the constitutions and laws of most of the states of the union provide that no person shall be tried for a felony unless he shall first have been indicted for his offence by a grand jury. the defendant may have been caught in the very act, have freely acknowledged his guilt to the officer who arrested him, have admitted it before the magistrate, and have signed a full and complete confession of his crime in every detail, yet he cannot be placed on trial or his plea of guilty received until a body of twenty-three intelligent, but exceedingly busy, gentlemen, sitting together in a secluded chamber, have solemnly deliberated upon the case. if they agree with the prisoner in his contention that he is guilty they thereupon file a diffuse and perplexing document to that effect, which they have not read, and probably would not understand if they had. the proceeding has cost the county some additional expense and the defendant a day or two longer in jail, and he has still to be tried before a petit jury, where the evidence must be presented again at the greatest length, and where the grand jury's action cannot be considered in any way as affecting the issue. if, on the other hand, the prisoner contends that he is innocent, and yet the magistrate who has heard the case thinks otherwise, the same twenty-three gentlemen, hearing, as a general rule, only the evidence[pg 82] in his disfavor, will almost inevitably return a true bill against him, and he will be put to his trial. of all the features of modern criminal procedure, bar only the office of coroner, the grand jury, or "the grand inquest," as it is called, is the most archaic. while without any doubt in thinly populated districts it may still be of value, in crowded cities like new york, where the volume of criminal business is overwhelming, it has in large measure ceased to be either effective or desirable so far as the ordinary run of criminal cases is concerned.
some states manage to dispense entirely with the services of the grand jury. the prosecutor receives the complaint against the accused directly from the committing magistrate, files an information and puts the prisoner on trial. truly this would seem both cheap and expeditious.
among the dusty archives of the court of general sessions lie a pile of parchment-bound volumes which contain the earliest minutes of criminal proceedings in the county. the first page of the most ancient of these presents an account of the empanelling of the first grand jury of which any record now remains in new york. it reads as follows:
province of new york. att the general quarter sessions of our lord the king held att the citty hall in the citty of new-york for our sayd lord the king, and the body of the sayd citty and county of new-york, that is to say on tuesday the 8th day of february, in the six and thirtieth year of the reigne of our sovereigne lord charles the second of england, scottland, france and ireland, king, defender of the faith, & before cornelis steenyck, esqr, mayr of the sayd citty, and james graham, recorder, nicholas bayard, john inians, wm pinho ... guyl. ver plank, jno robinson and william cox, esqrs, aldermen and[pg 83] justices of the peace of the sayd citty and county, commisionated by authority undr his royal highness james duke of york and albany lord proprietr of the province aforesd.
the grand jury "which consisted of nineteen [?],[24] was called and sworne according to an oath agreed on by the court, and was as followeth, viztt.:
"you shall diligently enquire and true presentmt make of all such things and mattrs as shall be giuen you in charge or shall come to your knowledge this present servise. the kings, his royal highness lord proprietr and this city councell yor fallows and your owne you shall well and truely keep secreet. you shall present nothing for malace or euill will that you bare to any person, neither shall you leaue anything unpresented for loue, favour, affection reward or any hopes thereof, but in all things that shall concerne this present servise you shall present the truth the whole truth and nothing but the truth, according to yor best skill and knowledge—soe help you god."
mr. francis rumbout was apoynted foreman.
the recorder ... read to them ther charge whch was deliuered in writeing.
then follows the quaint record of the first presentment or bill of indictment:
john robinson, } for our lord the kings sworne to
wm cox, } declare to the grand jury wt they
richard elliott, } know about the burgulary henry
darby bryan. } thomassen is charged with.
the bill against him was committed to the grand jury wth the examncon of the witnesses, and the court adjourned till four in the afternoone.
in the afternoone the court being opened the indictmt agst henry thomassen was returned by the grand jury billa vera.
henry thomassen being called for the sherriff returnes that he has broak prison and made his escape, and desires tyme till the next sessions to persue him.
[pg 84]
ordered that the sherriff doe make persuits after the prisonr to haue him att the next session to abide his tryall. the grand jury was dismissed from further attendance till ye next sessions and ye court dissolved.
it is interesting to observe that on the 13th day of the november following, in the first year of "the reigne of our sovereignee lord james the second of england, scotland, france, and ireland," etc., the "sherriff" having apparently made good "persuits" of thomassen and effected his capture, the latter was brought to the bar and duly charged:
"for that he not haveing the feare of god before his eyes, but being lead by the instigation of the divell ... by force and armes the cellar belonging to and being parte of the dwelling house of william cox of the citty of new-yorke merchant in the night season, to witt, between or about the houres of tenn or eleven of the clock ... feloniously and burgularly did breake and into the same did enter with an intent to steale and spoile the goods and chattles of the said william cox contrary to the peace of our said sovereigne lord the king his crowne and dignity."
having pleaded not guilty and put himself upon the county a jury was empanelled who swore:
"that the said henry thomassen is guilty of the feleony and burgularly aforesaid in the said inditement above specifyed in manner and forme as above against him is supposed, therefore it is considered by the court, that the aforesaid henry thomassen be branded on the forehead with the letter b, and be whipped on the bare back eleven stripes on the fourteenth day of november instant in the morning by eleven of the clock, before the city hall and pay all costs and charges of prosecution."
the oath of the grand jurors, their general procedure, and the form of indictment are practically the same up to the present day.
to appreciate fully just what part the grand jury plays in the administration of criminal justice the[pg 85] reader should remember that almost all defendants in criminal cases are brought immediately after their arrest before a police magistrate and given, if they so desire, an exhaustive hearing. if the magistrate thinks there is sufficient cause to believe the prisoner has committed the crime charged against him he is held (if the crime be a felony or a libel) for the action of the grand jury, or if it be a misdemeanor, for whatever court tries such offences,—in new york county the court of special sessions. of course it is the privilege of the defendant to be admitted to bail, save where the charge is one of murder, until the proceedings against him result either in his final discharge or his indictment, and, as has been said before, once he is held for the grand jury he cannot, even if he be a self-confessed criminal, be tried or punished until that body has deliberated upon his case.
the following table shows the number of arrests for felony in new york county each year since 1900, the number of persons so arrested who were "held" by magistrates for the action of the grand jury, and the number of indictments "found" by that body:
year number of
arrests
for felony number of
persons "held"
for action of
grand jury number of
indictments
found population of
new york
county
1900 8,588 4,473 3,674 2,050,600
1901 8,435 4,395 4,210 2,095,116
1902 9,465 5,020 3,890 2,139,632
1903 9,939 4,372 3,898 2,186,017
1904 9,238 3,452 3,950 2,235,060
1905 11,688 4,751 4,199 2,468,046
1906 11,553 4,169 4,116 2,553,100
1907 13,913 5,879 5,295 2,687,800
total 119,206 57,241 52,027 ......
it may be of some interest to note how this in[pg 86]quisitorial body is brought into being. every year a board of commissioners, consisting of the mayor, the recorder, the presiding justice of the supreme court, and others, meet and make up a list of a thousand names from which the grand jurors for the year are to be drawn. these names are placed in a wheel and each month fifty of them are drawn out at random by the county clerk in the presence of one of the judges of the general sessions. from these fifty names the grand jury of the succeeding month are chosen by lot. of course the selection of jurors must perforce be made with ostensible impartiality, for a grand jury which was amenable to political influence would render the administration of justice worse than a farce. such a condition has not been unknown.
not so very long ago recorder goff observed that certain representative gentlemen who had served on the grand jury for years were no longer drawn. in view of the significance of the political situation at that time the fact seemed peculiar and he determined to make a personal investigation. accordingly at the next monthly drawing the recorder inserted his own hand in the wheel and found that some of the slips were heavier and of a different texture from the others, and could easily be separated by the sense of touch. the inference was obvious. undoubtedly the opportunity thus to elect between the sheep and the goats had been made good use of. no excuse for this astounding situation was offered, and all the slips at once were destroyed by order of the court. later on it was explained that the manufacturer "had not been able to furnish all the slips of the same material."
[pg 87]
as but twenty-three grand jurymen are selected each month, only two hundred and seventy-six out of the total number chosen ever actually serve. the judge appoints a foreman, usually a man of some previous experience, and the jury are sworn. the court then delivers a charge and reads or calls to their attention certain sections from the code of criminal procedure. if there is any matter of public notoriety which comes within their purvue, such as crimes against the elective franchise, or insurance, banking, or other frauds, he is likely to dwell upon the necessity of paying particular attention to this variety of offence. the jury then retire to the rooms prepared for them and begin their secret deliberations.
they are now prepared to hear the evidence against all persons charged with felonies or libel, who have been held for their action by the police magistrates. the original papers in all these cases have already been copied under the direction of the district attorney and the witnesses subp?naed to attend and give their testimony. these subp?nas are served by attachés of the prosecutor's office, commonly known as "county detectives," or, more popularly, "sleuths." it should be observed that the district attorney in fact decides what cases shall be submitted, and prepares the daily calendar of the grand jury, which as a rule does not know in advance what business it is to consider. in addition to this, the district attorney draws, usually in advance, all the indictments.
the indictment may be said to be the most important individual paper in criminal procedure, for upon its sufficiency depends the question of whether[pg 88] or not a defendant may be tried, or if tried and convicted, sentenced to prison. the general form of these instruments has varied little during many centuries. they are as archaic as the grand jury itself. originally the draughter of documents was paid by the word, and the more prolix he could be the better it was for him. this fact naturally influenced the form of all legal papers. his sins are still directly visited upon us. moreover, not the best forms, but the worst are our inheritance, for usually only the sufficiency of the worst is questioned and tested by appeal. if an indictment is not absolutely defective, it is sustained by the higher courts, and having been passed upon and not found wanting, immediately becomes a model for all future draughtsmen. it may fairly be said that the more faulty an indictment is (so long as it be not actually void) the better its chance of immortality.
probably the simplest indictment which the grand jury can find is one for larceny. let us suppose that a servant, maria holohan, has stolen the teapot of her master, the hon. silas appleboy. the grand jury present an indictment against her in the following terms:
court of general sessions of the peace in and for the county of new york. the people of the state of new york against maria holohan.
the people of the state of new york, by this indictment, accuse maria holohan of the crime of grand larceny in the second degree committed as follows: the said maria holohan, late of the borough of manhattan of the city of new york, in the county of new york, aforesaid, on the 1st day of april, in the year of our lord, one thousand, nine hundred and seven, at the borough and county aforesaid, one teapot of the value of $50, of the goods, chattels and personal property of one silas appleboy, then and there[pg 89] being found, then and there feloniously did steal, take and carry away, against the form of the statute in such case made and provided and against the peace of the people of the state of new york and their dignity.
a. bird,
district attorney.
this is merely saying that "the grand jury charge maria holohan with stealing the silver teapot of silas appleboy on april 1, 1907." it is the shortest indictment possible. a complicated indictment may fill hundreds of pages.
many interesting old indictments are on file among the records of the general sessions; and if one can judge by the frequency with which the names of divers ungodly and reckless philadelphians are inscribed upon their pages, "the general reputation" of the city of brotherly love for "peace and quiet" must have considerably improved during the past two hundred years.
as a usual thing we find among the papers filed with the indictment the original "information" sworn to by the aggrieved party. give heed to the "unmerciful conduct" of mr. william miller:
city of new }
york ss: }
mathew o'brien of the city of new york mariner maketh oath and saith that on sunday night the first day of november instant he this deponent being at the tavern kept by francis king on the dock between the hours of ten and eleven of the clock and having a dispute with the landlord relative to a french crown dropped by this deponent one william miller who this deponent heard and believes is marker to a billiard table in philadelphia immediately challenged this dept. to fight him and stopped this deponent from going out either at the door or window altho. he made frequent attempts for that purpose and thereupon knocked this deponent down, and[pg 90] beat kicked and wounded him in a desperate and unmerciful manner. this dept. saith he also lost out of his pocket the whole of his money then about him consisting of five guineas in gold two crown pieces and a note of hand for ten guineas. and further saith not.
mathew o'brien.
sworn the 1 day of
nov r. 1704 before me
jno broome, just peace.
the grand jury of to-day is the same old grand jury that indicted william miller; and the cases are piling up,—piling up, at the rate of three, four, five, or even six hundred a month.
what would mr. francis rumbout, who was "apoynted" foreman of that earliest grand jury, have said if he had been obliged to pass upon six hundred cases in a month? the time which could actually be given to the consideration of any particular charge under such circumstances would average about six minutes!
for example, giuseppe candido, having been summoned to appear suddenly, finds himself standing in the centre of a large room around which are arranged a semi-circle of inquisitors.
he states where he lives, what his business is, that he knows michael angelo spaghetti, and that the latter cut him in the shoulder in a quarrel over a glass of beer. he is then excused. the grand jury take a vote and spaghetti is indicted for "wilfully and feloniously committing an assault with intent to kill." generally only one side of the case is heard. there is very little attempt made to hold the witnesses down to the strict rules of evidence. it is all ex parte. "l'évidence at jurie est que cunque chose que serve le partie a prover l'issue[pg 91] pur luy," as henry finch put it at the beginning of the seventeenth century.
once in a great while, if there is something a little peculiar in the charge or in the manner in which the witnesses give their testimony, the jurors may become suspicious and send out for other witnesses or possibly for the defendant himself. of course he cannot be compelled to testify, but usually he is glad of a chance to explain away the accusation if he can. perchance the inquisitors refuse to indict. but what a waste of time for twenty-three busy men! and as a rule what trivial matters are brought to their attention!
most of the cases dismissed are so inherently weak that the district attorney would himself have discharged the defendants of his own motion, but the action of the grand jury saves him the trouble and the odium, if any, and diffuses it among an irresponsible body. the same thing is true of indictments found against influential persons,—the responsibility is with twenty-three, not merely one.
but if the grand jury is to exist at all, it must be constituted, and required to act, in accordance with the law. the indictment is invalid if there be on the grand jury one who has not the proper qualification to sit, or if an unauthorized person be present, or if the evidence is not legally sufficient. even if the defendant be as guilty as the father of sin, he may make a motion to dismiss the indictment on any of these grounds, and, whether the point be well taken or no, the case may in consequence be delayed for weeks. where the defendant has the means to employ astute and learned counsel, he may retard his trial for weeks, or even months, by questioning the[pg 92] proceedings of the grand jury which found the indictment against him.
for example, when fire commissioner john j. scannel was indicted for conspiracy to defraud the city of new york, his lawyers ferreted out the fact that one of the grand jurors who had found the indictment lived a large portion of the year in the town of new rochelle. when the defendant was called upon to plead to his indictment the lawyers offered "a plea in abatement," although the law expressly provides that no pleas save of "guilty" or "not guilty" or of "autrefois acquit" may now be entered. they insisted, however, on their right to such a plea and the matter was delayed for a long time. their plea having been refused they then moved to dismiss the indictment because of the alleged irregularity in having this juror present who spent his summers at the seashore. the determination of this motion took months. how like the situation to that which existed in 1433, when a statute was enacted in order to remedy, if possible, somewhat similar abuses.
" ... when the grand jury appears and is ready to pass, a tenant or defendant or one of the petit jury pleads false pleas not tryable by the grand jury, and so delays proceedings until this be tried. when this is settled for the plaintiff, another pleads a like false plea since the last continuance; and so each of the defendants, tenants, or jurors, one after another, may plead and delay the grand jury; and although all be false and feigned, the common law has no penalty. this has caused great vexation and travail to the grand juries, and plaintiffs have been so impoverished that they could not pursue their cases, and jurors are more emboldened to swear falsely."[25]
[pg 93]
a substantial proportion of the delays in criminal procedure are due to the interminable motions based upon alleged irregularities in the constitution and action of the grand jury, and the insufficiency of indictments. such delays would vanish with the abolition of that body.
but beyond its general power to investigate specific charges of crime laid before it, the grand jury constitutes the only general inquisitorial body that we have, and its value and services in this respect must not be overlooked. it is highly important that the power should reside in some responsible body to summon witnesses and compel testimony anent suspected offences, conspiracies, and official misconduct. this is precisely what the grand jury did as[pg 94] far back as 1300, when it acted as a "suspecting" jury. only through some such power can a rumor of crime, unsubstantial and intangible in itself, be traced to its source and the knowledge of those who can testify as to the perpetration of it secured at first hand.
acting within its legal powers as an investigating body, the grand jury has a vast power and can be immensely useful to the community, but when it attempts to do more, its action has no more validity and is entitled to no more respect than that of any[pg 95] other self-constituted inquisitorial body of intelligent citizens.
a belief is quite prevalent, however, among grand jurymen that it is their duty not only to ascertain what crimes have been committed and to find indictments for them, but to act as the censors of the public morals, as watchdogs of the public treasury, as the promoters of legislation, and generally as the conservators of the public interests. this impression is entirely erroneous, and yet it is surprising to what an extent grand jurors imagine that because[pg 96] of their office some particular sanctity attaches to their enunciation of opinions in matters that do not concern them.
a grand juror walking in the morning from his house to the corner to take a street-car, accidentally stumbles over a coal-hole cover; he reports it to his associates; many of them know persons who have stumbled over coal-hole covers; they talk the matter over and decide that there should be no coal-holes, since with the abolition of the coal-hole the coal-hole cover also would disappear. they call upon the commissioner of public works to appear before them and testify; upon the street-cleaning commissioner; upon the commissioner of buildings; they learn how many coal-holes there are in the city; what their covers are made of; how they are fastened or are not fastened in place; and some day when the grand jury comes down into court, the foreman arises and states that he has a presentment. the judge on the bench requests him to hand it up; he delivers it to the clerk, who passes it to the judge, who returns it to the clerk and directs him to read it. the clerk stands; the grand jurors stand; the clerk reads:
"to the honorable john smith, presiding justice of the court of general sessions: the grand jury of the county of new york respectfully present: our attention has been called to the large number of unprotected and unguarded coal-holes existing in the county of new york; we have called before us a large number of witnesses and given much time to the taking of testimony relative thereto; we find that in the past year ten thousand persons have lost their lives through falling into improperly guarded[pg 97] coal-holes, and that the records of the hospitals show lists of over one hundred thousand others who have been severely injured by similar catastrophies; while it is beyond the capacity of the mind of man to comprehend the infinite number of those who have been wounded, bruised, lacerated and contused by similar accidents, to an extent not sufficient to render hospital aid necessary, etc." and such a presentment goes on with its statistics and figures and ends with the recommendation that the legislature pass a certain law, that the aldermen pass a certain ordinance, that certain laws or certain ordinances be repealed, or that other legislative interference be had, or legislative action should be taken, or that some city official or city officials do this or do that, or that some department make such and such an investigation and act thereon in such and such a way, and concludes with the signature of the foreman and secretary of the grand jury. the court then arises, bows to the grand jurors, says: "gentlemen, we have heard your presentment; i now direct that it be placed on file in this court and that copies thereof be forwarded forthwith by the clerks to the heads of the appropriate departments." and the grand jurors retire, imagining that in some way they have contributed directly to the public weal.
an examination of the long list of presentments on file in the office of the clerk of the court of general sessions will show the diversified interests to which the grand jury, acting as we have shown as a merely self-constituted censor morum, has devoted its attention and in which it has consumed many of its working hours in the past. so far as we know, no action whatever has ever been taken[pg 98] upon any of these presentments. that at times they may have done some good through calling to the attention of the public press matters which otherwise would not be under scrutiny, may be admitted; but the discussion of them in the press has usually been as ephemeral as the existence of the grand jury by which they were filed; and in general it may be said that the only effect of a grand jury's meddling with these things is to detract from the dignity of its office and the importance of the work which it and it alone can lawfully do.
the lay reader will naturally be led to inquire why this archaic institution which it costs so much time and money to perpetuate, which causes so much unnecessary inconvenience to witnesses and offers so many technical opportunities for delay, which frequently is ineffective and officious, and for the most part concerns itself with the most trivial matters only, should not be abolished, and why prisoners charged with crime whose cases have been properly examined by committing magistrates should not be immediately placed upon their trial.
it is doubtful if any very convincing arguments in favor of retaining the grand jury for the purpose of indicting ordinary offenders can be advanced. that it should be continued for the purposes of investigation, with power of indictment, to be summoned when the need thereof arises, is indisputable. but the original necessity for the grand jury has disappeared with the onward march of the centuries.[26] in early days, when the influence of the crown threatened the liberties of the english freeman, and when judges and magistrates owed their positions to royal favor,[pg 99] it was often difficult if not impossible to secure the punishment of a criminal if he happened to be a retainer or under the protection of those in power. so, too, the defenceless subject might be accused of crime by an influential person and haled to the bar upon a baseless and malicious charge. some barrier was needed between the powerful and the weak, and some tribunal before which the weak could accuse the powerful of their wrongs. this was supplied by the grand jury, which, ever changing its members and deliberating in secret, seemed well calculated to safeguard the people's liberties. but at present we need no such protection against a government of and by the people, and indeed such a body, deliberating secretly and hearing the evidence against an accused person without giving him the opportunity to be heard, seems strangely out of harmony with the spirit of our institutions.
to-day, the grand jury, initiating a proceeding against a citizen who may be ignorant that he is even under suspicion, may be led to accuse him of some foul crime upon the mere ex parte statement of malicious witnesses, without giving him an opportunity to explain or contradict the evidence. the mere charge of crime is often enough to ruin a man forever. the argument that a suspected person may escape before arrest unless the charge is considered secretly, has in these days of telegraphs, railroads and extradition treaties little of the force which it may have carried with it in cruder times. moreover, the possibility of indicting public officials or others upon insufficient evidence for political purposes, or for "moral effect," would be done away with, and only those against[pg 100] whom legal testimony made the charge reasonably clear would be threatened with prosecution, and then only when their defence had been heard by a magistrate and held insufficient.
prosecutors now prefer to take as few cases before their grand juries in the first instance as possible, and to send the man with a grievance, who thinks he has some political pull and "wants to get the fellow indicted anyway," into the magistrate's court to make good his charge.
almost twenty-five per cent of the states in the union have modified their procedure in this regard so as to conform to modern requirements. the state constitutions of indiana, illinois, iowa, nebraska, oregon and colorado give the legislatures the power to make laws dispensing with grand juries in any case, and in california, connecticut, kansas, louisiana, montana, south dakota, utah, vermont, wisconsin and wyoming constitutional provisions exist permitting all criminal proceedings to be made by information, or dispensing with grand juries in certain cases. this is also true of the federal government. experience has demonstrated that ample protection is afforded the accused where the state is permitted to prosecute those held to bail by an examining magistrate upon proof of probable cause. he is better protected than by a grand jury which hears in secret only the evidence against him and gives him no opportunity of explanation.
a system which would allow of the prosecution of all felonies by information would do away with the great and practically useless labor of our grand jurors in the ordinary run of cases, would save endless time and money to all concerned, and[pg 101] might still retain the grand jury for such purposes as necessity requires. justice would be more speedy and just as effective if the prosecution of all crimes were instituted before an examining magistrate, and the grand jury would then, at the summons of the court, meet to perform only those important and peculiar functions of investigation that are consonant with its dignity and necessary to the public weal.
footnotes:
[24] record illegible.
[25] the historical development of the grand jury is highly interesting. originally the assize at which the knights assembled was not unlike a sort of county parliament and all manner of matters were submitted to them. gradually as the jury developed out of this unorderly gathering together, the sheriffs got into the habit of summoning only enough men to form the grand jury and as many petty juries (when those came into existence) as might be needed.
in the beginning private vengeance was the moving cause of all criminal procedure. the aggrieved party made a direct appeal to the county and the issue was fought out, the complainant and defendant appearing in person or by champions. this was exceedingly unsatisfactory for many reasons, among others that not seldom a rich man would hire all the champions within reaching distance and the poor man be left without any, which suggests the somewhat similar practice of many wealthy litigants at the present day. but this mode of individual redress colored all english procedure and is the direct cause which makes english criminal trials in so many ways resemble private litigation. private vengeance was at the bottom of it.
when the "county" or the public were the accusers, a mere accusation was practically equivalent to a conviction subject to the chance of the defendant's escaping by a favorable termination of "the ordeal of water." but "the ordeal" in time died out, just as did wager of battle, and something had to take its place. this was the jury.
from very early times we find "grand" or "accusing" juries presenting charges for the trial jury to dispose of, although the accusing jury frequently acted as trial jury as well. by 1212 it had become customary to submit a charge found by a presenting jury to a larger combination jury which included the original body which had presented the charge. this enlarged jury, usually composed of a jury from another "hundred" and "the four vills," delivered a unanimous verdict. by 1300 it had begun to be the privilege of an accused to "challenge" those who had presented the charge against him, but it was the approved practice to try an accused by some at least of those who had presented him.
"the four knights were called, who came to the bar girt with swords (above their garments) and were charged—to choose twelve knights girt with swords for themselves and the others—and the justices ordered the parties to go with the knights into a chamber to choose or to declare their challenges of the others chosen by the four, for after the return of the panel so made by the four knights the parties shall have no challenge to panel or polls before the justices." (1406) y.b. 7 h. iv, 20, 28.
the idea seemed to be that unless there were a few on the jury who had already formed a provisional opinion as to his guilt the prosecution would not have a fair chance. in willoughby's case in 1340, parning, j. naively remarked, "in such case the inquest should be taken by the indictors (the accusors) and others. certainly if the indictors be not there it is not well for the king." in 1351 by st. 25 edw. iii, c. 3, it was enacted that "no indictor be put on an inquest upon the deliverance of one indicted for trespass or felony, if he be challenged for this cause by the party indicted." persons "presented" or accused could "put themselves" upon different counties, that is to say, could submit their case to juries drawn from such counties, with certain limitations, as they might elect. thus we find a case where one having been "presented" by an accusing jury "puts himself on the county of surrey and on all men in england who know him." at easter came riding twenty-four knights from surrey at the king's summons who promptly found him to be a robber, and, says the record, "since he put himself upon these, let him be hanged."
there is a criminal case in y.b. 30 & 31 edw. i, 528, which throws a good light on the procedure of the time. w. was the stabler of j.'s horse and had been kicked, while trying to mount, so that he died. the horse thereupon became forfeit to the king as a deodand. the jury accused j. of keeping the horse in spite of this and also charged him with having buried w. without calling in the coroner. this he denied and "put himself on the county." the judge, addressing the jury, which was probably the same that had made the accusation, charged as follows:
"if w. died from the kick of the horse, the horse would be deodand. if not it would be john's. if the king should lose through you what rightly belongs to him, you would be perjured. if you should take away from john what is his, you would commit a mortal sin. therefore, by the oath you have made, disclose and tell us the truth, whether the said w. died of the horse's kick or not. if you find that he did, tell us in whose hands is the deodand horse and what he is worth; and whether the said w. was buried without a view of the coroner."
all things considered—a pretty good charge.
gradually, and in large measure because the "ordeal" had disappeared and the grand jury as a distinct body had been fully established, no method of ascertaining the truth of an accusation was left, and a mere presentment in fact amounted to a conviction, so that the need of some other jury to pass upon the issue was apparent. out of this need the modern petty jury developed.
in course of time the accusing jury became as it is now, a distinct and separate body, deliberating secretly, its members being no longer permitted to sit as trial jurors. they acted on common report, their own personal information, and upon the application of injured parties, and initiated most criminal proceedings. it was necessary for some one to ferret out crime and hold the perpetrators for trial, and the jury did practically the whole business. as the years went on the jury became more and more a purely ex parte accusing body with practically no judicial supervision and receiving about what it saw fit as evidence. from time to time the powers and the character of the grand jury has been fiercely assailed. two centuries ago it came near receiving a knock-out blow, but it had become too firmly established. in shaftsbury's case, 8 how. st. tr. 759 (1681), they were in fact compelled to receive their evidence publicly in court, but their vigorous protests and the failure of the attempt left the body all the more securely entrenched in english procedure.—condensation from prof. j.b. thayer's masterly chapter on "trial by jury and its development" in his "preliminary treatise on the law of evidence."
[26] cf. "reform in criminal procedure," h.w. chapin, 7 harvard law review 189.
