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CHAPTER 1 CRIMINAL PROCEDURE SUMMARY Anglo-Saxon Criminal Law Pleas qf the Crown The Old Procedure The New Procedure Lafer Development 0/Indictment In /ormations Process and OUllawry Sancluary Examination Trial by Jury Repremltalioll by COIifiul Wilnesses EvidC /lce Burden qfProof Summary Trial Benefit ofClergyPAGB 425 426 427 428 429 429 430 431 431 433 434 435 436 438 438 439 In very general terms, the history of criminal procedure seems to follow this course. First, it is almost entirely in the hands of the injured party and his opponent, and takes place in local courts. Then the influence of the Crown makes itself felt, beginning with a cautious list of pleas of the Crown. There is for a long while no question of the Crown actually trying such cases-all it can hope for at first is a share of the proceeds. The second stage is when the Crown sets up machinery to discover hidden crimes. Many must have escaped altogether by reason of the unwillingness of anyone to bring an " appeal ", and this results in a loss of possible revenue to the King (to say nothing of the encouragement to criminals). The Crown henceforth will have a mass of crimes presented by grand juries, and will have to devise measures for trying them. Rapid development is therefore found in the various trial commissions , and the rise of the justices of the peace added materially to the resources ofthe Crown both in discovering crimes and in trying criminals. Thirdly, the existence of this elaborate machinery will permit the enlargement of the list of crimes since there are now numerous institutions capable of dealing with them. Many statutory felonies will be created, and many offences less than felony will be made cognisable by justices of the peace; this last development will be at the expense of those local jurisdictions which so far had dealt with them, and will also include 424 CRIMINAL PROCEDURE 425 some matters for which so far only trespass (in substance now a civil remedy) had been available. ANGLO-SAXON CRIMINAL LAW As we have already remarked, the Anglo-Saxon period is long1 and yet it is difficult to trace cleat development over those five centuries for which we have written remains. It is tempting at first to make a neat plan of the progress from warfare -the feud between the two kin ofthe criminal and the injured-to money compensation. One would expect the early laws to say more about fighting, and the later ones more about payment.I The sources, however, do not align themselves so easily as this. Our earliest laws (Ethelbert's) are mainly tariffs of payment; out later ones say much about feuds. In the middle of the tenth century Edmund is still laying down rules for the feud,3 and Canute is still legislating on it just before the Conquest." It is not easy, therefore. to establish an orderly progression, and it seems more probable that several stages of development were in fact existing side by side. Indeed, half a century after the Conquest we read this: " If anyone kill another in revenge, or self-defence, let him not take any of the goods of the slain, neither his horse nor his helmet, nor his sword nor his money; but in the customary way let him layout the body of the slain, his head to the west and feet to the east, upon his shield, if he has it. And let him drive in his spear [into the ground}, and place round it his ums and tether to it his horse. Then let him go to the nearest vill and declare it to the first one he meets, and to him who has SOl: (jurisdiction over the place); thus he may have proof and defend himself against the slain's kin and friends.'" The avenger is thus something in the nature of an executioner, save that the trial of the slain takes place post mortem as part of the defence of the avenger.1f Quite early, however, it became possible to "buy off the spear" if one preferred not to "bear it ". An offer of wergeld will therefore prevent the avenger doing justice himself, and in criminal as well as civil matters) no action ought to be taken until a formal demand for satisfaction has been made and proved ineffectual. The laws of Alfred are very explicit on the matter: "We also decree that a man who knows his adversary to...

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