20

THE GREEN BAG

municated, are certainly only a thought, but Jeffries C. J. held that scribere est aggere, and Sidney was beheaded. Subsequently Jeffries died in the Tower, but he could never be induced to express the slightest contrition for the atrocities of the famous "Bloody Assizes," protesting "that all the blood he had shed fell short of the King's command." An even more illuminating case is that of the Carthusian monks under Henry VIII in 1535. The issue between the monks and the Crown was in substance the ownership of the conventual estates of England, which was the largest mass of property in the kingdom. All the rising laymen of the period were interested in the confiscation, and, indeed, most of the chief landed estates of the modern British peerage had their foundation in grants of conventual land. The pressure, therefore, upon the courts for the conviction of contumacious monks was violent and produced suggestive results. Among the statutes passed by Parliament, to enable the crown to conduct the eviction of the monks was that of 1534, which made it treason to maliciously imagine or attempt to deprive the King of his dignity or title. One of his titles was Supreme Head of the Anglican Church. The sternest resistance to acknowledg ing Henry VIII as Supreme Head on earth of the Anglican Church, came from the Car thusian monastery of London. Thomas Cromwell, therefore, who was then prime minister, determined to make an example. On May 29, 1 534, the oath of supremacy had been tendered the Carthusian monks, which they had taken under certain reservations. To break their resolution Cromwell sent the Prior Houghton and some of the brethren to the Tower, and there examined them. Finding them unyielding, Cromwell caused the prior, two monks of the order, and a fourth recalcitrant to be indicted for trea son, on the charge that they "did, on 26 April, 27 Henry VIII, at the Tower of London, . . . openly declare and say, 'the

King, our sovereign lord, is not the Supreme Head in earth of the Church of England.'" The prisoners pleaded not guilty. An old account of the trial relates that "The jury could not agree to condemn these four re ligious persons, because their consciences proved them they did not it maliciously. The judges thereupon resolved them, that whosoever denied the supremacy denied it maliciously, and the expressing of the word maliciously in the act was a void limit and restraint of the construction of the words and intention of the offense." Fin ally a verdict of guilty was obtained, and the criminals were executed. In this case, if correctly reported, the court, to obtain a conviction, excluded the evidence of the animus tendered by the defense. According to this ruling the mere repetition of the words by an imbecile would have constituted the crime. I think these three cases sufficiently illustrate the effect of pressure of environment in trials for treason. If we now advance to felony, trespass, and contract, we shall find the same phenomenon always appearing, only thrown less sharply into prominence because of the less intensity of the conflict generating the litigation. It being admitted that acts can be proved tending to show that a felony or a trespass has been committed, or a con tract made by a given individual or individ uals, that is to say, the facts being established, the whole question at issue is the mental c/mdition of the parties, and as this mental condition can only be ascertained by others through the senses, the animus, except when a man testifies to his own thoughts, must be a matter to be inferred from cir cumstances. Accordingly the rules of evi dence have been shaped with a view to pro tect the strong and expose the weak. To understand the historical demonstra tion of this proposition we must first realize the conditions under which those men lived who made the mediaeval common law. The feudal gentry were a predatory and very largely a migratory class, whose path