The Common Law by Oliver Wendell Holmes Jr.
page 4 of 468 (00%)
page 4 of 468 (00%)
|
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 |
|