. When the growth of social
conditions led to new temptations or the appearance of a new criminal
class, and particular varieties of crime became conspicuous, the only
remedy was to declare that some offence should be 'felony without
benefit of clergy,' and therefore punishable by death. By unsystematic
and spasmodic legislation the criminal law became so savage as to shock
every man of common humanity. It was tempered by the growth of technical
rules, which gave many chances of escape to the criminal; and by
practical revolt against its excesses, which led to the remission of the
great majority of capital sentences.[10] The legislators were clumsy,
not intentionally cruel; and the laws, though sanguinary in reality,
were more sanguinary in theory than in practice. Nothing, on the other
hand, is more conspicuous than the spirit of fair play to the criminal,
which struck foreign observers.[11] It was deeply rooted in the whole
system. The English judge was not an official agent of an inquisitorial
system, but an impartial arbitrator between the prisoner and the
prosecutor. In political cases especially a marked change was brought
about by the revolution of 1688. If our ancestors talked some nonsense
about trial by jury, the system certainly insured that the persons
accused of libel or sedition should have a fair trial, and very often
something more. Judges of the Jeffreys type had become inconceivable,
though impartiality might disappear in cases where the prejudices of
juries were actively aroused. Englishmen might fairly boast of their
immunity from the arbitrary methods of continental rulers; and their
unhesitating confidence in the fairness of the system became so
ingrained as to be taken as a matter of course, and scarcely received
due credit from later critics of the system.

The country-gentleman, again, was not only the legislator but a most
important figure in the judicial and administrative system. As justice
of the peace, he was the representative of law and order to his country
neighbours. The preface of 1785 to the fifteenth edition of Burn's
_Justice of the Peace_, published originally in 1755, mentions that in
the interval between these dates, some three hundred statutes had been
passed affecting the duties of justices, while half as many had been
repealed or modified. The justice was of course, as a rule, a
superficial lawyer, and had to be prompted by his clerk, the two
representing on a small scale the