66

to that said John." It then states with good and sufficient pleader's verbiage how Maredudd dealt with the said John, making "an unjust and public attack through wrath and "anger, and animosity, and surreption, and disrespect, to the lord, and to the dominion, and to the kindred." It demands the payment of three marks, the worth of a free privileged uchelwr (gentleman). It is addressed to "the governors," for "the law has not apportioned to the "lord a share in the worth of anyone, but by causing the "inquiring party [the plaintiff] to obtain the whole.”*

One more testimony to the endurance of the blood feud shall be given, and this from an unimpeachable source, namely, the English Statute Book. First we must notice that if a man be charged with slaying another and wish to deny the accusation, he can do so. The Welsh law, like other old systems, recognizes compurgation as the usual mode of trial, or rather of defence, in criminal cases. The number of compurgators required is very large, far larger than any of which we hear in England or on the Continent. In the case of homicide, the number of men who help the accused in "making his law" is no less than three hundred, and they must be men of his kindred. "The oaths of three "hundred men of a kindred are required to deny murder, "blood, and wound, and the killing of a person," and therefore, the law adds, the same number of oaths is required when galanas is paid and peace thereupon sworn. Now a Statute of the year 1413 (1 Henry V., c. 5), refers to the then late rebellion in Wales and complains that the Welshmen are still taking revenge for the deaths of their kinsmen against the king's faithful lieges, and some of such lieges they keep in prison until they have paid ransom, or until they have purged themselves of the death of the said rebels so slain as aforesaid, "par un assacht selonc la custume de

* Bk. XII., II.

Asach. An oath, a troth. Pughe's Welsh Dictionary.

Galles, cest a dire par le serement de ccc hommes." The fact is that the Welshmen had been acting according to their notions of law and requiring three hundred compurgators. This is not the only instance in which our Statute Book bears out the testimony of the Welsh laws, but here, at least for a time, we must take leave of the Kindred and the Blood Feud.

F. W. MAITLAND.

III.-THE GROWTH OF THE GRAND JURY

THE

SYSTEM.

HE Great Charter, by its well-known 29th Chapter, declared that no freeman should be taken or imprisoned but by the lawful judgment of his equals, or by the law of the land. This, as explained by Lord Coke, was but declaratory of the common law, and meant that no man was to be restrained of his liberty, unless by Indictment, or presentment of good and lawful men, where such deeds be done; and, as is known, the mode in which such Indictments and presentments were found was by the intervention of the Grand Inquest or Grand Jury, or by its equivalent, the Coroner's Inqusition, in the cases coming within that officer's jurisdiction.

A prominent characteristic of the Anglo-Saxon jurisprudence being the great importance attached to general character, the leading principle pervading the English criminal law, from even the earliest times, seems to have been that, except when taken with the mainour, or redhanded, no person should have his liberty imperilled by a criminal trial, unless the circumstances of the accusation were of so notorious a character as to raise a violent presumption of its truth. In a state of society in which everyone was a surety or permanent bail for the good

behaviour of his neighbour, the public opinion of the vicinage was probably the best test of the truth of an accusation, each district having a direct interest in bringing criminals to justice. Even after the functions of the Grand Jury had become distinct from those of the Petty Jury, "le Graunde Inquest" of Edward III. represented the fama publica of the country, filling the character of public prosecutors, presenting such offences to the Justices in Eyre as came to their own knowledge, or as were brought under their notice by information supplied by others having the care of the public peace, as previously, under the laws of Ethelred, the twelve senior Thanes of each hundred had imposed upon them the duty of presenting all crimes within their district. So long as the view of frank pledge was observed, there was a public provision for bringing every wrongdoer to justice; but from the time when that ceased, and the community was no longer held responsible for its members abiding the course of justice, public rumour or fame ceased to be represented, except in name, by the findings of a Grand Jury, though even then an accused person had a great advantage in knowing that he could not be put on his trial without the fiat of men of repute in the county where the offence alleged had been committed, in whose minds a violent presumption of the truth of the accusation had been raised.

A felon could not be convicted, even though he confessed the felony, until a Grand Jury had presented the offence; "le Graunde Inquest," as established in 42 Edward III. (A.D. 1368), being summoned to give information to the Justices in Eyre of the crimes that had been committed within the county, as Jurors for the King, upon their oaths, to present for trial all offences against the peace, the Crown, and dignity of the King as opposed to private prosecution by Appeal - the truth of such presentments being subsequently tried by a Petty Jury. At the sitting

of the Eyre, the Justices explained its object, and then delivered their charge, and whatever was inquirable by the Grand Jury in writing (capitula coronae et itineris), in modern times conveyed in oral charges; and in their inquiry into such matters as were given them in charge, they were not to try the truth of them (which was the province of the Petty Jury) "otherwise than in that form and matter (according to the nature of the case) the Court and King's Counsel have framed and presented it to their inquiry, where the single fact of unlawful killing another, &c., by the hands of such a one, is proved unto them so far, as in their judgments it is fit matter of accusation, to bring the whole matter of fact, and all that may depend upon it, to a further and more full examination." (Babington's Advice to Grand Jurors, 1677). For the presentment of a Grand Jury was not a verdict; whether they returned Bills vera or ignoramus the accused was neither convicted nor acquitted; in the first case a further inquiry followed, in the latter, other Bills might be preferred against the same person for the same offence at subsequent assemblings of the Grand Inquest.

According to the original form of the English practice, the investigatory procedure was excluded, and the trial was the only occasion on which the witnesses could be judicially examined. It was not till the 34 Edward III. that the guardians of the peace were empowered to try felonies and misdemeanours, and acquired the name of Justices; and the utmost they could do was to have malefactors apprehended and kept in safe custody till the coming of the Justices of Gaol Delivery. An aggrieved person was therefore usually obliged to wait till the Grand Jury had assembled, and go before them to make his complaint, when if the information conveyed to, or possessed by, them was such as to raise a reasonably strong suspicion that a crime had been committed by the accused within the body

of the county for which only they were to inquire, they were bound to present him.* But in all this there was nothing in the nature of a trial or judicial inquiry; they were merely informing themselves for the purpose of framing accusations against those among the community for whom they were permanent bail, whose conduct was not that of a good citizen. Then, as now, they only heard evidence on behalf of the prosecution; the accused was no party to it, nor was he represented in any way; it was conducted in his absence, the deliberations were held in secret, and, if not already in custody, the first intimation he had of such a charge having been preferred against him was his apprehension under warrant to take his trial. Indeed, so absolutely secret were the whole proceedings of this accusing body that, according to Blackstone, "Anciently it was held that if one of the Grand Jury disclosed to any person indicted the evidence that appeared against him, he was thereby made accessory to the offence of felony; and in treason, a principal. And at this day it is, agreed that he is guilty of a high misprision, and liable to be fined and imprisoned" (4 Black., 126).

"Of the procedure before the Petty Jury (wrote Bentham), the characteristic and indispensable property is publicity; of the procedure before the Grand Jury a property still more characteristic and declaredly secured is secrecy; the ceremony of an oath is employed for the securing of it; in the official oath exacted from grand jurors, the promise of secrecy constitutes a distinctive article" (Principles of Judicial Procedure).

The neglect, or omission, duly to prosecute any offence before the Grand Jury usually entitled the wrongdoer who was in custody to a receipt in full down to that date, and he could not afterwards be called on to answer for anything done before the last assembling of the Grand Inquest. It was in view of this immunity that the "proclamation for the King," which is still made by the Crier of the Court when a prisoner is given in charge to the Petty Jury, and the now obsolete form of discharging prisoners by proclamation at the end of the Assizes, were observed.