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42 L. Q. Rev. 184 (1926)
The History of Negligence in the Law of Torts

handle is hein.journals/lqr42 and id is 198 raw text is: THE HISTORY OF NEGLIGENCE IN THE LAW OF TORTS. S negligence an independent tort, or is it merely one of the modes in which it is possible to commit most torts? Cur- rent text-books give answers to this which are discordant, if not in flat contradiction of one another. A re-examination of the history of negligence was the only possible solution, and if we returh from it with no gusty backing of this view or that, and with no formidable outcry of any new gospel, we may perhaps venture an independent opinion on some points. We must begin by stating the meaning of negligence. At this point a rough description of it for historical purposes will suffice. The current meaning of it is given towards the end of this essay. For present purposes, in one sense, it is the breach of a legal duty to take care by an inadvertent act or omission which injures another person; its other signification is merely a state of mind, inadvertence to some legal duty. The first meaning takes in (i) inadvertence, (ii) act or omission, (iii) consequence; the second comprises inadvertence only. In both senses, inadvert- ence implies either complete or partial failure to fix the mind on the particular legal duty. It is directly opposed to intention where the mind fully appreciates the duty. From this ambiguity of meaning, negligence in the law of torts has never been free since ideas about it as a technical term began to clarify in the early nineteenth century. Henceforth we use negligence in the first sense, except where the context shows the contrary. We have discussed elsewhere Anglo-Saxon theories or lack of theories about liability.' Passing to the time of Bracton, it has been pointed out that there is very little trace then of liability for negligence.' At any rate this is so in the royal Courts.' Had a man then no action against the drunken carter, the reck- less rider, the careless workman? Or are we to suppose that there were no unfenced pits, no unsafe scaffoldings, no loose Law Quarterly Review, vol. xlii, 37-44. P. & M. ii, p. 527-528. E.g. among the 256 select civil pleas (A.D. 1200-1203) given in Selden Society, vol. 3, there is not a trace of anything like negligence, nor (except No. 86 and a few cases on nuisance) of any wrong resembling a modem tort.

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