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“Against this ancient and fundamental law, an act of parliament was made, that as well justices of assize as justices of peace, (without any finding or presentment by the verdict of twelve men) upon a bare information for the king before them made, should have full power and authority by their discretions to hear and determine all offences and contempts committed or done by any person or persons against the form, ordinance and effect of any statute made and not repealed, 7c. By colour of which act, shaking this fundamental law, it is incredible what oppressions and exactions, to the ruin of infinite numbers of people, were committed by Sir Richard Empson and Edmund Dudley justices of peace, throughout England; and upon this unjust and injurious act (as is common in like cases) a new office was erected, and they were made masters of the king’s forfeitures.”
Page 36
English Liberties, Or The Free-Born Subject’s Inheritance: Containing Magna Charta,
The Habeas Corpus Act, And Several Other Statutes, Henry Care
Boston: Printed by J. Franklin, for N. Buttolph, B. Eliot, and D. Henchman, 1721
https://upload.wikimedia.org/wikipedia/commons/7/79/British_Liberties%2C_or_the_Free-born_Subject%27s_Inheritance_%281st_ed%2C_1766%29.pdf
_________________________________
1994 Reviving Federal Grand Jury Presentments Renée B. Lettow
https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=7541&context=ylj
"The grand jury was a creation of English medieval law carried to the American colonies and later formally enshrined in the United States Constitution. By including the grand jury in the Bill of Rights, the United States inherited not only the institution's defensive function, but also its accusatory function.8
"8. Established by Henry U's Assize of Clarendon in 1166, the grand jury's original function was to bring accusations before royal judges. At first all accusations originated with the grand jury, but later the jurors considered accusations from outsiders and passed upon indictments drawn up by crown prosecutors. The jurors, however, retained the power to accuse on their own initiative. Such an accusation was called a presentment. See I WILLIAM S. HoLDSwoRTH, A HISTORY OF ENGLISH LAW 147-48 (1908); 2 FREDERICK POLLOCK & FREDERIC W. MAITLAND, THE HISTORY OF ENGLISH LAW 641-42 (photo. reprint 1982) (1898); 4 JAMES F. STEPHEN, COMMENTARIES ON THE LAWS OF ENGLAND 243-44 (21st ed. 1950); 2 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 590-93 (Boston, Little, Brown, 3d ed. 1858)."
"A presentment, properly speaking, is the notice taken by a grand jury of any offence from their own knowledge or observation, without any bill of indictment laid before them at the suit of the king.... upon which the officer of the court must afterwards frame an indictment, before the party presented as the [perpetrator] can be put to answer it.10"
"10. 4 WILLIAM BLACKSTONE, COMMENTARIES *298 (footnote omitted). According to Blackstone, therefore, the accused could not be put to trial unless an official drew up an indictment. The "officer of the court" may have had limited discretion as to whether to frame an indictment. See SIDNEY & BEATRICE WEBB, ENGLISH LOCAL GOVERNMENT FROM THE REVOLUTION TO THE MUNICIPAL CORPORATIONS ACT: THE PARISH AND THE COUNTY 308 (1906) ("The officer or locality 'presented' might be formally indicted . .... " (emphasis added)). Before a regular system of public prosecution was established, the officer was likely to have been the clerk of the court, JULIUS GOEBEL JR. & T. RAYMOND NAUGHTON, LAW ENFORCEMENT IN COLONIAL NEW YORK: A STUDY IN CRIMINAL PROCEDURE (1664-1776) 352 (1944), or a justice of the peace, YALE KAMISAR Er AL., MODERN CRIMINAL PROCEDURE 635 (7th ed. 1990). Given the court clerk's limited knowledge of the locale and the limited resources of justices of the peace, it is likely that framing an indictment based on the grand jury's accusation was usually automatic. This was virtually the case in the American colonies, generally. RICHARD D. YOUNGER, THE PEOPLE'S PANEL: THE GRAND JURY IN THE UNITED STATES, 1634-1941, at 5-6 (1963). In the colonial New York Supreme Court, the Attorney General reduced the presentment to form. In other courts, either a deputy attorney general or the clerk of the peace performed this task. GOEBEL & NAUGHTON, supra, at 352-53. Interestingly, the New York Courts of Sessions exercised considerable discretion over prosecution: "If the Crown's representative refused to draw the indictment, the court would order someone else to do so." Id. at 353. The court also occasionally quashed presentments rather than ordering them to be put in form. Id. By the late eighteenth century in England, constables had gradually taken more initiative in making accusations. 4 HOLDSWORTH, supra note 8, at 144-45 (1924); YOUNGER, supra, at 5."
"Although historians chiefly celebrate the English grand jury for refusals to indict in the late seventeenth century, 11 grand juries also won respect for making accusations against the Crown's desires. Grand juries took advantage of their wide investigative powers and gained prominence in fighting government corruption by issuing presentments against royal officials.12
11. In 1681, a grand jury refused to indict the Earl of Shaftsbury, a supporter of the Protestant cause, on charges of treason. Rex v. Shaftsbury, 8 Howell's State Trials 759 (1681); see Helene E. Schwartz, Demythologizing the Historic Role of the Grand Jury, 10 AM. CRIM. L. REV. 701, 710-21 (1972); Comment, Federal Grand Jury Secrecy, 5 GONZ. L. REV. 255, 256 (1970).
12. In the seventeenth and eighteenth centuries, English grand juries criticized justices of the peace who accepted excessive fees, constables who were lax in enforcing the law, and other officials who failed to maintain bridges, jails, highways, and other county property. Often these accusations did not include charges of criminal wrongdoing, but many of these breaches of the public trust would be criminal today. WEBB, supra note 10, at 448-56; see also 10 HOLDSWORTH, supra note 8, at 146-51 (1938). This function of watching over public officials was ancient even then. In the thirteenth century, the justices in eyre (on circuit) carried with them a list of questions, called the Articles of the Eyre, to ask local grand juries. "[A] large group of articles relates to the official misdoings of royal officers, sheriffs, coroners and bailiffs." POLLOCK & MAITLAND, supra note 8, at 520-21."
This function of watching over public officials was ancient even then.
"The same pattern of grand jury independence crossed the Atlantic to the colonies. Indeed, since the colonies lacked an efficient constabulary, colonial grand juries exercised greater independence than their English counterparts.13 American grand juries had a penchant for presenting government officials. These presentments could be for crimes or noncriminal violations of the public trust. The latter type of accusation would now, and sometimes then, be called a report.14 Colonies that lacked a representative legislature often turned to grand juries as a substitute; grand juries regulated areas higher officials did not address.15 As tensions between the colonies and the mother country grew, grand juries played an increasingly prominent role. They not only refused to indict,16 but also issued angry and well-publicized presentments and indictments against British officials and soldiers.17 Because of its boldness and independence in both defending and accusing, the grand jury emerged from the Revolution with enhanced prestige."
13. Grand juries also took on many administrative roles. In certain colonies grand juries could determine the amount of compensation for land taken for public purposes. Where local courts collected taxes, grand juries set rates and helped gather the taxes. See Wright, supra note 3, at 473.
14. The first regular American grand jury, that of the Massachusetts Bay Colony in 1635, took its mission seriously. After listening to the Ten Commandments and hearing Governor John Winthrop's charge to present all crimes and misdemeanors that came before them, the jurors proceeded to present more than a hundred offenders, including several colonial magistrates. Other colonial grand juries followed their example. Plymouth grand juries were especially eager to present officials. YOUNGER, supra note 10, at 6-7.
Plymouth grand juries were especially eager to present officials.
"Although historians typically portray early federal grand juries as mere tools of the central government,18 an examination of actual charges and presentments reveals a different picture.19 After the Constitution's ratification, grand jurors continued to take initiative in making presentments.
Given that the Federalists wanted to assuage Anti-Federalist fears of a powerful central government, it is not surprising that ratification documents emphasized the grand jury's shield rather than its sword.20 Early post ratification charges to and writings about the federal grand jury, however, reveal an equal if not greater concern for the sword. Without fail, judges and justices reminded grand jurors of their oaths to make diligent inquiries and true presentments." Indeed, judges mentioned presentments more often than indictments. In his charge to the first grand jury impaneled for the Circuit Court for the district of Delaware, Justice Wilson urged grand jurors: "[Y]ou will be sedulous that criminals be discovered and punished, and you will be equally sedulous that the innocent be guarded and protected. With regard to both, it will be your zealous effort, as it is your unquestionable right, to make diligent enquiries, and to offer true presentments.22 In a lecture to students at the University of Pennsylvania, the Justice emphasized the grand jury's independence from the prosecutor:
[Grand jurors] are not appointed for the procecutor [sic] or for the court: they are appointed for the government and for the people: and of both the government and people it is surely the concernment, that ... all crimes, whether given or not given in charge, whether described or not described with professional skill, should receive the punishment, which the law denounces .... 23
Following such admonitions, early federal grand juries used their power of presentment both to accuse24 and to present grievances to the government.25"
15. New York grand juries were particularly active in legislating and regulating, since New York lacked any other representative body after the Duke of York abolished the Assembly upon his accession to the throne. In 1688, an Albany grand jury required anyone selling spirits to keep lodging for men and horses. Another New York grand jury prohibited riding over cornfields. GOEBEL & NAUGHTON, supra note 10, at 336, 355-56, 361. Colonial methods of grand juror selection gave the jurors considerable legitimacy as lawmakers. In one model, exemplified by Massachusetts, jurors were elected from each town; in another, the local elected sheriff or the court selected grand jurors, usually from a pool of the wealthiest and most respected men of the area. Wright, supra note 3, at 474-75.
16. The American equivalent of the Earl of Shaftsbury's case was the Crown's unsuccessful attempt to indict John Peter Zenger for seditious libel. Zenger, a journalist, had published articles criticizing William Cosby, the English governor of New York. When the Governor sought indictments against Zenger in 1734, the grand jury twice refused to indict. Zenger was finally prosecuted by information and acquitted. Richard H. Kuh, The Grand Jury "Presentment": Foul Blow or Fair Play?, 55 CoLuM. L. REV. 1103, 1108-09 (1955); see also LEROY D. CLARK, THE GRAND JURY 18 (1975); MARVIN E. FRANKEL & GARY P. NAFrALIS, THE GRAND JURY: AN INSTITUTION ON TRIAL 11 (1975); CHARLES F. HEARTMAN, CHARLES F. HEARTMAN PRESENTS JOHN PETER ZENGER AND His FIGHT FOR THE FREEDOM OF THE AMERICAN PRESS (1934). The above authors disagree on the dates of the attempted indictments.
17. In 1769, for example, the Boston grand jury accused soldiers quartered in the town of "breaking and entering dwellings, waylaying citizens, and wounding a justice of the peace .... The attorney general refused to prosecute, whereupon the Massachusetts Assembly vigorously denounced him, and the grand jury, in revenge, rejected all bills of indictment laid before it. YOUNGER, supra note 10, at 29-3 1.
18. See, e.g., id. at 47 ("Federal grand juries ... tended to become instruments of the central government rather than representatives of the people."). 19. Early federal grand jury presentments have been collected and published in 2 THE DOCUMENTARY HISTORY OF THE SUPREME COURT OF THE UNITED STATES, 1789-1800 (Maeva Marcus ed., 1988) [hereinafter DOCUMiENTARY HISTORY]; 3 id. (Maeva Marcus ed., 1990). 20. See 2 DEBATES ON THE ADOPTION OF THE FEDERAL CONSTITUTION 110 (Jonathan Elliot ed., 1987) (1888) (the Massachusetts debates, Mr. Holmes); "Hampden," Letter to Mr. Russell, MASS. CENTINEL, Jan. 26, 1788, reprinted in 4 THE COMPLETE ANTI-FEDERALIST 198, 200 (Herbert J. Storing ed., 1981). Having apparently overlooked these sources, one author implies, first, that Anti-Federalists did not voice concern about executive prosecutorial power and, second, that they failed to do so because they did not view it as an exclusively executive function. Stephanie AJ. Dangel, Note, Is Prosecution a Core Executive Function? Morrison v. Olson and the Framers' Intent, 99 YALE L.J. 1069, 1076-77 (1990). This simply is not the case. They openly feared prosecutorial power, attributed it to the executive branch, and found a check not in the legislative or judicial branches, but in the grand jury."
25. This aspect of grand juries' activity links the institution strongly with the right to petition and with the other expressive rights of the First Amendment. See infra note 131.
This aspect of grand juries' activity links the institution strongly with the right to petition and with the other expressive rights of the First Amendment.
Like their English and colonial predecessors, federal grand juries continued to present government officials; the most controversial presentment by a federal grand jury was an accusation against a U.S. Congressman.26
131. See Marc A. Franklin, A Declaratory Judgment Alternative to Current Libel Law, 74 CAL. L. REV. 809, 812-13 (1986). Grand jurors are, and were traditionally, immune from libel suits. See United States v. Briggs, 514 F.2d 794, 808 (5th Cir. 1975); RESrATEMENT (SECOND) OF TORTs § 589 (1977). (California is the exception. See CAL PENAL CODE § 930 (West 1985) (denying immunity to grand jurors for comments on a person who has not been indicted).) The same remedy could be applied to untruthful petitions, which would also have the potential to become "hit and run" vehicles if the Supreme Court were to recognize their traditional, nearly absolute, immunity from libel actions. See Eric Schnapper, "Libelous" Petitions for Redress of Grievances-Bad Historiography Makes Worse Law, 74 IOWA L. REV. 303 (1989) (arguing that McDonald v. Smith, 472 U.S. 479 (1985), was wrongly decided because petitions were absolutely immune from libel actions at the time of ratification of the Bill of Rights); Norman B. Smith, "Shall Make No Law Abridging...": An Analysis of the Neglected, but Nearly Absolute, Right of Petition, 54 U. CIN. L. REv. 1153 (1986). Note that grand jury noncriminal presentments were often petitions for redress of grievances. See supra note 25. Insulating petitions and grand jury presentments from libel laws helped ensure that the most significant channels of communication between rulers and ruled would remain open. The right to petition is closely linked to the other First Amendment rights of speech, the press, and assembly, id. at 1168-69; the grand jury presentment also is closely linked to these "expressive" rights. As Judge Leval notes, the Framers frowned on secrecy and strove to encourage the free spread of ideas. The "underlying objectives" of the Copyright Clause, for example, "parallel those of the first amendment"; the clause was intended "'[t]o promote the Progress of Science and the useful Arts."' Pierre N. Leval, Commentary, Toward a Fair Use Standard, 103 HARV. L. REV. 1105, 1135 (1990) (quoting U.S. CONST. art. I, § 8, c1. 8).
26. After a charge from Justice Iredell emphasizing the powers of the grand jury and the danger created by those who opposed the new government, a federal grand jury in Virginia presented Samuel J. Cabell, a Congressman from that commonwealth, for disseminating "unfounded calumnies" against the federal government in a letter to his constituents. Thomas Jefferson was quick to defend his Representative and declared that "Federalist judges had perverted grand juries from a legal to a political engine" by urging them "to become inquisitors on the freedom of speech." YOUNGER, supra note 10, at 50. For a defense of the grand jury's power, see "A Friend to Juries" to Samuel Jordan Cabell, VA. GAZETTE, & GEN. ADVERTISER, June 30, 1797, reprinted in 3 DOCUMENTARY HISTORY, supra note 19, at 207, 209 ("In the liberty of their opinions and the subject of their presentments, juries have no other limitation than the observance of their oath. They are sworn to present every irregular and disorderly, as well as illegal and criminal act, that comes within their knowledge.").
The Documentary History of the Supreme Court of the United States, 1789-1800
"In the liberty of their opinions and the subject of their presentments, juries have no other limitation than the observance of their oath. They are sworn to present every irregular and disorderly, as well as illegal and criminal act, that comes within their knowledge."