i8

THE GREEN BAG

mental processes to direct examination, though they have used the inquisitorial process freely enough on others when they saw their profit in so doing. In short, by one familiar with both subjects, the econo mic history of England may be read in her legal procedure as freely as in a specialist's treatise, like Roger's " History of Agricul ture and Prices." Each change in the form of competition may be recognized in its legal counterpart. Thus for economic causes the trial by com bat faded into the trial by jury, the preroga tive and the common law courts of the middle ages melted into the courts we know which dispense all kinds of justice, the early criminal law was replaced by the Tudor criminal law, and that in turn has been metamorphosed within a century; finally the old rules of evidence, contrived to exclude the testimony of those who could prove a debt, have been so changed by the rise of a powerful moneyed class that all evidence has been made competent calculated to be use ful in holding a debtor. These inferences may be justified upon the most casual examination of English econo mic development. With William the Conqueror a military system came in based upon the payment of rent by military service, therefore public interest dictated that land should be held by those able to defend it. What we should call the abstract right and wrong of a claim to title was largely immaterial; the vital matter to determine was which of two claimants could provide the better soldier, for after all soldiers were the rent returned by the land. Hence it was perfectly logi cal that the writ of right should be tried by duel and not by jury. But it was not only disputes concerning land which were tried by the duel, appeals or accusations of crime were also so tried, and we have now to reconcile Bracton's notion of the consent ing mind in crime or tort, which he borrowed from the canonists, with what appears to us so crude a method of discovering a mental

condition as a physical combat. From the soldier's point of view nothing could have been at once more logical and more advan tageous. Let us take treason. Suppose a man killed the King, and set up accident, un accompanied by negligence, or in other words an unconsenting mind. The facts might speak for themselves. In that case he was held to be innocent. For example, in noo a.d. Walter Tirrel killed William Rufus with an arrow shot at a stag by the King's order. Coke, in commenting on treason, in his Third Institute, cited this case as an example of innocent homicide, since Tirrel did not "imagine" the King's death. But suppose a case where the attitude of the mind was in dispute, for example the case of Andrew Harclay, Earl of Carlisle, who was one of the best officers of Edward II. Harclay was suspected of tampering with the Bruce, was arrested by treachery tried by a special commission, and con demned to have his heart and bowels "whence come your treasonous thoughts" torn out and burned to ashes. Harclay may or may not have been guilty of imagining the death of the King, but no one save himself could know the truth, and to Harclay and to others so situated it seemed reasonable that he should prove his innocence by the combat. He was not allowed to do so, nor could he adduce any proof of innocence save his word, which his judges were pretty certain to reject since they were probably sent to convict him that his estate might be forfeited. After the murder of Edward Second convictions for treason formed one of the most lucrative sources of revenue, and finally the limit of endurance seems to have been reached when, in 1347, a knight was executed for treason for having imprisoned a fellow subject until he paid him £90. Then the barons protested that if they could not prove an innocent animus by the combat, at least they would not submit to being found guilty without