THE MODERN CONCEPTION OF ANIMUS the Bench. If you care to know how far judges went in this direction, I advise you to read Popham's examination of Garnet, who was tried as an accessory to the Gun powder plot, or Jeffries' conduct at the trial of Alice Lady Lisle. Alice Lisle was indicted for treason for harboring two fugitives from Sedgmore. She testified that she did so in ignorance of their presence at the battle. The accused was tried as an accessory, before the conviction of the prin cipals; therefore there was no direct evidence even to prove the criminality of the men she received. Jeffries cured the defect by storming at the jury when they disagreed because of their doubt as to the scienter, threatening to shut them up without food or water. Jefferies then sentenced her "to be drawn on a hurdle to the place of execu tion, where your body is to be burned alive till you be dead." Lord Coke protested against depriving the accused of witnesses, and declared there was no shadow of authority for such an out rage, 3 Institute 79, but Coke though techni cally right was in substance wrong. The criminal common law procedure, under Henry VIII and Elizabeth, was an improved Star Chamber practice, against which the gentry railed while they robbed, but which they adopted when others robbed them. Few more ingenious codes for the arbitrary punishment of a subject class were ever in vented than the English criminal law during several generations. Making a multitude of petty misdemeanors capital had the effect of withdrawing all extenuating circum stances from the jury and making the judge the real arbiter of the prisoner's fate. Whether the act charged was a malig nant murder, or the pilfering of thirteen pence by a starving mother to feed a dying child, made no difference. The motive actuating the offense was disregarded. The punishment was death. The infliction of punishment lay with the agent of the domi nant class; that is to say with the judge; and accordingly you will find that the ratio of
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executions to convictions varied, precisely in proportion to the terror inspired in the landlords by crimes of violence. From about 1535 when the convents were dissolved, England swarmed with vagrants. No effective police existed. During the rest of Henry's reign an average of two thousand persons were hanged annually. Under Elizabeth, to the mortification of Lord Bacon, the number fell to no more than four hundred, but as late as 1772 above half of those convicted were executed. Just then scientific road building began. John Metcalf constructed his first stretch of turnpike in 1765, his last in 1792. During this quarter of a century England acquired tolerable roads, arrests were facilitated, and the effect was immediately apparent in the law. Between 1802 and 1808 about one in eight of those sentenced were hanged, and in May, 1808, Sir Samuel Romilly moved in Parliament for the repeal of the act of Queen Elizabeth which made stealing of above twelve pence from the person capital. The inferences to be drawn from these facts are palpable. No one could mistake them. In the fifteenth century gunpowder made castles untenable, and in the sixteenth the open manor house came into use. This change indicated a revolution in economic competition, and following on this revolution a modification of the instincts of the govern ing class supervened. They disarmed. Being thereafter unable to protect them selves they made savage criminal laws that others might the better protect them. In the nineteenth century English domestic life was again remodeled by improvements in transportation which induced the organ ization of a perfected police. Forthwith the modern criminal law appeared from which the death penalty has been nearly eliminated, and in which "motive," whose office is to ameliorate the doctrine of intent, plays so large a part. Evidently, applied science is the true basis of the principles of jurisprudence. Passing now from crime to tort precisely
