Sortition
Newsletter of the Campaign to Defend the Right to a Secret Ballot
(CDRSB)
November 2024 Issue No. 18
ISSN 1756-4964 (Print)
Abolition of the British Grand Jury: The Case for Review
President Donald Trump, Kari Lake and Steve Bannon will in the coming years very likely make progress in defending the right to a secret ballot in the USA by ending the use of postal ballots on demand. This will be done by reinstating the condition that postal ballots should only be used by those who are unable to attend a polling station for reasons of ill health or absence from home. The right to a secret ballot was protected in this manner by means of the 'Australian ballot' established primarily by Chartist activists deported to Australia. We will report regularly on such progress. In this issue the analysis, published also on www.grandjurymuseum.uk, concerns our view that the abolition of the British Grand Jury in 1933 should be subject to review. Similar to the Right to a Secret Ballot, the right to "grand and petit juries of the people fairly drawn" (see 1832 coin, Grand Jury Museum) were among the main demands of the early Chartist British working class movement.
Summary
The following proposal for review of the abolition of the Grand Jury can quite easily be justified merely by reasons one and two below. That is to say, first, the fact that the abolition was effected in a deceptive manner; second, as those MPs who argued against abolition in Parliament indicated, the Grand Jury was a cornerstone of the British constitution, vital to the defence of freedom and where necessary should be democratised, not abolished (see Notes: Slesser MP, Wedgwood MP). The fact that it was abolished in such a duplicitous manner shows that it needs to be subject to a thoroughgoing and transparent review. These first and second points are all that are necessary to know in order to support this proposal. Nevertheless for those who have the time to study the matter in more detail the rest of the proposal provides more in depth knowledge in order to make informed judgements of criticisms that may be forthcoming from those who will opt to oppose it.
At the heart of this proposal is a brief, concise explanation of the complexities surrounding the role that conscience has played in legal theory and history in validating the power of juries to decide not merely on matters of fact but also on matters of law. Chancellors appointed by the crown in the Royal courts were usually regarded as best fit to decide on issues of legal interpretation in dealing with problems of ‘equity.’ These arose when allegations of wrongdoing were not satisfactorily accounted for in common law due to its supposed inflexibility. Against this background Chancellors were entrusted by the Crown to deal with such issues in ways which would satisfy the standards of fairness and justice which would adequately guard the ‘Kings conscience.’
The term 'equity' is not simple. One interpretation has it that it refers to fairness and justice and is distinguished from equality in the following way: whereas 'equality means providing the same to all, equity means recognising that we do not all start from the same place and must acknowledge and make adjustments to imbalances.'
The Big Picture
Taking account of the original meaning of aristocracy as ‘rule by the best’ modern representative democracy is what ancient Athenian citizens would regard as elective aristocracy, not democracy. For Athenians voting to choose the ‘best’ candidate among competing candidates signifies election of an aristocracy. The Athenian constitution was one among many different forms of rule in hundreds of Greek cities. From within a civilisation borne of centuries of collective organisation the freemen farmer, craftsmen and seafaring citizens of Athens and Attica agreed under the reforming leadership of the aristocrat Cleisthenes to establish the most democratic form of government yet known. It was designed to minimise aristocratic subversion by means of direct democracy mediated by random selection and frequent rotation of delegates - processes which helped constrain the influence of both open and secret factions. Direct democracy took place at city assemblies usually numbering some five thousand citizens from which an executive council of 500 and juries of 500 were elected by sortition. A further safeguard against bad law was attained by the constitutional empowerment of the jury court to overrule legislation if it proved in some way deficient.
There were claims of flaws in Athenian government - chiefly the role of ‘demagogues’ in promoting ill considered, hasty policy choices - but it is not clear how or whether these had terminally dysfunctional consequences. The fact is Athenian democracy lasted 140 years in more difficult circumstances than modern representative systems. Similarly it is not clear whether such flaws were in the process of being overcome through further constitutional development. Athenian democracy was eventually destroyed by aristocratic, including Roman, forces. Variants of monarchy dominated Europe after the Roman Republic. They were eventually superseded by elective monarchy incorporating juries first in England, then by the American republic and the establishment of universal suffrage throughout the west by 1945. This process took place through the survival and then growth of jury power within Romano British Christian, Anglo Saxon, Norman, English and American government. By 1791 laws entrenching jury rights had been established in British colonial and then U.S. governance.
The U.S. Constitution drafting and ratification processes involved discussion of the ‘ancient’ origins and development of English and Roman republican forms of government largely in distinction to democracy, which was depicted by many conservatives as an unstable, risky form of government tantamount to ‘mobocracy.’ Against this background the American Constitution became modelled upon a democratically oriented version of British and Roman Republican elective aristocracy which had incorporated some democracy in local government and in the justice system. As such it was a ‘mixed’ constitution of democracy and elective aristocracy not dissimilar to the form of government Aristotle advocated to improve Athenian democracy itself.
A connecting thread of political theology can be discerned in these historical developments concerning the role of conscience. Emerging as a concept from early Greek drama and the Stoics conscience was appraised by Aristotle as a faculty of mind to enable understanding of self evident truth given a teleological, ultimately divine purpose to human existence. It is then developed within natural law through Roman philosophy and Christian theology in the works of Cicero, Seneca, Epictetus, St. Paul, Jerome and Marcus Aurelius. Jerome invented the concept of ‘synderesis’ to specify that element of conscience which denotes the impulse to the good even when the power of reason in adjudicating between good and evil is disordered. Stephen Langton was the first scholastic to touch on the issue of synderesis in any depth, though it was Philip the Chancellor (c.1170–1237) who wrote the first treatise on theology exploring the relationship between synderesis and conscience. (Medieval Theories of Conscience, Stanford Encyclopaedia of Philosophy, Spring Edition 2024). Disputation regarding synderesis continued through works including those of Thomas Aquinas and William of Ockham.
Coke
Such works of political philosophy and theology informed Chief Justice Edward Coke’s understanding of Magna Carta as the 'King’s conscience' in his defence of common law in matters of equity against juryless Royal prerogative courts such as the Chancery and to some extent the Star Chamber. Having stressed the great difficulties even for legal experts to take full account of the complexities of centuries of common law precedents it seems possible Coke had in mind Langton’s insights in his appraisal of jurors as ‘chancellors’ which would enable the common law courts to act as adequately practical arbiters in matters of equity. As Dr Ariel Hessayon explains:
“It was during a parliamentary debate in 1628, about mooted limitations to the Petition of Right – another landmark legal concession gained from the Crown – that Coke declared 'Magna Charta is such a Fellow, that he will have no sovereign'. Coke argued the charter functioned as the king’s conscience to check tyrannical impulses. Charles I understood this, and so prevented publication of Coke’s exhaustive commentary on Magna Carta.” (Six Magna Carta myths explained, Goldsmiths).
As Chief Justice, in the Case of Proclamations and Dr. Bonham’s Case, Coke had declared the King to be subject to the law, and that laws made by Parliament are void if they are in violation of 'common right and reason.' (Ian Williams, Dr. Bonham's Case and Void Statutes. Journal of Legal History. 27(2): 111–128). Williams acknowledged these conclusions were presupposed by Coke’s understanding of natural law.
Coke’s series of law books inspired the Leveller leader John Lilburne to defend and promote the constitutional role of juries as fit to judge both fact and law. Imprisoned by the Star Chamber in 1639 under Charles 1 for bringing illegal Puritan literature from Holland into the country he was released in 1642 by Parliament and fought on their side in the civil war attaining the rank of Lt. Colonel. However he was put on trial in 1649 by the Cromwell regime because he criticised the terms of its alliance with Scottish Presbyterianism for lacking tolerance of other denominations. Lilburne’s 1649 not guilty verdict was engraved upon a commemorative coin affirming the power of juries to judge both fact and law. In the 18th century William Blackstone reaffirmed Coke and Lilburne’s emphasis upon the pivotal constitutional role of juries as defence against tyranny:
“The trial by jury, or the country, per partial, is also that trial by the peers of every Englishman, which, as the grand bulwark of his liberties, is secured to him by the great charter... The antiquity and excellence of this trial, for the settling of civil property, has before been explained at large. And it will hold much stronger in criminal cases; since, in times of difficulty and danger, more is to be apprehended from the violence and partiality of judges appointed by the crown, in suits between the king and the subject... Our law therefore wisely placed this strong and twofold barrier, of presentment and a trial by jury, between the liberties of the people, and the prerogative of the crown... So that the liberties of England cannot but subsist, so long as this palladium remains sacred and inviolate, not only from all open attacks, (which none will be so hardy as to make) but also from all secret machinations, which may sap and undermine it; by introducing new and arbitrary methods of trial, by justices of the peace, commissioners of the revenue, and courts of conscience.” (William Blackstone, Commentaries on the Laws of England, 1769, vol. IV, 342-44).
Reliance upon common right, reason and conscience as embraced by the Levellers was further vindicated in 18th century political theology and philosophy with the development of the school of common sense realism led by Thomas Reid. His emphasis upon the ‘first principles of reason’ as grounded upon self evident truths of common sense in conjunction with Francis Hutcheson’s postulate of an innate ‘moral sense’ comprised the primary intellectual foundation of Anglo-American revolutionary thought espoused by leaders such as Jefferson, Franklin and Paine.
Reid’s focus upon self evident truths of common sense finds reflection in his views on conscience as a universal function of natural law. He maintained that all human beings are equipped with the understanding and ability to tell right from wrong notwithstanding the possibility that some through education and habit may do so more efficiently than others (Thomas Reid Lectures on Natural Theology 1780, University Press of America, 1981). In this way the self evident foundations of reason and the ‘moral sense’ aspect of ordinary conscience can be seen as sufficiently aligned to merit the use of juries as final arbiters in the adjudication of differences in law and equity.
Code
Accordingly it can be understood that it is a self evident truth of common sense that random selection of jurors can constrain the influence of secret, factional influences within the body politic including in cases where expert reason alone - especially when contaminated by fraudulent intent - may artificially lend credence to what in reality would be disordered conclusions. It can be argued that these attributes of jury power were compromised when the alliance for American independence was broadened to include slave owners and settler ambitions. Such compromises became especially important after British policy set boundaries to further westward expansion of the American frontier and formed a continental scale alliance with Indian tribes to help fortify these limits.
The evolution of the constitutional role of juries and accordingly the grand jury in relation to equity and conscience is of particular importance in this context. The drop in population resulting from the Black Death led to juries evolving from neighbourhood, self informing presentment juries to juries selected upon a broader, more anonymous geographical scale such that their neighbourhood, self informing character declined.
As Plucknett points out, equity can be understood in a certain sense as ‘code’ for in depth examination of the evidence and general circumstances of any given case: ‘If there was a unifying principle in equity that distinguished it from the customary or common law, it was that of conscience... But the overarching idea of conscience was really only code for the fullest awareness of the situation of the parties... to get at the fine detail of fact explaining parties’ minds and actions.’ (Langbein Lerner Smith; History of the Common Law, 2009 p.318). Meyler further explains that ‘When the petty juror’s self-informing quality had become nominal rather than actual, the grand jury became the repository of powers analogous to those of the Chancellor.’ (Bernadette Meyler, Substitute Chancellors: the Role of the Jury in the Contest between Common Law and Equity; Cornell Law Faculty Publications 2006, p.21).
Meyler goes on to cite Somers’ suggestion that ‘grand jurors should exercise even greater care than petty jurors since ’they are accorded more latitude in examining evidence... As the 'absolute judges' of the witnesses’ evidence, these grand jurors resembled the Chancellor, who could similarly inquire pro-actively into the veracity of the witnesses and the circumstances of the case. Thus with the decline in the self-informing quality of the petty jury, the grand jury appeared to take over its evidentiary role.' (Meyler, ibid, pp.22-23).
It was against this background that the Anti-Federalist (left) wing of the American revolutionary movement opposed the US Federal Constitution draft proposed by James Madison on the grounds primarily that the centralisation of power it advocated would weaken the democratic structure of the new Republic. In particular the juryless Supreme Court it envisaged would undermine jury power. Despite these objections - based implicitly upon Blackstone’s warning about 'courts of conscience' - the US Supreme Court was established without definitively incorporating juries resulting in the unresolved status of the judicial process in the USA that has continued to this day.
As Meyler further explains: “The stark opposition that Blackstone drew - a contrast relied upon by the Framers and others at the time of the Founding - derived not as much from inherent disparities in ideals and methods of adjudication as in a struggle for authority, one in which the common law and jury were often, although not always, aligned against the power of the Chancellor, who represented the ineluctable and dreaded prerogative of the King. Precisely because advocates of both Chancery and the jury insisted upon their capacity to judge according to conscience rather than the intricacies of precedent or the letter of statutory law, neither trusted the others’ exercise of such discretion, possibly believing that the oaths of the decision-makers were hardly sufficient to prevent abuse, or perhaps denying that the conscience of a Chancellor could be substantively the same as that of a jury. Whichever was the case, these legal combatants bequeathed upon the Founding generation an inheritance sufficiently ambiguous that most could be satisfied with enshrining the criminal trial jury while at the same time creating a Supreme Court that echoed Chancery in all but name." (Meyler ibid p.39)
In regard to jury power therefore, the American founders’ constitution did not attain the high level of citizen participation and democratic constraints upon aristocratic factionalism that had been established in ancient Athens. Moreover, given the juryless structure of the US Supreme Court it probably also fell short of the ‘mixed’ constitution envisaged by Aristotle as a supposed improvement upon the Athenian example. The American Constitution was constricted in regard to the role of juries in the Supreme Court and since then has been further weakened by the accumulation of various ‘rules of legal procedure’ that have undermined grand and trial juries in their powers to assess and when necessary ignore or nullify bad law. Contemporary grand jury investigatory powers have been so drastically constrained that on the rare occasions that they are put to fully independent use administrators complain they have lost control of a ‘runaway’ grand jury. Today prosecutors can retain so much control over legal process that it is now a common jibe that they are able to get grand juries to indict anything - including a ham sandwich.
Notwithstanding these limitations the role of grand juries within the US Constitution has been sufficiently preserved as to enable a possible retrenchment back to their original Anglo-American form. To our knowledge the foundations of jury power in such form have been best indicated in an address to a jury by John Horne Tooke and in a selection of letters by Thomas Jefferson regarding his concerns about the dangers of elective despotism.
John Horne Tooke (1736-1812) was a radical proponent of parliamentary reform and was the only British subject to be imprisoned for supporting the American Revolution. His address to jurors in one of his several trials includes a concise explanation of the full powers they should have at their disposal and was in close accord with the Leveller appraisal of their true authority: “In the performance of this duty to our country, I must beg you to observe, and carefully to remember it to the end, that there are only three efficient and necessary parties… the Plaintiff… the Defendant; and you, gentlemen, the Jury. The judge and the cryer of the court attend alike in their respective situations; and they are paid by us for their attendance; we pay them well; they are hired to be the assistants and reporters, but they are not, and they never were intended to be the controllers of our conduct… A Jury not entitled to inquire into the merits of the question brought before them, nor into anything that relates to the merits, is no Jury at all.” (John Horne Tooke by Minnie Clare Yarborough, 1926, p.148-149).
Elective Despotism
The first of the selection of Jefferson's letters was to Peter Carr on 10th August 1787 and sets out with some precision how Jefferson conceived of the relation between the ‘moral sense’ and reason:
“He who made us would have been a pitiful bungler if he had made the rules of our moral conduct a matter of science. For one man of science, there are thousands who are not. What would have become of them? Man was destined for society. His morality therefore was to be formed to this object. He was endowed with a sense of right and wrong merely relative to this. This sense is as much a part of his nature as the sense of hearing, seeing, feeling; it is the true foundation of morality, and not the truth, &c., as fanciful writers have imagined. The moral sense, or conscience, is as much a part of man as his leg or arm. It is given to all human beings in a stronger or weaker degree, as force of members is given them in a greater or less degree. It may be strengthened by exercise, as may any particular limb of the body. This sense is submitted indeed in some degree to the guidance of reason; but it is a small stock which is required for this: even a less one than what we call Common sense. State a moral case to a ploughman and a professor. The former will decide it as well, and often better than the latter, because he has not been led astray by artificial rules.”
A second such letter from Paris was written on the 13th March 1789 to Francis Hopkinson. In this letter Jefferson denies being an Anti-Federalist himself and emphasises the point by stating that ‘if I had to go to heaven with a political party I would rather not go.’ Claiming to be actually closer to the Federalist approach he makes a rather obscure attempt to explain his less than direct criticism of the juryless nature of the Supreme Court. His ambiguity can be interpreted as simply evasive or as a reflection of the compromises he was prepared to make with pro-jury and anti-jury forces in order to help maintain the breadth of the alliance that the American Revolution had come to rely upon.
How this alliance was in reality actually held together is a difficult and somewhat mysterious question. This was the era when political parties were still in their early years of formation - in the USA they were not formed until years after the American Revolution itself. In a 2016 television documentary on the Nazi capture of French Masonic Archives the L’Express Journalist Francis Koch, an expert on freemasonry, said the different political platforms leading to the formation of parties grew out of Grand Orient Masonic Lodges. As such, the real course of how and why alliances were made or broken leading to the involvement and/or formation of parties may never be known. It would likely have involved both unknown factors and the complex train of discussion, disagreement and compromise that has been alluded to.
The ‘Founders on Line’ website includes a link from the letter to Hopkinson to an ‘Editorial Note’ regarding Jefferson’s Proposed Revision of the 1776 Virginia Constitution. The Note includes detail regarding his concerns about the problem of ‘elective despotism.’ Jefferson refers to the uses and limitations of the separation of powers together with the need for clear distinctions between fundamental and statute law to deal with such problems. Interestingly, the Note cites Jefferson’s view that “the fundamental Pillars of the Constitution should be comprised in one Act or Instrument, which should never be subject to alteration but with consent of the people at large.” This accords with Jefferson’s 1819 view that “Independence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law.” (Jefferson to S. Roane).
Another key letter Jefferson wrote regarding jury power was sent from Paris on 11th July in 1789 to Thomas Paine effectively as a warning concerning the shortcomings of the French revolutionary leadership three days before the storming of the Bastille:
“Another apprehension is that a majority cannot be induced to adopt the trial by jury; and I consider that as the only anchor, ever yet imagined by man, by which a government can be held to the principles of its constitution.”
A further such letter was written by Jefferson to Abbe Arnoux on the 19th July 1789 from Paris five days after the Bastille storming. It includes a comprehensive analysis of the constitutional role of jury power:
“The above is a catalogue of all the books I recollect on the subject of juries. With respect to the value of this institution I must make a general observation. We think in America that it is necessary to introduce the people into every department of government as far as they are capable of exercising it; and that this is the only way to ensure a long-continued and honest administration of it’s powers. 1. They are not qualified to exercise themselves the Executive department: but they are qualified to name the person who shall exercise it. With us therefore they chuse this officer every 4. years. 2. They are not qualified to Legislate. With us therefore they only chuse the legislators. 3. They are not qualified to judge questions of law; but they are very capable of judging questions of fact. In the form of juries therefore they determine all matters of fact, leaving to the permanent judges to decide the law resulting from those facts. But we all know that permanent judges acquire an Esprit de corps, that being known they are liable to be tempted by bribery, that they are misled by favor, by relationship, by a spirit of party, by a devotion to the Executive or Legislative; that it is better to leave a cause to the decision of cross and pile (toss of coin) than to that of a judge biassed to one side; and that the opinion of 12 honest jurymen gives still a better hope of right, than cross and pile does. It is left therefore to the juries, if they think the permanent judges are under any biass whatever in any cause, to take upon themselves to judge the law as well as the fact. They never exercise this power but when they suspect partiality in the judges, and by the exercise of this power they have been the firmest bulwarks of English liberty. Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave them out of the Legislative. The execution of the laws is more important than the making them. However it is best to have the people in all the three departments where that is possible.”
Among the catalogue Jefferson recollects on the subject of juries is one by William Walwyn (Juries Justified published in 1650), a Leveller leader comrade of John Lilburne, Jefferson’s ancestral cousin. Jefferson echoes Walwyn’s viewpoint in regard to the greater possibilities of juries in reaching just, equitable verdicts as opposed to the judiciary itself. As stated above this understanding was engraved on a coin produced in October 1649 to commemorate the not guilty verdict in the trial of John Lilburne. The engraving states that the jury is judge of both law and fact. The constitutionally historic significance implied by this verdict was reaffirmed 145 years later when commemorative coins with the exact same engraved affirmation were produced following the not guilty verdicts declared in the 1794 trials for seditious libel of early British working class movement activists, including John Horne Tooke. American Grand Juries employed similar reasoning in their refusal to indict activists against British policy. This fact presumably informed those who had struck the 1823 commemorative coin displayed in the Grand Jury Museum since it includes Grand Juries as one of the main demands of the early Chartist movement.
On June 17 1812, Jefferson wrote to Judge John Taylor about English and American interpretations of common law including problems of codification, natural law and natural rights. The letter can be understood against the background of the points made above regarding French Masonic archives and the complex train of discussion and compromise that took place between the Federalist and Anti-Federalist viewpoints. By 1812 the power of judicial review had been established as within the remit of the juryless US Supreme Court as effectively the outcome of the Marbury vs Madison legal struggle between the Federalist Party and the by then Republican Democratic Party. Jefferson had himself refrained from pursuing this struggle to its full conclusion for pragmatic reasons likely to have been similar to those inferred to above. Whatever the full range of motives which can be attributed to Jefferson’s standpoint in regard to the juryless nature of the Supreme court, it is clear in his letter to Judge Taylor that though he considered codification of law a necessary future development he still regarded jury power as the final arbiter of law which should ultimately be established within the US Constitution:
"The only natural improvement of the common law, is through its homogeneous ally, the chancery, in which new principles are to be examined, concocted and digested. But when, by repeated decisions and modifications, they are rendered pure and certain, they should be transferred by statute to the courts of common law, and placed within the pale of juries.”
There is evidence therefore that the ultimately sovereign role of juries has been central to the development of democratic government in Ancient Athens, Britain and the USA. Jury power in both the USA and Britain declined in the 19th and 20th centuries due to the influence of various factors.
Nonsense
These include the promotion of Utilitarianism and Positivism as espoused by Jeremy Bentham to displace natural law as the foundation of most legal theory. Bentham, an atheist, famously regarded natural law as ‘nonsense on stilts’ and sought to abolish the Grand Jury. Bentham’s approach was endorsed in pamphlets produced by the Webbs and their Fabian Society. The recruitment of Albert Dicey as the first Professor of Law at their London School of Economics with little doubt helped further ensure the continuing prevalence of such thinking in the academic realm.
Also included as factors leading to the subversion of jury power has been the professionalisation and ‘lawyerisation’ of legal process that the Benthamite preference for ‘expert’ input to the justice process helped engender and accelerate. The following means were decisive in bringing this about.
Firstly the 1836 Prisoner’s Counsel Act which led to the remuneration and consequent large increase of lawyers in court procedure. Secondly, the establishment of the Metropolitan Police Force in 1829 and most other local Police forces by 1857 (though it should be noted that Sir Robert Peel explicitly opposed Bentham’s demand that the Grand Jury be abolished). Thirdly, the 1848 Summary Jurisdiction Act, which led to a vast increase in Magistrate only trials and marked the first inroad into removing the right to trial by jury. Fourthly the creation of the Director of Public Prosecutions (DPP) in 1880 and eventually, following abolition of the Grand Jury in 1933, the Crown Prosecution Service headed by the DPP effectively as of 1985. Its chief purpose is to prosecute indictable offences - that is, to fully replace the Grand Jury. Fifthly the creation of categories of offences which could only be tried by magistrates along with categories of ‘either way’ offences which could be tried by magistrate or jury in the 19th century. This has led to a reduction in jury trials to about 1% of the total at the present time.
The replacement of jury democracy in local government by means of elected councils led to the virtual eradication of the role of Grand Juries in government. This forestalled the possibility of genuinely democratic and/or mixed government development and established what has in reality been exclusive development of elective aristocracy to the exclusion of all forms of jury power in matters of local government. This has increased possibilities for elective despotism.
Reasons for Review
The above points help illustrate the ‘Big Picture’ that can be discerned in the history of government and justice which comprised the negative context within which the British Grand Jury was abolished in 1933. Given this understanding the following are, in our view, five main reasons why a review of this abolition should take place.
First, the underhand and deceptive nature of the manner of its abolition. The method used to remove the grand jury from the British constitution was, as noted with approval by the Chief Clerk at Bow Street Police Court, achieved “in section 2 of an Act with the clumsy title of Administration of Justice (Miscellaneous Provisions) Act, 1933. To include the subject under this disarming name was sound political psychology; a Bill to abolish the Grand Jury might have been abortive.” (Albert Lieck, Abolition of the Grand Jury, 1934).
The dishonest character of such tactics were presupposed by similarly anti-democratic manoeuvres which subverted both trial and grand jury rights in the 19th century. By the outset of the 20th century jury powers had already been constrained to levels below certain standards set by the legacy of both the English and American revolutions. For example, whereas juries of the American revolutionary period and for some decades after were actually informed by judges that they had the powers and even duty to nullify bad law, by the onset of WW1 juries were kept in ignorance of such rights.
Second, the abolition of the grand jury should be seen as at best a mistaken, reprehensible act not merely because of the underhand manner in which it was accomplished but most especially because of the negligence demonstrated by Parliament in taking little or no account of the central role that jury power has played in the origin and development of government by consent in Britain and consequently throughout the world. This country was the first since the demise of Athenian democracy and the Roman Republic to secure the role of juries within its ancient constitution. The most concise expositions of the vital role that juries play in ensuring that executive power is held accountable to the people were set down by Thomas Jefferson in the works cited above. These merits of jury power become most especially clear when account is taken of the fact that it is a self evident truth of common sense that random selection of jurors will constrain the influence of both open and secret factions upon the legal process.
It was against this background that H.G. Wells described the jury as the 'Achilles Heel' of tyranny. Accordingly the abolition of the British grand jury can be seen as the hamstringing not of tyranny but of democratic power in this country in probably the worst year in history that such a destructive constitutional reform could have been executed: 1933, just after the Nazis took power in Germany. Parliament was warned of the dangers posed by abolishing the Grand Jury in this circumstance given its democratic role as a check upon totalitarian attempts to limit free speech. This warning was delivered by Edward Cavendish MP, Marquess of Hartington and Masonic Grand Master of the United Grand Lodge of England. Cavendish died soon after of an apparent heart attack in the presence of the suspected serial killer John Adams G.P. (see Wikipedia on Cavendish).
The third reason in favour of a review of the abolition concerns the role that Grand Juries used to perform in matters of local government. Notwithstanding the irregular forms of franchise that permeated political infrastructure up until the late 19th century reinstatement of Grand Juries upon a consistently democratic foundation could help constrain factionalism and corruption not merely in the judicial but also in the legislative branches of government at local levels. Unlike government representatives emplaced by means of elective aristocracy Grand Jurors would be elected by random selection. They would therefore be less vulnerable to corruption and the influence of party interests. Parties as such are borne of elective aristocracy. They are accordingly hierarchical in nature, with power exercised from the top down. Potentially they are liable to corrupt influences even to the extent of being command structures designed to lie whenever a secret faction issues such orders. It was the dangers of such 'elective despotism' that prompted Jefferson to declare his general disapproval of parties. Reinstatement of Grand Juries with the full powers they had held until their subversion began in the early 19th century could help moderate the deleterious factional tendencies of the modern party political system both in matters of justice and also local government.
The fourth reason why the abolition of the British grand jury should be reviewed is because it would enable widespread, in depth examination and debate concerning the merits of both Grand and Trial Juries in their original form. This would enable the general public to acquire a better educated understanding of constitutional matters upon a broad, world historical scale. In that sense it could serve as complement to the general tasks of education and accordingly receive funding for that purpose. Law, history, sociology, philosophy, theology and economics are all component parts of a comprehensive approach to the tasks of such a fundamental review of the constitution. Alexis de Tocqueville (1805-1859) emphasised the importance of the educational role that juries perform. In stark contrast in the 1933 debate in the House of Lords the fact that Grand Juries provided ‘free’ university education was cited as a reason for their abolition (Lord Darling, Con). In itself this provides further reason why this mistaken approach needs to be fully and properly corrected by means of a review. In 1933 many workers of voting age did not have properly free education beyond primary school levels. Today over a third of students go to University. Accordingly power should where practicable be decentralised among the people at large not in a merely consultative manner (as is the practice, for example, in the fashion for so-called citizen juries and assemblies) but within the most important branch of government concerned with the execution of law.
As shown above Tooke invoked a more independent role for juries at the close of the 18th century certainly than that which exists today. Grand Juries in their present American ‘captured’ form function under the control of prosecutorial authorities which exert dominant influence over the indictment process. In their original form however they were more reliably independent of such state constraints. In the modern era when American Grand Juries exercise their full powers officials may describe them as ‘runaway’ Grand Juries because they seek, independently of administrative interference, to investigate wrongdoing and indict or clear those suspected of crimes, including that of misconduct in public office. Moreover, the ‘capture’ of legal process from jurors by the UK administrative state has gone further than abolition of Grand Juries and extended to wider areas of litigation including industrial relations. Today ‘industrial tribunals’ dominate adjudication in employment law. Though their origins are 'shrouded in silence, if not in mystery' (Clark and Wedderburn, ‘Modern labour law: problems, functions and policies’, 127-242) they have effectively replaced both Grand and Trial Juries in such matters. Moreover as Susan Corby explains they were concocted by civil servants and not created at the request of employers, unions or political parties (British Employment Tribunals: From the Side-lines to Centre Stage, 2015). Review of the role of Juries in industrial relations could reasonably include pilot projects to examine possibilities of greater impartiality in collective bargaining.
Early working class organisations according to E.P. Thompson included frequent rotation in their basic form, whereas trade unions later became organised as professional hierarchies upon elective aristocratic principles. Organisations based at least in part upon frequent rotation and election by random selection will be less influenced by ideologically driven factions. Jury power in industrial relations would have a similar effect. If this was complemented by cross party agreement to extend trade union rights across all employment sectors then both workers and entrepreneurs may be able to agree upon a more encompassing, less faction driven structure for industrial relations that would benefit society at large and even prove superior to present arrangements. Accordingly in turn this would enable public education about the relation between sortition, faction, elective aristocracy and democracy. A review of the abolition of the Grand Jury would alert the public to the importance of such possibilities.
The fifth reason why there should be a review of the abolition of the British Grand Jury is because levels of political conflict in the Western democracies have continued to escalate in the wake of Brexit regarding matters of electoral integrity and constitutional law. These developments have affected political affairs in the world as a whole with particular regard to problems of migration. Few would now disagree following the Southport riots that Mr. McMahon MP was right to raise concerns in 1857 for anyone caught up in 'political excitement' if the Grand Jury was abolished (see Notes). Similarly continuing subversion of the Right to Trial by Jury - including for libel in 2011 - has already resulted not so indirectly in massive protests against the jailing of Tommy Robinson. The call by Boris Johnson and Robert Jenrick MP for review of the ECHR encapsulates the fact that matters of both constitutional and international law are now issues of polarisation and conflict. A review of the abolition of the British Grand Jury could provide a relevant, complementary and fairly comprehensive point of departure for addressing such tasks.
Three Insights
Study and debate concerning the ‘big picture’ of world historical development can reveal three main insights in regard to the role of juries in the quest for optimal design of democratic government. The first concerns the understanding that sortition as a form of election customarily used in the selection of jurors serves to constrain the influence of factions, including secret factions, upon the judicial process. The second concerns the view formulated by Jefferson that ordinary citizens, as jurors, should be involved first and foremost in the execution of the law since this is more important than the making of the law. The third concerns the understanding that jurors should ultimately possess higher constitutional powers than both the judiciary and legislators in order to ensure that bad law can ultimately be controlled by the people at large, not state administrators.
All three of these insights can be seen as present in the ancient Athenian city state constitution, as surviving in part within the development of the ancient English constitution, and as most clearly expressed in the US Constitution, albeit limited by the failure of the founding generation to include jurors in the Supreme Court. It may be possible to gain world recognition of the importance of these insights as crucial to the formulation of fundamental law, as opposed to merely statute law. This would in turn provide a global platform for the preservation of peace and less polarised democratic development upon a word historical scale.
NOTES:
Parliamentary Debates on the Abolition of the Grand Jury
Selected Extracts from Hansard
Parliamentary attempts to abolish the Grand Jury started in the 19th Century and finished with its abolition in England and Wales in 1933.
In 1837 a Private Members Bill was moved in the House of Commons calling for the complete abolition of Grand Juries. The Bill was defeated 25:196.
Sir Robert Peel MP (Con) opposed the Bill. He was concerned that abolishing the grand jury would lead to abolition of the petit jury. He considered the Grand Jury to be a powerful check on magistrates.
In 1849 a Parliamentary Select Committee examined the question of abolition and in 1852 a Bill introduced by Attorney General Frederick Thesiger MP (Con) was withdrawn due to a lack of time.
In 1857 the Grand Juries (Metropolitan Police District) Bill was reintroduced as a Private Members Bill by Thesiger and called for the abolition of Grand Juries in London. Eleven MPs spoke in the House of Commons debate, three in favour and eight against. Thesiger withdrew the Bill.
Mr. McMahon MP (Ind. Irish Party) raised concerns for anyone caught up in 'political excitement' for they would have no redress to appeal against a Stipendary Magistrate or Attorney General. If the Bill passed it would lead to a Public Prosecutor, an institution he trusted never to see in this country. It would be the same as on the Continent and "an end to the liberty of the English people."
Mr. Corbett MP (Con and Lib) argued that Police Magistrates are created by the Home Secretary and are therefore dependent on them for their 'bread'. Over 6,000 grand jurors were involved every year and educated in the administration of justice. Grand Jury petitions also influenced the law where Parliament had failed and he referred to the abolition of the Death Penalty for comparatively trifling cases.
Sir Bowyer MP (Lib) quoted Blackstone at length. Although the Bill excluded treason he argued that it did not provide for cases with a political complexion which were most likely to arise in London. Abolishing the Grand Jury in London would be the small end of the wedge.
Mr. Ayrton MP (Lib) argued that the Grand Jury does the most essential service in guarding the liberty of the subject and it was ridiculous to think a Stipendiary Magistrate - a mere creature of the Home Office, was a sufficient barrier between the Crown and subject. Without the Grand Jury we would be reduced to the state of continental nations. The Bill should be rejected to "prevent the ultimate predominance of a civil service class."
Although Bills to abolish the Grand Jury didn't pass through the House of Commons ongoing legislation was passed which continued to undermine the Grand Jury by extending the role of magistrates.
In 1859 the Vexatious Indictment Act was enacted. No bill for perjury, conspiracy or false pretences could be presented to a Grand Jury unless committed by a magistrate.
In 1867 legislation was passed whereby if a defendant was acquitted after being indicted by a Grand Jury alone (i.e. without the involvement of a magistrate) then the court could order the person prosecuting to pay the defendant's costs.
In 1913 Lord Chancellor Viscount Haldane (Lab) appointed a Royal Commission on Delay in the King's Bench Division led by Viscount St. Aldwyn. The Commission recommended that the Grand Jury should be discontinued having outlived 'circumstances'. In addition to the expense and inconvenience it caused, the Commission claimed that it could no longer be regarded as 'an essential safeguard to innocence.'
In 1917 a Bill to suspend Grand Juries during the war was passed without division. This Grand Jury Suspension Act was not repealed until l921.
In 1923 the Criminal Justice Bill introduced in the House of Lords called for the abolition of Grand Juries at Quarter Sessions. An amendment to abolish the Grand Jury in the Central Criminal Court was withdrawn.
Lord Paramour (Lab) opposed abolition. Grand Juries were a constitutional safeguard and brought the administration of justice before large bodies of the non-legal population. "I say that the expert side is quite sufficiently developed, and the common sense and common view side ought to be maintained in all parts of our legal system."
Viscount Ullswater (Con) reported that two judges had explained to him that Grand Juries should be kept at Assizes because they gave country gentlemen, usually magistrates, the opportunity to see how justice was administered by the High Court.
In the House of Commons seven MPs all spoke in favour of abolition but the Bill fell because a General Election was called. An attempt to reintroduce the Bill in 1924 passed the House of Lords but once again a General Election prevented further action.
In 1925 Clause 18 of the Criminal Justice Bill introduced in the House of Commons called for the abolition of Grand Juries at Quarter Sessions. Six MPs spoke in the debate with two in favour and four against abolition. Clause 18 was removed by 184:149.
Sir Henry Slesser MP (Fabian) spoke against abolition. He argued that if Grand Juries were dominated by more prosperous people they should be democratised not abolished. "It is a great mistake to think that justice should be a matter entirely concerning professional people." He observed a tendency for the administration of criminal justice to become ever more professional and ever more a matter of bureaucracy and expert regulation. The Grand Jury was a very good corrective against such tendencies.
Colonel Wedgwood MP (Lib/Lab) described the Grand Jury as the main defence of British liberty especially for those citizens charged with constructive treason and called for the Grand Jury to be democratised.
In 1933 the Administration of Justice (Miscellaneous Provisions) Bill was introduced to the House of Lords. The Bill also removed the right to trial by jury in civil cases except those involving libel, slander, malicious prosecution, seduction and breach of marriage. Six Lords spoke in the debate all in favour of abolition.
Lord Chancellor Viscount Sankey (Fabian) moved the Bill, confident that Stipendiary Magistrates together with a vigilant press would be sufficient to protect citizens' rights.
Lord Atkin (no party) acknowledged a time when the Grand Jury was a real constitutional safeguard ... "in prosecutions for political offences - but possibly those days may now assumed to be over." He thought the right to trial by jury should also remain for cases of wrongful dismissal and insurance claims.
Lord Darling (Con) thought Grand Juries were not worth the trouble and expense to provide grand jurors with a 'university education'.
Lord Hanworth (Con) considered the proposals to remove the right to trial by jury was just a change of emphasis.
In the House of Commons nine MPs took part in the debate. Eight, all lawyers, spoke in favour of abolition with one against.
Attorney General Sir Thomas Inskip MP (Con) moved the Bill. He reported that the Hanworth Committee had been very 'expedient' to produce their 'unanimous' report with the help of 'experts'. Though he was sad to see Grand Juries abolished "in this practical age we cannot afford to pay too high a price for sentiment." Grand Juries were very expensive, troublesome and didn't really serve any purpose. He made the point that the right to trial by jury could have been removed through the Rules Committee but because the public was so interested in the subject the decision was made to pass it with legislation.
Sir Stafford Cripps MP (Lab) declared it "refreshing to see the Conservative Party pulling down the so-called ancient safeguards of the Constitution" and described the Grand Jury as an archaic procedure which had ceased to have any reality in the modern day.
Sir Walter Greaves-Lord MP (Con) thought Grand Jury secrecy was bad for those later acquitted. He reported that it was the Bar Council who had demanded that the right to trial by jury be passed in legislation and that members were opposed to the changes.
Edward Cavendish, Marquess of Hartington MP (Con) was the only person to speak against abolition. Whilst there might be an overwhelming case to abolish Grand Juries in great cities they might still fulfil a very useful function in other places and should be retained where no heavy expenditure was required. If a fascist government created new offences such as holding views disrespectful of the government, then the Grand Jury might be a very constitutional safeguard of immense value. The Grand Jury had been of value in the past and "it is well within the realm of possibility that it might be of great value in the future."
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