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glect to a force irresistible by any human power, Law, as a practical science, cannot take notice of melting lines, nice discriminations, and evanescent quantities; but it does not follow, that neglect, deceit, and accident, are to be considered as indivisible points, and that no degrees whatever on either side of the standard are admissible in legal disquisitions.
Having discovered the several modes of diligence, which may justly be demanded of contracting parties, let us inquire in what particular cases a bailee is by natural law bound to use them, or to be anfwerable for the omission 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 case 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 reason 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 molested unnecessarily for his obliging conduct: if inore, therefore, than
good faith were exacted from such a person, that is, if he were to be made answerable for less than gross neglect, few men after one or two examples, would accept goods on such terms, and social 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, should bear the burden, but, if he were not obliged to be more than ordinarily careful, and bound to answer even for Night neglect, few men (for acts of pure generosity and friendship are not here to be supposed) would their goods for the mere advantage of another, and much convenience would consequently be loft in civil society.
This distinction is conformable not only to natural reason, but also, by a fair presumption, 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 expressed, the rule (as in devises) yields to it; and a bailee without benefit may, by a special undertaking, make himself liable for ordinary, or Night, neglect, or even for inevitable accident: hence, as an agreement, that a man may safely be dishonest, is repugnant to decency and morality, and, as no
man shall be presumed to bind himself against irrepftible force, it is a just rule, that every bailee is responsible for fraud, even though the contrary be stipulated, but that no bailee is responsible for accident, unless it be most expressly so agreed.
The plain elements of natural law, on the subjed of responsibility for neglect, having been traced by this short analysis, I come to the second, or historical, part of my essay; in which I shall demonstrate, after a few introductory remarks, that a perfect harmony subsists on this interesting 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 those of the Jews; and
the Mosaick institutions we have some curious rules on the very subject before us; but, as they are not numerous enough to compose a system, it will be sufficient to interweave them as we go along, and explain them in their
proper places : for a similar reason, I shall say nothing here of the Attick laws' on this title, but shall proceed at once to that nation, by which the wifdom of Athens was eclipsed, and her glory extinguished.
The decisions of the old Roman lawyers, collected and arranged in the sixth century by the order of JUSTINIAN, have been for ages,
some degree still are, in bad odour among E12glishmen: this is an honest prejudice, and flows from a laudable source; but a prejudice, most certainly, it is, and, like all others, may be carried to a culpable excefs.
The constitution of Rome was originally excellent; but, when it was settled, as historians write, by Augustus, or, in truer words, when that base diffembler and cold blooded aflaflin 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 legislative, 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 consented to it; for “ a renunciation of personal rights, espe
cially rights of the highest nature, can have ", no operation beyond the perfons of those, who
renounce them." Yet, iniquitous and odious as the settlement of the constitution was, UlPIAN only spoke in conformity to it, when he said that “ the will of the prince had the force
"s 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 proposition was just or true as a general maxim. So congenial, however, was this rule or sentence, ill understood and worse applied, to the minds of our early NORMAN kings, that some of them, according to Sir John Fortescue,
were not pleased with their own laws, but ex“ erted themselves to introduce the civil laws “of Rome into the government of ENGLAND*;" and so hateful was it to our sturdy ancestors, that, if John of SALISBURY be credited, “they burned to and tore all fuch books of civil and canon law “ as fell into their handst:" but this was intemperate zeal; and it would have been sufficient to inprobate the publick, or constitutional, maxims of the Roman imperial law, as absurd in themfelves as well as inapplicable to our free ment, without rejecting the whole system of private jurisprudence as incapable of answering even the purpose of illustration. Many positive inftitutions of the Romàns are demonstrated by FORTEscue, with great force, to be far surpassed in justice and sense by our own immemorial customs; and the rescripts of Severus or CaraCAILA, which were laws, it seems, at Rome,
* De Laud. Leg. Angl. c. 33. 34.
+ Seld. in Fort. C. 33