maritime Affairs,

and Infurance : But, the very great Number, and mixed Nature of the

Statutes, render feveral Parts of them, which relate to particular Branches of Commerce, or Claffesof Perfons, connected therewith, in general unknown, As fome of them, however, immediately, and directly relate to Infu- rance; and are penal, prohibitory, &c. — of all fuch Statutes, Abstracts, or Extracts, and fometimes intire Clauses, as Occafion requires, but flripped of their Formalities and Tautologies, will be Jelecled, and placed under the re/peclive Titles to which they belong or relate : — and the Year, Reign, Chapter, and Sedion of each, will be quoted ; — alfo, under the general Title Statute, will be given a List, fpecifying in regular Order, the Year, Reign, and Chapter, of every Statute quoted in this Work, with References from each, to the particular and refpeftive Titles, or Subjeft Matters,

under which the Claufes, or Extrafts, are immediately to be found :

fuch as Admiralty-Court, Bankrupt, Barratry, Bottomry, Colony, Company, Greenland and other Fisheries, Interest, In- terest OR NO Interest, Lives, Mariner, Master, Navigation, Owner, Prohibited Goods, ^ Reinsurance, Salvage, Seamen, Wager, Wool, Wreck; and feveral others.

17. The ordinances of foreign maritime States, with Refpeft

to Infurance, are undoubtedly of confiderable Authority ; are paid great

Regard to, and frequently quoted, as fuch, by the Judges themfelves, in our Courts of Juftice ; and feveral Decifions there have been founded on the BoBrine, and Reafon of thofe Ordinances ; as being confonant with the Law of Nations, and containing the eflablifiied Rules of the Lex Mercatoria; as will appear by feveral of the aforementioned adjudged Cafes :— and, as feveral Infurances, made here, are ori Rifques determinable in foreign Places ; and, confequently, all Adjuftments there, refpe6lincr them, are regulated by foreign Ordinances ; a Knowledge of them, and their Principles, is therefore very requifite ; inafmuch, alfo, as they corrcfpond with, elucidate, and illuftrate the Laws, Doarines, and Pradice of Infurance

m England. Such Parts,' or Articles of them, which however are many,

concerning divers efTential and neceffary Matters, and Perfons, as are of

S this

Ixx PRELIMINARY DISCOURSE.

this Nature ; and others, which it would be for the public Benefit were they introduced, and obferved as Rules, with us; are extrafted, and placed under the particular Titles to which they belong ;— the refpeaive Ordi- nances and their Dates are quoted ; — and References are alfo made, from a List thereof, inferted under the general Title Ordinance, to all ^uch par- ticular Titles.

18. TREATIES of Commerce and Navigation, are alfo highly neceffary to be attended to, on a Variety of Occafions, by Infurers, and all

Perfons concerned in Matters relative to Infurance : fuch as, efpecially^

retrard Contraband, Detention, Freedom of Navigation, Free Goods, Free Ships, Hostilities, Neutral Ships and Property, Privateer, Seizure, Ships of War, War, and many other particulars; —under all which Heads, refpeftively, will be placed very ufeful Extracts from all thofe Treaties which are, now, chiefly regarded ; — the refpeftive Treaties, and their Dates quoted ; — and References made from a List thereof under the Title, Treaty, \.o tdich particular }ritdi^, as abovementioned.

10. Various collateral, correlative, and MISCELLANEOUS MATTERS, will be occafionally, but briefly, and confiderately intro-

jjm-ed : which, though not immediately, or direftly belonging to Infurance ;

or abfolutely neceffary for the common, praftical Purpofes of Perfons con- cerned therein, or connefted therewith ; yet, without which, this Work, intended to convey an Acquaintance with every Thing requifite for forming

the expert and accompliflied Insurer, could not be complete. Such

Matters chiefly regard the ConJlruElion, Built, and different Kinds of Ships, or Veflels, and fome particular naval, and marine Affairs ; — of which, fhort Defcriptions, or Explanations will be given ; — alfo Definitions of fome particular Terms, and Phrases; about which there occurs, fometimes, a Difference of Idea, and even Litigations : — thinking it improper that Perfons fliould be unacquainted with the Nature, Ufe, and true Meaning, of what they are often very greatly interelled in.

20. Interspersed, throughout the whole Work, will appear much intirely NEW MATTER; and divers Remarks, Cases, and Obser- vations, not in any other Book whatfoever ; chiefly the Product of the Author's own long and attentive Study, Experience, and Pra6lice ; as well

as obtained by the Favour of fome judicious Friends : a Variety of very

common Irregularities, Errors, and Frauds, will be clearly pointed out ; —

and

PRELIMINARY DISCOURSE. Ixxi

and abfolutely necefTary Regulations, and Remedies of them fuggcfted, with

all due Caution, and Deference to the Opinion of others ; Regard being

always had, however, to the clear, manifeft Rea/on of the Thing, on which all juft Rules, and Dodrines whatfoever, ought to be grounded.

21. With Refped to the AUTHORITIES, from whence the Materials

of this Work are for the mod Part drawn : it will ever be confidered by

judicious Perfons, not fo much who fays, writes, or does any Thing; as the Rationality, Validity, evident Utility, and intrinfic Merit, of what is

offered to their Confideration : nor, if the/e are wanting, will the higheft

Names give Authenticity to, or fan6^ify any Publication whatfoever, in the Eye of Men of Difcernment.

It is, however, prefumed that Acts of Parliament, Adjudged Cases, public Ordinances and Treaties, are unqueilionable Authorities:

and with Regard to other Matters of Law, relating to Infurance and

maritime Affairs ; not only all the moft approved Reports, but the beft Digests, Abridgements, Commentaries, and other Books, have been fearched: — On the Law of Nations, and Maritime Laws, the moft

eminent Civilians have been confulted : as likewife, the moft judicious

and efteemed Writers on Commerce, Navigation, and the LexMercatoria;

as well Foreign as Englifti : and, in general, every Source, from whence

might be obtained whatever could render this Undertaking copious, complete, and generally ufeful, conformable to the Defign of it, has been vihted. — Several of the Authors confulted will be referred to occafionally, where- ever it is fuppofed the Reader might be inclined to refort to them, for further

Information than it has been deemed needful to give. And, fuch Parts

of Mr. Magens' ftiort EJfay, beforementioned, as are not become obfolete, or exploded ; but, which are confonant to the prefent fettled Do6lrines and Praftice ; will be incorporated with this Work.

As to ftated Cafes o[ Adjujlmcnt of Averages, &c. which make fo large a Part of Mr. Magens' Book -, befideswhati have already remarked concerning them ; and, that it would, unneceflarily, very much fwell the Bulk of the fubfequent Work, were fuch inferted (although the Author is in Pofteffion of many curious, and approved Adjuftments) — it may be added that, fuch ; Cafes ; however fimilar fome of them may be, in general, to others which might happen ; muft necefiarily differ fo much in their particular Circumftances,. Hand Items, that not any one can ferve altogether as a Precedent, or Guide,

m

iNxli PRELI MINARY DISCOURSE.

in another :— and, therefore, the chief Thing needful, in Praftice, in order to be able to Jiate or adjuft, with Accuracy and Precifion, any Cafe of Average, Salvage, &c. whatfoever, is, to become well acquainted with, or at leaf! well grounded in, the juft Principles, Rules, and Laws of Infu- rance ; and, to attain a Habit of rea/oning rightly thereupon : — which a fre- quent Recourfe to fuch a Work as is here defcribed will, naturally, produce.

Lastly, An INDEX of all the general Heads, or Titles, will be annexed to the Work; for the flill greater Facility of turning to them.

• Having particularly defcribed the Plan of the intended Publication, it is requifite to fay fomething of

IIL The EXECUTION,

H I S, it is confeffed, in Contemplation of an Undertaking fo extenfive ■^ in it's Matter, and fo important in it's Objeft, as That which has juft been delineated ; as alfo in Regard of the feveral Denominations of Perfons, chiefly of very refpeftable ClafTes, for whofe Ufe it is defigned ; demands fome adequate Capability, not only in Point of fpeculative Acquaintance, and even experimental Intercourfe, with the feveral Branches o^ commercial Know- ledge ; but, alfo, of Penetration to difcern, Judgment to feleft, and Expertnefs to arrange, methodize, and difplay, all fuch various Materials, wherefoever difperfed in a Multiplicity of Books, and attainable in real Bufinefs, fo as may be beft adapted to anfwer the End propofed, of immediate, full, and ■fatisfaElory Information.

The Author hereof, therefore, with real Difhderice, and Sincerity, declares that, had there appeared a Probability that any other Perfon, amongft many in the mercantile World who may be better qualified, would render to the Public fo really necejfary, and ejjential a Service, he certainly fhould have had no Inclination to devote fo large a Portion of his Time, as hath been abfolutely requifite, in the Performance of it.

In the mean While, he hath found no little Encouragement, from the Confideration, already indicated, that, as Books concerning Trade and Commerce are, in this Country, generally compofed by literary, fpecula- tive, and reclufe Men ;— -whofe Studies are not only merely theoretical, but

•are

PRELIMINARY DISCOURSE. Ixxiii

are even not limited to that Department of Science chiefly ; — They, however judicious, being totally unverfed in every Thing praHical refpcfting it, cannot be deemed qualified to make the beft Choice of whatfoever is more peculiarly applicable to, and fitted for the Ufe of Men aflually employed in, any particular Line of Biiftnefs ; or to cull and difpofe, with equal Cora- prehenfion, Adroitnefs, and Propriety, as one who, from his earlieft Youth, has been conftantly, and unremittingly engaged, not only in an indefatigable Attention to the Acquifition of a competent Knowledge of commercial Affairs in general ; but alfo, during a Courfe of many Years, in the daily PraSice itfelf, as a Merchant, of material Branches thereof; as well as being, himfelf, for the greater Part of that Time, intimately and experimentally concerned, as an Infurer, in thofe very Matters which confl;itute the more dijlind Objefi

of the propofed Publication: which having, for forae Years paft, had in

View, the principal Aim of the Study, and Application of all the Hours which his neceffary Avocations would admit of, as well as his perfonal Obfervations and Enquiries, have been conftantly direfted to that End: — in all which no common AJJiduity, and Perfeverance have been exercifed.

It is, therefore, not without fome Reafon, prefumed that, when tliis Work, to the Execution of which the Author hath been alfo, from Time to Time, frequently ftimulatedby the flattering Opinion, and Partiality of feveral very refpeftable and judicious Friends, fliall be viewed, in it's feveral Parts, with Candour and Confideration, it may be found that he hath not been altogether unequal to the Tafls. : — ■ — which, however, would have been greatly facilitated, had there ever been extant any Book whatfoever, on this Subject, formed, in any Meafure, upon fo general and comprehenjive a Plan ; — fince there is a very wide Difference between the revifing, making Additions to, and Improvements upon an old, or former Publication, and the producing an intirely new Work.

In fliort, in whatfoever elfe he may have failed herein, — Care, Indufry;

RefleElion, and he begs leave to add, Impartiality, have not been wantinp-;

in avoiding, equally, Redundancy and Paucity, in the SeleHion of the Mate- rials; in digefting them, every where, in anew zx\^ praElical Light ;-

and, in rendering the whole of that general Inftruftion and Ufe, which has been propofed.

Thus far, as to the Work iifclf : of which it will, now, be not im- proper to point out, more precifely,

T IV. The

Ixxiv PRELIMINARY DISCOURSE.

IV. The UTILITY.

AS there is no Perron whatfoever, who may, in any Manner, be either afluallv employed in, or connefted with, any Art, Science, or Pro- felTion ; or interefted in any Branch of Commerce ; let him be ever fo well verfed therein ; but will, neverthelefs, on divers Occafions, in the Courfe of Pra6tice, find himfclf deficient, or in fome Uncertainty, through the Inat- tention, Want of Retention, or other Fallibility to which the human Mind is naturallv fubjecl ; — particularly in the MulLiplicity, and Involution of Circwnfiances vj^vich. relate to Infiarance; and the hajiy, confufed, or treacherous Manner in which thofe Affairs are too often tranfafted; — it cannot, therefore, be deemed otherwife than highly ufeful to all Perfons in general, who are any Way, whetlier direftly or relatively, concerned with them, to have always at Hand, the Means of injlantly informing, or reaffuring themfelves, on every Point ; refpefting which they, or thofe with whom they tranfaft,

may be in any Doubt. The natural, and certain good Effefts of

fuch a Recourfe muft be, the Eftablifhment of more coherent, rational, and fettled Notions, and Principles •,' — more fpeedy Concurrence in Opinion ; — > more accurate, regular, and equitable Methods of proceeding ; — and, confe- quently, more Good-Faith, mutual good Underftanding, and harmonious Inter- courfe, than hitherto prevail in this very important Department of Bufinefs ; — -

to the better Support, Eafe, and Extenfion of Commerce in general. And,

herein muft be evident the Utility, in particular,

1. To Merchants: — who will be enabled, hereby, to attain n^^if Notions, and reftify -wrong ones; which are very far from being uncommon with many, otherwife very intelligent and refpeftable Perfons, amongft them, with Regard to the Principles, Rules, &c. by which the Affairs of Infurance ought to be regulated; — and to judge for them/elves, as well as to their own Rights, and thofe of their Correfpondents, as the jfii/tice which ought to be done to Underwriters.

2. To Insurers: — in a more peculiar, and efpecial Manner; by ren- dering them completely verfed in a Knowledge o^ their Prokii^iou, and expert in the aftual and immediate Exercife of it ; — and in the Application of the Laxos, Principles, Regulations, Ufages, &c. to all the Matters which concern it: thereby enabling them to guard againft, reftify, or deleft Error,

Deception,

PRELIMINARY DISCOURSE. Ixxv

Deception, Impojition, and Fraud; — and, in general, to maintain the Honour, Liberality, and Rerpe6lability of their Charatler, and Rank^ in the commer- cial World.

Q. To Brokers: — by an immediate Inflruftion, and Communication of the Rules, Methods, Impartiality, and Integrity, by which they ought to govern themfelves, between Infurers and Infureds, in all their Tranfa6lions, Reprefentations, Adjuftments, and every other Circumflance of the ConduEl, and Duties of their Office.

4. To Owners, Masters of Ships, Freighters, &c. — who may, hereby, become diftinftly and circumftantially acquainted with all the Matters which regard xhe.\x Rights, Duties, and Situation, refpeftively; inafmuch as they are affefted by, or concern Lifurance.

5. To all Persons, of the feveral foregoing Denominations, resident in Foreign Maritime Countries: — who, as well as thofe of our own, may be equally benefited by this Work ; not only as they will be enabled to difcover what concerns their refpe6iive Interejis, Rights, and Duties, in all Matters touching Infurance made here, by Orders from thofe foreign Countries ; — but, as it contains alfo more ample Information, on every Particular, which any Way concerns Infurance in general; and as univerfally applicable in the Praftice of it, in all Countries ; than can be found in any other Book, or Nation whatfoever : — and, as it will alfo be allowed that, from the very extenfive Praftice of Infurance in England, and the numerous Difciiffions, and legal Decijions, which have, from Time to Time, been made here, on difputed, and doubtful Points and Queflions; all exhibited in the fubfequent Work ; this Science mud neceffarily be better underftood in London, by the few who have, profefTedly, adapted their Study and Attention to it, than in any other Part of the World.

6. To Arbitrators: — who may be immediately enlightened, and affifted in all Matters, howfoever circumflanced, which may be referred to them, in forming clear and true Ideas thereof, and doing equal Juflice to the Parties in Difference : — and, thereby, may be obviated the Complaints, and Dijfatisf action, which, too often, and too juftly arife from inequitable Awards, in Matters of Infurance ; being founded in the Mifreprefentation, and Difingenuity of Parties ; or the Incompetency, Mifconception, or Par- tiality olxhs. Referees.

7. To

Ixxvi PRELIMINARY DISCOURSE.

7. To Jurors: in like Manner; who, when In/urance Cauks come

before them, for Want of a better Comprehenfion of the Nature, Fafts, and Circumflances of them, and of the Laxos, Principles, Ufagcs, &c. by which fuch Oueftions ought to be decided; than can be coUefted from the Confufion, Contrariety, Perfonality, and often Precipitancy, which occur in our Courts ; are too frequently Hable, by relying on Direction, inftead of Conviction, to gw'tfalfe Judgments.

8. To Lawyers, in general: — who may be fpared the Trouble of fearching in a Multitude of Books, for Precedents, Cafes, Statutes, Rules, Doctrines, and all other Matters of Law, and Ufage, in any Wife whatfoever relative to Injur ance: — the whole being here faithfully colle61ed and rae- thodifed, for immediate Recourfe ; and the refpeftive Authorities quoted ; — befides much Information in a Variety of other mercantile Matters, which are occqfionally needful to them.

" Cuilihet in Arte fua perito cjl crcdendum."

9. To Consuls and Ministers, refident in maritime Places: — who may, hereby, be aided, on fundry Occafions of Accidents, or otherwife, in which their Advice and Afliftance is frequently applied for, or becomes needful to Mafters of Ships, and others, in maritime Affairs, con- nefted with lufarance ; and regulated by the Laio of Nations, Treaties-, Ordinances, Slc.

10. To the Legislature itfelf: — whenfoever it may be difpofed, with the Afliftance and Informations of judicious Merchants, Infurers, and others, to frame q. complete Ah^xdiEi, or Code of Laws, Rules, and Regula- tions, to be comprifed in one general Aft of Parliament ; for an exprefs Guide, and Government to all Perfons, in all Matters relative to In/urance : — and, efpecially, for the due Punifliment, and more effeftual Prevention of all fraudulent, and deceiful PfoEiees therein : — to which EfTeft, there is hardly any known Matter, Point, or Circumftance, which will not be contained, elucidated, and readily perceived in this Work, under its proper Head or Title; and by Means of the ample References to others.

11. In Times of War or Hostilities: — from the Variety of im- portant Matters, with which the Work abounds, arifing therefrom, and particularly relative thereto, it cannot but prove not only very materially ufeful, but alfolutely neceffary.

12. And

PRE LI MI NARY DISCOURSE. Ixxvii

12. And laftly, all the Youth, — and other Perfons, of the Denominations already mentioned, hitherto even intirely unacquainted with Infurance Matters, may, by an Obfervation of the Order of them, as defcribed in the foregoing Plan, be gradually initiated, and conduced in the Study of them, in a Method fufficiently regular and connefted, to become properly, fully, and with Facility, inftrufted in the whole of them : — and it is for the Ufe of fuch Perfons, chiefly, that the feveral Particulars, intimated in Seel, ig, of the Plan, are introduced^

CONCLUSION.

TTAVING, in the Courfe of the preceding Pages, reprefented impartially, -*--*■ and without any Exaggeration, although with that Earneftnefs which hath been judged to be requifite, the great and ruinous Disorders which, undeniably, and too commonly prevail in the Practice of Insurance ; — pointed out their chief Causes; — fuggefted, generally. Means of Prevention, better Regulation, and Remedy, for the Future ; — and, to this End, defcribed particularly the Nature, Dejign, and Ufe, of the in- tended Publication : — it fliould feem fuperfluous to offer any Apology for performing That which the Convenience and Advantage of the commercial Public abfolutely require ; Nothing of this general, comprehenfive Kind, and pra^ical VViWiy , on the Subjeft of Insurance, having ever before been

undertaken. Nor, can that favourable Countenance and Reception

of it be doubted, which it is not only for the public Emolument, but the particular, and immediate Inter ejl of every Perfon, for whofe Ufe the Work is defigned, to give.

Previously to it's going to the Prefs, it hath been thought proper to be the more diffufe and circumftantial, in the foregoing Account of the Plan of it, purpofely to give Opportunity to Gentlemen who may, in the mean Time, be difpofed, from Sentiments of Public Spirit, candidly to impart to the Author their Ideas, in what Refpeft any Alteration, or Improvement, may be made therein ; fo as to render it more worthy of Regard. — Such Intima- tions, and any other Afliflance, will, therefore, be received with Gratitude and Deference ; and have all due Attention paid to them : although, from the Impoflibility of coinciding with a Diverfity of Opinion, one muft, of Neceffity, finally exercife, in every fuch Cafe, the beft Judgment that can be formed, on the whole.

U On

Ixxviii PRELIMINARY DISCOURSE.

On the other Hand,— as Truth, and the general Good, ought to be the invariable Objeas of every PubHcation whatever ;—an^, as the very Attempt to combat the Prevalence of Error and Injustice is always alarming, and ungrateful to the Feelings of thofe who are in the confirmed Habit of them ; — it is not improbable that there may be some Perfons \vho, throuo-h the mean and narrow Motives of Self- Inter ejl. Prejudice, Pique, or even from Indifference, may, difmgenuoufly or invidioudy, affea to depreciate what they have their Reafons to wifh neither to underRand, them/elves, nor mio-ht be underlloodby others, — though evidently undertaken with no illauda- ble Views, nor wkhout fuffcient Need, however imperfeftly it may be per- formed : — fuch illiberal Deportment, therefore, will undoubtedly be feen in it's proper Light, by every impartial, worthy, and experienced Perfon : whofe fair Opinion only the Author is ambitious of; and, to whofe unbiafTed Judgment he cheerfully fubmits this Undertaking ; — far from being unapprized of the .Inaccuracy to which every human Performance is liable : — confiding, however, on all Occafions, in

" Mensjibi confcia ReEli ;"

and, beino- well enough acquainted with Mankind, to be thoroughly fenfible that Applaufe, or Cenfure ; Elevation, or Depreffion of perfonal Repute, — efpecially in the Sphere of Trade and Bufmefs, where the Fort of moll People's Arguments commonly lies in their own Intere/l or Connexions, — too often, depends more on Circumftances merely adventitious, often- five, and extraneous, than proceeds from a fuitable Examination, and right Apprehenfion, of the Propriety or Impropriety, — or follows the real Merit or Demerit, of the Conduft of Men's Aftions.

If, however, when the Author hereof, having paffed through a very new and arduous Talk, fhall have placed under the difcerning Eye of the Public the Fruit of his Labour, it fhould meet with fome Degree of that Attention and Approbation, which his own Experience, as well in the Produftion of it, as in it's Application to real Bufinefs, gives him Reafon to hope ; he will be happy in the Refleftion that the Employment of fome Portion of his Life hath been beneficial to others ; and, therefore, not difcreditable to himfelf.

APPENDIX.

PRELIMINARY DISCOURSE. Ixxix

APPENDIX,

T N Page 39, is briefly Hated an Indance, N° 3, of an Infurance on Goods, "•■ in a French Ship, from Martinico to Bourdeaux : — to which Cafe, it is thought proper to add here the following Circumftances, relating to it, which have occurred fnice it was printed : — viz. — The Agents for the BritiJJi AJfured, who, as hath been obferved, was in London, at the Time that Payment of the Lofs was demanded from the Infurers, having brought an Action againfl one of them who refufed to fettle it ; the latter caufed the original Depojitions in the Admiralty Court to be examined : — and it was found that the Captain of the Privateer had fworn, that " he made Prize of the faid Ship, and her Cargo, on Account of illicit Trade, in which flie was employed, by having a very large Quantity of Tobacco and Rice, the Produce of North America, on board ; for which flie had no Bills of Lading, or Clearance"

The French Captain, as alfo the Mate, &c. had depofed that •' the

Captain of the Privateer (hewed him his Commijfion, as beforementioned : — that he took at Martinico a Cargo of Tobacco, Rice, Sugar, Coffee, Cotton, &c. — that he ligned about a Dozen Bills of Lading, two of which were false and colourable, as they mentioned Sugar and Cojfee, inftead of Tobacco : — that the Reafon they were made out fo was, for Fear of being vifited by any Englijh Privateer, who might feize the Ship and Goods, on Account of the faid Tobacco being the Produce of North America : — that the Tobacco is of the Produce of North America ; as he alfo believes the Rice to be, by the vast quantities which are brought, daily, PROM thence to Martinico: — that he remonjlrated, at Martinico, to one of the French Owners of the Ship (who was a Paffenger aboard) the Danger fhe would run, on Account of the Goods which were American Produce aboard, in Cafe they were met with by any EngliJJi Cruizers : — that the faid Ov/ner anfwered that, as the Bills of Lading were made out for Sugar, &c. injlead of Tobacco, they would run no Rilk : — that at the Time the Privateer's Boat was coming aboard, the Deponent delivered to the faid Owner the true Bills of Lading for the Tobacco ; Avho gave them to the Carpenter, with Orders to conceal them ; fince which the Deponent

hath not feen them." The Defendant, therefore, not being able to

bring the faid Captain (who was gone to France) nor any other Witnefs, perfonally, to give legal Evidence, as above, was advifed to file a fhort Bill in the Exchequer againfl the real British Proprietor of the

.Tobacco,

ixxx PRELIMINARY DISCOURSE.

Tobacco, and his Agents, the nominal Plaintiffs, for further Difco very, and a Confefion from themfelves :— and, in their Anfwer, the faid Proprietor, &c. depofed that " he went from England to Martinico ; arrived there 5 Months before, zoos there at the Time of loading the Tobacco, and till the Month after :— that tlie Property of it was his, and it M'as fliipped by his ^^^;^^;_that he beheved it was of the Growth of North America :— that he was advifed he was, and ought to be confidered, as a Subject of the French King, being refident at Martinico, and configning his Goods to France:— and, therefore, that the faid Goods were French Commodities : —both the faid Proprietor, and his Agents, admitted that no Intimation loas given to the Infurer, that the Goods were not fuch, the Property of French Subjefts; nor any Irformation, otherwife than by the Policy itfelf; or that they were of any other Kind than are ifaally fhipped from the French Weft-India Iflands : — and, that the Premium given him was no larger than

uponyucA Goods." Under thefe Circumftances, the Plaintiff proceeded to

Trial; and produced the Condemnation of the faid Ship in the following Terms ; — viz. — " The Judge, by his Interlocutory Decree, condemned the

Ship the G T , her Tackle, &c. and the Goods, Wares, and

Merchandifes laden therein, as good and lawful Prize, and Droits and

Perquifites of Admiralty, taken by , Commander of the private

Ship of War, the ; not having, at the Time of the Capture, a Letter

of Marque againft the French: — and, at the further Petition of ,

(Proftor for the Admiralty) decreed a CommifTion of Appraifement and Sale ; and direfted the Proceeds of faid Sale to be brought into the Regiftry

of the Court by the Day of next Term : , (the Proftor for the

Captor) protefted of a Grievance ; and of appealing : — the Judge, at the

Petition of , (the Proftor for the Admiralty) decreed the Sentence not

to be fufpended, in Cafe fufhcient Security be given to anfwer the Appeal, and to bring the Proceeds of the Sale* into the Regiftry, to abide the Event of the Appeal."

For the Plaintiff, it was argued that the Condemnation ought to be taken as of French Property altogether — (though it was confeffed, and proved by the Plaintiff's Witneffes, that the Tobacco was American, known to be fuch by him; and that the Defendant was not informed o^ it): — that a French Subject in Martinico may be a lawful Ozoncr of American Tobacco, though

* It may be proper to remark that no Sale lias been made either of the Ship or Cargo, in Confe- quence of the Condemnation, and Order to