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than Sir William Jones has done, such attempts have been unsuccessful. The lines drawn by him were adopted from Pothier, and were taken by Pothier from the commentators upon the Roman law.
Sir William Jones proceeds historically to ".demonstrate . . . that a perfect harmony subsists on this interesting branch of jurisprudence in the codes of nations most eminent for legal wisdom, particularly of the Romans and the English." This portion of the work is a striking illustration of the proneness of the human mind to color every thing by the light of a preconceived opinion. He discovers this perfect harmony in the Arabian, the Mosaic, the Attic, the Turkish, the Mahomedan, and the Hindu laws, in the codes of the northern barbarians, and in the English and in the Roman law. But when his references to these laws are separately examined, the supposed harmony disappears.
The doctrine of the three degrees of negligence in the English law derives solely from the Roman law whatever support it has in any system of law. Prior to the publication of the essay of Sir William Jones it had no existence in the English law, except as directly and wholly traceable to the Roman law. Of its history in the Roman law, Sir William Jones gives an account which, as far as it goes, is correct, and which cannot be so well stated as in his own words:1 —
"Without undertaking ... in all instances 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 Avhence all the decisions of civilians on 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.
"' Some contracts,' says the great writer on Sabinus, 'make the party responsible for deceit only; some for both deceit and neglect. Nothing more than responsibility for deceit is demanded in deposits and possession at will; both deceit and neglect are
i p. 14.
inhibited in commissions, lending for use, custody after sale, taking in pledge, hiring; also, in portions, guardianships, voluntary work (among these* some require even more than ordinary diligence). Partnership and undivided property make the partner and joint proprietor answerable for both deceit and negligence.'1
"' 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; because, since no benefit accrues to the depositary, he can justly be answerable for no more than deceit; but if a reward happen to be given, then a responsibility for neglect also is required; or, if it be agreed at the time of the contract, that the depositary shall answer both for neglect and for accident: but, where a benefit accrues to both parties, as in keeping a thing sold, as in hiring, as in portions, as in pledges, as in partnership, both deceit 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.'2
"One would scarce have believed it possible, that there could have been two opinions on laws so perspicuous and precise, composed by the same writer, who was indubitably the best expositor 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 Greek, and some in the modern languages of Europe, besides the general expositions of that im
1 Contractus quidam dolum malum duntaxat recipiunt; quidam, et dolum et cuipam. Dolum tantum depositum et precarium; dolum et culpam, mandatum, commodatum, venditum, pignori acceptum, locatum; item dotii datio, tutehe, negotia geata (in his quidam et diligentiam). Socletas et rerum communio et dolum et culpam recipit.
1 In contractibus interdum dolum solum, interdum et culpam, prxstamus; dolum in deposito; nam, quia nulla utilitas ejus versatur, apud quem deponitur, merito dolus prrestatur solus; nisi forte et merces accessit, tunc enim, ut est et constitutum etiam culpa exhibetur; aut, si hoc ab initio convenit, ut et culpam et periculum prxstet is, penes quem deponitur: sed, ubi utriusque utilitas vertitur, ut in empto, ut in locato, ut in dote, ut in prgnore, ut in societate, et dolus et culpa praestatur. Commodatum autem plerumque solam utilitatem continet ejus, cui commodatur; et ideo verior est Q. Mucii sententia existimantis et culpam prastandam et diligentiam. portant 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 veiy 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. Campanus, 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 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 giving 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 variation 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 preceding contracts demand that higher degree; but the Florentine reading will denote, in contradiction to it, that all of them require more than ordinary exertions.
"It is by no means my design to depreciate the authority of the venerable manuscript preserved at Florence; for, although few civilians, I believe, agree with Politian, in supposing it to be
one of the originals 1 which were sent by Justinian himself to the principal towns of Italy, yet it may possibly be the very book which the Emperor Lotharius II. is said to have found at Amalfi, about the year 1130, and gave to the citizens of Pisa; from whom it was taken, near three hundred years after, by the Florentines, and has been kept by them with superstitious reverence: be that as it may, the copy deserves the highest respect; but if any proof be requisite that it is no faultless transcript, we may observe, that, in the very law before us, accedunt is erroneously written for accidunt; and the whole phrase, indeed, in which that word occurs is different from the copy used by the Greek interpreters, and conveys a meaning, as Bocerus and others have remarked, not supportable by any principle or analogy.
"This, too, is indisputably clear, that the sentence, in his quidem et diligentiam, is ungrammatical, and cannot be construed according to the interpretation which some contend for. What verb is understood? Recipiunt. What noun? Contractus. What then becomes of the words in his, namely, contractibus, unless in signify among? And in that case, the difference between quidem and quidam vanishes; for the clause may still import that 'among the preceding contracts (that is, in some of them) more than usual diligence is exacted:' in this sense the Greek preposition seems to have been taken by the scholiast on Harmenopulus; and it may here be mentioned, that diligentia, in the nominative, appears in some old copies, as the Greeks have rendered it; but Accursius, Del Rio, and a few others consider the word as implying no more than diligence in general, and distinguish it into various degrees, applicable to the several contracts which Ulpian enumerates. We may add, that one or two interpreters thus explain the whole sentence, 'in his Contractibus quidam Jurisconsulti et diligentiam Requiront;' but this interpretation, if it could be admitted, would entirely destroy the authority of the clause, and imply that Ulpian was of a different opinion. As to the last conjecture, that only certain cases and circumstances are meant by the word quidam, it scarce deserves to be repeated. On the whole, I strongly incline to prefer the vulgate reading; especially as it is not conjectural, but has the authority of manuscripts to support it; and the mistake of a letter might easily have been made by a transcriber, whom the pref1 See Gibbon's Decline and Fall, ch. 44, and notes.
aces, the epigram prefixed, and other circumstances, prove to have been, as Taurelli himself admits, a Greek. Whatever, in short, be the genuine words of this much-controverted clause,1 I am persuaded that it ought not to be strained into an inconsistency with the second law; and this has been the opinion of most foreign jurists, from Azo and Alciat down to Heineccius and Huber; who, let their dissension be on other points ever so great, think alike in distinguishing three degrees of neglect,— which we may term gross, ordinary, and slight, — and in demanding responsibility for those degrees according to the rule before expounded.
"The law, then, on this head, which prevailed in the ancient Roman empire, and still prevails in Germany, Spain, France, Italy, Holland, constituting, as it were, a part of the law of nations, is in substance what follows:—
"Gross neglect, lata culpa, or, as the Roman lawyers most accurately call it, dola proxima, is in practice considered as equivalent to dolus or fraud itself; and consists, according to the best interpreters, in the omission of that care which even inattentive and thoughtless men never fail to take of their own property: this fault they justly hold a violation of good faith.
"Ordinary neglect, lev is culpa, is the want of that diligence which the generality of mankind use in their own concerns; that is, of ordinary care.
"Slight neglect, levissima culpa, is the omission of that care which attentive and vigilant persons take of their goods, or, in other words, of very exact diligence.
"Now, in order to ascertain the degree of neglect for which a man, who has in his possession the goods of another, is made responsible by his contract, either express or implied, civilians establish three principles, which they deduce from the law of Ulpian on the Edict."
1 Here Mr. Balmanno, the editor of the second edition of the Essay on Bailments, inserts the following note: "Few verbal controversies have been equally important with that on the construction of the disputed sentence in Ulpian's Commentary; for, though the preponderancy of any of the various opinions urged on the subject may have little or no influence on the settled maxims of our law, it must be obvious that the accuracy of the decision is materially connected with the clearness and arrangement of ths general doctrine of bailments. As the Roman jurisprudence is the source from which this general doctrine is derived, the learned and liberal lawyer will acknowledge considerable obligation to Sir William Jones for the acute and well-supported reasoning by which he establishes the true reading of the clause, in his guidam et diligentiam, in opposition to fanciful conjecture and dogmatical assertion."