he 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.

In the law of contract the use of moral phraseology led to equal
confusion, as I have shown in part already, but only in part. Morals
deal with the actual internal state of the individual's mind, what he
actually intends. From the time of the Romans down to now, this mode
of dealing has affected the language of the law as to contract, and the
language used has reacted upon the thought. We talk about a contract
as a meeting of the minds of the parties, and thence it is inferred in
various cases that there is no contract because their minds have not
met; that is, because they have intended different things or because
one party has not known of the assent of the other. Yet nothing is more
certain than that parties may be bound by a contract to things which
neither of them intended, and when one does not know of the other's
assent. Suppose a contract is executed in due form and in writing to
deliver a lecture, mentioning no time. One of the parties thinks that
the promise will be constr