you are liable to pay a compensatory sum unless the promised event comes to pass, and that is all the difference.  But such a mode of looking at the matter stinks in the nostrils of those who think it advantageous to get as much ethics into the law as they can.  It was good enough for Lord Coke, however, and here, as in many others cases, I am content to abide with him.  In Bromage v.  Genning, a prohibition was sought in the Kings’ Bench against a suit in the marches of Wales for the specific performance of a covenant to grant a lease, and Coke said that it would subvert the intention of the covenantor, since he intends it to be at his election either to lose the damages or to make the lease.  Sergeant Harra for the plaintiff confessed that he moved the matter against his conscience, and a prohibition was granted.  This goes further than we 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 nowadays no one doubts that a man may be liable, without any malevolent motive at all, for false statements manifestly calculated to inflict temporal damage.  In stating the case in pleading, we still should call the defendant’s conduct malicious; but, in my opinion at least, the word means nothing about motives, or even about the defendant’s attitude toward the future, but only signifies that the tendency of his conduct under known circumstances was very plainly to cause the plaintiff temporal harm.