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.
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