AN

ESSAY

ON

THE LAW OF BAILMENTS.

HAVING lately had occafion to examine with some attention the nature and properties of that contract, which lawyers call BAILMENT, or, A delivery of goods on a condition, expressed or implied, that they shall be restored by the bailee to the bailor, or according to his directions, as foon as the purpose, for which they were bailed, Shall be anfiered, I could not but observe with furprise, that a title in our ENGLISH law, which feems the most generally interesting, should be the least generally understood, and the least precisely afcertained. Hundreds and thousands of men pass through life, without knowing, or caring to know, any of the numberless niceties, which attend our abftruse, though elegant, system of real property, and without being at all acquainted with that exquifite logick, on

which our rules of fpecial pleading are founded; but there is hardly a man of any age or station, who does not every week and almost every day contract the obligations or acquire the rights of a birer or a letter to hire, of a borrower or a lender, of a depofitary or a person depofiting, of a commiffioner or an employer, of a receiver or a giver, in pledge; and what can be more abfurd, as well as more dangerous, than frequently to be bound by duties, without knowing the nature or extent of them, and to enjoy rights, of which we have no just idea? Nor muft it ever be forgotten, that the contracts above-mentioned are among the principal fprings and wheels of civil fociety; that, if a want of mutual confidence, or any other caufe, were to weaken them or obftruct their motion, the whole machine would inftantly be disordered or broken to pieces: preferve them, and various accidents may still deprive men of happinefs; but destroy them, and the whole species must infallibly be miserable. It seems therefore aftonishing, that fo important a branch of jurifprudence fhould have been fo long and so strangely unsettled in a great commercial country; and that, from the reign of ELIZABETH to the reign of ANNE, the doctrine of bailments should have produced more contradictions and confufion, more diversity of opinion and inconfiftency of argument, than any

other part, perhaps, of juridical learning; at leaft, than any other part equally fimple.

Such being the case, I could not help imagining, that a fhort and perfpicuous difcuffion of this title, an expofition of all our ancient and modern decifions concerning it, an attempt to reconcile judgments apparently difcordant, and to illuftrate our laws by a comparison of them with thofe of other nations, together with an investigation of their true spirit and reason, would not be wholly unacceptable to the ftudent of English law; especially as our excellent BLACKSTONE, who of all men was beft able to throw the cleareft light on this, as on every other, fubject, has comprised the whole doctrine in three paragraphs, which, without affecting the merit of his incomparable work, we may safely pronounce the least satisfactory part of it; for he represents lending and letting to hire, which are bailments by his own definition, as contracts of a diftinct Species; he fays nothing of employment by commission; he introduces the doctrine of a distress, which has an analogy to a pawn, but is not properly bailed; and, on the great question of reSponfibility for neglect, he speaks fo loosely and indeterminately, that no fixed ideas can be collected from his words*. His commentaries are

2. Comm. 452, 453, 454•

the moft correct and beautiful outline, that ever was exhibited of any human science; but they alone will no more form a lawyer, than a general map of the world, how accurately and elegantly foever it may be delineated, will make a geogra pher if, indeed, all the titles, which he profeffed only to sketch in elementary discourses, were filled up with exactness and perfpicuity, Englishmen might hope at length to poffefs a digeft of their laws, which would leave but little room for controverfy, except in cases depending on their particular circumstances; a work, which every lover of humanity and peace muft anxioufly wish to fee accomplished. The following effay (for it afpires to no higher name) will explain my idea of fupplying the omiffions, whether defigned or involuntary, in the Commentaries on the Laws of ENGLAND.

I propose to begin with treating the subject analytically, and, having traced every part of it up to the first principles of natural reason, shall proceed hiftorically, to how with what perfect harmony those principles are recognised and established by other nations, especially the ROMANS, as well as by our ENGLISH Courts, when their decifions are properly understood and clearly distinguished; after which I shall resume synthetically the whole learning of bailments, and expound fuch rules, as, in my humble appre

henfion, will prevent any farther perplexity on this interesting title, except in cases very peculiarly circumftanced.

From the obligation, contained in the definition of bailment, to reflore the thing bailed at a certain time, it follows, that the bailee must keep it, and be refponfible to the bailor, if it be loft or damaged; but, as the bounds of justice would in moft cafes be tranfgreffed, if he were made anfwerable for the lofs of it without his fault, he can only be obliged to keep it with a degree of care proportioned to the nature of the bailment; and the investigation of this degree in every particular contract is the problem, which involves the principal difficulty.

There are infinite fhades of care or diligence from the flightest momentary thought, or tranfient glance of attention, to the most vigilant anxiety and folicitude; but extremes in this cafe, as in most others, are inapplicable to practice: the firft extreme would feldom enable the bailee to perform the condition, and the second ought not in justice to be demanded; fince it would be harsh and abfurd to exact the fame anxious care, which the greatest miser takes of his treasure, from every man, who borrows a book or a feal. The degrees then of care, for which we are feeking, must lie somewhere between these extremes ;