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henfion, will prevent any farther perplexity on this interesting title, except in cases very peculiarly circumstanced.
From the obligation, contained in the definition of bailment, to restore the thing bailed at a certain time, it follows, that the bailee must keep it, and be responsible to the bailor, if it be lost or damaged; but, as the bounds of justice would in most cases be transgressed, if he were made answerable for the loss 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 shades of care or diligence from the flightest momentary thought, or transient glance of attention, to the most vigilant anxiety and solicitude; but extremes in this cafe, as in most others, are inapplicable to practice: the first extreme would seldom enable the bailee to perform the condition, and the second ought not in justice to be demanded; since it would be harsh and absurd to exact the same anxious care, which the greatest miser takes of his treasure, from every man, who borrows a book or a seal. The degrees then of care, for which we are seeking, must lie somewhere between these extremes ;
and, by observing the different manners and characters of men, we may find a certain standard, which will greatly facilitate our inquiry; for, although some are excessively careless, and others excessively vigilant, and some through life, others only at particular times, yet we may perceive, that the generality of rational men use nearly the same degree of diligence in the conduct of their own affairs; and this care, therefore, which every person of common prudence and capable of governing a family takes of his own concerns, is a proper measure of that, which would uniformly be required in performing every contract, if there were not strong reasons for exacting in some of them a greater, and permitting in others a less, degree of attention. Here then we may fix a constant determinate point, on each fide of which there is a series confisting of variable terms tending indefinitely towards the above-mentioned extremes, in
proportion as the case admits of indulgence or demands rigour: if the construction be favourable, a degree of care less than the standard will be sufficient; if rigorous, a degree more will be required; and, in the first case, the measure will be that care, which every man of common sense, though absent and inattentive, applies to his own affairs; in the second, the measure will be that
attention, which a man remarkably exact and thoughtful gives to the securing of his personal property.
The fixed mode or standard of diligence I. shall (for want of an apter epithet) invariably call ORDINARY ; although that word is equivocal, and sometimes involves a notion of degradation, which I mean wholly to exclude; but the unvaried use of the word in one sense will prevent the least obscurity. The degrees on each side of the standard, being indeterminate, need not be distinguished by any precise deno, mination : the first may be called Less, and the second, MORE, THAN ORDINARY diligence.
Superlatives are exactly true in mathematicks; they approach to truth in abstract morality; but in practice and actual life they are commonly false : they are often, indeed, used for mere intensives, as the most diligent for very diligent; but this is a rhetorical figure; and, as rhetorick, like her sister poetry, delights in fiction, her language ought never to be adopted in sober investigations of truth: for this reason I would reject from the present inquiry all such expressions as the utmost care, all posible, or all imaginable, diligence, and the like, which have been the cause of many errors in the code of ancient ROME, whence, as it will soon be demonstrated,
they have been introduced into our books even of high authority.
Just in the same manner, there are infinite fhades of default or negle&t, from the lightest inattention or momentary absence of mind to the most reprehensible supineness and stupidity: these are the omissions of the before-mentioned degrees of diligence, and are exactly correspondent with them. Thus the omission of that care, which every prudent man takes of bis own property, is the determinate point of negligence, on each side of which is a series of variable modes of default infinitely diminishing, in proportion as their opposite modes of care infinitely increase; for the want of extremely great care is an extremely little fault, and the want of the fightest attention is so considerable a fault, that it almost changes its nature, and nearly becomes in theory, as it exactly does in practice, a breach of trust and a deviation from common honesty. This known, or fixed, point of negligence is therefore a mean between fraud and accident; and, as the increasing series continually approaches to the first extreme, without ever becoming precisely equal to it, until the last term melts into it or vanishes, so the decreasing series continually approximates to the second extreme, and at length becomes nearer to it than any assignable difference : but the last terms be
ing, as before, excluded, we must look within them for modes applicable to practice; and these we shall find to be the omiffions of such care as a man of common sense, bowever inattentive, and of such as a very cautious, and vigilant man, respectively take of their own por effions.
The constant, or fixed, mode of default I likewise call ORDINARY, not meaning by that epithet to diminish the culpability of it, but wanting a more apposite word, and intending to use this word uniformly in the same sense ; of the two variable modes the first may be called GREATER, and the second, LESS, THAN ORDINARY, or the first GROSS, and the other, SLIGHT neglect.
It is obvious, that a bailee of common honesty, if he also have common prudence, would not be more negligent than ordinary in keeping the thing bailed : such negligence (as we before have intimated) would be a violation of good faith, and a proof of an intention to defraud and injure the bailor.
It is not less obvious, though less pertinent to the subject, that infinite degrees of fraud may be conceived increasing in a series from the term where gross nëglezt ends, to a term, where pofitive crime begins; as crimes likewise proceed gradually from the lightest to the most atrocious; ánd, in thesame manner, there are infinite degrees of accident from the limit of extremely slight ne