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.
Pages:
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64