that commonly malice, intent, and negligence mean only that the danger was manifest to a greater or less degree, under the circumstances 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 should it not be required in all contracts?  A seal is a mere form, and is vanishing in the scroll and in enactments that a consideration must be given, seal or no seal.  Why should any merely historical distinction be allowed to affect the rights and obligations of business men?