Massachusetts or English courts are likely to do in fact. I am much
of this mind. The prophecies of what the courts will do in fact, and
nothing more pretentious, are what I mean by the law.

Take again a notion which as popularly understood is the widest
conception which the law contains--the notion of legal duty, to which
already I have referred. We fill the word with all the content which we
draw from morals. But what does it mean to a bad man? Mainly, and in
the first place, a prophecy that if he does certain things he will
be subjected to disagreeable consequences by way of imprisonment or
compulsory payment of money. But from his point of view, what is the
difference between being fined and taxed a certain sum for doing a
certain thing? That his point of view is the test of legal principles
is proven by the many discussions which have arisen in the courts on the
very question whether a given statutory liability is a penalty or a tax.
On the answer to this question depends the decision whether conduct is
legally wrong or right, and also whether a man is under compulsion
or free. Leaving the criminal law on one side, what is the difference
between the liability under the mill acts or statutes authorizing a
taking by eminent domain and the liability for what we call a wrongful
conversion of property where restoration is out of the question. In both
cases the party taking another man's property has to pay its fair
value as assessed by a jury, and no more. What significance is there in
calling one taking right and another wrong from the point of view of the
law? It does not matter, so far as the given consequence, the compulsory
payment, is concerned, whether the act to which it is attached is
described in terms of praise or in terms of blame, or whether the law
purports to prohibit it or to allow it. If it matters at all, still
speaking from the bad man's point of view, it must be because in one
case and not in the other some further disadvantages, or at least some