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have certainly nd kind of authority at Westminster; but, in questions of rational law, no cause can be assigned, why we should not shorten our own labour by resorting occasionally to the wis. dom of ancient jurists, many of whom were the · most ingenious and fagacious of men. What is good senfe, in one age, must be good sense, all circumstances remaining, in another; and pure unsophisticated reason is the same in Italy and in ENGLAND, in the mind of a PAPINIAN and of a BLACKSTONE,
Without undertaking, therefore, in all in stances, to reconcile NERVA with PROCULUS, LABEO with JULIAN, and Gaius either with Celsus or with himself, I shall proceed to exhibit a summary of the Roman law on the subject of responsibility for neglect.
The two great sources, 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 second from his tract on the Edict: of both these laws I shall give a verbal translation according to my apprehension of their obvious meaning, and shall then state a very learned and interesting controversy concerning them, with the principal arguments on each side, as far as they tend to elucidate the question before us.
“Somecontracts, says the great writeron Sabinus,
“ make the party responsible for DECEIT ONLY; “ fome, for both deceIT AND NEGLECT. No
thing more than responsibility for deceit is 66 demanded in DePOSITS and POSSESSION AT " WILL; both DECEIT AND NEGLECT are in“ bibited in COMMISSIONS, LENDING FOR
USE, CUSTODY AFTER SALE, TAKING IN
PLEDGE, HIRING; also in PORTIONS, GUAR“DIANSHIPS, VOLUNTARY WORK: (among " these some require even more than ordinaryo “ DILIGENCE). PARTNERSHIP and UNDI“ VIDED PROPERTY make the partner and joint
proprietor answerable for both DECEIT AND “ NEGLIGENCE*."
“In contracts, says the same author in his * other work, we are sometimes responsible for
DeceIT ALONE ; sometimes, for NEGLECT ALSO;
for DECEIT ONLY in DEPOSITS; be“ cause, since NO BENEFIT accrues to the de
pofitary, he, can justly be answerable for no more than DECEIT; but, if a REWARD hap
pen to be given, then a responsibility for ne“GLECT Also is required; or, if it be agreed
* Contractûs quidam DOLUM malum DUNTAXAT recipiunt; quidam, et DOLUM ET CULPAM. Dolum tantùm DEPOSITUM et PRECARIUM; DOLUM ET CULPAM, MANDATUM, COMMODATUM, VENDITUM, PIGNORI ACCEPTUM, LOCATUM; item DOTISDATIO, TUTELA, NEGOTIA GESTA: (in his QUIDAM et DILIGENTIAM). Societas et RERUM COMMUNIO et DOLUM ET CULPAM recipit. D. 50. 17. 23.
at the time of the contract, that the depositary # shall answer both for neglect and for ACCI« DENT: but, where A BENEFIT accrues to “ BOTH parties, as in KEEPING A THINC
SOLD, as in HIRING, as in PORTIONS, as in PLEDGES, as in PARTNERSHIP, both De
ceiT AND NEGLECT make the party liable. “ LENDING FOR USE, indeed, is for the most
part BENEFICIAL to the BORROWER ONLY; " and, for this reason, the better opinion is that “ of Q. Mucius, who thought, that he should “ be responsible not only for NEGLECT, but “ even for the omission of more than ordinary « DILIGENCE*.”
One would scarce have believed it possible, that there could have been two opinions on laws fo perspicuous and precife, composed by the same writer, who was indubitably the best expositor
* In contractibus interdum DOLUM SOLUM, interdum ET CULPAM, præstamus; DOLUM in DEPOSITO; nam, quia NULLA UTILITAS ejus versatur, apud quem deponitur, merito DOLUS præftatur Solus; nifi fortè et MERCES acceflit, tunc enim, ut eft et conftitutum, ETIAM CULPA exhibetur; aut, fi hoc ab initio convenit, ut et CULPAM et PERICULUM præftet is, penes quein deponitur: sed, ubi UTRIUSQUE UTI. LITAs vertitur, ut in EMPTo, ut in LOCATO, ut in DOTE, ut in PIGNORE, ut in societate, et DOLUS ET CULPA præstatur. COMMODATUM autem plerumque SOLAM UTILITATEM continet ejus, cui COMMODATUR ; et ideò verior est Q. MUCII sententia existimantis et CULPAM præstandam et DILIGENTIAM. D. 13. 6. 5. 2.
of his own doctrine, and apparently written in illustration of each other ; the first comprising the rule, and the second containing the reason of it: yet the single passage extracted from the book on SABINUS has had no fewer than twelve particular commentaries in Latin*, one or two in Greekt, and some in the modern languages of Europe, besides the general expositions of that important part of the digest, in which it is preserved. Most of these I have perused with more admiration of human sagacity and industry than either solid instruction or rational entertainment; for these authors, like the generality of commentators, treat one another very roughly on very little provocation, and have the art rather of clouding texts in themselves clear, than of elucidating passages, which have any obscurity in the words or the sense of them.
CAMPANAS, indeed, who was both a lawyer and a poet, has turned the first law of Ulpian into Latin hexameters; and his authority, both in prose and verse, confirms the interpretation, which I have just given.
The chief causes of all this perplexity have been, first, the vague and indistinct manner in which the old Roman lawyers, even the most
*BOCERUS, CAMPANUS, D'AVEZAN, Del Rio, LE CONTE, RITTERSHUSIUS, GIPHANIUS, J. GODEFROI, and others.
+ The scholium on Harmenopulus, l. 6. tit. de Reg. Jur. n. 15. may be considered as a commentary on this law.
eminent, have written on the subject; secondly, the loose and equivocal sense of the words diLIGENTIA and CULPA; lastly and principally, the darkness of the parenthetical clause in his QUIDAM ET DILIGENTIAM, which has produced more doubt, as to its true reading and signification, than any sentence of equal length in any author Greek or Latin. Minute as the question concerning this clause may seem, and dry as it certainly is, a short examination of it appears absolutely necessary.
The vulgate editions of the pandects, and the manuscripts, from which they were printed, exhibit the reading above set forth; and it has accordingly been adopted by Cujas, P. FABER, Le Conte, DONELLUS, and most others, as give ing a sense both perspicuous in itself and consistent with the second law; but the FLORENTINE copy has quidem, and the copies, from which the Basilica were translated three centuries after JUSTINIAN, appear to have contained the same word, since the Greeks have rendered it by a particle, of similar import. This variation in a single letter makes a total alteration in the whole doctrine of ULPIAN; for, if it be agreed, that diligentia means, by a figure of speech, a more than ordinary degree of diligence, the common reading will imply, conformably with the second law before cited, that 'SOME of the pre