thirteenth century, to make what was formerly the law for the great men the law for all, is also discernible all through its history. It was the desire of the owners of great estates to make permanent settlements of their property, which caused directly the development and elaboration of some of the most salient characteristics of the land law of the eighteenth century, and indirectly the development of that rule against perpetuities which set a definite limit to the fulfilment of this desire. Most of the large powers which the law, as thus developed and elaborated at the instance of the owners of great estates, conferred on these landowners, belong now to all the landowners; for the new Acts allow nearly all the results, which could formerly be accomplished by the creation of legal estates, to be accomplished by the creation of equitable interests. In the third place, from the sixteenth century onwards, the law of real property and the law of personal property have exercised a reciprocal influence upon one another. This is very evident if we compare the law relating to chattels real with the law relating to freehold interests. The law relating to chattels real borrowed from the law relating to freehold interests some of its rules as to tenures and estates, and some of its rules relating to covenants which run with the land. On the other hand, the law relating to freehold has borrowed more from the law relating to chattels real. It has borrowed the power of devise, the form of action by which freeholds came to be protected, and the machinery by which they devolved upon the heir or devisee. Moreover, the rule against perpetuities, devised in the first instance to govern settlements of land, was extended to all kinds of property as soon as the necessity for so extending it appeared. The new Acts merely push this tendency to its logical conclusion. On the one hand, the rules regulating conveyances of land are designed to make (so far as this is possible) these conveyances as simple and cheap as the conveyances of personalty-the simplicity of a conveyance of stock and shares has been taken as an example to be followed; and one of the rules formerly only applicable to personalty-the rule in Dearle v. Hall-has been applied to land. On the other hand, the capacity to create an entailed interest has been extended to owners of personalty. For all kinds of property a new uniform system of succession on intestacy has been devised, which is much more akin to the old rules as to personalty than to the old rules as to realty.

Sir Leslie Scott, speaking of the new Acts, has said: This vast monument of human energy has been built by the hands

of many builders. More than half a century of law reformers have contributed to it.' This is a considerable under-statement. If there is any truth in the history which I have endeavoured to relate in this paper, it would be more true to say that some five centuries of law reformers have contributed to it. Revolutionary as the new Acts may at first sight appear, they are historically the product of a long series of reforming statutes; and their provisions are a striking illustration of the continuity of the history of the legislative reform of the land law. They are, as Sir Leslie Scott has said, 'not revolution but evolution.' Like the other great reforms in the past, they will, no doubt, become the foundation upon which the Judges will build up a new fabric of property law, related to the old in somewhat the same way as the modern law of real property, constructed on the basis of the Statutes of Uses and Wills, was related to the mediaeval land law.

W. S. HOLDSWORTH.

184

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? Current 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 return 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, inadvertence 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. 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.3 Had a man then no action against the drunken carter, the reckless rider, the careless workman? Or are we to suppose that there were no unfenced pits, no unsafe scaffoldings, no loose

3

1 Law Quarterly Review, vol. xlii, 37-44.

2 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 modern tort.

4

tiles, no blundering cows, no biting dogs, no ill-bottled poisons, no arrows that went astray? A more probable, but only partial, explanation is that such grievances were dealt with by the local Courts in some way or other. In the lord's Court the negligent swineherd or shepherd is punished, and so is the tenant who forgets to pay toll for having his corn ground, or leaves his greyhounds in incompetent hands, or lets his beasts wander.3 These are wrongs to the lord, but the manorial Court also redressed injuries to a neighbour, some of which may have been unintentional. We must not rate too highly the extent of this jurisdiction. On the one hand, a great number of records have still to be scrutinized ; but, on the other, it must be recollected that the age was a rough one, stricken with poverty, that it had a hard task in wrestling with the intentional evil-doer, and that mere negligence, even if it inflicted bodily injury, was not much accounted unless it resulted in death.

If we have started with the age of Bracton, where can we make our next pause in an historical sketch? Not until the nineteenth century. This may seem a breathless course; but till then the history of negligence is a skein of threads, most of which are fairly distinct, and no matter where we cut the skein we shall get little more than a bundle of frayed ends. In fact, the tale is from beginning to end almost exclusively a narrative of action upon the case. The law has little to say about negligence as a term, but in many directions it has grasped the ideas underlying it; and if we transplanted Baron Alderson's 'reasonable man' to the Year-Book period, we should find him doing very much what he does now, though he would be much less accountable for mere omissions. omissions. The remedies afforded by action upon the case fell short of the present law of negligence, but by the earlier part of the nineteenth century their scope had gradually been extended until all that was needed to bring the law to its present shape was a change in form and a statement of a general rule instead of an enumeration of particular instances. One of the most important of these instances, if not the earliest, was the liability of those who professed competence in certain callings. It is the duty of every artificer to exercise his art rightly and truly as he ought.' These are the words of a great master of the common law in

6

Selden Society, vol. 2, p. 170 (A.D. 1293).

Ibid. vol. 4, pp. 52-53 (circa A.D. 1268); vol. 2, p. 8 (A.D. 1246).

Ibid. vol. 2, pp. 9, 10, 88, 89 (A.D. 1246, 1247, 1278).

8

C. Gross, Sources of English History, indexes over eighty manorial rolls,

which are already in print.

F. N. B. 94 D.

VOL. XLII.

13

the early sixteenth century, and he was voicing a rule which was well known in Edward III's reign. Two conspicuous examples were the innkeeper and the common carrier. Their liability was strict, for men must put a great deal of trust in them, and in all ages they have temptations to commit easy thefts or to ally themselves with thieves. As to the innkeeper, it mattered nothing that the guest's goods were lost by the default of the inn servants, or that the guest was careless with the key of his room, or that he did not deliver the goods to the innkeeper, or that they were stolen by rascals of whom the innkeeper knew nothing. That was the law of Coke's time,1 and in effect it was the same under Edward III.2 Negligence is not so much as mentioned in most of the cases, but the idea of it, whether as an act or an omission, is implied, and so is that of contributory negligence. Responsibility is based on a custom of the realm that no loss must occur pro defectu custodiae of the goods. It was strict, but it was probably never absolute. If the innkeeper could show that there was no defectus custodiae, he was not liable. A long chain of cases puts the common carrier on much the same footing as the innkeeper. The circumstances which almost invariably occasioned his liability were thefts by third persons, but it included also damage to the goods. Here, too, the ground of liability was negligent keeping (negligenter

pro defectu custodiae), contrary to the custom of the realm. The rule was a stern one: If a carrier be robbed by an hundred men, he is never the more excused.' 5 But there were exceptions. The acts of God and of the King's enemies are familiar ones, but they were not the only defences. Many other callings, besides those of the innkeeper and carrier,

Holt C.J. in Lane v. Cotton (12 Will. III) 1 Salk. 143 (carrier).
Calye's Case (26 Eliz.) 8 Rep. 32.

2Y.B. Pasch. 42 Edw. III, f. 11. See also 42 Lib. Ass. pl. 17; Y.B. Hil, 11 Hen. IV, f. 45; 22 Hen. VI, f. 21.

E.g. if a horse were delivered to him to put to pasture and it were stolen (Calye's Case (26 Eliz.) Rep. 32); if the theft were by the guest's servant or companion (22 Hen. VI, f. 21); if the guest let the goods lie in an outer court (Sanders v. Spencer (10 Eliz.) Dyer, 226); if he left the inn two or three days, though he intended to return (Gelley v. Clark (4 Jac. I) Cro. Jac. 188); if the inn were full and the keeper merely allowed the guest to shift for himself (Com. Dig. Action upon the case for negligence, B. 2); if the guest used a room as a showroom (Burgess v. Clements (1815) 4 M. & S. 306).

22 Lib. Ass. pl. 41 is an early case. The older dicta and decisions are collected in Com. Dig. Action upon the case for negligence, C.

5 Morse v. Slue (23 & 24 Car. II) 1 Vent. 190. So, too, Lord Holt in Coggs v. Bernard (2 Anne) 1 Lord Raym. at p. 918.

6

Another which crept in gradually was where the consignor had understated the value of the goods: Kenrig v. Eggleston (24 Car. I) Aleyn, 93; Morse v. Slue, supra; Tyly v. Morrice (11 Will. III) Carthew, 485; Gibbon v. Paynton (1769)

4 Burr. 2298.