1984]
POLITICAL ACTIVISTS AND THE GRAND JURY
II. A.
THE GRAND JURY:
A
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HISTORICAL OVERVIEW
THE ORIGINS OF THE GRAND JURY
Most scholars agree that the forerunner of the modern grand jury arose first in England during the reign of Henry II, not as a reform in the interests of the people, but as the result of the King's efforts to control the power and money of the church and barons. 15 Prior to Henry II's reign, the church and barons had their own courts that allowed them to exercise power over portions of the King's realm and raise substantial revenues. 16 During Henry II's reign, a system of judicial administration was consolidated in the hands of the King through two pieces of legislation: the Constitutions of Clarendon of 1164, in which the church hierarchy consented to the use of an "accusing jury" to bring formal charges against any layman charged in the ecclesiastical courts, and the Assize of Clarendon of 1166, which placed the power of appointing the members of the accusing juries in the hands of royal sheriffs or justicesY The newly created grand jury was not an instrument for the benefit of the people. In fact, because the method of trial was by ordeal, and an accusation was tantamount to a verdict of guilty, the populace greatly feared the new "accusing jury" which operated as a direct arm of the King's power. The grand jurors were charged with raising money for the support of the King's war by confiscating the accused's land and money. The grand jurors were subject to heavy fines and intimidation for failing to indict a sufficient number of persons. IS By the 17th century, trial by ordeal was abolished,19 the petit jury appeared as a body separate from the accusing jury, and an accusation was no longer a guaranteed final determination of guilt. 20 Most commentators argue that in this period the grand jury emerged as the great protector of the individual against the power 15 See generally L. CLARK, THE GRAND JURY, THE USE AND ABUSE OF POUTICAL POWER 7路9 (1976); H. FRANKEL & G. NAFTALIS, THE GRAND JURY: AN INSTITUTION ON TRIAL 6-9 (1977); Schwartz, Demythologizing the Historic Role of the Grand jury, 10 AM. CRIM. L. REV. 701,701-10 (1972). 16 See L. CLARK, supra note 15, at 8; Schwartz, supra note 15, at 703-09. 17 See L. CLARK, supra note 15, at 8-9; Schwartz, supra note 15, at 708-09. !d. In 1215, the Lateran Council abolished trial by ordeal. See H. FRANKEL & G. NAFTALIS, supra note 15, at 9. 20 !d. Originally, after the abolition of trial by ordeal, the accused was tried by the very same jury that had indicted him. Finally, it developed that a defendant could strike from the trial jury any members of the grand jury that indicted him. Thus emerged the petit jury. H. FRANKEL & G. NAFTALIS, supra note 15, at 9. IS
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