The Early Period

The origins of the grand jury, like those of the petty jury, are murky and will not be a major concern to us here. Its emergence generally has been tied to the Assize of Clarendon (1166), and conventional wisdom suggested that prior to that time criminal charges were usually brought by the victim. The accused then submitted to trial by ordeal, a procedure proscribed in 1215, or presented oathtakers who swore his innocence. This conventional view has been increasingly eroded, and the presentment jury is now thought to have come into existence prior to 1166, alongside private accusation by victims.^[1] It may well be that early presentment juries, which were the ancestors of grand juries, based their responses on some kind of rational consideration of the evidence, or even that they sent on to the ordeal only those they thought truly accused.^[2] The concept

of "suspicion," which we will explore more fully in Chapter 3, appears to be significant very early in the history of criminal justice.^[3] Studies now suggest that even before the Assize of Clarendon, the abolition of the ordeal, and the introduction of the petty, or trial, jury, early presentment juries were in practice stating whether or not they felt there existed a credible basis for suspicion. In this sense the accused were not sent to the ordeal until after a jury "verdict" determined probable guilt.^[4] Thus, mechanisms to evaluate communal accusations seem to have been in place even before the Assize of Clarendon and the introduction of the trial jury.^[5] According to Glanvill, writing not long after the Assize of Clarendon, those accused by "fama . . . publica" were sent to the ordeal, but only after "multas et varias inquisitiones et interrogationes."^[6] Bracton, too, indicated that presentment jurors were questioned concerning the accuracy of accusations. It would appear, then, that while presentment juries may have had a duty to report all crimes and suspects, they announced at least some initial evaluation of community accusations.^[7] Their verdict was as much a statement about character as about factual guilt or innocence. By c. 1221–1222, presentment juries functioned primarily to report persons about whom there was "suspicion." Before 1215 an adverse verdict sent the accused to the ordeal, to what afterward would become the trial jury.^[8] Thus when the trial jury replaced the ordeal, a reasonably well-articulated system of accusation was already in place. There was no need to invoke the Continental inquisitorial system, whose preliminary phase depended so heavily on confession and torture.

Although it is not altogether clear how rapidly the two-tiered system came into widespread use, the Assize of Clarendon clarified and emphasized the role of the presentment jury, composed of local men who were required to accuse all those suspected of having committed crimes. The presentment jury, sometimes called the "grand inquest," typically contained twenty-three persons selected from the county. Essentially an accusing body, proceedings were initiated either by the jurors on their own knowledge (presentment), or by the victim, or by a representative of the Crown, who provided the witnesses to support the accusation (indictment). The grand inquest presented those commonly suspected. It employed the concept of "public," or "common," fame, a concept probably

borrowed from ecclesiastical courts and thus from the Romanocanon tradition.^[9] Public or common fame was not a capricious concept, however much it sounds so to modern ears. It excluded rumor that originated from a single source or malevolence of enemies. Public fame, in effect a requirement of consensus among a considerable number of respected persons, appears to have been a workable juristic requirement. Grand jurors found the evidence either sufficient, and returned a billa vera , or insufficient, and returned a finding of ignoramus .

Although the two-tiered system was in place soon after 1215, changes—many of which remain to be investigated—continued to take place. By the mid-fourteenth century, if not earlier, members of the presentment juries were no longer permitted to serve on trial juries in the same case. By the fifteenth century, indictment seems to have largely replaced presentment for cases of felony.^[10]

Like petty juries, grand juries originally required no clearly articulated evidentiary standards, for it was assumed that they would have personal knowledge of the events and persons involved. After hearing accusations and witnesses in indictment proceedings, or on the basis of its own evaluation of community sentiment in presentment proceedings, the grand jury reached a decision. We know little more than this because little attention appears to have been paid to instructing grand juries in the early period. In addition, little subsequent research has been done on the thirteenth- to sixteenth-century period in which the two-tiered grand and petty jury system developed into that paragon so praised by Sir John Fortescue as the bulwark of English liberties against the secret, centralist, torture-ridden inquisitorial system of the Continent.

There is considerable debate among historians about how active and independent early modern grand juries were. Both John Langbein and Thomas Green see a growing passivity in the face of increased activity by justices of the peace. A substantial number of detailed studies however suggest that the grand jury remained active.^[11]

While further investigations of early modern grand juries are obviously necessary, it does not appear that grand juries performed a merely ceremonial function. However, we are concerned here with the basis on which grand juries were advised or were expected to make their decisions. William Lambarde's late sixteenth-century

speeches, delivered prior to the formal charge, contain little more than the usual exhortations concerning bias, vengeance, and impartiality. Such commonplace general admonitions could provide little guidance for the sixteenth- or seventeenth-century grand juryman. Lambarde, at one point, however, warned grand jurors against usurping the judicial office, suggesting tension between judges and grand jurors. Some grand jurors were going beyond their prescribed duties by hearing the "offenders that are to be charged," as well as those who "upon oath do offer their bills for the Queen."^[12] Lambarde's admonitions suggest that grand juries took their investigative charge seriously, perhaps more seriously than the law demanded. The practice of hearing the defendant as well as the prosecution was evidently not unknown. The few surviving grand jury charges, although often lengthy, provide little guidance on evidentiary standards. Typically they consist of descriptions of indictable crimes, discussion of pressing legal or political problems, and conventional admonitions about impartiality.

Writing in a much earlier era, Bracton attempted a standard. Using language reminiscent of ecclesiastical courts, he wrote,

From rumour suspicion arises and from rumour and suspicion a strong presumption, which must stand until the man indicted has purged himself of such suspicion, since it admits of proof to the contrary, that is, purgation. . . . It is clear that the rumour which begets suspicion ought to arise among worthy and responsible men, not among those who wish and speak evil but wise and trustworthy persons, and it must be not once but repeatedly that complaint arises and ill-repute is made manifest. For uproar and public outcry are at times made of many things which in truth have no foundation, and thus the idle talk of the people is not to be heeded.^[13]

The concepts of common fame and suspicion are overlapping, if not precisely identical, and were still associated with early seventeenth-century indictments.

Cynthia Herrup's detailed studies of East Sussex grand juries shed light on suspicion standards during this period. These grand juries concentrated on serious crimes of theft and felony and followed an informal, yet fairly consistent, set of evidentiary guidelines. The "essential ingredient for indictment was a cohesive accusation that interlocked crime, alleged criminal and, if relevant, stolen property. . . . The concern for tightly investigated accusa-

tions is the predominant pattern that emerges from examining specific cases accepted and rejected."^[14]

Where the death penalty was required, grand jurors proved unsympathetic to accusations based "too heavily upon circumstances and mere suspicion." Suspicions unsupported by substantial proof were thus regularly turned away. General suspicion might constitute sufficient ground for questioning or accusation, but grand juries were wary about returning indictments based upon supposition. We should note here that information collected by the justice of the peace was itself not introduced in court, except under special circumstances, and that witnesses thus appeared directly before grand and petty juries. "Ill fame" and a previous criminal record alone were not enough to insure indictment if "cohesive evidence" linking the accused and the crime was inadequate.^[15]

Herrup's study suggests that earlier notions of "common fame" and "suspicion" continued to provide the common formulation. The concept of "suspicion," to be found in the justice of the peace manuals in connection with arrest, was employed by grand juries as well, despite the fact that the manuals do not mention it in connection with indictment or presentment and provide almost no instruction on grand jury evidentiary standards.^[16] The concept of common fame was a familiar one from the medieval period onward and was employed routinely by, but not limited to, the ecclesiastical courts. A 1626 speech in the House of Commons outlined the distinction used in the ecclesiastical courts between fame, which was a majority suspicion, and rumor, which was only a minority suspicion. Later the same year the House of Commons debated whether common fame provided sufficient grounds to accuse the duke of Buckingham.^[17] William Fulbecke defined fame as "a common report proceeding from suspicion, and published by the voices of men." Following Bracton, he distinguishes it from rumor, "because that is adverse whispering of men, which is not as effective as fame. Fame constans is that which is dispersed abroad neyther by men unknown, nor of light credit."^[18]

The lack of concern with evidentiary standards in grand jury charges and in the magistrate handbooks suggests either that there was no problem perceived or that the oath, "To present the Truth, the whole Truth, and nothing but the Truth," on the basis of diligent inquiry, was deemed self-explanatory. Dalton's famous Coun -

try Justice , an extremely popular work read by many generations of English and Americans, describes grand jury proceedings as a trial , rather than as an accusation, nothing that, in matters of crime, the English "passed a double jury." For Dalton, indictment was "as much found to be true" by grand juries as by petty juries.^[19]

The greatest legal authority of this period, Sir Edward Coke, had relatively little to say about indictments, although what he did say was to be widely quoted in the 1680s, when the issue of evidentiary standards had become controversial. In a comment concerning the reign of Edward I, Coke noted that "in those days (as yet it ought to be) indictments, taken in the absence of the party, were formed upon plain and direct proof, and not upon probabilities or inferences."^[20] This reference to cases in which the accused were absent attracted little notice or comment for several decades. Indeed, there is little to suggest that Coke or his contemporaries considered grand juries to be a problem.