Grand Jury in Colonial America

A cornerstone of American democracy is the right to a jury composed of one’s peers. Grand juries are an integral part of the modern American legal system because their primary function is to review the prosecutor’s evidence to determine whether probable cause exists for an indictment. Grand juries originated as accusatory bodies in early Greece. In Britain, the use of grand juries dates back to the tenth century, when twelve men from each village were assembled to reveal names of suspected criminals.

Massachusetts was the first British colony to use grand juries (in 1635) to consider cases of murder, robbery, and spousal abuse. In 1683, New York permitted the use of grand juries with the passage of the Charter of Liberties and Privileges. By 1700, grand juries were used to express disdain for the British government. In 1735, for example, New York’s colonial governor demanded the indictment of newspaper editor John Zenger for libel because he criticized the king. The grand jury refused. In 1765, a grand jury refused to indict leaders of the Stamp Act Rebellion and to bring libel charges against the Boston Gazette’s editors. Furthermore, a Philadelphia grand jury in 1770 agreed to join other colonies in opposing British taxes. When war finally broke out, grand juries returned treason indictments against colonists who sided with the British and disqualified Crown sympathizers from serving on grand juries. At war’s end, the grand jury was such an indispensable part of American government that the right to such was included in the Fifth Amendment of the Constitution.

LEE R. REMINGTON

References and Further Reading

• Costello v. United States, 350 U.S. 359, 362 (1956).
• Finkelman, Paul, Kermit Hall, and James Ely, eds. Law in the Morning of America: The Beginnings of American Law, to 1760. American Legal History: Cases and Materials, 3rd ed. Oxford: Oxford University Press, 2004.
• Greene, Evarts Boutell. Provincial America, 1690–1740. New York: Harper and Brothers, 1905.
• Hamilton, Alexander, John Jay, James Madison, Charles R. Kessler, and Clinton Rossiter, eds. The Federalist Papers, Number 83. New York: Signet Classics, 2003.
• Kadish, Mark, Behind the Locked Door of an American Grand Jury: Its History, Its Secrecy, and Its Process, Florida State University Law Review 24(1) (Fall 1996).
• Morse, Wayne, A Survey of the Grand Jury System, Oregon Law Review 10 (1931).
• Tucker, St. George, and William Blackstone. Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia, reprint ed. Clark, N.J.: Lawbook Exchange, 1996.