and, by obferving the different manners and characters of men, we may find a certain ftandard, which will greatly facilitate our inquiry; for, although fome are exceffively careless, and others exceffively vigilant, and fome through life, others only at particular times, yet we may perceive, that the generality of rational men ufe 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 fome of them a greater, and permitting in others a lefs, degree of attention. Here then we may fix a conftant determinate point, on each fide of which there is a feries confifting of variable terms tending indefinitely towards the above-mentioned extremes, in proportion as the case admits of indulgence or demands rigour: if the conftruction be favourable, a degree of care less than the ftandard will be fufficient; if rigorous, a degree more will be required; and, in the first cafe, the measure will be that care, which every man of common fenfe, though absent and inattentive, applies to his own af fairs; in the fecond, 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 ftandard of diligence I fhall (for want of an apter epithet) invariably call ORDINARY; although that word is equivocal, and fometimes involves a notion of degradation, which I mean wholly to exclude; but the unvaried ufe of the word in one fense will prevent the least obscurity. The degrees on each fide of the ftandard, being indeterminate, need not be distinguished by any precife denomination: the firft may be called LESS, and the fecond, 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 intenfives, as the MOST diligent for VERY diligent; but this is a rhetorical figure; and, as rhetorick, like her fifter poetry, delights in fiction, her language ought never to be adopted in fober inveftigations of truth: for this reason I would reject from the present inquiry all fuch expreffions as the utmost care, all poffible, 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 foon be demonstrated,

they have been introduced into our books even of high authority.

Juft in the fame manner, there are infinite fhades of default or neglect, from the slightest inattention or momentary absence of mind to the most reprehenfible supineness and stupidity: thefe are the omiffions of the before-mentioned degrees of diligence, and are exactly correspondent with them. Thus the omiffion of that care, which every prudent man takes of his own property, is the determinate point of negligence, on each fide of which is a series of variable modes of default infinitely diminishing, in proportion as their oppofite modes of care infinitely increase; for the want of extremely great care is an extremely little fault, and the want of the flightest attention is fo confiderable a fault, that it almost changes its nature, and nearly becomes in theory, as it exactly does in practice, a breach of truft and a deviation from common honefty. This known, or fixed, point of negligence is therefore a mean between fraud and accident; and, as the increafing feries continually approaches to the first extreme, without ever becoming precifely equal to it, until the last term melts into it or vanishes, fo the decreasing feries continually approximates to the second extreme, and at length becomes nearer to it than any affignable difference: but the laft 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 fuch care as a man of common fenfe, however inattentive, and of fuch as a very cautious, and vigilant man, respectively take of their own possessions.

The conftant, or fixed, mode of default I likewife call ORDINARY, not meaning by that epithet to diminish the culpability of it, but wanting a more appofite word, and intending to use this word uniformly in the same sense: of the two variable modes the firft may be called GREATER, and the fecond, LESS, THAN ORDINARY, or the first GROSS, and the other, SLIGHT neglect.

It is obvious, that a bailee of common honefty, 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 lefs obvious, though less pertinent to the subject, that infinite degrees of fraud may be conceived increasing in a series from the term where grofs neglect ends, to a term, where pofitive crime begins; as crimes likewise proceed gradually from the lightest to the most atrocious; and, in thefame manner, there are infinite degrees of accident from the limit of extremely flight ne

glect to a force irreftftible by any human power, Law, as a practical science, cannot take notice of melting lines, nice discriminations, and evanefcent quantities; but it does not follow, that neglect, deceit, and accident, are to be confidered as indivisible points, and that no degrees whatever on either fide of the ftandard are admiffible in legal difquifitions.

Having discovered the feveral modes of dili gence, which may justly be demanded of contracting parties, let us inquire in what particular cafes a bailee is by natural law bound to use them, or to be anfwerable for the omiffion of them.

When the contract is reciprocally beneficial to both parties, the obligation hangs in an even balance; and there can be no reason to recede from the standard: nothing more, therefore, ought in that cafe to be required than ordinary diligence, and the bailee should be responsible for no more than ordinary neglect; but it is very different, both in reafon and policy, when one only of the contracting parties derives advantage from the

contract.

If the bailor only receive benefit or convenience from the bailment, it would be hard and unjust to require any particular trouble from the bailee, who ought not to be molefted unneceffarily for his obliging conduct; if more, therefore, than