The Common Law | Page 4

the German tribes, or to
the social condition of Rome under the Decemvirs.
I shall use the history of our law so far as it is necessary to explain a
conception or to interpret a rule, but no further. In doing so there are
two errors equally to be avoided both by writer and reader. One is that
of supposing, because an idea seems very familiar and natural to us,
that it has always been so. Many things which we take for granted have
had to be laboriously fought out or thought out in past times. The other
mistake is the opposite one of asking too much of history. We start with
man full grown. It may be assumed that the earliest barbarian whose
practices are to be considered, had a good many of the same feelings
and passions as ourselves.
The first subject to be discussed is the general theory of liability civil
and criminal. The Common Law has changed a good deal since the
beginning of our series of reports, and the search after a theory which
may now be said to prevail is very much a study of tendencies. I
believe that it will be instructive to go back to the early forms of
liability, and to start from them.
It is commonly known that the early forms of legal procedure were
grounded in vengeance. Modern writers [3] have thought that the

Roman law started from the blood feud, and all the authorities agree
that the German law begun in that way. The feud led to the composition,
at first optional, then compulsory, by which the feud was bought off.
The gradual encroachment of the composition may be traced in the
Anglo-Saxon laws, /1/ and the feud was pretty well broken up, though
not extinguished, by the time of William the Conqueror. The killings
and house-burnings of an earlier day became the appeals of mayhem
and arson. The appeals de pace et plagis and of mayhem became, or
rather were in substance, the action of trespass which is still familiar to
lawyers. /2/ But as the compensation recovered in the appeal was the
alternative of vengeance, we might expect to find its scope limited to
the scope of vengeance. Vengeance imports a feeling of blame, and an
opinion, however distorted by passion, that a wrong has been done. It
can hardly go very far beyond the case of a harm intentionally inflicted:
even a dog distinguishes between being stumbled over and being
kicked.
Whether for this cause or another, the early English appeals for
personal violence seem to have been confined to intentional wrongs.
Glanvill /3/ mentions melees, blows, and wounds,--all forms of
intentional violence. In the fuller description of such appeals given by
Bracton /4/ it is made quite clear that they were based on intentional
assaults. The appeal de pace et plagis laid an intentional assault,
described the nature of the arms used, and the length and depth of the
wound. The appellor also had [4] to show that he immediately raised
the hue and cry. So when Bracton speaks of the lesser offences, which
were not sued by way of appeal, he instances only intentional wrongs,
such as blows with the fist, flogging, wounding, insults, and so forth.
/1/ The cause of action in the cases of trespass reported in the earlier
Year Books and in the Abbreviatio Plaeitorum is always an intentional
wrong. It was only at a later day, and after argument, that trespass was
extended so as to embrace harms which were foreseen, but which were
not the intended consequence of the defendant's act. /2/ Thence again it
extended to unforeseen injuries. /3/
It will be seen that this order of development is not quite consistent
with an opinion which has been held, that it was a characteristic of
early law not to penetrate beyond the external visible fact, the damnum
corpore corpori datum. It has been thought that an inquiry into the

internal condition of the defendant, his culpability or innocence,
implies a refinement of juridical conception equally foreign to Rome
before the Lex Aquilia, and to England when trespass took its shape. I
do not know any very satisfactory evidence that a man was generally
held liable either in Rome /4/ or England for the accidental
consequences even of his own act. But whatever may have been the
early law, the foregoing account shows the starting-point of the system
with which we have to deal. Our system of private liability for the
consequences of a man's own acts, that is, for his trespasses, started
from the notion of actual intent and actual personal culpability.
The original principles of liability for harm inflicted by [5] another
person or thing have been less carefully considered hitherto than those
which governed trespass, and I