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The Early History of the Grand Jury and the Canon Law R.H The Early History of the Grand Jury and the Canon Law R.H. Helmholzt The modern grand jury traces its origins to the Assize of Clar- endon, an enactment of King Henry IIin 1166.1 The Assize called for inquiry to be made, by the oath of *twelvemen from every hun- dred and four men from every vill, as to what persons were pub- licly suspected of robbery, murder, or theft or of receiving men guilty of those crimes. The crimes covered were expanded ten years later by the Assize of Northampton to include forgery and arson,2 and over the course of succeeding years the group grew to include almost all serious crimes. Under the procedure called for by the Assize of Clarendon, the suspected criminals were presented before royal justices, and then their guilt or innocence was deter- mined by the judgment of God, that is, by ordeal. From this method of inquiry and presentment of persons suspected of serious crimes, later expanded and adapted to changed circumstances, grew the two-stage process of indictment and trial that we recog- nize as the essence of common law criminal procedure. The Assize has naturally attracted its share of scholarly atten- tion. Its centrality in the history of criminal procedure, as well as the mists of uncertainty that surround its adoption, its intent, and even the accuracy of the text that has come down to us, have made it a subject of interest for anyone curious about the development of our law. Bishop Stubbs regarded it as "of the greatest impor- t Professor of Law, The University of Chicago. The author thanks Joseph Biancalana for commenting on an earlier draft of this article. IThe text is printed in W. STBs, SELECT CHARTERS 170-73 (H.W.C. Davis 9th ed. 1913). An English translation appears in 2 ENGLISH HISTORICAL DOCUMENTS 1042-1189, at 407-10 (D. Douglas & G. Greenaway eds. 1953); 1 SoURcEs OF ENGLISH CONSTITUTIONAL His- TORY 76-80 (C. Stephenson & F. Marcham eds. 1972). The Assize was not a statute in the modern sense, but its authenticity as a genuine act of Henry II's government has been vindi- cated, despite attacks on the authenticity of its text. See Corner, The Texts of Henry M's Assizes, in LAW-MAKING AND LAw-MAKERS IN BRITISH HISTORY 7-20 (A. Harding ed. 1980); Holt, The Assizes of Henry II: the Texts, in THE STUDY OF MEDIEVAL RECORDS 85-106 (D. Bullough & R. Storey eds. 1971). The attack on the authenticity of the Assize was made by H. RICHARDSON & G. SAYLES, THE GOVERNANCE OF MEDIEVAL ENGLAND 438-44 (1963). 1 2 ENGLISH HISTORICAL DocuMzNTs 1042-1189, supra note 1, at 411-13; W. STUBBS, supra note 1, at 179. The University of Chicago Law Review [50:613 tance in English legal history." F.W. Maitland treated it as the foundation of the movement away from the old system of private criminal appeals towards a centralized and more public system of criminal prosecution.4 The origins of presentment procedure and the sources of the Assize of Clarendon have been the objects of particular scrutiny. 5 One school of thought has regarded the presentment procedure as essentially the product of innovation. This was, for instance, Maitland's view,' and it continues to have its adherents. What is probably the dominant opinion today, however, plays down the el- ements of innovation in the Assize. This view was most clearly and persuasively presented by Miss Naomi Hurnard in a 1941 article in the English Historical Review.7 She found precedent for the As- size's procedure in prior usages of English local courts and noted that English kings used inquests of sworn men to answer questions of importance to the crown long before 1166.8 She was willing, moreover, to connect the Assize directly with a late tenth-century precedent, the twelve thegns of the Wantage Code, who seem to have acted as something like a presenting jury.9 There was, in her view, continuity with Anglo-Saxon institutions. Although she was prepared to grant some significance to the Assize of Claren- don 1 0-it did formalize and strengthen the procedure-Miss Hurnard saw the presentment procedure established at Clarendon as growing from immemorial English custom that had its roots, and even its existence, in the laws of Ethelred and the Anglo- Saxon past. 3 W. STUBBS, supra note 1, at 167. 4 1 F. POLLOCK & F.W. MAITLAND, THE HISTORY OF ENGLISH LAW 137 (1898). ' The early opinions are conveniently summarized in Turner, The Origins of the Medi- eval English Jury: Frankish,English, or Scandinavian?, J. BRIT. STUD., May 1968, at 1. ' Maitland, Introduction to SELECT PLEAS IN MANORIAL AND OTHER SEIGNORIAL COURTS at xxxi-xxxvi (F.W. Maitland ed. 1889) (2 Selden Soc'y). Hurnard, The Jury of Presentment and the Assize of Clarendon,56 ENG. HIST. REV. 374 (1941). This article is the basis, for example, of the account given by the most recent biographer of Henry II: W. WARREN, HENRY II 354 (1973). Other examples include J. JoL- LIFFE, THE CONSTITUTIONAL HISTORY OF MEDIEVAL ENGLAND 208-09 (4th ed. 1961); A. POOLE, FROM DOMESDAY BOOK TO MAGNA CARTA 397-98 (2d ed. 1955); and G. SAYLES, THE MEDIEVAL FOUNDATIONS OF ENGLAND 333-36 (2d ed. 1950). 8 Hurnard, supra note 7, at 380-96. The most important collection of evidence on this point is R. VAN CAENEGEM, ROYAL WRITS IN ENGLAND FROM THE CONQUEST TO GLANVILL (1959) (77 Selden Soc'y). 9 Hurnard, supra note 7, at 376-78, 407-08. The text of the Wantage Code is printed, with facing page English translation, in THE LAWS OF THE KINGS OF ENGLAND FROM EDMUND TO HENRY I, at 64-67 (A. Robertson trans. & ed. 1925). 10 Hurnard, supra note 7, at 396-99. 1983] Grand Jury and the Canon Law Miss Hurnard's views, however, have not gone unchallenged."1 Many legal historians have objected that her argument cannot re- present a complete understanding of the Assize. There is, for ex- ample, a decided lack of positive intervening evidence of the exis- tence of presentment juries between the Wantage Code and 1166. It is strange that so significant an institution should have left so few traces. It is also noteworthy that contemporaries spoke of the Assize as an enactment.1 2 The Assize reflects thought about the best way of dealing with criminals, not simple continuation of past practice. Moreover, certain elements of the Assize separate it from legal usages of early twelfth-century England. For instance, the preeminent place of public suspicion in the presentment process was new. Miss Hurnard herself acknowledged this. s Perhaps most significantly, the two-stage nature of presentment and trial was a more substantial change from prior usage of juries than her argu- ment allowed. The inquests initiated by the King during the years immediately before 1166 were used to settle questions of fact. The sworn men were asked to tell the King something he wanted to know: Who has concealed a killing for which a murder fine is due? Who has hidden a treasure owed to the King? The answers to these questions established a fact, on the basis of which the King or his ministers could act.1 4 The same was true in the local courts; the presentments of sworn men established a fact. Presentments were, in the legal parlance of a later day, not traversable.1 5 The answers to the questions put to jurors under the Assize of Claren- don, on the contrary, initiated further legal proceedings. Accord- ingly, Miss Hurnard's explanation presents evident difficulties. Recently, Professor Raoul Van Caenegem, one of the critics of Miss Hurnard's argument, has turned his attention to the question and in a subtle and cogently argued article has contended that the Assize is best understood as Henry II's deliberate choice of many elements of existing legal institutions, joined in a "new and effi- 1 See, e.g., the doubts expressed about the Hurnard account in R. VAN CARNEGEM, THE BIRTH OF THE ENGLISH COMMON LAW 79-80 (1973), and in Chrimes, IntroductoryEssay, in 1 W. HOLDSWORTH, A HISTORY OF ENGLISH LAW 49-50 (7th ed. 1956). " CHRONICA MAGISTmI ROGERI DE HOVEDEN, reprinted in 51:2 RERUM BRITANNICARUM MEDI AEVI SCRIrtORES (Roll Series) 248 (W. Stubbs ed. 1869 & photo. reprint 1964); RICH- ARD FrrzNzAL, DIALOGUS DR SCACCARIO 101 (C. Johnson trans. & ed. 1950). '3 See Hurnard, supra note 7, at 408. 14 See R. VAN CARNEGEM, supra note 8, at 284 (contrasting the Assize procedure with an earlier criminal inquest in which "the statement of the jurors was at the same time in- dictment and conviction"). 25 See Maitland, supra note 6, at xxviii. The University of Chicago Law Review [50:613 cient" way as to amount to an innovation.16 He argues, moreover, that ecclesiastical practices particularly the use of "synodal wit- nesses" to make communal accusations, was one of the important preexisting elements. 17 Although examination of ecclesiastical evi- dence is not an entirely novel idea,"" Van Caenegem provides new reason for it and puts the argument into a new context. He con- tends that the twelfth century witnessed the rise to regular use of ex officio proceedings in church practice. Such proceedings allowed ecclesiastical officials to prosecute on their own initiative and were therefore open to abuse by overzealous or high-handed church- men.19 No longer dependent upon communal accusation or the chance of private prosecution, ecclesiastical judges could now 20 "[put] a man in jeopardy simply by their bare words alone.
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