Commentaries on the Law of Bailments

land) where all arts and sciences do flourish and meet with the greatest encouragement, that one of the noblest of the human sciences, and which contributes the most to cultivate the mind, and improve the reason of man, as that of the Civil Law does, should be so much disregarded, and meet with so little encouragement. And I observed, that the little regard, which has of late years been shown in this kingdom to the study thereof, has been in a great measure owing to the want of a due knowledge of it, and to the being altogether unacquainted with the beauties and excellences thereof; which are only known to a few gentlemen who have devoted themselves to that profession; others, who are perfect strangers to that law, being under a false persuasion that it contains nothing but what is foreign to our laws and customs. Whereas, when they come to know that the body of the Civil Law, besides the laws peculiar to the Commonwealth of Rome, which are there collected, contains likewise the general principles of natural reason and equity, which are the fundamental rules of justice in all engagements and transactions between man and man, and which are to be found nowhere else in such a large extent as in the body of the Civil Law, they will soon be sensible of the infinite value of so great a treasure." Such is the language used by an English civilian more than a century ago. It is lamentable to say, that it may be applied, with but little mitigation, to the general state of the profession of the Common Law in our day.'

There is a remarkable difference, in the manner of treating juridical subjects, between the foreign and the English jurists. The former almost universally discuss every subject with an elaborate theoretical fulness and accuracy, and ascend to the elementary principles of each particular branch of the science. The latter, with few exceptions, write Practical Treatises, which contain little more than a collection of the principles laid down in the adjudged cases, with scarcely an attempt to illustrate them by any general reasoning, or even to follow them out into

1 I take great pleasure in referring the reader to an excellent article on the Civil Law, published in "The American Jurist" for July, 1829, p. 39, et seq. It is written with all the sound judgment and practical sense of its learned author.

collateral consequences. In short, these treatises are but little more than full Indexes to the Reports, arranged under appropriate heads; and the materials are often tied together by very slender threads of connection. They are better adapted for those to whom the science is familiar, than to instruct others in its elements. It appears to me, that the union of the two plans would be a great improvement in our law treatises; and would afford no inconsiderable assistance to students in mastering the higher branches of their profession.

In the present work I do not pretend, in any suitable manner, to have accomplished such a plan as is here proposed. More learning and more leisure than are within my reach are requisite for such a task. I have, however, endeavored to bring together the products of my own imperfect studies. As the work is principally designed for students, I have not hesitated to repeat the same train of remark, whenever, from a new connection, it might be useful to explain a difficulty, or to illustrate a new position or authority. I have also availed myself, occasionally, of the freedom belonging to a commentator, to express a doubt or to deny a doctrine. But I have rarely done so, except when the point has been purely speculative, or the common-law authorities justified me in the suggestion. Whatever is in this respect propounded, is to be considered submitted to the judgment of the reader, as matter worthy of further examination. If I have done any thing to lighten the labors of any ingenuous youth, who are struggling for distinction, or to attract abler minds to a more profound investigation of this branch of Contracts, I shall reap all the rewards which, beyond the mere fulfilment of duty, I have ever proposed to myself. I throw myself on the candor of a profession, from which I have uniformly received indulgence; and offer these Commentaries to the public in that spirit of subdued confidence, which invites examination, and, at the same time, is not unconscious of the real difficulties with which a work of this nature is attended.

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