Again, the process which I have described has involved the attempt to follow precedents, as well as to give a good reason for them. When we find that in large and important branches of the law the various grounds of policy on which the various rules have been justified are later inventions to account for what are in fact survivals from more primitive times, we have a right to reconsider the popular reasons, and, taking a broader view of the field, to decide anew whether those reasons are satisfactory. They may be, notwithstanding the manner of their appearance. If truth were not often suggested by error, if old implements could not be adjusted to new uses, human progress would be slow. But scrutiny and revision are justified.
But none of the foregoing considerations, nor the purpose of showing the materials for anthropology contained in the history of the law, are the immediate object here. My aim and purpose have been to show that the various forms of liability known to modern law spring from the common ground of revenge. In the sphere of contract the fact will hardly be material outside the cases which have been stated in this Lecture. But in the criminal law and the law of torts it is of the first importance. It shows that they have started from a moral basis, from the thought that some one was to blame.
[38] It remains to be proved that, while the terminology of morals is still retained, and while the law does still and always, in a certain sense, measure legal liability by moral standards, it nevertheless, by the very necessity of its nature, is continually transmuting those moral standards into external or objective ones, from which the actual guilt of the party concerned is wholly eliminated.
LECTURE II. — THE CRIMINAL LAW.
In the beginning of the first Lecture it was shown that the appeals of the early law were directed only to intentional wrongs. The appeal was a far older form of procedure than the indictment, and may be said to have had a criminal as well as a civil aspect. It had the double object of satisfying the private party for his loss, and the king for the breach of his peace. On its civil side it was rooted in vengeance. It was a proceeding to recover those compositions, at first optional, afterwards compulsory, by which a wrong-doer bought the spear from his side. Whether, so far as concerned the king, it had the same object of vengeance, or was more particularly directed to revenue, does not matter, since the claim of the king did not enlarge the scope of the action.
It would seem to be a fair inference that indictable offences were originally limited in the same way as those which gave rise to an appeal. For whether the indictment arose by a splitting up of the appeal, or in some other way, the two were closely connected.
An acquittal of the appellee on the merits was a bar to an indictment; and, on the other hand, when an appeal was fairly started, although the appellor might fail to prosecute, or might be defeated by plea, the cause might still be proceeded with on behalf of the king. /1/
[40] The presentment, which is the other parent of our criminal procedure, had an origin distinct from the appeal. If, as has been thought, it was merely the successor of fresh suit and lynch law, /1/ this also is the child of vengeance, even more clearly than the other.
The desire for vengeance imports an opinion that its object is actually and personally to blame. It takes an internal standard, not an objective or external one, and condemns its victim by that. The question is whether such a standard is still accepted either in this primitive form, or in some more refined development, as is commonly supposed, and as seems not impossible, considering the relative slowness with which the criminal law has improved.