trine was published, and the true sense of the Corpus Juris, by the aid of those processes of historical exegesis which began with the present century, was first brought to light. The first of this line of commentators was Thibaut (1772-1840), an eminent professor first at Jena, and then at Heidelberg, known in AngloAmerican literature by the passages quoted from him in the incomparable lectures of Mr. Austin, and by the expressions of affectionate reverence and admiration with which Mr. Austin speaks of him. Thibaut, who may be regarded as reviving, though with some just modifications, the theory of Donellus, was followed by von Löhr, in his Theorie der culpa, and by Schömann in his Lehre vom Schadenersatze. According to these authors (I condense here the summary given of their writings by Wening Ingenheim, not having access to the original works), while the distinction between negligence in commission and negligence in omission was brought sharply out, the notion of a culpa levissima was declared to be without authority in the Corpus Juris and in right reason. The most conclusive vindication, however, of this position is to be found in the treatise of Hasse on the Culpa des Römischen Rechts, of which the first edition was published in 1815, and the second, revised by Bethmann-Hollweg, well known as one of the most prominent jurists and statesmen of his day, in 1838. Of this work, whose exegesis of the Corpus Juris is now accepted in Germany as uncontrovertible, and which Lord Mackenzie, in a passage hereafter to be quoted, declares to have "the merit of

possibilité d'exercer l'action de la loi Aquilia lorsque le fait qui amène la perte de la chose ne s'explique point par le contrat intervenu, lorsque ce fait est étranger à la qualité de dépositaire.

"Par exemple, on m'a remis à titre de dépôt une caisse contenant un objet précieux et fragile; pour le faire admirer à quelqu'un, j'ouvre la caisse, je retire l'objet, mais malheureusement je le laisse tomber et il se brise: il y a eu là de ma part un acte que ma qualité de dépositaire n'explique pas : je ne suis pas tenu comme dépositaire, car je ne suis coupable ni de dol ni de faute lourde; mais la loi Aquilia m'est

applicable comme elle le serait en pareil cas à toute autre personne. Il ne doit plus en être de même lorsque le fait qui amène la perte de la chose se rattache à mon obligation de dépositaire. Ainsi, quand je déménage, il faut bien que j'emporte avec mes propres méubles la chose déposée: si par suite d'une faute légére, même in committendo, cette chose périt dans le voyage, je ne dois pas en être tenu. Comp. M. de Vangerow, t. III. § 6, 1, p. 612, et suiv.

i See Holtzendorff's Encyc. tit. Culpa; Mommsen's Beiträge zum Obligationrecht, Bd. III.

having established the true Roman theory, and of having forever extinguished the system of the three degrees of fault," copious extracts will hereafter be given. It is enough now to say that by all subsequent commentators of the Digest the idea of culpa levissima is declared to be without basis in the authoritative jurists, and to be a mere figment of scholasticism. The only question as to which there is any doubt is as to whether the diligentia quam suis, or diligence exercised by a man in his own affairs, is to be viewed as a distinct form of diligence, or as simply an evidential phase of the two great forms of diligence (ordinary or nonexpert diligence, and extraordinary or expert diligence), which find their root in the necessities of business life.

§ 64. 3. While the hypothesis of a culpa levissima still lingers in Anglo-American text books, it is practically discarded by AngloAmerican courts. It is true that in expressing our distinctive Anglo-American doctrine of the implied insurance of goods by common carriers (the only material point as to bailments in which we differ from the Roman law), the term culpa levissima is sometimes used as indicating the liability of the carrier. But the insuring element in common carrying is utterly different from the diligentia diligentissimi of the Schoolmen. In the first place, the diligentia diligentissimi is applied by the Schoolmen to all obligations; the insuring doctrine is applied by us only to common carriers, and to these only as to the carriage of goods. In the second place, the lack of the diligentia diligentissimi is by the Schoolmen a culpa; culpa levissima, but culpa still. That such is not our view is shown by the fact that while we hold that a carrier can make no limitation of his duty which will remit the consequences of culpa, we have constantly declared that he can by agreement relieve himself from insurance.

Outside of the relations of the common carrier to goods, which, as has been seen, have no bearing on this particular issue, though the term culpa levissima sometimes appears in our reports, yet this is done inartificially, as indicating only an intense phase of the culpa levis, or negligence of expert, and is to be regarded simply as announcing the truth that in affairs of extreme difficulty and responsibility an expert is to use extreme care.1 On

1 An exception to the statement in the text is to be found in Culbreth v. Phil., W. & B. R. R. 3 Houston (Del

aware), 392, where the court, following the old terminology, ruled that diligence was capable of three degrees:

the other hand, the notion that, as a matter of law, there are three distinct grades of diligence, with three correlative grades of negligence, has been frequently repudiated. Several illustrations of this have been already noticed. Among the most significant, however, is the following from an eminent jurist, who for a time occupied a seat on the supreme federal bench: "The theory that there are three degrees of negligence, described by the terms slight, ordinary, and gross, has been introduced into the common law from some of the commentators on the Roman law. It may be doubted if these terms can be usefully applied in practice. Their meaning is not fixed, or capable of being so. One degree, thus described, not only may be confounded with another, but it is quite impracticable exactly to distinguish them. Their signification necessarily varies according to circumstances, to whose influence the courts have been forced to yield, until there are so many real exceptions that the rules themselves can scarcely be said to have a general operation." 1 Other expressions in the same opinion indicate that by this high authority the negligences of the expert and of the non-expert were recognized as distinguishable as separate grades, which, though running into each other at their common boundary, nevertheless have generally distinct differentia. But this is not so with culpa levissima, on which as a subtlety of pure scholastic jurisprudence, the condemnation just cited distinctively falls. That it is condemned in practice by our courts will be hereafter abundantly seen when we treat concretely of the diligence of experts whether in law, medicine, engineering, or special lines of industry. It will be then seen that in no case is diligentia diligentissimi, or diligence beyond the range of ordinary capacity, required, but that the test substantially is uni

First, the diligence required of the common carrier as to goods, which is the highest species of diligence, and which makes the carrier the insurer of the goods, and hence responsible for the slightest negligence, culpa levissima. Secondly, the diligence required in ordinary bailments, when the bailee (e. g. as is the case of the common carrier after the goods are stored by him for hire in his warehouse) is bound to show the diligence

of a prudent business man (bonus et prudens paterfamiliâs), and is responsible only for ordinary negligence. Thirdly, the diligence required of the mere gratuitous depositary, such as is the railway company who warehouses goods without hire, in which case the company is liable only for gross negligence. Culbreth v. Phil., Wil. & B. R. R. 3 Houston, 392.

1 Curtis, J., in Steamboat New World v. King, 16 How. U. S. 469.

form, that the diligence required is that which a good and faithful business man in the particular specialty is accustomed to apply in a transaction such as that under investigation.1

§ 65. 4. The hypothesis of a culpa levissima is incompatible with a sound business jurisprudence. -Where is the diligentissi