1. Naomi Hurnard not only attempted to trace a tradition of communal accusation throughout the later Saxon and Norman periods, but also suggested that compurgation, rather than the ordeal, was the rule when communal accusation was based solely on circumstantial evidence. Naomi Hurnard, "The Jury of Presentment and the Assizes of Clarendon," English Historical Review 61 (1941): 371-410.

2. It has recently been suggested that early presentment juries were even more concerned with evidentiary matters than Hurnard thought. Roger Groot finds that early presentment juries did more than merely submit those suspected to the ordeal. He believes that they gave their opinion of the accuracy of the accusation and only those they thought truly accused were sent to the ordeal. Roger D. Groot, "The Jury of Presentment before 1215," American Journal of Legal History 26 (1982): 1-24.

3. For parallels between canon law and early grand jury procedures see R. H. Helmholz, "The Early History of the Grand Jury and the Canon Law," University of Chicago Law Review 50 (1983): 613-627.

4. Groot, "Jury of Presentment," 21.

5. Raoul C. Van Caenegem, rejecting Hurnard's contention of a continued existence from Anglo-Saxon times, emphasizes the example of the ecclesiastical courts and Norman institutions as central in the institution of public prosecution of crime as well as in the role of the Crown. "Public Prosecution of Crime in Twelfth-Century England," in Church and Government in the Middle Ages , ed. C. N. L. Brooke et al. (Cambridge, 1976), continue

41-76. See also J. W. Baldwin, "The Intellectual Preparation for the Canon of 1215 against Ordeals," Speculum 36 (1961): 613-663.

6. Groot, "Jury of Presentment," 4, citing Glanvill, The Treatise on the Laws and Customs of the Realm of England Commonly called Glanvill , ed. D. D. G. Hall (1965), 174, 175.

7. In practice this meant reporting community suspicion and rumor. But they also appeared to have evaluated the accusation. Before the accused underwent the ordeal, the jurors personally had to suspect the accused. Thus a good man suspected by the community rarely faced the ordeal. In most cases analyzed by Groot, the jurors' opinion of the guilt of the accused can be distinguished textually from the accusation. Groot calls this "an adjudicatory act," and suggests that the verdict of suspected or not suspected was in many respects equivalent to guilty or not guilty, even though the decision was at this stage self-informing—not weighing testimony. He has called this a "medial," rather than "final," decision in that those suspected would still be required to make their proof by ordeal. Groot, "Jury of Presentment," 6, 11, 23, 23n, 24.

8. Roger Groot, "The Early Thirteenth-Century Criminal Jury," in Twelve Good Men and True: The Criminal Trial Jury in England, 1200-1800 , ed. J. S. Cockburn and Thomas A. Green (Princeton, 1988), 8, 22.

9. Richard Helmholz suggests that the prosecution of offenders on the basis of "public fame" was borrowed by the Assize of Clarendon from the ecclesiastical courts. Helmholz, "The Early History of the Grand Jury and the Canon Law," 620, 624. See also Richard Wunderli's discussion of ill fame as a basis for prosecution in fifteenth-century ecclesiastical courts. "London Church Courts and Society on the Eve of the Reformation," Speculum , Anniversary Monographs, no. 7 (Cambridge, Mass., 1981): 31-32, 40.

10. Thomas A. Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200-1800 , (Chicago, 1985), 22, 25-26; R. B. Pugh, "Some Reflections of a Medieval Criminologist," Proceedings of the British Academy 59 (1973): 83-104.

11. John Langbein has suggested that as local magistrates undertook a more active prosecutorial role, they "sealed the fate of the jury of accusation." The task of gathering and assessing information and suspicion, crucial to deciding whether or not a trial would take place, had passed to the justices of the peace by the later sixteenth century and had insured the passivity of both grand and petty juries. Grand juries were, he argues, thus reduced to largely ceremonial functions. John Langbein, Prosecuting Crime in the Renaissance: England, Germany, France (Cambridge, Mass., 1974), 119, 120, 127, 127n. break

If Langbein is correct, there would be little reason to concern oneself with the evidentiary standard of the grand jury. Why would one bother to investigate an institution of so little importance? First, its ideological status alone suggests that its study cannot be ignored. In addition, Thomas Green's investigation of trial jury discretion suggests that grand juries were unlikely to have become entirely passive instruments. Petty juries carefully exercised discretionary and nullification powers to insure results that seemed reasonable, particularly in cases involving life and death. Early modern trial juries frequently undervalued stolen goods to avoid inflicting the death penalty and distinguished between intentional homicide and manslaughter. Green, Verdict According to Conscience , 13, 144.

J. S. Cockburn, too, believes that grand juries had become largely ceremonial and rarely returned ignoramus verdicts. He, however, found that committing magistrates were often not present at the assizes, and thus could not have played an active prosecutorial role. J. S. Cockburn, A History of English Assizes, 1558-1714 (Cambridge, 1972), 73-75, 77-79.

If petty jurors, usually of lower social status than grand jurors, exercised discretion in the presence of judges of considerably higher social standing and status, it seems unlikely that grand jurors, typically chosen from the more respected and powerful members of the community, would adopt a passive stance toward justices of the peace who were typically their social equals. For the social composition of sixteenth- and seventeenth-century grand and petty juries, see P.G. Lawson, "Lawless Juries? The Composition and Behavior of Hertfordshire Juries, 1573-1624," in Twelve Good Men , ed. Cockburn and Green, 122, 123, 124, 127, 130. Lawson rejects the notion that grand juries were passive (139, 140). See also Stephen Roberts, "Jurors and the Middling Sort: Recruitment and Performance at Devon Quarter Sessions, 1649-1670," in Twelve Good Men , 185, 188-189, 190.

Recent research suggests that the grand jury continued to be an important part both of the system of criminal justice and of local regulation. Cynthia Herrup's study of seventeenth-century Sussex indictments reveals that 25 percent of suspicions brought to the grand juries were rejected. She concludes that the comment in the early eighteenth-century A Guide to Grand Juries (prominently cited by Langbein) that states that the endorsement of private accusations were "a matter of course, a ceremony of matter of form," did not apply to grand juries she studied. See Cynthia Herrup, "The Common Peace: Legal Structure and Legal Substance in East Sussex, 1594-1640" (Diss., Northwestern University, 1982), 3. See also Herrup, The Common Peace: Participation and the Criminal Law in Seventeenth-Century England (Cambridge, 1987). The continue

Guide was a polemical work, and, thus, should not be taken as clear evidence of contemporary practice. Herrup's study indicates that grand jurors continued to play a significant role in the criminal process.

Aggressive investigation is also suggested by J. S. Morrill's study of mid-seventeenth-century Cheshire grand juries. Morrill, like Herrup, rejects the view that seventeenth-century grand juries were subservient, ignorant, and conservative. See The Cheshire Grand Jury, 1630-1660: Government and Society during the English Revolution (Oxford, 1974), 21, 45. S. K. Roberts's study, which like Morrill's was concerned primarily with presentments and local administration, also suggests an active, inquiring body. Bills of indictment were quite likely to be rejected by the grand jury. See S. K. Roberts, "Initiative and Control: The Devon Quarter Sessions Grand Jury, 1649-1670," Bulletin of the Institute for Historical Research 57 (November, 1984): 167. See also Stephen Roberts, "Jurors and the Middling Sort," 189-190, 193. J. A. Sharpe's study of the Essex assize and quarter session records of 1620-1680 also indicates that grand juries often refused to indict on a wide range of criminal charges. See "Enforcing the Law in the Seventeenth-Century Village," in Crime and the Law: The Social History of Crime in Western Europe Since 1500 , ed. V. Gatrell et al. (London, 1980), 94-97, 108, 117, 118. Somerset grand juries found many bills ignoramus . Thomas Barnes, Somerset Assize Orders, 1629-1640 , Somerset Record Society 65 (London, 1959): xix. See also Alan Macfarlane and Sarah Harrison, The Justice and the Mare's Ale: Law and Disorder in Seventeenth-Century England (Cambridge, 1981), 99-100; J. S. Cockburn, "Trial by the Book? Fact and Theory in Criminal Process, 1558-1625," in Legal Records and the Historian , ed. J. H. Baker (London, 1978), 71. Francis Snyder, who has studied eighteenth-century criminal prosecution, rejects the view that justices of the peace had become public prosecutors. See "Using the Criminal Law, 1750-1850," in Policing and Prosecution in Britain, 1750-1850 , ed. Douglas Hay and Francis Snyder (Oxford, 1989), 24-25.

12. William Lambarde and Local Government: His "Ephemeris" and Twenty-Nine Charges to Juries and Commissions , ed. Conyers Read (Ithaca, 1962), 59, 120.

13. H. Bracton, On the Laws and Customs of England , trans. and ed. S. E. Thorne, 4 vols. (Cambridge, Mass., 1968), 2: 403. Suspicion was thus distinct from rumor. It was "not a vague notion but arose when rumour originates among good and responsible men. As also from a precedent act, which must stand until the contrary is proved."

14. Herrup, "The Common Peace," 5. See also Herrup, "New Shoes and Mutton Pies: Investigative Responses to Theft in Seventeenth-Century East Sussex," The Historical Journal 27 (1984): 811-830. break

15. Ibid., 6, 10-12. They were wary about accusations which might have been motivated by revenge. Although technically they were only to hear evidence for the prosecution, they might hear evidence for the defense if countercharges had been presented by the accused.

14. Herrup, "The Common Peace," 5. See also Herrup, "New Shoes and Mutton Pies: Investigative Responses to Theft in Seventeenth-Century East Sussex," The Historical Journal 27 (1984): 811-830. break

15. Ibid., 6, 10-12. They were wary about accusations which might have been motivated by revenge. Although technically they were only to hear evidence for the prosecution, they might hear evidence for the defense if countercharges had been presented by the accused.

16. The grounds for suspicion in cases of felonies and murder are laid out in Richard Crompton's 1606 enlargement of Anthony Fitzherbert's L'office et auctoritie de justices de peace (London, 1606), 98-101. Fitzherbert was published originally in law French in 1538. There were many English editions. Crompton's enlarged editions were frequently printed. Stanford, citing legislation of Henry VIII, uses the language of "vehement suspicion" (London, 1560), 89.

The widely distributed handbooks prepared for the justice of the peace yield remarkably little information. Though they typically contain sections on indictment, they offer little guidance on how grand jurors' decisions should be formed. William Lambarde's Eirenarcha, or Of the Office of the Justice of the Peace (London, 1581) suggests little more than that the indictment consists of finding a bill of accusation to be true. Crompton's L'office , which contains considerable material on grand jury charges and exhortations, does not deal with evidentiary matters.

John Cowell's Interpreter (London, 1607) merely notes that an ignoramus was appropriate when grand jurors "mislike their evidence, as defective or too weak to make good the presentment" (7). William Fulbecke, comparing legal words in the common and the civil law, indicates the term accusatio was equivalent to a presentment. William Fulbecke, A Direction or Preparative to the Study of the Law , 1600 ed. (London, 1620), 72.

17. Conrad Russell, Parliaments and English Politics, 1621-1629 (Oxford, 1979) 177, 177n, 302.

18. Fulbecke, Direction or Preparative , 75-76. These statements also appear in the 1600 ed.

19. Michael Dalton, The Country Justice (London, 1635), chap. 186.

20. Sir Edward Coke, Institutes of the Lawes of England (London, 1628-1644), 3:25. William Sheppard, the leading producer of legal materials in the Civil War and interregnum era, noted, like Cowell, that an ignoramus was appropriate when the grand jury "mislike their evidence as defective or too weak to make good the point." An Epitome of all the Common and Statute Laws (n.p., 1656), 384. No standard is suggested for the billa vera . This volume, which contains a law dictionary, was published at the command of Lord Protector Oliver Cromwell.

21. John Cotta, The Trial of Witchcraft (London, 1616), 80-81. The volume was dedicated to Sir Edward Coke and to the judiciary more generally.

22. Ibid., 85. break

21. John Cotta, The Trial of Witchcraft (London, 1616), 80-81. The volume was dedicated to Sir Edward Coke and to the judiciary more generally.

22. Ibid., 85. break

23. Richard Bernard, Guide to Grand Jurors in Cases of Witchcraft (London, 1627), 25. This book was also dedicated to the legal profession.

24. Ibid.

25. Ibid., 25, 42, 46, 53, 233. See also "A Dialogue Concerning Witches," in The Witchcraft Papers , ed. Peter Haining (London, 1974), 92-107.

23. Richard Bernard, Guide to Grand Jurors in Cases of Witchcraft (London, 1627), 25. This book was also dedicated to the legal profession.

24. Ibid.

25. Ibid., 25, 42, 46, 53, 233. See also "A Dialogue Concerning Witches," in The Witchcraft Papers , ed. Peter Haining (London, 1974), 92-107.

23. Richard Bernard, Guide to Grand Jurors in Cases of Witchcraft (London, 1627), 25. This book was also dedicated to the legal profession.

24. Ibid.

25. Ibid., 25, 42, 46, 53, 233. See also "A Dialogue Concerning Witches," in The Witchcraft Papers , ed. Peter Haining (London, 1974), 92-107.

26. See Donald Veall, The Popular Movement for Law Reform, 1640-1660 (Oxford, 1970); Stuart Prall, The Agitation for Law Reform during the Puritan Revolution (The Hague, 1966); Mary Cotterell, "Interregnum Law Reform: The Hale Commission of 1652," English History Review 83 (1968): 1689-1704; Barbara Shapiro, "Law Reform in Seventeenth-Century England," American Journal of Legal History 19 (1975): 280-312.

27. See Barbara Shapiro, Probability and Certainty in Seventeenth-Century England: A Study of the Relationships between Natural Science, Religion, History, Law and Literature (Princeton, 1983), passim.

28. Institutional changes, too, may have been at work. Before the early modern era, grand juries often relied on presentments from hundred juries in finding indictments. Hundred juries reported the "common fame," or voice of the community's suspicion, and grand juries, therefore, were often determining only whether these were the community's suspicions. As hundred jurors declined, and there does not seem to be clear evidence of when or how this decline occurred, grand jurors were increasingly engaged in evaluating charges by persons they did not know, against persons they did not know, and about events they did not know. They were no longer in a position to know if the charges were validated by common fame. The decline of the hundred jury may thus have played some role in provoking discussion of grand jury standards. I owe this information and insight to Norma Landau.

29. [Sir John Somers], The Security of English-Men's Lives (London, 1681), 17-18.

30. The Diary of John Milward , ed. Caroline Robbins (Cambridge, 1935), 167-168, 170. See also The Peoples Ancient and Just Liberties Asserted (London, 1670), 60; Somers, Security of English-Men's Lives , 18. Kelyng insisted grand jurors limit themselves to matters of fact and not concern themselves with matters of law. This issue was raised because grand jurors changed charges of murder to manslaughter. Diary of John Milward , 169.

31. Diary of John Milward , 169. Thomas Green suggests that Kelyng's treatment of petty juries was an exaggeration of current practice but not an exception to it. Juries and grand juries were attempting to undermine the effect of the Conventicle Act, especially in Quaker cases, and were continue

continuing to reduce murder charges to manslaughter. Green, Verdict According to Conscience , 209, 209n, 248-249.

32. Matthew Hale, The History of the Pleas of the Crown , 1800 ed., 2 vols. (London, 1736), 2: 312.

33. Peoples Ancient and Just Liberties Asserted , 60.

34. Diary of John Milward , xcii, 185, 190-191.

35. For a discussion of Vaughan and of Bushel's case, see Green, Verdict According to Conscience , 200-264; John A. Phillips and Thomas C. Thompson, "Jurors v. Judges in Later Stuart England: The Penn-Mead Trial and 'Bushell's Case'," Law and Inequality: A Journal of Theory and Practice 4 (1986): 189-229; Diary of John Milward , 88-89, 159-160, 162-163, 167-170.

36. Zachary Babington, Advice to Grand Jurors in Cases of Blood (London, 1677).

37. Ibid., Author to the Reader, 4, 79. Grand jurors ought to be permitted to "voice and advance" the charges "to the highest pitch (that by any reasonable presumption) it will bear" (116).

38. Ibid., 115, 118, 119, 130. See also 124. He cites Bracton and Stamford on public fame and "several badges and marks of Suspicion," and noted Bracton's chapter is "well worth the reading" (121). These "marks of suspicion" were included in the justicing handbooks in connection with arrest and pretrial examination.

39. Ibid., 123-124.

40. Ibid., 125-126. See also 63, 106.

41. Ibid., 183. See also 116.

36. Zachary Babington, Advice to Grand Jurors in Cases of Blood (London, 1677).

37. Ibid., Author to the Reader, 4, 79. Grand jurors ought to be permitted to "voice and advance" the charges "to the highest pitch (that by any reasonable presumption) it will bear" (116).

38. Ibid., 115, 118, 119, 130. See also 124. He cites Bracton and Stamford on public fame and "several badges and marks of Suspicion," and noted Bracton's chapter is "well worth the reading" (121). These "marks of suspicion" were included in the justicing handbooks in connection with arrest and pretrial examination.

39. Ibid., 123-124.

40. Ibid., 125-126. See also 63, 106.

41. Ibid., 183. See also 116.

36. Zachary Babington, Advice to Grand Jurors in Cases of Blood (London, 1677).

37. Ibid., Author to the Reader, 4, 79. Grand jurors ought to be permitted to "voice and advance" the charges "to the highest pitch (that by any reasonable presumption) it will bear" (116).

38. Ibid., 115, 118, 119, 130. See also 124. He cites Bracton and Stamford on public fame and "several badges and marks of Suspicion," and noted Bracton's chapter is "well worth the reading" (121). These "marks of suspicion" were included in the justicing handbooks in connection with arrest and pretrial examination.

39. Ibid., 123-124.

40. Ibid., 125-126. See also 63, 106.

41. Ibid., 183. See also 116.

36. Zachary Babington, Advice to Grand Jurors in Cases of Blood (London, 1677).

37. Ibid., Author to the Reader, 4, 79. Grand jurors ought to be permitted to "voice and advance" the charges "to the highest pitch (that by any reasonable presumption) it will bear" (116).

38. Ibid., 115, 118, 119, 130. See also 124. He cites Bracton and Stamford on public fame and "several badges and marks of Suspicion," and noted Bracton's chapter is "well worth the reading" (121). These "marks of suspicion" were included in the justicing handbooks in connection with arrest and pretrial examination.

39. Ibid., 123-124.

40. Ibid., 125-126. See also 63, 106.

41. Ibid., 183. See also 116.

36. Zachary Babington, Advice to Grand Jurors in Cases of Blood (London, 1677).

37. Ibid., Author to the Reader, 4, 79. Grand jurors ought to be permitted to "voice and advance" the charges "to the highest pitch (that by any reasonable presumption) it will bear" (116).

38. Ibid., 115, 118, 119, 130. See also 124. He cites Bracton and Stamford on public fame and "several badges and marks of Suspicion," and noted Bracton's chapter is "well worth the reading" (121). These "marks of suspicion" were included in the justicing handbooks in connection with arrest and pretrial examination.

39. Ibid., 123-124.

40. Ibid., 125-126. See also 63, 106.

41. Ibid., 183. See also 116.

36. Zachary Babington, Advice to Grand Jurors in Cases of Blood (London, 1677).

37. Ibid., Author to the Reader, 4, 79. Grand jurors ought to be permitted to "voice and advance" the charges "to the highest pitch (that by any reasonable presumption) it will bear" (116).

38. Ibid., 115, 118, 119, 130. See also 124. He cites Bracton and Stamford on public fame and "several badges and marks of Suspicion," and noted Bracton's chapter is "well worth the reading" (121). These "marks of suspicion" were included in the justicing handbooks in connection with arrest and pretrial examination.

39. Ibid., 123-124.

40. Ibid., 125-126. See also 63, 106.

41. Ibid., 183. See also 116.

42. Hale, History of the Pleas of the Crown , 2: 157, 158. While there are a number of extant printed grand jury charges, these, as earlier charges, omit almost any reference to the criteria for billa vera and ignoramus endorsements. Charges continue to focus on jury qualifications and attitudes, provide an outline and brief description of indictable crimes, and direct the grand jurors' attention to particularly pressing problems.

43. See Office of the Clerk of the Assize (London, 1676, 1672, and 1682) and The Office of the Clerk of the Peace (London, 1676). Although neither one provides guidance on evidentiary standards, they do suggest that something close to the probability standards of Babington and Hale were widely used. The assize guide notes "if upon the Evidence the grand jury have good cause to find the Bill," then they endorse it billa vera , and "if they have no colour to find the same," then they write ignoramus. Clerk of the Assize , 1682 ed., 34. "Good Cause" and "no colour" language reappear in Clerk of the Peace , 1681 ed., 144. Another manual, however, indicated that an ignoramus was appropriate if the grand jury continue

were "not satisfied by the Evidence." J. W., Officium Clerici Pacis (London, 1686), 52.

In one of the Popish Plot trials, grand jurors were advised that they required only "probable evidence" because their verdict was only an "accusation." Trial of Reading (London, 1679), 2. In the 1678 murder indictment of the Earl of Pembroke, the lord high steward insisted that Pembroke was not being charged "by common voice and fame." He indicated that indictment was "no more than a bare accusation," vehemently declaring "God Forbid, they who neither did not hear the evidence on both sides, should no way prejudice your trial by their partial examination." T. B. Howell, ed., Complete Collection of State Trials , 34 vols. (London, 1809-1826), 9: 1309, 1317.

We can gain insight from impeachment proceedings, which sometimes were likened to grand jury indictments. In the debate on Clarendon's impeachment (1667), the comparison between impeachment accusation and indictment was both made and rejected. Diary of John Milward , 34. Sir John Holland argued against the view that "an accusation without examination or proof" was enough for indictment and insisted that the charges must "be true." Some insisted that witnesses be examined and that proof was required, while others felt that an accusation based on common fame was sufficient. Still others complained about inadequate secrecy, another issue which became important in the grand jury debates of 1680-1682. Diary of John Milward , 34, 101, 102, 111, 143, 144, 232, 234. Though common fame implied something stronger than rumor for Serjeant Maynard, it fell short of provable fact. "Common fame was no ground to accuse a man when the matter of Fact is not clear. To say an Evil is done, therefore this man did it, is strange in Morality, more in Logick." Howard Nenner, By Colour of Law: Legal Culture and Constitutional Politics in England, 1660-1689 (Chicago, 1977), 12, citing Proceedings . . . Touching the Impeachment . . . of Clarendon .

The grand jury analogy was also made in impeachment proceedings against Sir Edward Seymour. Sir Leonine Jenkins insisted that there must be "moral assurance" of the truth of the charge. 8 State Trials , 127, 149. Here, again, the House of Commons was unclear as to what standard was to guide them.

The House of Lords had debated several decades earlier whether or not common fame provided a sufficient basis to accuse the duke of Buckingham. Conrad Russell, Parliaments and English Politics, 1621-1629 (Oxford, 1979), 302. For Sir Francis Bacon's impeachment see 2 State Trials , 1091, 1093.

44. [Francis Smith], An Impartial Account of the Tryal of Francis Smith (London, 1680), preface, 5. break

45. The Grand Jury-man's Oath and Office Explained and the Rights of English-men Asserted (London, 1680), 5, 6. This tract is usually attributed to John Hawles, a prominent Whig lawyer. If Hawles is the author, he changed his views after the Shaftesbury trial. See John Hawles, The Englishman's Right (London, 1680).

46. Ibid., 8.

47. Ibid., 8-9.

48. Ibid., 9-10. The author, like Babington, uses the term "supposition."

49. Ibid., 11, 19-21. An ignoramus was appropriate if the facts were proved but the jury did not believe the matter charged was a crime. Grand jurors were necessarily involved in matters of law as well as fact. The juryman noted that indictments often included terms like vi et armis , which were seldom proved. The barrister admitted the problem of legal fictions, noting that terms of this sort were matters of form, but that they sometimes raised the color of crime where there had been none (13-17). Secrecy was essential precisely because indictment was only "an Accusation or Charge." Revelation of the "Force of the Evidence" might lead to flight or to tampering with or "Sweeten[ing] the Evidence" when the case came to trial (5-6).

45. The Grand Jury-man's Oath and Office Explained and the Rights of English-men Asserted (London, 1680), 5, 6. This tract is usually attributed to John Hawles, a prominent Whig lawyer. If Hawles is the author, he changed his views after the Shaftesbury trial. See John Hawles, The Englishman's Right (London, 1680).

46. Ibid., 8.

47. Ibid., 8-9.

48. Ibid., 9-10. The author, like Babington, uses the term "supposition."

49. Ibid., 11, 19-21. An ignoramus was appropriate if the facts were proved but the jury did not believe the matter charged was a crime. Grand jurors were necessarily involved in matters of law as well as fact. The juryman noted that indictments often included terms like vi et armis , which were seldom proved. The barrister admitted the problem of legal fictions, noting that terms of this sort were matters of form, but that they sometimes raised the color of crime where there had been none (13-17). Secrecy was essential precisely because indictment was only "an Accusation or Charge." Revelation of the "Force of the Evidence" might lead to flight or to tampering with or "Sweeten[ing] the Evidence" when the case came to trial (5-6).

45. The Grand Jury-man's Oath and Office Explained and the Rights of English-men Asserted (London, 1680), 5, 6. This tract is usually attributed to John Hawles, a prominent Whig lawyer. If Hawles is the author, he changed his views after the Shaftesbury trial. See John Hawles, The Englishman's Right (London, 1680).

46. Ibid., 8.

47. Ibid., 8-9.

48. Ibid., 9-10. The author, like Babington, uses the term "supposition."

49. Ibid., 11, 19-21. An ignoramus was appropriate if the facts were proved but the jury did not believe the matter charged was a crime. Grand jurors were necessarily involved in matters of law as well as fact. The juryman noted that indictments often included terms like vi et armis , which were seldom proved. The barrister admitted the problem of legal fictions, noting that terms of this sort were matters of form, but that they sometimes raised the color of crime where there had been none (13-17). Secrecy was essential precisely because indictment was only "an Accusation or Charge." Revelation of the "Force of the Evidence" might lead to flight or to tampering with or "Sweeten[ing] the Evidence" when the case came to trial (5-6).

45. The Grand Jury-man's Oath and Office Explained and the Rights of English-men Asserted (London, 1680), 5, 6. This tract is usually attributed to John Hawles, a prominent Whig lawyer. If Hawles is the author, he changed his views after the Shaftesbury trial. See John Hawles, The Englishman's Right (London, 1680).

46. Ibid., 8.

47. Ibid., 8-9.

48. Ibid., 9-10. The author, like Babington, uses the term "supposition."

49. Ibid., 11, 19-21. An ignoramus was appropriate if the facts were proved but the jury did not believe the matter charged was a crime. Grand jurors were necessarily involved in matters of law as well as fact. The juryman noted that indictments often included terms like vi et armis , which were seldom proved. The barrister admitted the problem of legal fictions, noting that terms of this sort were matters of form, but that they sometimes raised the color of crime where there had been none (13-17). Secrecy was essential precisely because indictment was only "an Accusation or Charge." Revelation of the "Force of the Evidence" might lead to flight or to tampering with or "Sweeten[ing] the Evidence" when the case came to trial (5-6).

45. The Grand Jury-man's Oath and Office Explained and the Rights of English-men Asserted (London, 1680), 5, 6. This tract is usually attributed to John Hawles, a prominent Whig lawyer. If Hawles is the author, he changed his views after the Shaftesbury trial. See John Hawles, The Englishman's Right (London, 1680).

46. Ibid., 8.

47. Ibid., 8-9.

48. Ibid., 9-10. The author, like Babington, uses the term "supposition."

49. Ibid., 11, 19-21. An ignoramus was appropriate if the facts were proved but the jury did not believe the matter charged was a crime. Grand jurors were necessarily involved in matters of law as well as fact. The juryman noted that indictments often included terms like vi et armis , which were seldom proved. The barrister admitted the problem of legal fictions, noting that terms of this sort were matters of form, but that they sometimes raised the color of crime where there had been none (13-17). Secrecy was essential precisely because indictment was only "an Accusation or Charge." Revelation of the "Force of the Evidence" might lead to flight or to tampering with or "Sweeten[ing] the Evidence" when the case came to trial (5-6).

50. A Modest Vindication of the Proceedings of the late Jury at the Old Baily, who returned the Bill against Stephen Colledge Ignoramus (London, 1681), 1.

51. The Letter of the Grand Jury of Oxford to the Grand Jury of London (London, 1681), 1.

52. The Tryals of Several Notorious Malefactors . . . at Old Bailey, October 17-19, 1681 (London, 1682), 3. W. J.'s Letter from Ignoramus (London, 1682) expressed great distress that those who swore against Rouse had been examined and cross-examined in open court, "a thing not known in our days." Although the author thought there might be "a few precedents of like nature in former Ages," he thought that the practice was not in keeping with present practice. In the Colledge case the witnesses were heard in court but examined privately (3).

53. Tryals of Several Notorious Malefactors , 3.

54. "Proceedings at the Old Bailey upon a Bill of Indictment against Anthony, Earl of Shaftesbury," 8 State Trials , 759, 762, 770.

55. Ibid.

56. Ibid., 772, 802-803. The grand jury had asked if any of the prosecution witnesses had been indicted. It wished to discredit the witnesses to avoid a repetition of the Colledge situation. The jury foreman probed the witnesses. J. R. Jones, The First Whigs: The Politics and the Exclusion Crisis, 1678-1683 (London, 1970), 192-192n. Hale's still unpublished continue

History of the Pleas of the Crown endorsed grand jury evaluation of witness credibility.

54. "Proceedings at the Old Bailey upon a Bill of Indictment against Anthony, Earl of Shaftesbury," 8 State Trials , 759, 762, 770.

55. Ibid.

56. Ibid., 772, 802-803. The grand jury had asked if any of the prosecution witnesses had been indicted. It wished to discredit the witnesses to avoid a repetition of the Colledge situation. The jury foreman probed the witnesses. J. R. Jones, The First Whigs: The Politics and the Exclusion Crisis, 1678-1683 (London, 1970), 192-192n. Hale's still unpublished continue

History of the Pleas of the Crown endorsed grand jury evaluation of witness credibility.

54. "Proceedings at the Old Bailey upon a Bill of Indictment against Anthony, Earl of Shaftesbury," 8 State Trials , 759, 762, 770.

55. Ibid.

56. Ibid., 772, 802-803. The grand jury had asked if any of the prosecution witnesses had been indicted. It wished to discredit the witnesses to avoid a repetition of the Colledge situation. The jury foreman probed the witnesses. J. R. Jones, The First Whigs: The Politics and the Exclusion Crisis, 1678-1683 (London, 1970), 192-192n. Hale's still unpublished continue

History of the Pleas of the Crown endorsed grand jury evaluation of witness credibility.

57. 8 State Trials , 802-803.

58. 4 State Trials , 1311.

59. Ignoramus Vindicated in a Dialogue between Prejudice and Indifference (London, 1681), 1, 2.

60. Ibid., 4-5.

61. Ibid., 9.

62. Ibid., 11.

63. Ibid. In addition, "juries may have evidence from personal knowledge . . . that what is deposed in Court is absolutely false." The judge knows only what has been learned in court, while the jury may know that the witnesses may be "stigmatized and Infamous" (12).

64. Ibid., 12. The tract also expressed the fear that standing juries might be instituted, thus becoming only "the Court's Echos."

59. Ignoramus Vindicated in a Dialogue between Prejudice and Indifference (London, 1681), 1, 2.

60. Ibid., 4-5.

61. Ibid., 9.

62. Ibid., 11.

63. Ibid. In addition, "juries may have evidence from personal knowledge . . . that what is deposed in Court is absolutely false." The judge knows only what has been learned in court, while the jury may know that the witnesses may be "stigmatized and Infamous" (12).

64. Ibid., 12. The tract also expressed the fear that standing juries might be instituted, thus becoming only "the Court's Echos."

59. Ignoramus Vindicated in a Dialogue between Prejudice and Indifference (London, 1681), 1, 2.

60. Ibid., 4-5.

61. Ibid., 9.

62. Ibid., 11.

63. Ibid. In addition, "juries may have evidence from personal knowledge . . . that what is deposed in Court is absolutely false." The judge knows only what has been learned in court, while the jury may know that the witnesses may be "stigmatized and Infamous" (12).

64. Ibid., 12. The tract also expressed the fear that standing juries might be instituted, thus becoming only "the Court's Echos."

59. Ignoramus Vindicated in a Dialogue between Prejudice and Indifference (London, 1681), 1, 2.

60. Ibid., 4-5.

61. Ibid., 9.

62. Ibid., 11.

63. Ibid. In addition, "juries may have evidence from personal knowledge . . . that what is deposed in Court is absolutely false." The judge knows only what has been learned in court, while the jury may know that the witnesses may be "stigmatized and Infamous" (12).

64. Ibid., 12. The tract also expressed the fear that standing juries might be instituted, thus becoming only "the Court's Echos."

59. Ignoramus Vindicated in a Dialogue between Prejudice and Indifference (London, 1681), 1, 2.

60. Ibid., 4-5.

61. Ibid., 9.

62. Ibid., 11.

63. Ibid. In addition, "juries may have evidence from personal knowledge . . . that what is deposed in Court is absolutely false." The judge knows only what has been learned in court, while the jury may know that the witnesses may be "stigmatized and Infamous" (12).

64. Ibid., 12. The tract also expressed the fear that standing juries might be instituted, thus becoming only "the Court's Echos."

59. Ignoramus Vindicated in a Dialogue between Prejudice and Indifference (London, 1681), 1, 2.

60. Ibid., 4-5.

61. Ibid., 9.

62. Ibid., 11.

63. Ibid. In addition, "juries may have evidence from personal knowledge . . . that what is deposed in Court is absolutely false." The judge knows only what has been learned in court, while the jury may know that the witnesses may be "stigmatized and Infamous" (12).

64. Ibid., 12. The tract also expressed the fear that standing juries might be instituted, thus becoming only "the Court's Echos."

65. Somers, The Security of English-Men's Lives , 17-18, 20-21, 23. See also 53. Somers became a leading Whig lawyer after the Revolution of 1688.

Jurors would do well to be suspicious of prosecution lawyers who "have Evidence dressed up with all that Lawyer wits can give it" (81). Somers was particularly critical of judges who "by degrees" were turning grand juries into "a mere matter of form," rather than "openly and advowedly" destroying them. Changes in the administration of justice were to be accomplished by legislators, not judges. Somers implies not that grand jury indictments were not yet a "matter of form" but that they were in danger of becoming so (53, 108-109, 116-117, 121). On the secrecy issue see 44ff.

66. Ibid., 21, 53, 82, 126, 127, 128, 129. "For this Reason the Council of Areopagites, and some others of the best Judicatures that have been in the world utterly rejected the use of Rhetoric looking upon the art of persuading by incertain probabilities, as little differing from that of deceiving, and directly contrary to their ends, who by the knowledge of truth desire to be led into the doing of Justice" (127).

67. Ibid., 128, 129.

68. Ibid., 124, 130-131.

69. Ibid., 27-29, 31, 142.

70. Ibid., 29, 122, 124.

71. Ibid., 82, 119, 122, 145, 147-148, 151. Somers also argued that the "doctrine of indicting upon slight grounds" was against the law, reason, and the practice of "former times." Citing Coke, he insisted that indictments formerly had been made upon "plain and direct proofs and not upon Probabilities and inferences." The high acquittal rates of the continue

past were attributed to the diligence and integrity of grand jurors. He thus advocated a return to "the good old way" (146, 151). Coke, however, had referred to cases where the accused was not present.

65. Somers, The Security of English-Men's Lives , 17-18, 20-21, 23. See also 53. Somers became a leading Whig lawyer after the Revolution of 1688.

Jurors would do well to be suspicious of prosecution lawyers who "have Evidence dressed up with all that Lawyer wits can give it" (81). Somers was particularly critical of judges who "by degrees" were turning grand juries into "a mere matter of form," rather than "openly and advowedly" destroying them. Changes in the administration of justice were to be accomplished by legislators, not judges. Somers implies not that grand jury indictments were not yet a "matter of form" but that they were in danger of becoming so (53, 108-109, 116-117, 121). On the secrecy issue see 44ff.

66. Ibid., 21, 53, 82, 126, 127, 128, 129. "For this Reason the Council of Areopagites, and some others of the best Judicatures that have been in the world utterly rejected the use of Rhetoric looking upon the art of persuading by incertain probabilities, as little differing from that of deceiving, and directly contrary to their ends, who by the knowledge of truth desire to be led into the doing of Justice" (127).

67. Ibid., 128, 129.

68. Ibid., 124, 130-131.

69. Ibid., 27-29, 31, 142.

70. Ibid., 29, 122, 124.

71. Ibid., 82, 119, 122, 145, 147-148, 151. Somers also argued that the "doctrine of indicting upon slight grounds" was against the law, reason, and the practice of "former times." Citing Coke, he insisted that indictments formerly had been made upon "plain and direct proofs and not upon Probabilities and inferences." The high acquittal rates of the continue

past were attributed to the diligence and integrity of grand jurors. He thus advocated a return to "the good old way" (146, 151). Coke, however, had referred to cases where the accused was not present.

65. Somers, The Security of English-Men's Lives , 17-18, 20-21, 23. See also 53. Somers became a leading Whig lawyer after the Revolution of 1688.

Jurors would do well to be suspicious of prosecution lawyers who "have Evidence dressed up with all that Lawyer wits can give it" (81). Somers was particularly critical of judges who "by degrees" were turning grand juries into "a mere matter of form," rather than "openly and advowedly" destroying them. Changes in the administration of justice were to be accomplished by legislators, not judges. Somers implies not that grand jury indictments were not yet a "matter of form" but that they were in danger of becoming so (53, 108-109, 116-117, 121). On the secrecy issue see 44ff.

66. Ibid., 21, 53, 82, 126, 127, 128, 129. "For this Reason the Council of Areopagites, and some others of the best Judicatures that have been in the world utterly rejected the use of Rhetoric looking upon the art of persuading by incertain probabilities, as little differing from that of deceiving, and directly contrary to their ends, who by the knowledge of truth desire to be led into the doing of Justice" (127).

67. Ibid., 128, 129.

68. Ibid., 124, 130-131.

69. Ibid., 27-29, 31, 142.

70. Ibid., 29, 122, 124.

71. Ibid., 82, 119, 122, 145, 147-148, 151. Somers also argued that the "doctrine of indicting upon slight grounds" was against the law, reason, and the practice of "former times." Citing Coke, he insisted that indictments formerly had been made upon "plain and direct proofs and not upon Probabilities and inferences." The high acquittal rates of the continue

past were attributed to the diligence and integrity of grand jurors. He thus advocated a return to "the good old way" (146, 151). Coke, however, had referred to cases where the accused was not present.

65. Somers, The Security of English-Men's Lives , 17-18, 20-21, 23. See also 53. Somers became a leading Whig lawyer after the Revolution of 1688.

Jurors would do well to be suspicious of prosecution lawyers who "have Evidence dressed up with all that Lawyer wits can give it" (81). Somers was particularly critical of judges who "by degrees" were turning grand juries into "a mere matter of form," rather than "openly and advowedly" destroying them. Changes in the administration of justice were to be accomplished by legislators, not judges. Somers implies not that grand jury indictments were not yet a "matter of form" but that they were in danger of becoming so (53, 108-109, 116-117, 121). On the secrecy issue see 44ff.

66. Ibid., 21, 53, 82, 126, 127, 128, 129. "For this Reason the Council of Areopagites, and some others of the best Judicatures that have been in the world utterly rejected the use of Rhetoric looking upon the art of persuading by incertain probabilities, as little differing from that of deceiving, and directly contrary to their ends, who by the knowledge of truth desire to be led into the doing of Justice" (127).

67. Ibid., 128, 129.

68. Ibid., 124, 130-131.

69. Ibid., 27-29, 31, 142.

70. Ibid., 29, 122, 124.

71. Ibid., 82, 119, 122, 145, 147-148, 151. Somers also argued that the "doctrine of indicting upon slight grounds" was against the law, reason, and the practice of "former times." Citing Coke, he insisted that indictments formerly had been made upon "plain and direct proofs and not upon Probabilities and inferences." The high acquittal rates of the continue

past were attributed to the diligence and integrity of grand jurors. He thus advocated a return to "the good old way" (146, 151). Coke, however, had referred to cases where the accused was not present.

65. Somers, The Security of English-Men's Lives , 17-18, 20-21, 23. See also 53. Somers became a leading Whig lawyer after the Revolution of 1688.

Jurors would do well to be suspicious of prosecution lawyers who "have Evidence dressed up with all that Lawyer wits can give it" (81). Somers was particularly critical of judges who "by degrees" were turning grand juries into "a mere matter of form," rather than "openly and advowedly" destroying them. Changes in the administration of justice were to be accomplished by legislators, not judges. Somers implies not that grand jury indictments were not yet a "matter of form" but that they were in danger of becoming so (53, 108-109, 116-117, 121). On the secrecy issue see 44ff.

66. Ibid., 21, 53, 82, 126, 127, 128, 129. "For this Reason the Council of Areopagites, and some others of the best Judicatures that have been in the world utterly rejected the use of Rhetoric looking upon the art of persuading by incertain probabilities, as little differing from that of deceiving, and directly contrary to their ends, who by the knowledge of truth desire to be led into the doing of Justice" (127).

67. Ibid., 128, 129.

68. Ibid., 124, 130-131.

69. Ibid., 27-29, 31, 142.

70. Ibid., 29, 122, 124.

71. Ibid., 82, 119, 122, 145, 147-148, 151. Somers also argued that the "doctrine of indicting upon slight grounds" was against the law, reason, and the practice of "former times." Citing Coke, he insisted that indictments formerly had been made upon "plain and direct proofs and not upon Probabilities and inferences." The high acquittal rates of the continue

past were attributed to the diligence and integrity of grand jurors. He thus advocated a return to "the good old way" (146, 151). Coke, however, had referred to cases where the accused was not present.

65. Somers, The Security of English-Men's Lives , 17-18, 20-21, 23. See also 53. Somers became a leading Whig lawyer after the Revolution of 1688.

Jurors would do well to be suspicious of prosecution lawyers who "have Evidence dressed up with all that Lawyer wits can give it" (81). Somers was particularly critical of judges who "by degrees" were turning grand juries into "a mere matter of form," rather than "openly and advowedly" destroying them. Changes in the administration of justice were to be accomplished by legislators, not judges. Somers implies not that grand jury indictments were not yet a "matter of form" but that they were in danger of becoming so (53, 108-109, 116-117, 121). On the secrecy issue see 44ff.

66. Ibid., 21, 53, 82, 126, 127, 128, 129. "For this Reason the Council of Areopagites, and some others of the best Judicatures that have been in the world utterly rejected the use of Rhetoric looking upon the art of persuading by incertain probabilities, as little differing from that of deceiving, and directly contrary to their ends, who by the knowledge of truth desire to be led into the doing of Justice" (127).

67. Ibid., 128, 129.

68. Ibid., 124, 130-131.

69. Ibid., 27-29, 31, 142.

70. Ibid., 29, 122, 124.

71. Ibid., 82, 119, 122, 145, 147-148, 151. Somers also argued that the "doctrine of indicting upon slight grounds" was against the law, reason, and the practice of "former times." Citing Coke, he insisted that indictments formerly had been made upon "plain and direct proofs and not upon Probabilities and inferences." The high acquittal rates of the continue

past were attributed to the diligence and integrity of grand jurors. He thus advocated a return to "the good old way" (146, 151). Coke, however, had referred to cases where the accused was not present.

65. Somers, The Security of English-Men's Lives , 17-18, 20-21, 23. See also 53. Somers became a leading Whig lawyer after the Revolution of 1688.

Jurors would do well to be suspicious of prosecution lawyers who "have Evidence dressed up with all that Lawyer wits can give it" (81). Somers was particularly critical of judges who "by degrees" were turning grand juries into "a mere matter of form," rather than "openly and advowedly" destroying them. Changes in the administration of justice were to be accomplished by legislators, not judges. Somers implies not that grand jury indictments were not yet a "matter of form" but that they were in danger of becoming so (53, 108-109, 116-117, 121). On the secrecy issue see 44ff.

66. Ibid., 21, 53, 82, 126, 127, 128, 129. "For this Reason the Council of Areopagites, and some others of the best Judicatures that have been in the world utterly rejected the use of Rhetoric looking upon the art of persuading by incertain probabilities, as little differing from that of deceiving, and directly contrary to their ends, who by the knowledge of truth desire to be led into the doing of Justice" (127).

67. Ibid., 128, 129.

68. Ibid., 124, 130-131.

69. Ibid., 27-29, 31, 142.

70. Ibid., 29, 122, 124.

71. Ibid., 82, 119, 122, 145, 147-148, 151. Somers also argued that the "doctrine of indicting upon slight grounds" was against the law, reason, and the practice of "former times." Citing Coke, he insisted that indictments formerly had been made upon "plain and direct proofs and not upon Probabilities and inferences." The high acquittal rates of the continue

past were attributed to the diligence and integrity of grand jurors. He thus advocated a return to "the good old way" (146, 151). Coke, however, had referred to cases where the accused was not present.

72. Henry Care, English Liberties, or The Free-Born Subjects Inheritance (London, n.d.). The Wing catalog indicates a 1680 date, but references to the Shaftesbury proceedings and to an Old Bailey trial suggest a 1681 or 1682 first printing. Other editions appeared in 1682, 1691, and 1700. Enlarged editions were printed in 1703, 1719, and 1721.

Care emphasizes diligent inquiry, the search for truth, the evaluation of witness credibility, the importance of the vicinage requirement, the problem of malice, the rejection of Pemberton's probability standard, and independence from the judiciary. He, like Somers, insists that if grand jurors were not Judges of Evidence, "they were nothing" (216). He explicitly adopts the satisfied conscience standard. "People may tell you that you ought to find a Bill upon any probable Evidence," or "tis a matter of Course, of ceremony, a Business of forms, only an Accusation. . . . But if this were all, to what purpose have we Grand Juries at all?" Why, he queried, would the "wisest and best men be chosen, why would they be so strictly sworn?" A billa vera meant, "It is True," "we are fully satisfied" (219-220). He, like most Whig pamphleteers, insisted that grand and petty juries were judges of law as well as fact and was hostile to the judiciary (207-208).

For another Whig discussion of grand juries see the anonymous Earl of Shaftesbury's Grand Jury Vindicated from the Aspersions Cast upon them in the late Address from Some of the Middle Temple (London, 1682). Edmond Saunders, who was thought to be the author, was soon appointed to the bench. The tract, which assembled the usual collection of Whig arguments, rejected the probability standard and relied heavily on Vaughan's opinion in Bushel's case.

73. Guide to English Juries, Setting forth Their Power and Antiquity by a Person of Quality (London, 1682). The Guide was reprinted in 1689, 1699, 1702 and 1725.

74. The author claimed the clerks' interest in fees led them to multiply the number of indictments. They were thus motivated "to say" that "colour of Evidence" or "probability of a thing being" true was sufficient. They also insisted that what they did "is but a matter of course, a Ceremony, a matter of form, barely an Accusation." Ibid., 53, 73. See also 77, 79-82; cf., Office of the Clerk of the Assize , 32; The Office of the Clerk of the Peace , 144.

73. Guide to English Juries, Setting forth Their Power and Antiquity by a Person of Quality (London, 1682). The Guide was reprinted in 1689, 1699, 1702 and 1725.

74. The author claimed the clerks' interest in fees led them to multiply the number of indictments. They were thus motivated "to say" that "colour of Evidence" or "probability of a thing being" true was sufficient. They also insisted that what they did "is but a matter of course, a Ceremony, a matter of form, barely an Accusation." Ibid., 53, 73. See also 77, 79-82; cf., Office of the Clerk of the Assize , 32; The Office of the Clerk of the Peace , 144.

75. To endorse a billa vera they must be "satisfied" that the evidence is true or know it themselves. Guide to English Juries , 82. See also 52. Indeed, they "must know beyond all doubt" before they provide such continue

endorsement (68). "Mature and settled judgments" by "good and great deliberation, considerateness, Reasoning, and Satisfaction according to one's own Conscience" were required for a billa vera (46). To reach that state they must inquire diligently as their oath required. They must "True Presentment make," not a "Probable" one. They must weigh the evidence and not reach a decision according to "Presumption." The author also rejects the suggestions that all the grand jury does is "present in form" and that its presentment is "only suppositious, . . . and nothing positive or certain." (54-56).

76. Ibid., 7-8, 56-57. See also 63-64, 132.

77. Ibid., 71, 73, 76.

75. To endorse a billa vera they must be "satisfied" that the evidence is true or know it themselves. Guide to English Juries , 82. See also 52. Indeed, they "must know beyond all doubt" before they provide such continue

endorsement (68). "Mature and settled judgments" by "good and great deliberation, considerateness, Reasoning, and Satisfaction according to one's own Conscience" were required for a billa vera (46). To reach that state they must inquire diligently as their oath required. They must "True Presentment make," not a "Probable" one. They must weigh the evidence and not reach a decision according to "Presumption." The author also rejects the suggestions that all the grand jury does is "present in form" and that its presentment is "only suppositious, . . . and nothing positive or certain." (54-56).

76. Ibid., 7-8, 56-57. See also 63-64, 132.

77. Ibid., 71, 73, 76.

75. To endorse a billa vera they must be "satisfied" that the evidence is true or know it themselves. Guide to English Juries , 82. See also 52. Indeed, they "must know beyond all doubt" before they provide such continue

endorsement (68). "Mature and settled judgments" by "good and great deliberation, considerateness, Reasoning, and Satisfaction according to one's own Conscience" were required for a billa vera (46). To reach that state they must inquire diligently as their oath required. They must "True Presentment make," not a "Probable" one. They must weigh the evidence and not reach a decision according to "Presumption." The author also rejects the suggestions that all the grand jury does is "present in form" and that its presentment is "only suppositious, . . . and nothing positive or certain." (54-56).

76. Ibid., 7-8, 56-57. See also 63-64, 132.

77. Ibid., 71, 73, 76.

78. Roger North, Examen , 1740 ed. (London, 1685), 113, 114.

79. Billa Vera: or the Arraignment of Ignoramus (London, 1682), 7-8.

80. Ibid., 8-9, 13-14, 26.

81. Ibid., 10.

82. Ibid., 11, 28.

83. Ibid., 11, 15, 16.

79. Billa Vera: or the Arraignment of Ignoramus (London, 1682), 7-8.

80. Ibid., 8-9, 13-14, 26.

81. Ibid., 10.

82. Ibid., 11, 28.

83. Ibid., 11, 15, 16.

79. Billa Vera: or the Arraignment of Ignoramus (London, 1682), 7-8.

80. Ibid., 8-9, 13-14, 26.

81. Ibid., 10.

82. Ibid., 11, 28.

83. Ibid., 11, 15, 16.

79. Billa Vera: or the Arraignment of Ignoramus (London, 1682), 7-8.

80. Ibid., 8-9, 13-14, 26.

81. Ibid., 10.

82. Ibid., 11, 28.

83. Ibid., 11, 15, 16.

79. Billa Vera: or the Arraignment of Ignoramus (London, 1682), 7-8.

80. Ibid., 8-9, 13-14, 26.

81. Ibid., 10.

82. Ibid., 11, 28.

83. Ibid., 11, 15, 16.

84. Joseph Keble's Assistance to Justices of the Peace (London, 1683) indicated that grand jurors were to evaluate witness credibility. They were not, however, to try an issue but to "offer an Information, the truth or falsehood whereof" would be tried by the petty jury (264).

85. Gilbert Burnet, History of My Own Times , ed. Osmond Airy, 2 vols. (Oxford, 1900), 2: 302-303.

86. Poems on Affairs of State: Augustan Satirical Verse, 1660-1714 , ed. H. S. Schless, 7 vols. (New Haven, 1968), 3: 76-95. See also Poems on Affairs of State , vols. 3 and 4, passim; Ignoramus-justice (1682); The Ignoramus Ballad (1681); Ignoramus: an Excellent New Song (1681); A New Ignoramus (1681). The prologue and epilogue of Dryden's Duke of Guise (1683) also refers to ignoramus juries. Another series of 1682 political poems focused on the London and Middlesex shrieval election. See Poems on Affairs of State , 3: 207ff.

87. Poems on Affairs of State , 3: 80.

88. See W. J. Jones, Politics and the Bench: The Judges and the Origins of the English Civil War (London, 1971).

89. See A. F. Havinghurst, "The Judiciary and Politics in the Reign of Charles II," Law Quarterly Review 66 (1950): 62-78, 229-252.

90. See for example The Triumph of Justice over Unjust Judges (London, 1681).

91. See Norma Landau, The Justices of the Peace, 1679-1760 (Berkeley, 1984). break

92. But see The Compleat Statesman (London, 1683). About thirty pages are devoted to grand juries and the Shaftesbury proceedings.

93. Sir James Astry, A General Charge to all Grand Juries (London, 1703; reprint, 1725), 14. Astry emphasized that Babington's volume had been licensed by the Lord Keeper and "has been since approv'd of by all the learned Judges" and was "often given in Charges by them in their Circuits."

94. Ibid., 11, 13. A later handbook, The Complete Juryman, or a Compendium of the Laws Related to Jurors , issued in 1744 and 1752, does not discuss the evidentiary requirements of grand juries.

93. Sir James Astry, A General Charge to all Grand Juries (London, 1703; reprint, 1725), 14. Astry emphasized that Babington's volume had been licensed by the Lord Keeper and "has been since approv'd of by all the learned Judges" and was "often given in Charges by them in their Circuits."

94. Ibid., 11, 13. A later handbook, The Complete Juryman, or a Compendium of the Laws Related to Jurors , issued in 1744 and 1752, does not discuss the evidentiary requirements of grand juries.

95. John Hawles, Remarks upon the Trial of Fitzharris (London, 1689). Hawles discusses a number of treason trials and the Shaftesbury grand jury proceedings.

96. Ibid., 46, 47.

97. Ibid., 48. He denied Chief Justice Pemberton's contention that grand juries could not consider the credibility of witnesses and opposed the practice of allowing King's Counsel to be present and give advice during grand jury proceedings.

95. John Hawles, Remarks upon the Trial of Fitzharris (London, 1689). Hawles discusses a number of treason trials and the Shaftesbury grand jury proceedings.

96. Ibid., 46, 47.

97. Ibid., 48. He denied Chief Justice Pemberton's contention that grand juries could not consider the credibility of witnesses and opposed the practice of allowing King's Counsel to be present and give advice during grand jury proceedings.

95. John Hawles, Remarks upon the Trial of Fitzharris (London, 1689). Hawles discusses a number of treason trials and the Shaftesbury grand jury proceedings.

96. Ibid., 46, 47.

97. Ibid., 48. He denied Chief Justice Pemberton's contention that grand juries could not consider the credibility of witnesses and opposed the practice of allowing King's Counsel to be present and give advice during grand jury proceedings.

98. A Display of Tyranny (1689), aimed primarily at the Tory judiciary, again referred to the Shaftesbury case. The author, like Hawles, was outraged at judicial denial that grand jurors could consider the credit of witnesses, and insisted on using Vaughan's language in Bushel's case that grand jurors "were within the compass of their own Understandings and consciences to have their Judgements" (79).

99. Thomas Wood, Institute of the Laws of England , 2d ed. (The Savoy, 1722), 823.

100. Matthew Hale, History of the Pleas of the Crown , 2: 157-158.

101. Ibid. William Hawkins, another authoritative treatise writer, indicates only that an indictment is an "Accusation, . . . which is found to be true." A Treatise of the Pleas of the Crown , 1771 ed. (London, 1717), 209.

100. Matthew Hale, History of the Pleas of the Crown , 2: 157-158.

101. Ibid. William Hawkins, another authoritative treatise writer, indicates only that an indictment is an "Accusation, . . . which is found to be true." A Treatise of the Pleas of the Crown , 1771 ed. (London, 1717), 209.

102. Henry Fielding, Charge Delivered the Grand Jury (London, 1749), 25-26, citing Hale, History of the Pleas of the Crown , 2: 157.

103. Ibid., 27. London grand jurors, however, often served frequently. Veteran grand jurors might be familiar with criminous thief takers who were given monetary rewards for apprehending thieves. The latter frequently encouraged criminal activity so that they might report it.

102. Henry Fielding, Charge Delivered the Grand Jury (London, 1749), 25-26, citing Hale, History of the Pleas of the Crown , 2: 157.

103. Ibid., 27. London grand jurors, however, often served frequently. Veteran grand jurors might be familiar with criminous thief takers who were given monetary rewards for apprehending thieves. The latter frequently encouraged criminal activity so that they might report it.

104. Herbert Packer, "Two Models for the Criminal Process," University of Pennsylvania Law Review 113 (1964): 1-68.

105. William Blackstone, Commentaries on the Laws of England , 1st American ed., 1771-1772, 4 vols. (London, 1765), 2: 301, 303. break

106. Richard Woodeson, A Systematic View of the Laws of England , 3 vols. (London, 1792), 2: 559.

107. Ibid., 2: 558, 559.

106. Richard Woodeson, A Systematic View of the Laws of England , 3 vols. (London, 1792), 2: 559.

107. Ibid., 2: 558, 559.

108. John Shore, A Charge Delivered at the Quarter Sessions of the Peace . . . April 5, 1714 (London, 1714), 21-28. See also 8. The charge was published at the request of the judges.

109. The Charge of William Cowper to the Grand Jury of Westminster (London, 1719), 33-35.

110. The Charge of Daniel Dolbins to the Grand Jury (London, 1725), 5.

111. The Charge of Daniel Dolbins (London, 1725), 4. (Not the same charge as previous note.)

112. Sir John Gonson, Five Charges to Several Grand Juries , (London, 1740), 10-11. Many early eighteenth-century charges, especially those given to Middlesex and Westminster grand juries, were highly politicized. Many were presented with bills of indictment against those publishing Tory or Jacobite propaganda. I owe this information to Norma Landau.

113. The Charge of T. Morley (1749), 5. Chief Justice Morley of the King's Bench in Ireland, gave this charge in the course of a highly emotional libel case. Morley indicated that grand juries must "think the accusation probable." See also A Critical Review of the Liberties of the Subject , 2nd ed. (Dublin, 1750). Dismissals on the basis of evidence favoring the defendant were reported to be frequent. Richard Cox, A Charge Delivered to the Grand Jury (Dublin, 1758), 27-28.

James Wilson indicated that the probability standard was very common. It is also suggested by one of the few reports at the Old Bailey sessions that mentions grand jury standards. The "probable guilt of a prisoner is sufficient to find a bill." Whole Proceedings at Old Bailey February, 1777 (London, 1777), 97. See also Charges to Grand Juries (Worcester, 1780), 8, 11.

114. Whole Proceedings at Old Bailey February, 1777 , 97.

115. Richard Burke, Charge Delivered to the Grand Jury (Bristol, 1793), 6-7.

116. John Beattie, Crime and the Courts in England, 1660-1800 (Princeton, 1986), 83. See also 401. The figures are from the Surrey assizes.

117. For the composition of grand juries see Ibid., 320-331. See also P. J. R. King, "'Illiterate Plebians, Easily Misled': Jury Composition, Experience and Behavior in Essex, 1735-1815," in Twelve Good Men and True: The Criminal Trial Jury in England, 1200-1800 , ed. J. S. Cockburn and Thomas Green (Princeton, 1988), 278-279, 283, 294; Douglas Hay, "The Class Composition of the Palladium of Liberty: Trial Jurors in the continue

Eighteenth Century," in Twelve Good Men , 311, 344; John Beattie, "London Juries in the 1690s," in Twelve Good Men , 234, 235, 244.

116. John Beattie, Crime and the Courts in England, 1660-1800 (Princeton, 1986), 83. See also 401. The figures are from the Surrey assizes.

117. For the composition of grand juries see Ibid., 320-331. See also P. J. R. King, "'Illiterate Plebians, Easily Misled': Jury Composition, Experience and Behavior in Essex, 1735-1815," in Twelve Good Men and True: The Criminal Trial Jury in England, 1200-1800 , ed. J. S. Cockburn and Thomas Green (Princeton, 1988), 278-279, 283, 294; Douglas Hay, "The Class Composition of the Palladium of Liberty: Trial Jurors in the continue

Eighteenth Century," in Twelve Good Men , 311, 344; John Beattie, "London Juries in the 1690s," in Twelve Good Men , 234, 235, 244.

118. Beattie, Crime and the Courts , 321-327. Blackstone described grand jurors as "gentlemen of the best figures in the county." Commentaries , 4: 299.

119. Landau, Justices of the Peace , 54-56. By the second decade of the eighteenth century, one-third to one-half of grand jurors were justices of the peace. They still dominated grand jury panels in the 1750s. Landau suggests they were probably less deferent to judges than they had been in the past (60). See also Cockburn, History of the English Assizes , 114-115, 123, 240.

120. Leroy Clark, The Grand Jury: The Use and Abuse of Political Power (New York, 1975), 13. Maryland and Connecticut documents mentioned grand juries in 1637 and 1641 respectively. There is no evidence of the jury in New York before 1681. The report of a 1666 Maryland grand jury indicated that grand juries met privately and considered the depositions of sworn witnesses which had been taken by the justices of the peace. Raphael Semmes, Crime and Punishment in Early Maryland (Baltimore, 1938), 21-22; Richard Younger, The People's Panel: The Grand Jury in the United States, 1634-1941 (Providence, 1963), 4-20. See also Morris Ploscowe, "Development of Present Day Criminal Procedures in Europe and America," Harvard Law Review 48 (1935): 433-473.

121. In 1686 the governor of Virginia wrote several letters to England requesting information on the proper form of grand jury instructions. Ploscowe, "Development of Present Day Criminal Proceedings," 468, 468n.

122. Richard Burn, The Justice of the Peace and Parish Officer , 1772 ed. (London, 1754), 2: 453-454.

123. Richard Starke, Office and Authority of the Justice of the Peace (Williamsburg, 1774), 214; William Hening, The New Virginia Justice (Richmond, 1795), 250; An Abridgement of Burn's, Justice of the Peace and Parish Officer (Boston, 1773), 124.

124. Younger, People's Panel , 26-28. John Peter Zenger was eventually brought to trial by a prosecutor's information after grand juries twice refused to indict.

125. John Hawles's Englishman's Right: A Dialogue Between a Barrister at Law and a Juryman was the first American reprint of any English law book. It was published in Boston in 1693 and reprinted again in American in 1772, 1788, and 1806. Care's English Liberties was printed in Boston in 1686. Five thousand copies were seized. It was printed again in the colonies in 1721 and 1774. Morris Cohen, "Legal Literature in Colonial Massachusetts" (Unpublished manuscript), 16-18. break

126. Excerpts from the most approved Authorities . . . with respect to the Office and Duty of Grand Juries (n.p., n.d.), 22-23, 25, 32-33. See also 34-35. See also British Liberties, or the Freeborn Subject's Inheritance (Boston, 1776), 369-370, 377-381, 384-391.

127. We should be reminded, however, that institutions might function differently in different political contexts. Thus grand juries and juries in the American colonies did not behave like those in Ireland. Different selection processes in the two imperial jurisdictions meant that Irish grand and petty juries were more compliant and yielded more proimperial indictments and convictions than did their American counterparts. See John Reid, In a Defiant Stance: The Condition of Law in Massachusetts Bay, the Irish Comparison, and the Coming of the American Revolution (Philadelphia, 1977). The tension between the Whig and Tory standards is to be seen in the New York trial of Nicholas Bayard (1702). In this case the solicitor general insisted that the grand jury was to inquire only for the king and "to receive or send for no other evidence than what are brought for the King." Counsel for the defense then queried, "And how shall the truth be known, if the grand jury are permitted to have no other evidence but what are brought 'ex parte Regis?'" and suggested that such a procedure was contrary to the grand juror's oath to find the truth. The Crown response was precisely what might be anticipated. "All the books speak of the king's evidence only, and agree, that the grand jury may and ought to find upon probable evidence, as appears in Babbington [sic]." 14 State Trials , 471-481.

128. Younger, People's Panel , 44-55.

129. Francis Hopkinson, The Miscellaneous Essays , 2 vols. (Philadelphia, 1792), 2: 194.

130. Ibid., 1: 194, 195, 196, 202, 217.

131. Ibid., 1: 222. See also 1: 219, 223, 224, 227, 229, 232, 234, 235.

132. Ibid., 2: 210.

133. Ibid., 2: 211-212, 213.

129. Francis Hopkinson, The Miscellaneous Essays , 2 vols. (Philadelphia, 1792), 2: 194.

130. Ibid., 1: 194, 195, 196, 202, 217.

131. Ibid., 1: 222. See also 1: 219, 223, 224, 227, 229, 232, 234, 235.

132. Ibid., 2: 210.

133. Ibid., 2: 211-212, 213.

129. Francis Hopkinson, The Miscellaneous Essays , 2 vols. (Philadelphia, 1792), 2: 194.

130. Ibid., 1: 194, 195, 196, 202, 217.

131. Ibid., 1: 222. See also 1: 219, 223, 224, 227, 229, 232, 234, 235.

132. Ibid., 2: 210.

133. Ibid., 2: 211-212, 213.

129. Francis Hopkinson, The Miscellaneous Essays , 2 vols. (Philadelphia, 1792), 2: 194.

130. Ibid., 1: 194, 195, 196, 202, 217.

131. Ibid., 1: 222. See also 1: 219, 223, 224, 227, 229, 232, 234, 235.

132. Ibid., 2: 210.

133. Ibid., 2: 211-212, 213.

129. Francis Hopkinson, The Miscellaneous Essays , 2 vols. (Philadelphia, 1792), 2: 194.

130. Ibid., 1: 194, 195, 196, 202, 217.

131. Ibid., 1: 222. See also 1: 219, 223, 224, 227, 229, 232, 234, 235.

132. Ibid., 2: 210.

133. Ibid., 2: 211-212, 213.

134. Respublica v. Schaeffer, 1 Dallas, 237.

135. Respublica v. Schaeffer, at 237.

136. See Marvin E. Frankel and Gary P. Naftalis, The Grand Jury: An Institution of Trial (New York, 1977), 12-13.

137. The Works of James Wilson , ed. Robert McCloskey, 2 vols. (Cambridge, Mass., 1967), 2: 210, 212.

138. Ibid., 2: 212-213.

139. Ibid., 2: 213.

140. Ibid., 2: 215-222.

137. The Works of James Wilson , ed. Robert McCloskey, 2 vols. (Cambridge, Mass., 1967), 2: 210, 212.

138. Ibid., 2: 212-213.

139. Ibid., 2: 213.

140. Ibid., 2: 215-222.

137. The Works of James Wilson , ed. Robert McCloskey, 2 vols. (Cambridge, Mass., 1967), 2: 210, 212.

138. Ibid., 2: 212-213.

139. Ibid., 2: 213.

140. Ibid., 2: 215-222.

137. The Works of James Wilson , ed. Robert McCloskey, 2 vols. (Cambridge, Mass., 1967), 2: 210, 212.

138. Ibid., 2: 212-213.

139. Ibid., 2: 213.

140. Ibid., 2: 215-222.

141. Charles Cottu used the Continental language of "presumption" to describe English grand jury standard. These must be assez fortes to continue

find a true bill. The Administration of Criminal Justice in England (London, 1822), 49, 54, 67.

142. Joseph Chitty, A Practical Treatise on the Criminal Law , Philadelphia, 1819 ed., 3 vols. (London, 1816), 1: 261.

143. Thomas Starkie, Practical Treatise on the Law of Evidence , 1853 ed., 2 vols. (London, 1824), 1: 544. The judge in Rex v. Burdett (1820) did not use the term " prima facie case," but a similar formulation. He did not, however, refer to the grand jury. " . . . no person is to be required to explain or contradict until enough has been proved to warrant a just conclusion against him, in the absense of explanation or contradiction." English Reports (Full reprint) vol. 106 (London): 873, 898.

144. Starkie, Practical Treatise , 1853 ed., 1: 544.

145. American Jurist 8 (1832), 218-219. Shaw recognized that "party spirit" and "sectarian zeal" might affect grand jurors in periods of "peculiar states of excitement." He also insisted the evidence must be "legal evidence" (217).

146. Charge to the Grand Jury , 30 Fed. Cas. 998, 999.

147. Francis Wharton, A Treatise of the Criminal Law of the United States , 3d ed. (Philadelphia, 1855), 125.

148. Charge to the Grand Jury , 30 Fed. Cas. 1036, 1038, 1039.

149. Charge to the Grand Jury , 30 Fed. Cas. 976.

150. Charge to the Grand Jury , 30 Fed. Cas. 992, 993.

151. Ibid., 993, 994.

150. Charge to the Grand Jury , 30 Fed. Cas. 992, 993.

151. Ibid., 993, 994.

152. George Edwards, The Grand Jury: Considered from an Historical, Political and Legal Standpoint (1906; reprint, New York, 1973), 105.

153. Sir James Fitzjames Stephen, Digest of the Law of Criminal Procedure in Indictable Offenses (London, 1883), 121.

154. Edwards, Grand Jury , 105.

155. Ibid., 142-143. See also 108.

154. Edwards, Grand Jury , 105.

155. Ibid., 142-143. See also 108.

156. The term " prima facie case" does not appear in Blount, Law Dictionary (1717), Cowell, The Interpreter (1684, 1727); Jacob, The New Law Dictionary (1729, 1809), Cunningham, A New and Complete Law Dictionary (1765), or Tomlins, Law Dictionary (1836). The concept begins to appear in some mid-nineteenth-century law dictionaries, although initially not in connection with grand juries. Bouvier's Law Dictionary , 2d ed., 1856 (Philadelphia, 1843), provided numerous citations to support the statement "Prima facie evidence of a fact is in the law itself sufficient to establish the fact unless rebutted" (363). Neither Burrill's New Law Dictionary (1851), a reworking of Spelman's Glossary (1851), adapted to American jurisprudence, nor Anderson's Dictionary of Law (1893) link prima facie evidence with the grand jury. Burrill cites Bracton and Starkie. In 1873, however, Benjamin Abbott's Dictionary of Terms and continue

Phrases in American or English Jurisprudence (Boston, 1879) indicates the phrase prima facie was in "common use, and of very wide application." It is explicitly associated with the grand jury, citing Starkie and Mozley and Whitley. The 1890 edition of The Century Dictionary (not a law dictionary) also associates the prima facie case with the grand jury, as does the 1891 edition of A Dictionary of Law , p. 935, citing Mozley and Whitley. Mozley and Whitley define a prima facie case:

A litigating party is said to have a prima facie case when the evidence in his favor is sufficiently strong for his opponent to be called upon to answer it. A prima facie case, then, is one which is established by sufficient evidence, and can be overthrown only by rebutting evidence adduced to on the other side. In some cases, the only question to be considered is whether there is a prima facie case against the accused: and for this purpose therefore, it is not necessary for them to hear the evidence for the defense.

This appears in Herbert Mozley and George Whitley, Law Dictionary , 3d ed., 1908 (London, 1879).

The sequence of American cases in the 1830s that linked the prima facie case with the grand jury and the belated introduction of prima facie case into the law dictionaries may suggest the Americans were persuaded of Starkie's formulation earlier than the English.

Joel Bishop's Commentaries on the Law of Criminal Procedure (Boston, 1866) suggests that various judges and law writers had tried to explain a "middle kind of certainty . . . as a guide to those who would determine whether a particular indictment is sufficient or not." Bk. 2, chap. 4, sec. 48, p. 736. See also bk. 6, chap. 43, sec. 736.

157. Chitty, Criminal Law , 2: 162.

158. See Younger, People's Panel , 56ff. See also Edwards, Grand Jury .

159. Younger, People's Panel , 56, citing The Works of Jeremy Bentham , ed. John Bowring (Edinburgh, 1843), 2: 139-141, 171. The mounting criticism is described in Younger, People's Panel . In the early nineteenth century, population increases meant that grand juries were being asked to review 300 to 400 cases a week. Legislative efforts to introduce a system of public prosecution along U.S., Irish, or Scottish lines, which would screen out clearly inappropriate bills, all failed. Francis Snyder, "Using the Criminal Law, 1750-1850," in Policing and Prosecution in Britain, 1750-1850 , ed. Douglas Hay and Francis Snyder (Oxford, 1989), 36.

160. William Forsyth, History of Trial by Jury (London, 1852), 216-217, 221-223. F. W. Maitland, Police and Justice (London, 1885), 139.

161. Younger, People's Panel , 185.

162. See Ibid., 60-75, 138-139, 226-230. See also S. D. Thompson continue

and E. G. Merriam, A Treatise on the Organization, Custody and Conduct of Juries, Including Grand Juries (St. Louis, 1882). See also David Bodenheimer, "Criminal Justice and Democratic Theory in Antibellum America: The Grand Jury Debates in Indiana," Journal of the Early Republic 5 (1985): 481-501. See also Helene Schwartz, "Demythologizing the Historic Role of the Grand Jury," American Criminal Law Review 10 (1972): 755-757.

161. Younger, People's Panel , 185.

162. See Ibid., 60-75, 138-139, 226-230. See also S. D. Thompson continue

and E. G. Merriam, A Treatise on the Organization, Custody and Conduct of Juries, Including Grand Juries (St. Louis, 1882). See also David Bodenheimer, "Criminal Justice and Democratic Theory in Antibellum America: The Grand Jury Debates in Indiana," Journal of the Early Republic 5 (1985): 481-501. See also Helene Schwartz, "Demythologizing the Historic Role of the Grand Jury," American Criminal Law Review 10 (1972): 755-757.

163. Hurtado v. Calif., 110 U.S. 516, 535 (1984).

164. Long after Hurtado , the Supreme Court began the "selective incorporation" of the Bill of Rights into the Fourteenth Amendment. It has incorporated nearly everything except the grand jury provision. Indeed the "selective" part of the selective incorporation doctrine appears to be kept alive almost solely for the purpose of avoiding the imposition of the grand jury requirement in the states.

165. Jerold H. Israel, "Grand Jury," in Encyclopedia of Crime and Justice , ed. Sanford Kadish (New York, 1983), 2: 814-815. Even in those jurisdictions many prosecutions proceeded by information because defendants may waive the indictment. This is a common practice for those making guilty pleas. See also Frankel and Naftalis, Grand Jury , 26-31. The development of public prosecutors in the United States and their role in grand jury proceedings meant that the grand jury functioned somewhat differently in England than in the United States. See Joan E. Jacoby, The American Public Prosecutor: A Search for Identity (Lexington, Mass., 1980), 19, 29. In some colonies, public prosecutors appear to have been introduced with grand juries. Prosecuting attorneys had the discretion to initiate and terminate criminal cases. See also 32, 111, 113, 138, 145-146.

166. See Chapter 3.

167. See, for example, Samuel Dash, "The Indicting Jury: A Critical Stage?" American Criminal Law Review 10 (1972): 807-828.

168. Alaska Crim. R. 6 (q) (1981).

169. Rideout v. Superior Court, 67 Cal. Reports , 2d Series, 471, 1967. See also U.S. v. Heap, 345 F.2d 170 (2d Cir. 1965); Lester Orfield, "The Federal Grand Jury," Federal Rules Decisions 22 (1959): 343-463.

170. Alan C. Wright, Federal Practice and Procedure: Criminal , 4 vols. (St. Paul, 1969 and 1982), chapt. 4m, rule 6, sec. 110.

171. Yale Kamisar, Wayne LaFave, and Jerold H. Israel, Modern Criminal Procedure (St. Paul, 1980), 990.

172. See Note, "The Rules of Evidence as a Factor in Probable Cause in Grand Jury Proceedings and Preliminary Examinations," Washington University Law Quarterly (1963): 102-124.

173. Quoted in Orfield, "Federal Grand Jury," 343, 435. break

174. Quoted in Peter Aranella, "Reforming the Federal Grand Jury and the State Preliminary Hearing to Prevent Conviction without Adjudication," Michigan Law Review 78 (1980): 485.

175. Quoted in Ibid.

176. Ibid., 486.

174. Quoted in Peter Aranella, "Reforming the Federal Grand Jury and the State Preliminary Hearing to Prevent Conviction without Adjudication," Michigan Law Review 78 (1980): 485.

175. Quoted in Ibid.

176. Ibid., 486.

174. Quoted in Peter Aranella, "Reforming the Federal Grand Jury and the State Preliminary Hearing to Prevent Conviction without Adjudication," Michigan Law Review 78 (1980): 485.

175. Quoted in Ibid.

176. Ibid., 486.

177. United States v. O'Shea, 447 F. Supp. 330, 331 (1978).

178. Lloyd Moore, Moore's Federal Practice (New York, 1979), 6-60.

179. American Jurist 8 (1832): 218.

180. United States v. Reed, 27 Fed. Cas. 727, 735, cited in Aranella, "Reforming the Federal Grand Jury," 488.

181. Charge to the Grand Jury , 30 Fed. Cas. 1036, 1039 (1861).

182. Charge to the Grand Jury , 30 Fed. Cas. 992, 993, 994 (1872). Edwards's 1904 study indicated that the grand jury employed the same rules of evidence as the petty jury, and that it was the duty of the district attorney to prevent the grand jury from hearing incompetent evidence. Receiving hearsay or irrelevant testimony, however, was not sufficient grounds for quashing the indictment. Edwards, The Grand Jury , 142, 143.

183. Aranella, "Reforming the Federal Grand Jury," 464-586.

184. Holt v. United States, 218 U.S. 245 (1910).

185. Note, Washington University Law Quarterly (1963): 101, 105-106.

186. See Frankel and Naftalis, Grand Jury , 26-30, 69-116.

187. United States v. Costello, 321 F. 2d 668, 677 (2d Cir. 1955).

188. 321 F.2d at 679.

189. United States v. Costello, 350 U.S. 362, 363 (1956). Justice Burton's concurrence reiterated the view that indictments were invalid only if there were "no substantial or rationally pervasive evidence" (364). The probable cause standard for arrest satisfied Justice Burton's standard. See Aranella, "Reforming the Federal Grand Jury," 493n.

190. Costello must also be seen in the context of the twentieth-century tendency to reduce the scope of hearsay exclusions.

191. Lawn v. United States, 355 U.S. 339 (1958); United States v. Blue, 384 U.S. 251 (1966).

192. United States v. Calandra, 414 U.S. 338, 344-345 (1974).

193. 414 U.S. 349.

194. Aranella, "Reforming the Federal Grand Jury," 496. The prosecution presumably screens out cases with little likelihood of conviction. The grand jury protects the "factually" innocent.

195. Ibid., 500-501.

196. Quoted in Ibid., 502, citing Justice Department Standards , 3002.

197. Ibid., 503. Only about 20 percent of the federal prosecutions continue

involve preliminary examinations because most defendants are indicted before the hearing is held, and the indictment then obviates the need for the hearing (535-536).

194. Aranella, "Reforming the Federal Grand Jury," 496. The prosecution presumably screens out cases with little likelihood of conviction. The grand jury protects the "factually" innocent.

195. Ibid., 500-501.

196. Quoted in Ibid., 502, citing Justice Department Standards , 3002.

197. Ibid., 503. Only about 20 percent of the federal prosecutions continue

involve preliminary examinations because most defendants are indicted before the hearing is held, and the indictment then obviates the need for the hearing (535-536).

194. Aranella, "Reforming the Federal Grand Jury," 496. The prosecution presumably screens out cases with little likelihood of conviction. The grand jury protects the "factually" innocent.

195. Ibid., 500-501.

196. Quoted in Ibid., 502, citing Justice Department Standards , 3002.

197. Ibid., 503. Only about 20 percent of the federal prosecutions continue

involve preliminary examinations because most defendants are indicted before the hearing is held, and the indictment then obviates the need for the hearing (535-536).

194. Aranella, "Reforming the Federal Grand Jury," 496. The prosecution presumably screens out cases with little likelihood of conviction. The grand jury protects the "factually" innocent.

195. Ibid., 500-501.

196. Quoted in Ibid., 502, citing Justice Department Standards , 3002.

197. Ibid., 503. Only about 20 percent of the federal prosecutions continue

involve preliminary examinations because most defendants are indicted before the hearing is held, and the indictment then obviates the need for the hearing (535-536).

198. The two-trial issue becomes even more salient in the context of plea bargaining. For most accused persons in the United States, the preliminary hearing is not a preliminary to trial but about the only trial they will have. For this reason counterpressures inevitably arise to the tendency to lower both prima facie case and probability standards. For the same reason pressures also arise to allow greater and greater defense participation in preliminary hearings. These latter pressures then threaten the paradox that preliminary hearings may become more adversarial, and thus more cumbersome and redundant, than grand jury proceedings. At the moment, the preliminary hearing is in the same state of instability and cyclical debate that characterized the grand jury until the prima facie case synthesis, and the grand jury itself is back in that same state.

199. See Herbert Packer, "Two Models of the Criminal Process," University of Pennsylvania Law Review 113 (1964): 1-68. See also Abraham Goldstein, "The State and the Accused: Balance of the Advantage in Criminal Procedure," Yale Law Review 69 (1960): 1149-1199.