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 reprehensible supineness and stupidity: these are the omiffions of the before-mentioned degrees of diligence, and are exactly correfpondent 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 increafe; 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 honesty. 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 fecond extreme, and at length becomes nearer to it than any affignable difference: but the last terms be

ing, as before, excluded, we must look within them for modes applicable to practice; and these we fhall 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 poffeffions.

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 apposite word, and intending to use this word uniformly in the fame fense 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 honesty, if he also have common prudence, would not be more negligent than ordinary in keeping the thing bailed: fuch 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 lefs pertinent to the fubject, that infinite degrees of fraud may be conceived increasing in a feries from the term where grofs neglect ends, to a term, where pofitive crime begins; as crimes likewise proceed gradually from the lighteft to the most atrocious; and, in the fame 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 indivifible points, and that no degrees whatever on either fide of the ftandard are admiffible in legal difquifitions.

Having difcovered the feveral modes of diligence, which may juftly 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 refponsible 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 molefted unneceffarily for his obliging conduct: if more, therefore, than

good faith were exacted from fuch a perfon, that is, if he were to be made answerable for lefs than gross 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 anfwer even for flight neglect, few men (for acts of pure generosity and friendship are not here to be supposed) 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 conftitutes 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 dishoneft, is repugnant to decency and morality, and, as no

man fhall be presumed 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 responsibility for neglect, having been traced by this short analysis, I come to the fecond, or biftorical, part of my effay; in which I shall demonftrate, after a few introductory remarks, that a perfect harmony fubfifts on this interesting branch of jurifprudence in the codes of nations most 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 among the Mofaick inftitutions we have fome curious rules on the very subject before us; but, as they are not numerous enough to compose a system, it will be fufficient 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 fhall proceed at once to that nation, by which the wif dom 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