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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
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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