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.