Article 39 and all that
A Tolerably Accurate but Brief History of Juries, Grand and Otherwise
Someone once wrote that the origins of the jury, grand or otherwise, are “lost in the mists of antiquity.” That being so, this historical summary omits birth dates and birth places. We also omit quotations, footnotes, and a lengthy bibliography. Instead, we offer several leads to consider if you embark on your own research into the provenance of this ancient institution. Before you undertake the project, be alert to a stumbling block: In tracing the institution’s history, some scholars claim they are writing about “juries” when the word was not in use in the period they are addressing. Others write about “the grand jury” functioning at a time when that phrase had not yet been coined. Unfortunately, whoever first used the term “grand jury” did not trademark it. Therefore, if you read about a “grand jury” with some unfortunate citizen in its cross-bow sight in, say, 935 A.D., take it with a grain of salt. Also keep in mind that the grand jury didn’t start to take shape until the early fourteenth century. We thank a bloke in the Public Records Office in Chancery Lane for that tidbit.
Even if we never discover where and when the jury idea originated, we have a theory about why it began. It probably started when some hot-blooded Teutons, Angles, or Saxons decided it would be less bloody and upsetting for the male–female population ratio if they resolved disputes by discussion rather than clubs. Even Guizot, the eminent historian of self-government, expressed some doubt about the date, place, and reason for the appearance of juries on the local-government scene. However, Guizot gives the jury some notice in his study of the origins of self-government. His student, Tocqueville, wrote that, among its other uses, American jury service educated citizens about public affairs. On that point, we disagree with this pre-eminent ethnographer. It should be the other way around: Grand jurors should be civics teachers, not civics students.
Be that as it may, not much time passed before contending parties in early England discovered that calm deliberation in community decision making had distinct advantages over bashing skulls with clubs. Accordingly, they and other local hotheads probably decided that their communities would benefit from a standing conflict-resolution committee. This body would keep the vicinage calm by listening to complaints from the local gentry about neighborhood problems such as lip-smacking and gnawing bones too loudly around evening campfires.
Cultural anthropologists claim that most societies create some form of social pressure valve for hoi polloi. This explains why almost every civilization on earth has been credited with inventing the grand jury or something like it. For example, the ombudsman (“one who represents another”) is a Scandinavian institution that arose early in that country’s history to resolve arguments about who pays for the next round of aquavit. Today, the ombudsman in most governments is usually a government bureaucrat, a far cry from a “people’s panel.”
Some historians claim that Athens, ancient China, France, Rome, and possibly Lower Slobbovia had grand-jury-like bodies. Teutons evidently were not the only people in the mists to discover that collective judgment and self-government have compelling advantages over a last-man-standing theory of public administration.
Other scholars insist that the early Anglo-Saxons created proto-grand juries. A few dissidents argue that the modern form of the institution dates from the Norman invasion of England (1066). The worthy in charge of that land grab thought his royal redevelopment project would benefit if the local courts convened groups of neighbors to inform his majesty about breaches of campfire etiquette. This practice replaced the ancient trial-by-combat method of arriving at the truth, another tradition that tended to flatten the population-growth curve.
Eventually, the Normans lost their grip on things in England. Those who had return tickets to the auld sod went home, and those who did not blended into the native population. About the middle of the Twelfth century, an English king with a knack for law reform became tired of sanguineous social-control techniques. The king assigned guilt-finding duties to bodies of local people; these were usually folks his minions lassoed on demand for temporary civic duty as fact-finders—meaning the right facts, of course. This king, by the way, was a grandson of the great land grabber of 1066, lending some credence to the hypothesis, as yet unproven, that the grand jury gene is dominant, not recessive.
The Almost-Grand Grand Jury
The “grand” in “grand jury” is, incidentally, not honorific. “Grand” originally referred to panels that were numerically larger than other types of juries and had one or two other distinctions, not to be associated with grandeur. This might disappoint contemporary grand jurors who wish to have the dates of their several terms of grand jury service carved into their grave markers. And while we are etymologizing, make note that “juror” is from the Latin juro, “I swear.”
No doubt you have guessed that conscripts were, to this point, closely associated with the acquisitive impulses of their kingly betters. In fact, in their early period, grand juries augmented royal coffers by performing functions something similar to what county assessors, tax collectors, and IRS agents provide today. They also had escheat duties, a function that still persists in a California Penal Code statute pertaining to the grand jury. “Escheat” is an ugly word for the sad fact that the state acquires your vacation home, your Hummel collection, your first-born, and everything else if you die without a will.
In the thirteenth century, the institution branched out in a somewhat different direction. Some noblemen of the sceptered isle got crosswise with their king, a rather low fellow in Charles Dickens’ eyes. The noblemen forced a royal showdown, and the result was the big Post-it® note more familiarly known as Magna Carta. The nobles pressured the king to include in that document a well-turned phrase or two (Article 39) about “trial by peers,” meaning it’s less humiliating to grace the gibbet if your fellow knights rather than the king send you there. If there was no reference in that hallowed scroll to the phrase, “grand jury,” we can take some satisfaction in knowing that things were moving in that direction.
The beneficiaries of the Magna Carta show-down were, of course, high-borne folk, though a few commentators emphasize that the document also provided a modicum of protection for the bottom feeders. Because of the Magna Carta fracas, what was to become the grand jury acquired two important accessories. First, due process advanced a step or two. Second, the stage was set for the entry of a grand jury that was somewhat independent of monarchical control. This latter trend created some tensions, of course. Not being particularly happy as the crown’s flunky, the institution began slowly to look around for a new boss. We’ll soon see how this worked out. Some legal scholars, by the way, claim that the Runnymede séance was repeated at least a dozen times one way or the other before the seed of self-government sprouted. Possibly this is why many of the founding fathers of the federal constitution often ruminated in their writings about “vigilance.”
The year of Magna Carta (1215) was not the beginning of a civic innovation that King Henry and his court claqueurs called “The Grand Jury.” Rather, that date marks the start of a period of grand jury history that we know the most about today. Before Magna Carta, a variety of dispute-settling civic tools were in use. Henry merely blended these practices into a uniform system of law that later included the grand jury. Therefore, the institution arose from a salvage operation involving still other institutions, just the kind of thing to inspire a teenage would-be novelist named Mary Wollstonecraft a few centuries later. This is one reason why it is futile to search for the date and place of the first grand jury meeting. What is common in this long course of development are not particular dates or places but an evolving sense of self-government, as now expressed or what should be expressed, in what we now call the grand jury. It is in this sense that the achievements of the institution are “grand,” but its abuse and neglect are just plain yucky.
At some point between the thirteenth and fifteenth centuries, what we are now pleased to refer to as the grand jury added to its activities a kind of “Better Business Bureau” function concerning certain local matters. If it didn’t have the clout to assume directly the management of public services, it complained occasionally about things such as short measures in the mead tankards at the farmers’ market, bridges about to collapse, and potholes in the roadways. You can hear echoes of this bellyaching today in most barbershops. In one of its early forms during this period, “grand” makes its first appearance, as in “Le Grande Inquest.” Before long, “grand jury” came into wider use.
Judges and Juries Tie the Knot
The development of the judiciary in England somewhat resembles that of the grand jury. Along with the grand jury, judges, not to be outdone, also began to be a bit flip with the monarch. Occasionally, grand jurors also complained about some of the king’s nasty predilections for unjust imprisonment, property seizure, and the torture of hapless royal taxpayers. In time, the judiciary and the grand jury became part of the common law, and these two players in the justice game began a long-term alliance punctuated by squabbles and reciprocated nervousness.
Today, the laws in the American states still leave the selection of grand jurors to judges, but after the selection ritual is concluded, their honors generally put as much distance as possible between the grand jurors and themselves. Notice, however, that, as rare as they are, stirring salutes to the grand jury are found in the literary genre of the judiciary that we call case law. Examples of these kind words and phrases include the grand jury as “the protective bulwark … between the ordinary citizen and an overzealous prosecutor” and “the great inquest between the state and the citizen.”
When the eighteenth and early nineteenth centuries rolled around in England and the United States, the grand jury began to acquire some of its modern characteristics, including refinements in the indictment and watchdog functions. You won’t find much about the latter activity in the writings of many legal scholars, who seem to regard it, at worst, as a kind of legally dubious appendage to the grand jury, or, at best, not deserving of notice.
In both countries, grand jury critics began to grouse about what they thought of as the institution’s too-cozy relationship with prosecutors. One of the hoariest of all grand jury japes is that a smooth prosecutor can persuade grand jurors to indict a ham sandwich or hamburger, depending on one’s taste. Another oft-expressed criticism is that grand jury proceedings were hardly trials by peers, because most grand jurors were usually a notch higher in the social pecking order than defendants.
In England, some novelists joined members of the legal profession in poking fun at grand jurors. For example, the author (a some-time English magistrate who wrote a pretty nifty charge to grand jurors) of Tom Jones depicts one of his status-seeking characters as lusting after appointment to the post of foreman on the local grand jury. Even Shakespeare tossed off one or two barbed comments about the jury system: “The jury, passing on the prisoner’s life, may in the sworn twelve have a thief or two guiltier than him they try.” Jeremy Bentham also had little good to say about the jury system, but this is what one might expect of someone who arranged to be stuffed with lavender twigs like a moose after his death so his admirers could fawn over him in an English edifice of higher education.
American journalists and other writers who took a swipe at grand jurors include Robert Frost, H. L. Mencken, and Mark Twain. Ambrose Bierce, during his days as a journalist in San Francisco, wrote this of one panel in the foggy city: “In the McFarland case, the defendant set up a plea of insanity and succeeded in proving himself a fool. And he was acquitted by a jury of his peers.”
Despite these fourth-estate calumnies, grand jurors occasionally distinguished themselves in history. These high moments almost always involved skewering a high official for some sort of real or imagined abuse of power. The reputation the institution acquired in England as a protector of liberties is one reason why the colonists transplanted it to America.
Three episodes are often cited as examples of grand juries protecting citizens from abuses of power: the cases of Stephen Colledge (or College, 1681), the Earl of Shaftsbury (same year), and John Peter Zenger (1735). The newspaper craft likes the Zenger case because a grand jury defended an early-American newspaper editor charged with libel. The Edwards and Younger citations cited below offer more information about these episodes. As so often happens, persistence pays off. One of the benefactors of a grand jury’s deliberations eventually came under the royal machete, thanks to the reasoned judgment of a later gaggle of grand jurors.
The framers of the Constitution thought highly enough of the grand jury to include it in their writings and deliberations and, later, in the Fifth Amendment. In one of his writings, Madison noted that, if they could agree on nothing else, the congregants at the Constitutional Convention had good things to say about juries. Some American states, however, excluded grand juries from their Constitutions; thus, one can find the institution today in some states but not in others, a matter of considerable comfort, no doubt, to ham sandwiches.
In the United States, the history of the institution is mixed. In the Colonies, for example, some grand juries took the side of the English monarch, while in other communities, they helped foment the Revolutionary War. Before the Civil War, some grand juries ardently supported slavery, while others just as fervently opposed it.
Between the 1880s and the late 1940s, grand jurors led exciting lives in the United States. During that period, they were closely allied with district attorneys in racket busting, sending corrupt local government politicians to prison, and waging anti-trust campaigns. Grand jurors and district attorneys of refined tastes in the present era have risen above such unseemly activities.
Civil libertarians point out that American grand juries have not always been exemplars of due process. Similar criticism led to the elimination of the grand jury in England (1933), thereby creating a nationwide surfeit of ham sandwiches. Upon hearing the ax fall, one practicing solicitor in England, however, commented on its elimination in the land of its birth with something of the disapproval that Will Rogers expressed when he referred to one of legislative bodies of our Congress as the “House of Reprehensibles.”
To some extent, the vitality of the grand jury may be measured by how often pro or con articles about the institution appear in law journals and the popular press. On this basis, the institution in America receded from national public view after the 1940s. Until the late 1960s, for example, at least a dozen articles a year about grand juries could be found in legal periodicals. In more recent years, only a few articles about the institution were cited in the annual indexes to these journals. This further retreat into the mists may portend a fate for the institution similar to that of its English forebear.
A Closing Comment
If you have detected some irreverence in our brief genealogy of the grand jury, it has served our purpose. We would prefer that grand jurors and other citizens shift their attention from the fruitless search for the maternity ward of the grand jury’s birth, the name of the attending physician, and its birth date. The merit of the institution has little to do with searching for trivia that defy discovery. The more important meaning of its existence lies elsewhere.
What is noteworthy in the history of the institution is that its development coincides with a slowly, fitfully evolving sense of self-government among the English and American people. It is in this sense that citizens serving on grand juries achieve much if they have the appropriate civic skills, knowledge, and motivation to staff the institution effectively. When, however, grand jurors abuse its ideals, self-government, liberty, and the institution lose ground. And in the end, only the ham sandwiches prevail.
A good review of grand jury history, particularly in America, can be found in George J. Edwards, Jr. The Grand Jury: An Essay (Philadelphia: George T. Bisel Co., 1906. Reprinted by AMS Press, New York, 1973).
See Donald C. Rowat, ed., The Ombudsman: Citizens Defender (London, George Allen & Unwin, 1965).
See R. Allen Brown, The Normans and the Norman Conquest (London: Constable & Co., 1969), 249.
A balanced review of criticism and compliments about the institution may be found in Robert J. Janosik, ed., Encyclopedia of the American Judicial System, vol. II, under “Trial Juries and Grand Juries” (New York: Charles Scribner’s Sons, 1987), 734.
See also M. Guizot, History of the Origin of Representative Government in Europe (London: Henry G. Bohn, 1861). Guizot used the term “Representative Government” in his title, but the book seems to me more about self-government.
Information about the activities of Colonial grand juries and American grand juries of later periods may be found in Richard Younger, The People’s Panel (Providence, RI: Brown Univ. Press, 1963).
For readers who wish to chase the fox to his lair, we recommend Ralph V. Turner, “The Origins of the Medieval English Jury: Frankish, English, or Scandinavian,” The Journal of British Studies, 7, no. 2 (May 1968): 1–10. Turner concludes that “… no matter how early the origins of the jury and no matter where they lie, there is no reduction in honor due to Henry II for making it into a regular instrument of justice, both civil and criminal. His inventive mind seized upon the possibilities that he found in these earlier instruments and shaped them into something new.”
October 8, 2008