24
THE GREEN BAG
replaced by the unarmed country gentle man. This squirarchy were, speaking broadly, a somewhat inert and peaceful race with little martial instinct, as was demonstrated in the Cromwellian wars when the Royalists failed to produce a single formidable regiment, or a single able officer. The peculiarities of the Tudor gentry were instantly reflected in the Tudor criminal law. When it no longer paid to keep up bands of armed retainers, when the castellated mansion had passed away, when Haddon Hall became the open manor house which we know, the landlord found himself in peril whenever he rode abroad. Instead of robbing, he was pillaged. The roads were bad and infested with highwaymen, communication was exceedingly slow and difficult, the arrest of marauders almost impossible. The gentry lived in terror of their lives, and this terror shaped their criminal code. Nothing in Europe was so bloodthirsty. In 1810 Sir Samuel Romilly asserted that in no country in the world were so many human actions punished with death as in England. Perhaps the two most sanguinary of these statutes were the 23 Henry VIII, c. 1, and the 8 Eliz. c. 4. The one made robbery t and the other stealing from the person more than the value of twelve pence, capital without benefit of clergy. Consider what these enactments meant. The taking of any property by violence on a road or in a house, was punished with death, even though the property were taken under the honest belief that the taker had a right to redress his own wrong, and though he afterward returned what he had taken. For example, suppose a creditor had visited his debtor to collect a debt and, payment being refused, had thrust the debtor aside and taking from the table a penny had left the house with the purpose of applying the penny to his claim. And suppose this creditor when walking away had reflected upon what he had done,
and returning had restored the penny. I apprehend he would, under Popham, assur edly have been convicted and hanged. Theoretically the accused could give evidence in defense of an absence of the animus furandi, or felonious intent, but society in the sixteenth century demanded that in this class of crimes conviction should follow upon the act, and took effectual means to exclude all mitigating testimony. The whole mediaeval common law procedure was changed. Under Henry VIII and Elizabeth, the accused was allowed neither counsel nor witnesses, and though, in the seventeenth century, this practice was so far relaxed as to permit the prisoner to question persons whom he could induce to attend the trial, these persons were not sworn, and obtained little credit. More over he had to face the judge. It was a legal convention that the presiding justice acted as counsel for the accused. In reality he saw to it that the law should take its course. Lord Campbell has thus described Popham, C. J., at the assizes, who was appointed to the Bench in 1592. "The reproach urged against him was, extreme severity to prisoners. He was notorious as a 'hanging judge.' Not only was he keen to convict in cases prosecuted by the government, but in ordinary lar cenies, and, above all, in highway robberies, there was little chance of an acquittal before him. . . . Lives of the Chief Justices, 1, 219. When he had obtained a conviction he uniformly let the law take its course, be cause, as Aubrey observed, "If he was the death of a few score of such gentry, he pre served the lives and livelihoods of- more thousands of travelers, who owed their safety to this judge's severity." Aubrey, in, 498. Before such a judge, the accused without counsel and without witnesses could hardly escape, for if he tried to defend himself or gave evidence in his own behalf he was subjected to a ruthless cross-examination from
