should go now, but it shows what I venture to say has been the common
law point of view from the beginning, although Mr. Harriman, in his very
able little book upon Contracts has been misled, as I humbly think, to a
different conclusion.

I have spoken only of the common law, because there are some cases
in which a logical justification can be found for speaking of civil
liabilities as imposing duties in an intelligible sense. These are
the relatively few in which equity will grant an injunction, and will
enforce it by putting the defendant in prison or otherwise punishing him
unless he complies with the order of the court. But I hardly think it
advisable to shape general theory from the exception, and I think it
would be better to cease troubling ourselves about primary rights and
sanctions altogether, than to describe our prophecies concerning the
liabilities commonly imposed by the law in those inappropriate terms.

I mentioned, as other examples of the use by the law of words drawn from
morals, malice, intent, and negligence. It is enough to take malice as
it is used in the law of civil liability for wrongs what we lawyers call
the law of torts--to show that it means something different in law from
what it means in morals, and also to show how the difference has been
obscured by giving to principles which have little or nothing to do with
each other the same name. Three hundred years ago a parson preached a
sermon and told a story out of Fox's Book of Martyrs of a man who
had assisted at the torture of one of the saints, and afterward died,
suffering compensatory inward torment. It happened that Fox was wrong.
The man was alive and chanced to hear the sermon, and thereupon he sued
the parson. Chief Justice Wray instructed the jury that the defendant
was not liable, because the story was told innocently, without malice.
He took malice in the moral sense, as importing a malevolent motive. But