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THE COMMON LAW
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In the beginning of the first Lecture it was shown that the appeals
of the early law were directed only to intentional wrongs.
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. 322
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, 323 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,
Oliver Wendell Holmes, Jr. - Personal Name
1st Edition
NONE
THE COMMON LAW
Management
English
University of Toronto Law School
2011
USA
1-382
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