other part, perhaps, of juridical learning; at leaft, than any other part equally simple.

Such being the cafe, I could not help imagining, that a fhort and perfpicuous difcuffion of this title, an expofition of all our ancient and modern decifions concerning it, an attempt to reconcile judgments apparently difcordant, and to illuftrate our laws by a comparison of them with thofe of other nations, together with an investigation of their true spirit and reason, would not be wholly unacceptable to the ftudent of English law; especially as our excellent BLACKSTONE, who of all men was best able to throw the cleareft light on this, as on every other, subject, has comprised the whole doctrine in three paragraphs, which, without affecting the merit of his incomparable work, we may fafely pronounce the leaft fatisfactory part of it; for he represents lending and letting to hire, which are bailments by his own definition, as contracts of a distinct Species; he fays nothing of employment by commiffion; he introduces the doctrine of a distress, which has an analogy to a pawn, but is not properly bailed; and, on the great question of reSponfibility for neglect, he speaks fo loosely and indeterminately, that no fixed ideas can be collected from his words*. His commentaries are

2. Comm. 452, 453, 454.

the moft correct and beautiful outline, that ever was exhibited of any human fcience; but they alone will no more form a lawyer, than a general map of the world, how accurately and elegantly foever it may be delineated, will make a geographer: if, indeed, all the titles, which he profeffed only to sketch in elementary discourses, were filled up with exactness and perfpicuity, Englishmen might hope at length to poffefs a digeft of their laws, which would leave but little room for controverfy, except in cases depending on their particular circumftances; a work, which every lover of humanity and peace muft anxiously wish to fee accomplished. The following effay (for it afpires to no higher name) will explain my idea of fupplying the omiffions, whether defigned or involuntary, in the Commentaries on the Laws of ENGLAND.

I propofe to begin with treating the subject analytically, and, having traced every part of it up to the first principles of natural reason, shall proceed historically, to fhow with what perfect harmony those principles are recognised and eftablished by other nations, especially the ROMANS, as well as by our ENGLISH Courts, when their decifions are properly understood and clearly distinguished; after which I fhall refume fynthetically the whole learning of bailments, and expound fuch rules, as, in my humble appre

henfion, will prevent any farther perplexity on this interesting title, except in cases very peculiarly circumftanced.

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 refponfible to the bailor, if it be loft or damaged; but, as the bounds of juftice would in moft cafes be tranfgreffed, if he were made answerable for the lofs 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 fhades of care or diligence from the flighteft momentary thought, or tranfient glance of attention, to the most vigilant anxiety and folicitude; but extremes in this cafe, as in most others, are inapplicable to practice: the firft extreme would feldom enable the bailee to perform the condition, and the second ought not in justice to be demanded; fince it would be harsh and abfurd to exact the fame anxious care, which the greatest miser takes of his treasure, from every man, who borrows a book or a feal. The degrees then of care, for which we are feeking, mutt lie fomewhere between these extremes';

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 fame degree of diligence in the conduct of their own affairs; and this care, therefore, which every perfon 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 side of which there is a feries confifting of variable terms tending indefinitely towards the above-mentioned extremes, in proportion as the cafe 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 case, the measure will be that care, which every man of common fense, though abfent and inattentive, applies to his own affairs; in the fecond, the measure will be that

attention, which a man remarkably exact and thoughtful gives to the fecuring of his perfonal 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 sense will prevent the leaft obfcurity. 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 exacly true in mathematicks; they approach to truth in abstract morality; but in practice and actual life they are commonly falfe 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,