THE MODERN CONCEPTION OF ANIMUS evidence of what was tantamount to ap pearing in arms. In 135 1 Parliament passed the famous statute which provided that the accusation of imagining the King's death could only be sustained by evidence of an overt act from which the inference of a guilty purpose might be drawn. I wish to impress this on you: the crime of treason still consisted in the mental condition of imagining the King's death, the statute only altered the evidence by which the thought could be shown. And to-day the crime of treason in England may be a pure thought. I have some confidence in stating this proposition categorically, since I conceive that Erskine established it beyond contro versy in the memorable trial of Hardy in 1794Assuming, therefore, this much to be conceded, we have now to consider the effect that this limitation upon the compet ency of evidence has had upon the conduct of causes. I think you will find that the courts in interpreting the statute have only registered the degree of social pressure for conviction. I give an illustration or two. Probably the most unpopular measure of Pitt's long administration was the prosecu tion of Hardy, Home, Tooke, and others, to which I have referred; and the most sig nificant feature of the phenomena which followed was that Eyre C. J., who afterward presided, attended the preliminary hearing before the Privy Council and gave it as his opinion that, on the evidence there pro^duced, the prisoners were guilty. When Eyre, however, came to try the causes he found the evidence of the guilty mind less clear. The indictments alleged, as an overt act, that the prisoners had conspired to bring on a revolution by calling a convention, but it was not alleged that they conspired directly against the King's life. The trea son was, therefore, constructive. Especially in London popular feeling ran passionately high. Sir John Scott, afterwards Lord Eldon, who,- as attorney general, con ducted the government's case, used after-
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ward to tell how he was hooted every night as he left the court, how once the crowd rushed at him as he entered his carriage cry ing out to kill him, and how Erskine had to interfere. Up to that time no trial for treason had ever occupied more than a single day. In this case, Sir John Scott occupied nine hours in his opening speech alone. On Saturday morning at two o'clock the court adjourned for twelve hours to allow Erskine to prepare his argument; all through the trial the presiding chief justice had leaned pretty decidedly toward the government. Erskine rose at two on Saturday afternoon; he spoke seven hours. When he closed a tremendous and irrepressible acclamation burst forth in the court which spread throughout an immense multitude in the streets, the crowds being so dense that it was long before the judges could reach their carriages. Under this stimulant, which possibly the malevolent might call fear, Eyre learned to doubt the soundness of the impressions received in the atmosphere of the Council Chamber, with the result that he so charged the jury as to insure a triumphant acquittal. Now I will take a case where the current ran in the opposite direction, and draw your attention to the ruling which it produced. After the discovery of the Rye House plot in 1683, Charles Second became nearly absolute, and in the plentitude of their power the Tories selected certain conspicu ous Whigs for destruction; among others Algernon Sidney. The overt act laid was the writing of a philosophical treatise on the lawfulness of resistance by the subject to the sovereign. The treatise had never been finished, much less printed or published, and was only found on seizure of the accused's papers. To obtain a conviction it was necessary to hold, as matter of law, that transcribing with one's own hand a thought which was never conveyed to another, was an overt act. This seems a contradiction in terms, for the written words, if uncom
