Notes presented at the 1st Annual Celebration of the 2016 Referendum on UK membership of the EU
The Grand Jury
Juries are known as the ‘shield’ of the people because they better protect individuals against the state given that they are not controlled by employees of the state be they police or lawyers. The grand jury however is also known as the ‘sword’ of the people because it can be used as a means to investigate and indict state employees who have engaged in corrupt activities, including those of negligence. ‘Misconduct in public office’ are fairly rarely prosecuted crimes which would be less rarely prosecuted if grand juries were empowered to investigate and indict those suspected of committing them. The following merits of the grand jury are of especial significance in this regard.
Merits
First, grand juries are more reliably independent of government and of secretive influences of both a person to person and organised factional nature. They are therefore less prone to corruption.
Second, grand juries have more powers than a public inquiry, non-public inquiry, or judicial review. Grand juries can investigate, deliberate in secret, and indict. Their decisions are binding. In fact grand juries are so powerful they have been termed ‘runaway’ juries when they pursue crimes and misconduct which other government agencies try to stop. President Nixon invoked executive privilege to refuse to testify to congress or judges but could not refuse a grand jury. The grand jury has been described in consequence as the ‘fourth’ branch of government - the first three being executive, legislative and judicial.
Third, grand juries are effective instruments of public education in matters of government, law, ethics and debate. Alexis De Tocqueville attributed one of the main reasons for the success of the American Revolution and its establishment of democratic government to the educative benefits of centuries of jury decision making through which the British people had acquired the understanding and skills to support and realise the principle of government by consent.
The following are possible examples of suspected wrongdoing where grand juries could prove more successful in the administration of justice than present arrangements:
Paedophilia - this is a very broad area which includes whistleblowing and employment law which has substituted tribunal hearings for trial by jury; the scandal of cladding materials used without live fire testing due to lower building regulations standards incentivised by global warming priorities authorised at top levels of UK and EU government; constitutional wrongdoing, including that involving electoral practices. Many of the decisions taken by the so-called ‘independent’ Electoral Commission established by the Fabian Tony Blair along with the thousands taken by the dozens of quangos he established would quite likely be overturned by grand juries. It is not inconceivable given their potentially very broad range of powers that grand juries could exercise a corrective role in regard to claims that parliament has supreme ‘sovereignty’ in all matters of constitutional order. As Professor Anthony King remarked, the British Constitution is now a ‘mess’ due to decades of tinkering presupposed by this claim. The right to trial by jury - which includes grand as well as trial juries - has been abolished and curtailed based on such claims yet logic and common sense suggest that since the powers of parliament follow rather than precede such rights by centuries such powers cannot include that of abolishing them.
History
The trial jury arose from and is a derivation of the grand jury - itself the product of the ‘accusatory jury.’ They served as the primary institutions of local government alongside church law. Their origins have been variously claimed to lie in traditional Anglo-Saxon law; early christian adaptation of apostolic values as defined by ‘Morgan of Glamorgan.’ Holy Roman Emperors decreed their use. The first juries in history were those of ancient Athens. Solon, the leader assumed to have begun their use in establishing the court of last appeal and with this the first foundation of democracy, also enacted the law that any person failing to report suspected wrongdoing in government would be guilty of negligence as a citizen. The American founder James Wilson sought to trace a lineage from Athenian democracy to the Anglo Saxon period in regard to trial by jury. The oath used under the laws of Aethelred, King of Wessex and Kent, was used to swear in jurors from the 10th century to modern times. In 1166 Henry II at the Assizes of Clarendon established the grand and trial juries with a view to developing a more evidentiary oriented approach in the administration of justice. His limitations on trial by ordeal were emulated by Pope Innocent 111 at the fourth Lateran Council, though trial by combat remained legal right into the 19th century (1813). Ironically, John Lilburne was the last person in England to demand trial by combat.
In 1215 Magna Carta granted the right to trial by jury (which includes the grand jury) to all subjects. As such it followed a recurring practice whereby Anglo-Saxon monarchs undertook to uphold traditional rights at Runnymede. As Magna Carta makes clear, this right cannot be undone. Government claims to exercise parliamentary sovereignty in signing the Nice Treaty were challenged by some hereditary peers. They sought to invoke the right to rebel clause in Magna Carta whereby a council of 25 Barons could overthrow any monarch who violates Magna Carta.
It has been claimed that Grand Jurors were usually persons from the wealthy classes. Kent Library records show they were mostly tradesmen with a small minority of ‘gentlemen’ in the mid 19th century chosen primarily for their ‘indifference’ to the matters at hand. They dealt mainly with matters of local government: roads, sewers, bridges and suchlike. Any person could in theory initiate mandatory grand jury proceedings right up to 1915.
The 1688 Bill of Rights guaranteed non-statutory rights to jury trial and to bear arms. The Monarch also undertook not to make laws without the consent of Parliament. None of this empowers Parliament to abolish non-statute rights such as jury trial and the right to armed self defence.
In 1776 the American revolution was fought to protect the right to trial by jury (as is recorded in the American Declaration of Independence). Some authors have claimed the whole experience of constructing colonial assemblies and with this the basis for the US Constitution followed from defence of jury trial by English subjects in the 17th century, including William Penn. Grand Juries regularly refused to indict radical activists in America long before the revolution.
Grand juries played a key role as the first form of local government along the frontier as it shifted across the continent from North Carolina to New Mexico. In both these later states vigilante groups were formed where grand juries could not function even outdoors around a campfire, which occurred frequently. An intermediate form between vigilante groups and grand juries were organised groups of ‘regulators’ who sought to emulate grand juries and ensure justice would be upheld in lawless environments. Billy the Kid took part in one such initiative.
Notwithstanding what Jefferson described as the ‘catastrophic failure’ of the French Revolution brought about by mob violence due to the privations, ignorance and inexperience of the urban poor, the American Revolution comprised the high point of jury rights. Since Jefferson’s death these rights have come under increasing attack on a transatlantic scale, ironically by lawyers and other state actors including police. Jefferson saw the main division in politics as between those who sought to draw power away from the masses and concentrate it in the hands of the ruling class - the aristocratic tendency - and those who sought to resist having their rights taken from them - the democratic tendency. It is the former tendency that has predominated in political development since the American revolutionary period, notwithstanding some reverses and in particular the replacement of the struggle between Tories and Whigs by other, as warned by Jefferson, more dangerous parties. Among these may be included Marxist tendencies, including those buried within the Fabian society, probably the most aristocratic leftist organisation in history.
It is reasonable to suggest that the transatlantic Fabian movement has been the chief force in undermining jury trial throughout the 20th century. Their tactics have been to permeate and control aristocratic power structures, rather than democratise them. Though a struggle against undermining grand juries succeeded in the USA in the 20th century, they were destroyed by successive acts of parliament in the UK - 1933, 1948 and 1969. Ramsay McDonald, Clement Attlee and Harold Wilson, all Fabians, were the Prime Ministers responsible for these developments. Later fabian Prime Ministers Harold MacMillan and Tony Blair continued the process whereby on a world scale the aristocratic orientation of the Napoleonic Code was given preference over Magna Carta in the Europhile cause.
A discussion followed this presentation and it was agreed to form a Grand Jury Association, as has been done in several American states.
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Copyright © Dr. Keith Nilsen, June 2017.
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