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Sir William Jones then proceeds to group various kinds of contracts, according to their supposed benefit to one, to the other, or to both of the contracting parties; making slight, gross, and ordinary neglect the measure, in conformity with the scheme which he has before laid down. He then states that " it is very remarkable that, though Antoine Favre," " who was famed for innovation and paradox," and who was "justly" called " the boldest of expositors and the keenest adversary of the practisers," discovered no error in the interpretation of the laws above given, yet the younger Godefroy, of Geneva, had adopted the Florentine reading, of which Sir William Jones thinks he has demonstrated the absurdity, and " left behind him a regular commentary on the law, Contractus [as the law is called in which the disputed reading occurs], in which he boldly combats the sentiments of all his predecessors, and even of the ancient Romans." After having convicted, as he supposes, Godefroy of absurdity, Sir William Jones further states that " the triple division of neglects had also been highly censured by some lawyers of reputation." He names Zasius and Donellus. Donellus (Doneau) was a French jurist of eminence. He was professor of law at Bourges at the time of the massacre of St. Bartholomew, when his Huguenot opinions forced him to leave France, and his works were published at Rome, after his death, in 1596; his specialty was the Roman law. At the present day he is regarded as the greatest jurist who ever lived, by many civilians who have made the study of the Roman law the occupation of their lives, and are therefore probably very competent to form an opinion. Sir William Jones also mentions another objector; "M. Le Brun, who published, not many years ago, an essay on responsibility for neglect,1 which he had nearly finished before he had seen the commentary of Godefroy, and, in all probability, without ever being acquainted with the opinion of Donellus." "This author sharply reproves the triple division of neglects, and seems to disregard the rule concerning a benefit arising to both, or to one of the contracting parties." "He reads, in his Quidem et diligentiam, and that with an air of triumph ; insinuating that quidam was only an artful conjecture of Cujas and Le Conte, for the purpose of establishing their system. . . . He warmly contends, that the Roman laws, properly understood, admit only two degrees of diligence ; one, measured by that 1 Essai But la Prestation des Fautes, 1764.
which a provident and attentive father of a family uses in his own concerns; another, by that care which the individual party of whom it is required is accustomed to take of his own possessions." At the time when this author wrote, the learned M. Pothier was composing some of his admirable treatises on all the different species of express or implied contracts. ... To this venerable professor and judge, for he had sustained both characters with deserved applause, Le Brun sent a copy of his little work; and M. Pothier honored it with a short but complete answer, in the form of a general observation on his treatises." 1
Having finished his review of the Roman law, Sir William Jones next examines the cases which had been decided in the English law, from the Year-Books to his own time, for the purpose of showing that they support the theory which he himself maintains. This portion of his essay, with respect be it said, is not able. His analysis of the cases is often incorrect. He sometimes mistakes the meaning of the language used, and sometimes is at fault in regard to the point upon which a decision turns. Suffice it to say, that there is no case, "from the oldest Year-Book or treatise to the latest adjudged case," produced by him, — with the exception of the many dicta in the opinion of Lord Holt above mentioned (all of which dicta purport to be taken from the Roman law), — which yields, in response to the severe racking and torturing to which it is subjected, any but a fanciful support to his theory. A careful reading of Sir William Jones's essay makes it clear that the theory of three degrees of negligence rests solely upon the supposed authority of the Roman law. With this law Sir William Jones seems to have had a large acquaintance. But he had adopted Pothier's theory of negligence; and his admiration for Pothier led him too hastily to conclude that all who differed from that eminent jurist must necessarily be in the wrong.
Mr. Justice Story's commentaries on the law of bailments were first published in 1832. He adopts without question the doctrine of three degrees of negligence, and incorporates many extracts from the writings of Pothier into his text. There is nothing in any edition of his commentaries which suggests that that doctrine had ever been questioned by writers on the Roman
1 In some editions of Pothier this is to be found at the end of his Treatise on the Marriage Contract, in others at the end of the Treatise on Obligations.
law. Mr. Justice Story's writings show that, notwithstanding his familiar acquaintance with the Corpus Juris, and with the works of Domat, Cujas, Heineccius, and Pothier, and his remarkable fondness for quoting them, he was not acquainted with the recent labors of those European civilians whose studies have thrown light upon some things in the Roman law which had been previously obscured by the work of the glossators and the commentators.
Since the publication of Sir William Jones's essay, and within the present century, it has been demonstrated, almost beyond cavil, that there does not exist in the Roman law a uniform division of negligence into degrees. It is generally admitted that the Florentine manuscript of the Digest is the oldest and the most valuable of the manuscripts; that its reading of the text of the law Contractus is the correct reading; that the all-important word should in truth be quidem, and not quidam; that Donellus, Lebrun, and the rest were correct in their strictures; that Pothier was wrong; and that the symmetrical scheme of a threefold division of negligence is not supported by the texts of the Roman law, but was the work of the commentators.
The writers of the middle ages had a fondness for tripartite divisions. Their great master, Aristotle, had said: "Three is the most perfect number: it is the first of numbers, for of one we do not speak as a number; of two we say both; but three is the first number of which we say all; moreover, it has a beginning, a middle, and an end."1 Many errors in every department of human knowledge might be traced to this metaphysical fondness for triple division. Indeed, it might be thought that the number three exercised a mysterious power over the human mind, since it is found everywhere, — even in the astrological trine of the Farmers' Almanac.
But though the seemingly symmetrical system of Pothier is now universally exploded, though writers upon the Roman law agree that the Corpus Juris gives no foundation for this division of negligence, and though they generally are in accord as to what the main principles of the Roman law were upon the subject of negligence, — there yet appears to be considerable difference among them as to minor details.
The true interpretation of the texts of the Roman law is a i De Coelo, i. 1.
matter of difficulty. It always has been, and perhaps as to many passages always will be, a matter of dispute. To understand this difficulty and the causes of such disputes, it is only necessary to bear in mind how the work called the Digest, or Pandects (all-receiving), was composed. It is a collection of extracts, made by seventeen persons, from the writings of thirtynine different authors, not contemporaneous, but writing at different times during a space of three and a half centuries, — from 100 B.C. to 250 A.d. Law is always in a state of change: like the river of Heraclitus, it is not twice the same. When nine thousand extracts, thus made from such sources, were incorporated under different titles into one work as a system of law, no matter what care may have been used in the compilation, it might well be a matter of surprise if there should not be found texts seemingly or really in conflict one with another. Commentators, from the time of Irnerius, in the beginning of the twelfth century, to the present day, have found abundant employment in the work of reconciliation. The number of these has been so great that they have been classified into schools, as the Glossators, the Conciliators, the Commentators, and the Dogmatic, the French, the Dutch, and the Historic schools; leaving, beside, a host of minor writers as an unclassified residuum.
At the time Sir William Jones wrote, the view of the Roman law taken by him was the one generally in vogue ; though, as is seen by his essay, it was far from being universally held. It became constantly more and more the object of criticism till, in 1815, the appearance of the work of J. C. Hasse, "Die Culpa des Rom. Rechts" (second edit., Bethmann-Hollweg, 1836), gave the final blow to that system. The Prussian law, codified in the last century in conformity to the theory at that time in vogue, defines three degrees of negligence; but this division is not to be found in the Austrian, the French, or the Dutch codes, which codes were formed since the opposite view gained the ascendency.
In torts, — that is, in wrongs independent of contract, — no degrees whatever of negligence were recognized by the Roman law. As to this, all are agreed. Such wrongs came under the Lex Aquilia, and the texts leave no room for doubt. In lege Aquilid et levissima culpa venit. Non minus ex dolo quam ex culpa quisquo hac lege tenetur. In such cases no distinction was made between negligence and intentional injury. One was obliged to repair the
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damage which he caused intentionally; he was equally obliged to repair the damage which he caused unintentionally, by a failure to act as a prudent man would have acted under the circumstances of the given case.
The Roman law of negligence was not a law applicable to bailments only: it extended to all obligations, and was but a part of a more general system.
When is one who is bound by an obligation excused from its performance? According to the Roman law non-execution may result from a cause to which the obligee is a stranger, and over which he has no control. This is called casus, vis major, vis divina, fatum, fatalitas. No one is responsible for the non-execution of a contract thus caused. The debtor in this case is not bound to make good the loss suffered by the creditor. This applies to bilateral as well as to unilateral contracts. Therefore, where each party to the contract is bound to do something, if one is by casus prevented from performing his part, he is freed from all liability, but retains, notwithstanding, his right to demand the performance of the obligation incumbent upon the other party.
The non-performance may have been intentional on the part of the debtor. This intentional neglect is called dolus. Bolus in this connection signifies an intentional breach of obligation, and not fraud. The difference in meaning, though perhaps slight, is not unimportant. For dolus the party in default was always liable. He could not stipulate that he should not be liable for it (ne dolus prcBstitur); such a stipulation being contrary to public policy (hoc enim bonce fidei judicio contrarium est, et ita utimur).
Between dolus and casus, the absolute liability and the absolute exemption from liability, lie the cases in which the non-performance on the part of the debtor was not intentional, but in which, however, performance would have been within his power. This was called culpa (negligence). The texts sometimes use other words synonymous with culpa; as negligentia, desidia, imprudentia, ignavia, omissio diligentice, — all used in opposition to, in contrast with, the word diligentia (care). Diligentia was used to express the care exercised by a prudent man who was sui jurii: that is, by a man who had interests of his own to manage (diligentia diligentis patris familias; diligentia boni patris familias). Diligentia, when applied to the care and preservation of a tangible