stances known to
the actor, although in some cases of privilege malice may mean an
actual malevolent motive, and such a motive may take away a permission
knowingly to inflict harm, which otherwise would be granted on this or
that ground of dominant public good. But when I stated my view to a very
eminent English judge the other day, he said, "You are discussing what
the law ought to be; as the law is, you must show a right. A man is not
liable for negligence unless he is subject to a duty." If our difference
was more than a difference in words, or with regard to the proportion
between the exceptions and the rule, then, in his opinion, liability for
an act cannot be referred to the manifest tendency of the act to cause
temporal damage in general as a sufficient explanation, but must be
referred to the special nature of the damage, or must be derived from
some special circumstances outside of the tendency of the act, for which
no generalized explanation exists. I think that such a view is wrong,
but it is familiar, and I dare say generally is accepted in England.

Everywhere the basis of principle is tradition, to such an extent that
we even are in danger of making the role of history more important than
it is. The other day Professor Ames wrote a learned article to show,
among other things, that the common law did not recognize the defence of
fraud in actions upon specialties, and the moral might seem to be that
the personal character of that defence is due to its equitable origin.
But if, as I said, all contracts are formal, the difference is not
merely historical, but theoretic, between defects of form which prevent
a contract from being made, and mistaken motives which manifestly could
not be considered in any system that we should call rational except
against one who was privy to those motives. It is not confined to
specialties, but is of universal application. I ought to add that I do
not suppose that Mr. Ames would disagree with what I suggest.

However, if we consider the law of contract, we find it full of history.
The distinctions between debt, covenant, and assumpsit are merely
historical. The classification of certain obligations to pay money,
imposed by the law irrespective of any bargain as quasi contracts, is
merely historical. The doctrine of consideration is merely historical.
The effect given to a seal is to be explained by history alone.
Consideration is a mere form. Is it a useful form? If so, why shou