A Lesson in the Common Law
December 14, 2014 11 Comments
[I am pleased to tell you that All Along the Watchtower is again a public blog, and if you have not been reading there please do come on our journey with us. I have a post up there (either now or soon, depending on the schedule) today which touches on some of the same themes (The Common Law) as this post does, so enjoy it.]
One again in the last few weeks, America has given the world a lesson in why the English Common Law is the only fit system of governance for free men. And yes, I am referring to Ferguson, Missouri. And specifically the use made of the Grand Jury, by Prosecuting Attorney Robert P. McCullough, who has been elected by very wide margins (if he was opposed at all) in 1994, 1998, 2002, 2006, 2010 and 2014. He is a Democrat, and yet I have friends who are consider some Tea Party Republicans liberal, who say, he may be the best prosecutor in the country. Think about that for a while.
It struck me that like so much of The Common Law, the Grand Jury exists only in the United States anymore, not only in the Federal Courts, but in all 50 States. England itself abolished it in 1936. So maybe a primer is in order, it seems to be here as well.
I’m going to base much of this on Wikipedia, I, like you, am fully cognizant of all the veracity problems with the source, and yet this seems reasonably accurate, and is at least readable. And so, a bit of history:
The first instance of a grand jury can be traced back to the Assize of Clarendon, an 1166 act of Henry II of England. In fact, Henry’s chief effect on the development of the English monarchy was to increase the jurisdiction of the royal courts at the expense of the feudal courts. Itinerant justices on regular circuits were sent out once each year to enforce the “King’s Peace”. To make this system of royal criminal justice more effective, Henry employed the method of inquest used by William the Conqueror in the Domesday Book. In each shire, a body of important men was sworn (juré) to report to the sheriff all crimes committed since the last session of the circuit court. Thus originated the modern grand jury that presents information for an indictment. The grand jury was later recognized by King John in Magna Carta in 1215 on demand of the nobility.
I find it fascinating how many of the rights that I treasure in 2014 go back so far in our history, in this case to Henry II, in 1166, only a century after The Conquest, and that it was part of an effort to break the legal autonomy of the Barons, who my reading indicates were quite corrupt. I also note that King John was forced in Magna Charta to recognize the existing right, it was already, 800 years ago, customary. It is also the origin of the term circuit court. In a note that saddens me greatly, Dan Hannan, MEP has noted that when there was a search on for a term to apply to a local elected law enforcement official, Sheriff ( deriving from Shire-Reeve) was disallowed as too American. Perhaps we are not the only people who could stand to study our history a bit more.
There is quite a lot more at the linked article.
I doubt there has ever been a more politically conscious society than America from the beginning, likely it has also been one of the most literate societies. Yes, this led to trouble with the Stamp Act. But the two best-selling books in colonial America tell much about us, I think. The number one best seller was The Holy Bible (as it still is), likely the King James Version. That I expect you could have easily guessed, but I doubt you will the second. That was Black’s Law Commentary. To borrow a phrase from my Lutheran heritage that seems appropriate: The Two Kingdoms, incarnate.
For us, the Grand Jury comes into our jurisprudence through the Fifth Amendment to the Constitution, to wit.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
And thus here, like in Magna Charta, it is enshrined, not as a tool of the prosecutor, but as a fundamental right of an innocent man accused of a crime. Further it is officially, a secret proceeding, under the control of the foreman, elected by the members of the jury. It’s deliberations are recorded, usually by court reporters, and are sealed. The only other outsider allowed, is the prosecutor, who presents the evidence, and provides the jurors with the possible bills of indictment. [In this case they ran from premeditated murder to manslaughter.] This is as close as it can get to being by the people, no lawyers, no press, no pressure, testimony is subject to the laws of perjury, and so forth.
What results from this is the same level of proof required for an American police officer to legally search your car, it’s called probable cause, and if found, will result in an indictment. As you listen to the uproar, do remember that many of the commenters on American TV are lawyers, and they too have a corporate viewpoint.
George Will once wrote that:
The business of America is not business. Neither is it war. The business of America is justice and securing the blessings of liberty.
That is exactly correct, and in an American context that means for every downtrodden, broken, man or woman, of any race at all.
You see American justice, is not efficient. It is noisy, contentious, subject to influence, corruption and all the rest of the things you have heard and said. It is also the most just in the world. Why? Not least because it is not efficient, if you want efficient government, you’ll end up with a fascist country, they are far more efficient, they are also very hard on individual liberty, except for the elite (maybe). It is also conservative, actually that is not the word, the word is orthodox.
As always though, “Hard cases make bad law”