language of St. GERMAN, "that all the

cr

former diversities be granted by secondary "conclusions derived upon the law of reacc son, without any statute made in that behalf: and, peradventure, laws and the "conclusions therein be the more plain "and the more open; for if any statute "were made therein, I think verily, more "doubts and questions would arise upon "the statute, than doth now, when they "be only argued and judged after the "common law [s].”

Before I finish the historical part of my Essay, in which I undertook to demonstrate "that a perfect harmony subsisted on this "interesting branch of jurisprudence in the "codes of nations most eminent for legal "wisdom [t]," I cannot forbear adding a few remarks on the institutions of those

[s] Doct. and Stud. dial. 2. chap. 38. last sentence. [] P. 11.

Laws of the North

ern nations.

nations who are generally called barbarous, and who seem in many instances to have [112] deserved that epithet: although traces of sound reasoning and solid judgment appear in most of their ordinances.

By the ancient laws of the WISIGOTHS, which are indeed rather obscure, the "keeper "of a horse or an ox for hire, as well as a "birer for use, was obliged, if the ani"mal perished, to return another of equal "worth :" the law of the Baiuvarians on this head is nearly in the same words; and the rule is adopted with little alteration in the capitularies of Charlemagne and Lewis the Pious [u], where the Mosaic law before cited concerning a borrower may also be found [w]. In all these codes a depositary of gold, silver, or valuable trinkets, is made

5.

[u] Lindenbrog, LL. Wisigoth. lib. 5. tit. 5. § 1, 2, 3. and LL. Baiuvar. tit. 14. § 1, 2, 3, 4. Capitul. lib. $204.

[w] Capitul. lib. 6. § 22.

Exod. xxii. 14, 15.

chargeable,

the Britons.

thargeable, if they are destroyed by fire, and his own goods perish not with them; a circumstance which some other legislators have considered as conclusive evidence of gross neglect or fraud: thus by the old Laws of British Tract, called the Book of CYNAWG, a person, who had been robbed of a deposit, was allowed to clear himself by making oath, with compurgators, that he had no concern in the robbery, unless he had saved his own goods; and it was the same, I believe, among the Britons in the case of a loss by fire, which happened without the fault of the bailee; although HOWEL the Good seems to have been rigorous in this [113] case for the sake of public security [x]. There was one 'regulation in the Northern code, which I have not seen in that of any other nation if precious things were de

:

[x] LL. Hywel Dda, lib. 3. cap. 4. § 22. and lib. 3. ' cap. 3. § 40. See also Stiernh. De Jur. Sveon. p. 256, 257

posited

posited and stolen, time was given to search for the thief, and if he could not be found within the time limited, a moiety of the value was to be paid by the depositary to ut damnum ex medio uterque

the owner,

"sustineret [y]."

Now I can scarce persuade myself, that the phrase used in these laws, si id perierit, extends to a perishing by inevitable accident; nor can I think that the old Gothic law, cited by Stiernhook, fully proves his assertion, that "a depositary was respon“sible for irresistible force;" but I observe, that the military lawgivers of the North, who entertained very high notions of good faith and honour, were more strict than the Romans in the duties by which depositaries and other trustees were bound: an exact conformity could hardly be expected between the ordinances of polished states,

[y] LL. Wisigoth. lib. 5. tit. 5. § 3.

and

and those of a people who could suffer disputes concerning bailments to be decided by combat; for it was the Emperor Frederick II. who abolished the trial by [114] battle in cases of contested deposits, and substituted a more rational mode of proof [x].

the Indians.

I purposely reserved to the last the Laws of mention of the HINDU, or Indian, code,

of my

which the learning and industry of much-esteemed friend Mr. Halhed has made accessible to Europeans (43), and the PER

SIAN

[z] LL. Longobard. lib. 2. tit. 55. § 35. Constit Neapol. lib. 2. tit. 34.

(43) By an English translation published in 1781, the preface to the work contains many valuable re marks on the history and antiquities of India: with respect to the code, Sir William Jones truly observes that "the rules of the Pundits concerning succession "to property, the punishment of offences, and the cere"monies of religion, are widely different from ours;" it may, however, be remarked, that the chapter "of

"the