good faith were exacted from fuch a perfon, that is, if he were to be made anfwerable for lefs than grofs neglect, few men after one or two examples, would accept goods on fuch terms, and focial comfort would be proportionably impaired.

On the other hand, when the bailee alone is benefited or accommodated by his contract, it is not only reasonable, that he, who receives the benefit, fhould bear the burden, but, if he were not obliged to be more than ordinarily careful, and bound to answer even for flight neglect, few men (for acts of pure generofity and friendship are not here to be fuppofed) would part with their goods for the mere advantage of another, and much convenience would confequently be loft in civil fociety,

This distinction is conformable not only to natural reason, but also, by a fair prefumption, to the intention of the parties, which constitutes the genuine law of all contracts, when it contravenes no maxim of morals or good government; but, when a different intention is expreffed, the rule (as in devises) yields to it; and a bailee without benefit may, by a special undertaking, make himself liable for ordinary, or flight, neglect, or even for inevitable accident: hence, as an agreement, that a man may fafely be dishonest, is repugnant to decency and morality, and, as no

man fhall be prefumed to bind himself against irrefiftible force, it is a juft rule, that every bailee is responsible for fraud, even though the contrary be ftipulated, but that no bailee is responsible for accident, unless it be moft exprefsly fo agreed.

The plain elements of natural law, on the subject of refponfibility for neglect, having been traced by this short analysis, I come to the fecond, or historical, part of my effay; in which I fhall demonftrate, after a few introductory remarks, that a perfect harmony fubfifts on this interefting branch of jurisprudence in the codes of nations moft eminent for legal wisdom, particularly of the ROMANS and the ENGLISH.

Of all known laws the most ancient and venerable are thofe of the Jews; and among the Mofaick inftitutions we have some curious rules on the very fubject before us; but, as they are not numerous enough to compofe a fyftem, it will be fufficient to interweave them as we go along, and explain them in their proper places: for a similar reafon, I fhall fay nothing here of the Attick laws on this title, but fhall proceed at once to that nation, by which the wifdom of ATHENS was eclipfed, and her glory extinguished.

The decifions of the old Roman lawyers, collected and arranged in the fixth century by the order of JUSTINIAN, have been for ages, and in

fome degree ftill are, in bad odour among Englishmen: this is an honest prejudice, and flows from a laudable fource; but a prejudice, most certainly, it is, and, like all others, may be carried to a culpable excess.

The conftitution of ROME was originally excellent; but, when it was fettled, as hiftorians write, by AUGUSTUS, or, in truer words, when that base diffembler and cold-blooded affaffin C. Octavius gave law to millions of honester, wiser, and braver men than himself by the help of a profligate army and an abandoned fenate, the new form of government was in itself absurd and unnatural; and the lex regia, which concentrated in the prince all the powers of the state both executive and legiflative, was a tyrannous ordinance, with the name only, not the nature, of a law*; had it even been voluntarily conceded, as it was in truth forcibly extorted, it could not have bound the fons of those who confented to it; for "a renunciation of perfonal rights, efpe"cially rights of the highest nature, can have ", no operation beyond the perfons of thofe, who " renounce them." Yet, iniquitous and odious as the fettlement of the conftitution was, ULPIAN only spoke in conformity to it, when he faid that "the will of the prince had the force

"of law;" that is, as he afterwards explains himself, in the ROMAN empire; for he neither meaned, nor could be mad enough to mean, that the propofition was juft or true as a general maxim. So congenial, however, was this rule or fentence, ill understood and worse applied, to the minds of our early NORMAN kings, that fome of them, according to Sir JOHN FORTESCUE,

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were not pleased with their own laws, but ex"erted themselves to introduce the civil laws "of Rome into the government of ENGLAND*;" and fo hateful was it to our sturdy ancestors, that, if JOHN of SALISBURY be credited, "they burned

and tore all fuch books of civil and canon law 66 as fell into their hands:" but this was intemperate zeal; and it would have been fufficient to improbate the publick, or conflitutional, maxims of the Roman imperial law, as absurd in themfelves as well as inapplicable to our free government, without rejecting the whole system of private jurisprudence as incapable of answering even the purpose of illuftration. Many pofitive inftitutions of the Romans are demonstrated by FORTESCUE, with great force, to be far furpaffed in juftice and fenfe by our own immemorial cuftoms; and the refcripts of SEVERUS or CARACALLA, which were laws, it feems, at Rome,

* De Laud. Leg. Angl. c. 33. 34.

Seld. in Fort. c. 33.

have certainly no kind of authority at Westminfter; but, in queftions of rational law, no cause can be affigned, why we should not shorten our own labour by resorting occasionally to the wif dom of ancient jurifts, many of whom were the moft ingenious and fagacious of men. What is good fenfe, in one age, must be good fenfe, all circumstances remaining, in another; and pure unfophifticated reafon is the fame in ITALY and in ENGLAND, in the mind of a PAPINIAN and of a BLACKSTONE.

Without undertaking, therefore, in all in ftances, to reconcile NERVA with PROCULUS, LABEO with JULIAN, and GAIUS either with CELSUS or with himself, I fhall proceed to exhibit a fummary of the Roman law on the fubject of refponfibility for neglect.

The two great fources, whence all the decifions of civilians in this matter must be derived, are two laws of ULPIAN; the first of which is taken from his work on Sabinus, and the fecond from his tract on the Edict: of both these laws I fhall give a verbal translation according to my apprehenfion of their obvious meaning, and shall then state a very learned and interesting controverfy concerning them, with the principal arguments on each fide, as far as they tend to elucidate the question before us.

"Some contracts, fays the great writer on Sabinus,