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propositions； those propositions will be but a phase in a continuous growth。 To understand their scope fully； to know how they will be dealt with by judges trained in the past which the law embodies； we must ourselves know something of that past。 The history of what the law has been is necessary to the knowledge of what the law is。
Again； the process which I have described has involved the attempt to follow precedents； as well as to give a good reason for them。 When we find that in large and important branches of the law the various grounds of policy on which the various rules have been justified are later inventions to account for what are in fact survivals from more primitive times； we have a right to reconsider the popular reasons； and； taking a broader view of the field； to decide anew whether those reasons are satisfactory。 They may be； notwithstanding the manner of their appearance。 If truth were not often suggested by error； if old implements could not be adjusted to new uses； human progress would be slow。 But scrutiny and revision are justified。
But none of the foregoing considerations； nor the purpose of showing the materials for anthropology contained in the history of the law； are the immediate object here。 My aim and purpose have been to show that the various forms of liability known to modern law spring from the common ground of revenge。 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。 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。
It certainly may be argued； with some force； that it has never ceased to be one object of punishment to satisfy the desire for vengeance。 The argument will be made plain by considering those instances in which； for one reason or another； compensation for a wrong is out of the question。
Thus an act may be of such a kind as to make indemnity impossible by putting an end to the principal sufferer； as in the case of murder or manslaughter。
Again； these and other crimes； like forgery； although directed against an individual； tend to make others feel unsafe； and this general insecurity does not admit of being paid for。
Again； there are cases where there are no means of enforcing indemnity。 In Macaulay's draft of the Indian Penal Code； breaches of contract for the carriage of passengers； were made criminal。 The palanquin…bearers of India were too poor to pay damages； and yet had to be ＇41＇ trusted to carry unprotected women and children through wild and desolate tracts； where their desertion would have placed those under their charge in great danger。
In all these cases punishment remains as an alternative。 A pain can be inflicted upon the wrong…doer； of a sort which does not restore the injured party to his former situation； or to another equally good； but which is inflicted for the very purpose of causing pain。 And so far as this punishment takes the place of compensation； whether on account of the death of the person to whom the wrong was done； the indefinite number of persons affected； the impossibility of estimating the worth of the suffering in money； or the poverty of the criminal； it may be said that one of its objects is to gratify the desire for vengeance。 The prisoner pays with his body。
The statement may be made stronger still； and it may be said； not only that the law does； but that it ought to； make the gratification of revenge an object。 This is the opinion； at any rate； of two authorities so great； and so opposed in other views； as Bishop Butler and Jeremy Bentham。 /1/ Sir James Stephen says； 〃The criminal law stands to the passion of revenge in much the same relation as marriage to the sexual appetite。〃 /2/
The first requirement of a sound body of law is； that it should correspond with the actual feelings and demands of the community； whether right or wrong。 If people would gratify the passion of revenge outside of the law； if the law did not help them； the law has no choice but to satisfy the craving itself； and thus avoid the greater evil of private ＇42＇ retribution。 At the same time； this passion is not one which we encourage； either as private individuals or as lawmakers。 Moreover； it does not cover the whole ground。 There are crimes which do not excite it； and we should naturally expect that the most important purposes of punishment would be coextensive with the whole field of its application。 It remains to be discovered whether such a general purpose exists； and if so what it is。 Different theories still divide opinion upon the subject。
It has been thought that the purpose of punishment is to reform the criminal； that it is to deter the criminal and others from committing similar crimes； and that it is retribution。 Few would now maintain that the first of these purposes was the only one。 If it were； every prisoner should be released as soon as it appears clear that he will never repeat his offence； and if he is incurable he should not be punished at all。 Of course it would be hard to reconcile the punishment of death with this doctrine。
The main struggle lies between the other two。 On the one side is the notion that there is a mystic bond between wrong and punishment； on the other； that the infliction of pain is only a means to an end。 Hegel； one of the great expounders of the former view； puts it； in his quasi mathematical form； that； wrong being the negation of right； punishment is the negation of that negation； or retribution。 Thus the punishment must be equal； in the sense of proportionate to the crime； because its only function is to destroy it。 Others； without this logical apparatus； are content to rely upon a felt necessity that suffering should follow wrong…doing。
It is objected that the preventive theory is immoral； because it overlooks the ill…desert of wrong…doing； and furnishes ＇43＇ no measure of the amount of punishment； except the lawgiver's subjective opinion in regard to the sufficiency of the amount of preventive suffering。 /1/ In the language of Kant； it treats man as a thing； not as a person； as a means； not as an end in himself。 It is said to conflict with the sense of justice； and to violate the fundamental principle of all free communities； that the members of such communities have equal rights to life； liberty； and personal security。 /2/
In spite of all this； probably most English…speaking lawyers would accept the preventive theory without hesitation。 As to the violation of equal rights which is charged； it may be replied that the dogma of equality makes an equation between individuals only； not between an individual and the community。 No society has ever admitted that it could not sacrifice ind