THE MODERN CONCEPTION OF ANIMUS to fortune lay through war and robbery. The Normans migrated to England, and many English afterward migrated to France or' Palestine, but whether they sought wealth and power by conquest abroad, or by cattle driving and abducting women at home, their first necessity was that con viction for acts of violence should be diffi cult, and their second that they should have fully open to them the defense of in nocent animus. At the beginning of the thirteenth century, when the records open, the crown cases came before the justices in Eyre upon pre sentments by a jury who answered ques tions propounded to them by the court. Prosecutions naturally fell into three cate gories. First, as in Tirrel's case, the homi cide being established, the facts might in dicate an innocent mind so clearly that the jury would return no felony, and the King would pardon. The following example oc curred in 1 2 14 a.d. "Roger of Stainton was arrested because in throwing a stone he by misadventure killed a girl. And it is testified that this was not by felony. And this was shown to the King, and the King moved by pity pardoned him the death. So let him be set free." Selden Soc. Pleas of the Crown, Case H4Or, a homicide having been committed, suspicion rested upon a man as accessory. Were he appealed by some one who could do battle, he might clear himself by the duel, or if the appellor or he himself were unable to fight, or if he were prosecuted by the Government upon general suspicion, he underwent the ordeal. But failure at the ordeal seems to have been very rare. "William Trenchebof was said to have handed to Inger of Faldingthorpe the knife wherewith [Inger] slew Wido Foliot. He is suspected thereof [by jurors]. Let him purge himself by the water that he was not consenting [to the death]. He has failed and is hanged." Selden Soc. Select Pleas of the Crown Case, 116.
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Under the mediaeval system, the physical facts could seldom have been in much doubt, for, as a rule, felonies came up on appeal, and appeals, or accusations by private per sons, were not entertained unless the ap pellor could make oath to having actually seen the deed. In 1 201 Denise, wife of Anthony, ap pealed Nicholas Kam of the death of her husband, but the court "considered that Denise's appeal is null, for in it she does not say that she saw the deed." Selden Soc. Pleas of the Crown, Case 1. But, the fact of the homicide being ad mitted, the animus still remained in doubt, and the appellee could prove his innocence by battle, supposing, of course, that no in capacity upon either side necessitated the ordeal. In the following case in 1203 the assault must have been notorious. William, John's son, appeals Walter, son of Ralph Hose, for that when [William's] Lord Guy of Shawbury and [William] had come from attending the pleas of our Lord the King in the county court of Shropshire, there came five men in the forest of Haughmond and there in the King's peace and wickedly assaulted his Lord Guy, and so that [Walter] who was the fourth among those five, wounded Guy, and was accessory with the others in force and aid so that Guy his lord was killed, and after having wounded his lord he [Walter] came to William and held him so that he could not aid his lord; and this he offers to deraign against him as the court shall consider. And Walter comes and defends all of it word by word as the court, &c. It is considered that there be battle between them. The battle is waged." Selden Soc. Pleas of the Crown, Case 80. These cases expose the whole theory of mediaeval criminal law and evidence, as opposed to ecclesiastical law and evidence which favored the astute man as compared with the fighting man. A more perfect system for protecting the class which evolved
