The Cases of Stephen Colledge and the Earl of Shaftesbury

In 1681 the appropriate standard for grand jurors became a major political issue. The first case to attract nationwide attention was that of Stephen Colledge, "the Protestant joiner," accused of treason in July 1681 for participation in an alleged Protestant plot against the Crown. After the Whig-dominated London grand jury considered the matter and returned the indictment ignoramus , Colledge was indicted by an equally partisan Tory Oxford panel. The testimony of one Crown witness favored Colledge and that of six others did not. Argument centered on whether the grand jury necessarily must believe the six or might weigh their credibility, or whether the grand jury had merely expressed its political preferences. These issues were widely discussed in London and were explored in pamphlet and broadside.

A Modest Vindication , for example, asserted that the grand jury must judge the "Credit and Validity of the Evidence" and give more credit to one Protestant than to half a dozen "Church Papists, or Masquerading Protestants," who might well have been hired by the Pope, the Devil, or their agents, the Jesuits.^[50] The Letter of the

Grand Jury of Oxford to the Grand Jury of London in turn criticized the London grand jury for its eagerness to indict in the Popish Plot trials, and insisted that "we do really believe in our Consciences," that treasonable words were spoken, and that there were Protestant as well as Popish traitors.^[51]

In a companion case against John Rouse, the court did not wish to allow the London grand jurors to consult privately. There followed a long debate on the customs and privileges of grand jurors and, most particularly, on whether the practice of the day required secret or public examination of witnesses.^[52] The jurors eventually agreed to hear the witnesses in open court, but insisted on a "long and tedious Examination," and then spent three hours in private conference. When questioned about their ignoramus finding, they insisted "that they were satisfied in their consciences of what they had done, and further added, that they could not believe what the witness had Sworn."^[53]

In these skirmishes, preliminary to the Shaftesbury case, the high "satisfied conscience" standard had been invoked, indeed invoked by both sides, and there had been considerable agreement on the duty of the grand jury to evaluate the credibility of witnesses.

Soon afterward, Anthony Ashley Cooper, first Earl of Shaftesbury, the most prominent Whig opponent of royal policy, was charged with treason. Recently removed from the seat of power, Shaftesbury had spent some weeks in the Tower of London before being brought before the grand jury of Middlesex, a body expected to be favorable to the Whig leader. Lord Chief Justice Pemberton, who was anything but sympathetic to Shaftesbury and the Whigs, and must have anticipated a stubborn partiality, took a good deal of time and effort to acquaint the grand jury with "the nature of these bills." Indeed, Pemberton's partisan comments were virtually the sole judicial analysis of the grand jury for well over a century. Grand jurymen were to consider "upon what evidence you shall have given to you, there be any reason or ground for the King to call these persons to an account, if there be probable ground, it is as much as you are to enquire into: you are not to judge the persons."^[54] While they were not to indict where there is "no colour nor ground of it: where there is no kind of suspicion of a crime, nor reason to believe that the things can be proved," yet "any rea-

son or ground" was enough. They were to "enquire, whether that what you hear be any cause or reason for the King to put the party to answer it." They were obviously not to inquire as strictly as the trial jury. "A probable cause or some ground . . . is enough, for you to find a bill."^[55] Indictment thus required relatively little evidence and little mental conviction or belief on the part of those listening to the evidence—and certainly not the full satisfaction of conscience claimed necessary by some in the wake of the Colledge trial.

Acting in an extremely partisan fashion, Pemberton supported the request of the King's Counsel that evidence be given publicly. The equally partisan grand jury, four members of which had been Whig members of the Exclusion Parliament, insisted, albeit unsuccessfully, that it be permitted to follow the traditional mode of private and secret examination. Pemberton also informed the grand jury that it was not to concern itself with the credibility of the witnesses. Witnesses were " prima facie credible, unless you of your own knowledge know the contrary." Credibility, he argued, could not be questioned because the king was not present to defend the credit of his witnesses, and because "all men are intended credible till there are objections against them, and till their credits come to be examined." Mr. Papillon, a sophisticated Whig grand juror, did not accept this view, and asked whether the judge "doth not think that we are within the compass of our own understanding and conscience to give our judgement?" Papillon insisted that if the jurors could not consider the credibility of the witnesses, they could "not satisfy their conscience."^[56]

Papillon thus invoked the standard of "satisfied conscience," which by the later seventeenth century had become the accepted standard for petty juries. Pemberton, nevertheless, insisted that the grand jury was to hear "only evidence against the prisoner; therefore, for you to enter into proofs, or expect any here, concerning the credit of the witness, it is impossible for you to do justice at that rate."^[57] The grand jury, however, returned an ignoramus , to the pleasure and shouting of the London crowd.

We must not assume that the Whig position was completely unrepresented on the bench. Lord Commissioner Keble, if only in passing, noted that no life was taken under the English system of justice unless two separate juries were satisfied that the accused

was guilty.^[58] He assumes that the degree of mental satisfaction was the same for both grand and petty juries.

Despite the Whig victory in the Shaftesbury case, the legal issue was far from settled. It remained unclear how the grand jury, which heard only evidence for the prosecution, might arrive at a "satisfied conscience" or present the "truth" required by the oath. This was particularly perplexing if grand juries were not permitted to assess the credibility of the witnesses' testimony and were to reach decisions merely on the basis of "any reason or ground" and/or "probable cause."

If the ignoramus in the Shaftesbury case halted the judicial attack on the Whigs, it also brought the question of evidentiary elements in grand jury proceedings directly before the public. Several influential tracts appeared that argued against the probability standard propounded by Babington, Hale, and Pemberton and that emphasized instead the "truth" requirements of the juryman's oath and the need for a "satisfied conscience."

One of the tracts, Ignoramus Vindicated , consists of a dialogue in which "Indifference" explains to "Prejudice" the error of his ways. Prejudice complains of "the Ignoramus men, that refuse sometimes to find Bills, though there be Positive Oaths before them." He is soon taught, however, that "Positive Oaths are not always true Evidence " and that the grand jurymen in question were neither dishonest nor such "Ignoramus fellows as you take them for," but rather "Persons that have . . . due regard" for their duty and office. Positive proof or testimony itself was not necessarily good evidence, for the jurors themselves were "Judges of the Evidence." If they were not judges of the evidence, then they were "just nothing" and had no function at all. Grand jurors must be fact evaluators. If they have "good and sufficient Grounds, not to believe" those who testify, they must record an ignoramus , "because there comes no credible proof to satisfy them."^[59]

The author invoked the distinction between legal and credible witnesses. He emphasized the role of grand jury inquiry. If the grand jury determined that prosecution originated in malice, then it was obliged to find an ignoramus verdict. Malice, of course, could not be determined unless those who testified were "strictly" examined. Referring directly to the Shaftesbury and Rouse cases, the author noted that grand jurymen were "being forced (as of late),

for I know no ancient precedents for it to hear and Examine Evidence in Court" rather than in private. He objected vehemently to this departure from tradition because secrecy was essential to prevent exposure of individuals before a proper trial.^[60]

Jurymen were "upon their Oaths, and ought to follow the Dictates of their own belief and Understanding." It thus went without saying that the "court should not meddle or interrupt" because it was "bound by Verdict, not by the Evidence."^[61] It was impossible for the Court even to know whether or not "a Jury goes contrary to Evidence." The pamphlet made good use of Bushel's case, which determined that juries could not be punished for their verdict. Vaughan had carefully distinguished between the evidence of witnesses and the jury's verdict: "A Witness swears but to what he hath heard or seen, generally or more largely, to what hath fallen under his sense: But a Juryman swears to what he can infer and conclude from the Testimony of such Witnesses, by the Act and Force of his Understanding."^[62] The reasoning faculties must, therefore, be applied to the evidence put before it. The "Act and Force" of the jurors' understanding must evaluate, "infer and conclude." Their intellectual processes must be employed in order to reach a verdict in which they could believe.

The question was then raised as to whether the judge, who after hearing all the same evidence as the jury, should be permitted to direct the verdict or punish the jury for a wrong verdict. Following Chief Justice Vaughan in Bushel's case, the author states that judge and jury might honestly differ about the evidence, much in the same way that two judges might differ.^[63] It was clear that "a man cannot see by another's Eye, nor hear by another's Ear; no more can a Man conclude or infer the things to be resolved, by another's Understanding or Reasoning: And though the Verdict be right that the Jury give, yet they being not assured that it is so from their own Understanding, are forsworne, at least in Foro Conscientiae ."^[64]

Vaughan's argument in Bushel's case was thus applied to grand juries, which, it was asserted, must both inquire diligently and assess the credibility of testimony before reaching their verdicts. This attempt to enlist Vaughan's prescriptions for petty juries in support of the grand jury is the most powerful argument of the pamphlet. When the pamphleteer insists that the grand jurors evaluate credibility on the basis of their own knowledge and under-

standing, and mixes this insistence with invocation of the words "satisfy" and "conscience," all in the context of former discussions of the trial jury, the message is pretty clear. Although it may hear only Crown witnesses and should operate secretly, the grand jury should indict only if it is as persuaded of the guilt of the accused as a trial jury must be to convict.

The most famous and most frequently reprinted pamphlet on grand juries was Sir John Somers's Security of English-Men's Lives . Reprinted six times in England between 1681 and 1771 and printed in the American colonies in 1720 and 1773, this Whig response to the Shaftesbury trial transcended its immediate political origins and became a classic Whig statement of political freedom. Somers works his way through a number of themes that will be frequently repeated by others: Recent judicial action threatens to render grand jurors "the basest vassals to the judges." The independent grand jury is the linchpin of the entire criminal justice system. It brings offenders to justice and protects the innocent from false accusation, guaranteeing the traditional rights of Englishmen, particularly their political rights in relation to the Crown. And then the partisan note: the grand jury protects honest men from the "Forgeries, Perjuries, [and] Subordinations" of "our Popish faction." The grand jury joins Parliament as a Whig counterweight to the arbitrary power of the monarch and his judges. Its true functions must not be eroded by Crown lawyers and judges who seek to dominate it.^[65]

Integral to this stance is a fully articulated standard of proof for indictment. Basing himself on their oath, and rejecting attempts to interpret away the oath's "known and understood" and "genuine common meaning," Somers insists that the grand jurors "enquire diligently after the Truth of everything." He notes that "many have of late" claimed that "the grand jury is neither to make so strict enquiry . . . nor to look for so clear Evidence of the Crime as the Petty Jury." The notion that they might indict "Upon a Superficial Enquiry, and bare Probabilities" was extremely dangerous because it would "be equal to the total laying aside of Grand Juries." The probability standard would obliterate any difference between arraignment without presentment and presenting on "slight grounds." Somers explained that "probable" was a logical term, meaning the "appearance but no certainty of truth." "Probability" might be appropriate to rhetoric which "worketh up the passions,"

but it had no place where the "Object is Truth." It was thus wrong to admit of propositions "as may be false as well as true." The rules to be followed were those which were "least liable to Deception." Probabilities must be "banished from uncorrupted Tribunals as a hindrance to the discovery of Truth."^[66] Rhetoric, ever since its inception in ancient Greece, has been associated with probability and contrasted with the truth sought by philosophers. Somers's statements suggest not only something about late seventeenth-century attitudes toward rhetoric but also something about the erosion of traditional concepts of probability and certainty, the latter of which was associated with truth.

One of the chief dangers of the probability standard was "the degree of probability" required to find a bill of indictment. Because it was impossible to fix that degree, decisions would inevitably depend on the "Fancies" of men. The innocent would thus be "brought into danger." If the term "probability" was taken according to common usage rather than its meaning in traditional logic, that is, "no more likely, or rather likely than unlikely," then the situation was just as bad. For this situation, Somers insisted, was like a wager, and wagers were obviously inappropriate to a court of justice. He therefore explicitly rejected the view presented in the Grand Jury-man's Oath of the previous year that "only a Verisimilar or probable charge" would do or that far less evidence was required by grand jurors than petty jurors.^[67] Thus Somers and the Whig author of Ignoramus Vindicated had moved beyond the position taken in the Grand Jury-man's Oath .

Following the language and categories of the philosophers of the day, Somers noted that if grand juries could not expect "infallible mathematical demonstration," the highest standard of certainty, then conscientious grand juries "often find that which in their consciences doth fully persuade them, that the accused Person is guilty." Full persuasion, he assured his reader, did not mean that the bill they swore to was necessarily true, but "that they believe that it is so." They must be "fully convinced." "Full persuasion," "belief," "fully convinced," and the "satisfied conscience" were the standards which, for Somers, must replace the pernicious "probability." "Suspicion and probable Causes" must not be permitted to "bring any men's life and estate into danger."^[68] These presumably laxer standards for arrest and search warrants were inappropriate for grand juries.

It should be noted that Somers, although conversant with the philosophical terminology of his day, was still writing in the pre-Lockean era. John Locke's Essay Concerning Human Understanding , published several years later in 1690, gave a new clarity to the concept of probability. According to Locke, an extremely close associate of Shaftesbury, no statement or conclusion based on human testimony could ever reach any higher than probability. Locke and his followers saw that courts could only deal in probabilities, so issues of degree of probability were crucial. According to a Lockean perspective, "satisfied conscience," "moral certainty," and "beyond reasonable doubt" remained in the realm of the probable. Their probability, however, was much higher than those engendered by notions of "probable cause," "suspicion," or general statements of probability. Somers uses the term in the more traditional pre-Lockean sense, meaning verisimilar, likely, or possible, and associates it with "suspicion and probable cause."

In a sense then, the debaters of the late seventeenth century are talking past one another. Somers attacks a traditional "probability" standard defined as mere opinion unsubjected to critical examination, while those who espouse the probability standard are beginning to define it as that level of truth arrived at in the empirical realm through critical inquiry. At a purely epistemological level, and leaving aside the real partisan conflict over institutional processes and powers, a late seventeenth-century "seer" might have propounded for the grand jury a standard based on the "new probability" on which Somers, and those he perceived as his opponents, could have agreed. Such a standard would have specified that a grand jury ought to indict on the basis of a critical examination of the evidence, which would produce a level of probable knowledge that could be distinguished from mere opinion—but not a level of probable knowledge so high as to produce a satisfied conscience or moral certainty of the guilt of the accused. Both out of ignorance and partisan convenience, Somers constructs an epistemological world with only two choices: opinion, which he labels probability, and truth. Faced with such a choice, truth must be the grand jury standard, and the grand jury must be pushed all the way over to the functional role of the trial jury.

Thus when Somers comes to specify the very kinds of critical inquiries that the new probability men would have required to establish any degree of probability as distinguished from mere opin-

ion, he necessarily ends up with a mode of inquiry that is nearly identical to that prescribed for the trial jury. "Diligent enquiry" was essential to reach "full persuasion" and "belief." That diligent inquiry included consideration of all the circumstances surrounding the crime, the motives of accusers, the credibility of statements and confessions, and the character of witnesses. Grand jurors must not permit witnesses to make "probable arguments, and from thence infer" guilt. Testimony must be "positive, plain, direct, and full" and "free from all blemish." Indeed, "absolute certainty" was required of their depositions for that was the "one principal ground of the Juries most rational assurance of the Truth of their Verdict." For Somers, "rational assurance" was the proper basis of a grand jury verdict.^[69]

The grand jury, he argued, "ought to be ignorant of nothing whereof they enquire, or to be informed, that may in their Understandings enable them to make true Presentment or Indictment." Indeed, in treason cases, they must listen to anyone who could present truth. Although Somers does not explicitly say that grand jurors hear the accused or his witnesses, his position seems to suggest dissatisfaction with the long-standing procedure that only the prosecution and prosecution witnesses be heard at this stage.^[70]

Given all this, it is natural that Somers sees himself as combating twin "vulgar errors," which, if not corrected, would "in time destroy all benefit" from the "Constitution." The first error is the probability standard. The second is the idea that grand juries were to inquire less strictly and might be satisfied with a lower standard of evidence than trial juries. As devices for achieving certain truth, grand juries even had some substantial advantages over petty juries. Not only had they a "larger field" of inquiry and were they "better capacitated" to a more strict inquiry, presumably because of their better education and higher social status, but also they were "obliged to search into the whole matter" that in any way concerns the case. Unlike a petty jury, they could "send for persons, or Papers." If petty juries were limited to hearing the witnesses presented in court, grand juries could "use all the means they can" to understand the truth. The function of the trial juries was thus not to hear "fuller proofs," but to provide the accused an opportunity to make his defense.^[71]

Somers's themes—hostility to judges, rejection of the probability standard, and insistence on active and critical grand jury inquiry—

are also found in Henry Care's immensely popular English Liberties, or The Free-Born Subject's Inheritance .^[72] As its title suggests, it marshalls these themes in a great hymn to the grand jury as defender of rights, particularly of men's reputations, against "Malice, subordination or wicked Designs" practiced by whom the reader easily could guess. Like Somers, Care ends up with a grand jury whose standards of proof and style of inquiry are difficult to differentiate from those of the trial jury.

While no one would dispute the Whig bias of Somers and Care, it has not been recognized that several late seventeenth- and early eighteenth-century grand jury guides were also party documents, not impartial or semiofficial descriptions of current practice. The first of these, the anonymous Guide to English Juries, Setting forth Their Power and Antiquity by a Person of Quality , was perhaps the most influential.^[73] It was first published in 1682 in the wake of the Colledge and Shaftesbury proceedings and was reprinted in 1689, 1699, and 1702. Large portions of it were reprinted again in a late eighteenth-century American edition of Somers's Security of English-Men's Lives . Its association with Somers and its recommendations of Care's English Liberties are clues to its partisan character.

The Guide to English Juries concentrated on three themes. The first was an instruction to the grand jurors to be extremely critical of the particulars contained in the bill of indictment, because clerks of the court and prosecutors, while purporting to present merely a formal accusation, often loaded it against the accused.^[74] The second was a vigorous rejection of the probability standard in favor of a "truth" or satisfied conscience or "beyond all doubt" standard that included assessments of witness credibility.^[75]

The third was a two-trial theme. Although a grand jury proceeding was "no determinate tryal," the author bitterly attacks those who say that "this is no Tryal" but simply a means of bringing an individual to trial, an action in which "the Party is at no prejudice if the Bill be found." He refutes those like Babington and Pemberton who imply that "vera " means "probable or fit for enquiry." Like Somers, the author asserts that criminal cases required "two Tryals." A citation to Dalton that "no less care or concern" lay with "the Grand Jury than does the Petty Jury," suggests the centrality of both institutions.^[76]

While the author of the Guide to English Juries recognized that

it was current practice, backed by precedent, to hear only the prosecution, he suggests that the consequence of this practice resulted in violations of truth and justice. Grand jurors "ought to hear both Parties, if present, or easily, conveniently to be heard." After all, he argued, the juror's oath required them to present the "whole truth." How could they be satisfied that they had done so unless they "hear both Parties"?^[77]

Thus the Guide to English Juries illustrates dramatically the interplay of epistemology and institutional practice. Once an epistemology of truth is championed for the grand jury, irresistible tension arises between the grand jury's epistemology and its institutional practices, such as hearing only one side of the case. This tension necessarily pushes, and is exploited to push, the institutional role of the grand jury over to a position nearly identical to that of the trial jury.

The Whig position engendered the response that might have been expected. Roger North, the staunchly Tory brother of Francis North, Lord Guilford, a Tory judge, and Dudley North, soon to be Tory sheriff of London, attacked both Whig pamphleteers and the Whig grand jury standard. According to Roger North, the Shaftesbury grand jury had misrepresented the proceedings by willfully refusing to recognize that they were to accuse, not try. An ignoramus might have been an appropriate response had they heard only one witness rather than the two required by law, had the testimony been unrelated to the matter charged, or had they felt the accusations to be "frivolous or Nonsense." If, however, "the Testimony be lawful and full," as North thought it had been, the proper result "could only be a Billa Vera ." For the grand jury "to grow up, as they pretended, from . . . Informer, to Triers of the Fact, is contrary to Law, . . . they are not to return to the Court, their private Opinion, as the Triers do that when they say not Guilty; but they return . . . their Information only, which being legal, is, to all the Intents of Inquest, vera ."^[78]

Another hostile Tory critic also denounced the position of the Middlesex grand jury and the Whig standard in Billa Vera: or the Arraignment of Ignoramus . He began by turning the satisfied conscience standard on its head. If Shaftesbury's jury were not satisfied having before them sufficient and more than probable grounds for an Accusation, why did they not submit the whole business to "a

stricter Examination and the Prisoner to a Legal Trial?" He was prepared to follow the Whig writers, who insisted that under their oath grand jurors "follow Truth and Justice as far as the best of their Understandings can carry them," but he took a quite different position on how those understandings might be directed. They were to be directed: "(1) either by Public Fame; or (2) by the Notoriety of the Fact; (3) or by ocular inspection and personal knowledge; or else (4) by the Information of credible Witnesses."^[79]

The author of Billa Vera readily admitted that individuals of integrity might be accused unjustifiably by the malicious and that such indictments were "deservedly disowned and thrown out." He announces the Tory standard for indictment in the form of a rhetorical question about the Shaftesbury bill. "Was there no Colour , no probable ground, no sufficient matter for an Accusation?" The grand jury should bring in a billa vera "where they find a probable ground for Accusation."^[80]

The author at one point appears to set the standard even lower than "probable ground." Where the king was personally concerned in an indictment, "severer Examination" was required. In such cases inquiry into the accused's "manners, . . . the tenour of his Conversation; what Principles he has own'd; . . . what Party he has espoused, what Speeches he has utter'd, . . . Upon such Inquisition it will be easie to resolve, and with moral certainty , whether the Party is to be suspected liable to such an Accusation brought against him."^[81]

The grand jury must investigate the character and reputation of the accused and the circumstances of his life to determine whether suspicion was legitimate. The author thus employed something like the Romano-canon indicia as a means of determining whether "suspicion" was appropriate. These criteria had been included in Dalton's handbook for the justice of the peace in examining accused persons and frequently had appearanced in late seventeenth- and eighteenth-century justice of the peace handbooks in a special category labeled "suspicion."

This pamphlet departed from Judge Pemberton's earlier position and did condone grand jury consideration of witness credibility, but only grudgingly, because such matters "were more properly done upon the Trial." Grand jurors, moreover, were "obliged to weigh and ponder" and exercise "a Judgment of Discretion." Set against

this acknowledgment that grand juries must be guided by their conscience, which had a "judicature set up in it," is the conclusion that "No loyal stomach" could digest the accused's escape without trial, especially in those cases which concerned the king.^[82]

There is no question, of course, about who suffered from a disloyal stomach. If the pattern of the Shaftesbury proceedings were continued, no one would ever be accused "that be of such a Faction, tho never so guilty: None will be safe that are against it, though never so Innocent. And then what will become of our English Libertye." Whigs were not to be permitted a monopoly on proclaiming the rights of Englishmen. Indeed, should grand juries continue to move "out of their own proper sphear" and engage in "fawning Popularity" and "execrable Partiality," as had the Shaftesbury jury, they not only risked the same impeachment as would a corrupt judge, but also the lives, property, and privileges of Magna Carta would be lost by the loyal and become the "Monopoly of Traitors and Dissenters."^[83]

This tract, then, was far more sensitive to the needs of the government than those of the Whigs, but did not take the extreme position of Pemberton. If the author did not wish to make indictment difficult, particularly in cases involving the Crown, he does not deny that grand jurors might weigh the credibility of the witnesses. It is nevertheless evident that his position on the criteria for grand jury verdicts was to a large extent a product of the intense political conflict of the last years of the reign of Charles II.^[84]

The intensity of the political conflict over the Shaftesbury case insured that the debate over grand jury standards would move beyond legal circles into more general public discourse. Writing not long after the trial, the Whig historian Gilbert Burnet admitted that grand juries had generally found bills "upon a slight and probable evidence," but went on to state the Whig case that the grand jury's oath and the "reason of law seemed to oblige them to make no presentments but such they believe to be true."^[85] An age increasingly committed to precise standards of inquiry was not likely to find indictments based on "slight and probable" evidence to be satisfactory, regardless of prevailing practice.

The controversy over the appropriate criteria for grand jury decisions also became the subject of political verse and satire. John Dryden's famous vilification of Shaftesbury was part of the govern-

ment's propaganda campaign, Absalom and Achitophel being timed to appear shortly before the Shaftesbury grand jury met. The Medal , another Dryden attack on Shaftesbury, for whom a medal was struck upon his release, was in turn answered by Thomas Shadwell's Medal of John Bayes .^[86] Shadwell's dedicatory letter suggests just how well known the new Whig standards for grand juries had become: "If you look upon the oath . . . ye will find that the meaning of these two words Billa Vera is [that] they do believe the matter of the bill in their consciences to be true. . . . The law provides that in capital cases a man shall not be wrongfull accused, and therefore appoints two juries, both [of] which are bound to find according to their beliefs."^[87] The evidentiary standard of satisfied belief, or satisfied conscience, which had emerged out of bitter partisan struggle, directly challenged the probability standard, which was increasingly associated with a "Tory," or at least a governmental, position.

The defense of grand jury independence and the satisfied conscience standard thus had political implications from the outset. It was widely argued that grand jury proceedings and the jury trial were special institutions that had historically protected the English from the arbitrary and "illegal" actions of government. Although the English legal system and trial by jury were praised in comparison with their Continental neighbors from at least the time of Fortescue, it was felt in certain circles that judges were part of the authority of the Crown and might not always provide sufficient protection for individual rights and liberties. Throughout the seventeenth century, the judiciary, appointed by the king and removable at his pleasure, was expected to support government policy. There should be no surprise, then, that the attack on Charles I and the civil war which followed were accompanied by virulent attacks on the judiciary.^[88]

Although the judiciary of Charles II and James II was not as subservient as sometimes supposed,^[89] it was expected that judges would support the Crown against allegedly treasonous activities. Those who felt most strongly that the Crown was prosecuting innocent victims or infringing on the rights and privileges of individuals thus tended to criticize the judiciary and to emphasize the importance of juries and grand juries as bulwarks of liberty against arbitrary or potentially arbitrary governments^[90] and as one

of the few independent, local, popular institutions. That late seventeenth-century grand juries were increasingly filled with justices of the peace made that claim even more plausible to an essentially aristocratic society. Moreover, justices of the peace had become more and more engaged in party politics,^[91] and so the grand jury increasingly was seen as a bulwark not only of individual liberties but also of opposition politics. As a result, the grand jury waxed and waned in public attention with changes in party fortunes.

The grand jury issue lapsed into quiescence after the collapse of the Whigs, and relatively little was heard about it from 1683 to 1689.^[92] The revolutionary events of 1688–1689 led to a minor renewal in interest. The post-revolutionary decades were significant more for reprinting the 1681–1682 pamphlets than for the production of new works or new formulations. There were, however, a few important exceptions. Earlier I noted the 1682 Whig Guide to English Juries , which was reprinted in 1689, 1699, and 1702. This guide was challenged in 1703 by Sir James Astry's A General Charge to all Grand Juries , prepared both for justices of the peace and for freeholders who might be called to jury service. Astry's guide rejects the Whig position and explicitly supports that of Babington.^[93] Astry insists that a billa vera was required "in case they find upon the Evidence any probability," and that grand jurors were simply inquisitors for the Crown, not triers of the offense. He reiterates Babington's discussion of the meaning of the grand jurymen's oath. If the oath were to be understood in the ordinary, "plain, Literal and Grammatical Sense," rather than in the "legal sense, and according to the Common Practice of the legal proceedings in these Cases, . . . I must confess I am to be instructed how any Grand Juror (that hears but one side) can satisfy his Conscience" that what emerged from the grand jury proceedings contained, "the Truth, the whole truth and nothing but the truth." This tension between a satisfied conscience standard and the admittedly lower standard of probability that seemed to follow inevitably from hearing only one side of the case was as troubling to Astry as it had been to Babington. Both solved the problem by a nonliteral, "legal" interpretation of the words of the oath and by reference to past practice. Astry, however, does employ the satisfied conscience standard, which he tries unsuccessfully to reconcile

with the probability standard. Astry is very clear, however, that proceedings must be secret, suggesting that later Tory spokesmen did not follow the lead of the judges in the Shaftesbury and Rouse cases.^[94]

A juxtaposition of the two grand jury handbooks illustrates rather neatly how Whig and Tory views marched on in opposition to one another after the Revolution of 1688. The most influential statement of the post-revolutionary decade, however, was a very brief one contained in Sir John Hawles's vindication of various Whig martyrs. His Remarks upon the Trial of Fitzharris ,^[95] which attempted to set the legal record of the 1680s in proper Whig perspective, borrowed heavily from Somers's Security of English-Men's Lives . The prominence of Hawles's statements was assured because they were included in the published State Trials , a series of volumes that was frequently cited and studied on both sides of the Atlantic. Hawles, rather than Somers, became the most frequently cited proponent of the satisfied belief standard and enemy of the probability standard.

Hawles, like Somers and Burnet, suggested that "Of late days," it was being said that the duty of the grand jury was to find "Whether the Accusation is Probable." "That saying," he insisted, was warranted neither by "positive Law, or ancient authority." No one should even be questioned by the king on a capital matter unless a grand jury swears "that they believe the matter of the accusation to be true." They must, on the basis of their own knowledge or the evidence given them "verily believe the accusation is true." "Probabilities" could not "satisfy the Jury."^[96]

As one might expect, Hawles emphasized the literal meaning of the grand juryman's oath to tell the truth and used the language of two trials. Like Somers, he outlined the grand jury's advantage over the petty jury, noting it would make no sense to have the "more substantial and Understanding Men" of the grand jury serve if their business were a "mere formality."^[97] Hawles's brief, unoriginal comments might well have slipped into oblivion had they not been included in the published State Trials and then been rendered authoritative by incorporation into the remarks of the editor of Sir Matthew Hale's History of the Pleas of the Crown (1736), which I shall examine shortly.

Hawles's, however, was not the sole 1689 critique of the Shaftes-

bury proceedings. The revolutionary decade witnessed a number of works which referred back to the treason trials of the previous decade.^[98] In comparing the late seventeenth-century discussion with that of the earlier period, what is striking is the change in the terms of discourse. Not only has the political element been enormously heightened but so has the evidentiary terminology. Concepts of "probability" have largely replaced those of "common fame" and "suspicion."