criminal justice and democratic theory in antebellum america: the grand jury debate in indiana

Society for Historians of the Early American Republic

Criminal Justice and Democratic Theory in Antebellum America: The Grand Jury Debate inIndianaAuthor(s): David J. BodenhamerSource: Journal of the Early Republic, Vol. 5, No. 4 (Winter, 1985), pp. 481-502Published by: University of Pennsylvania Press on behalf of the Society for Historians of the EarlyAmerican RepublicStable URL: http://www.jstor.org/stable/3123063 .

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CRIMINAL JUSTICE AND DEMOCRATIC

THEORY IN ANTE-

BELLUM AMERICA:

THE GRAND JURY DEBATE IN INDIANA

David J. Bodenhamer

The early nineteenth century witnessed numerous attempts to reform or even abolish the grand jury. These efforts culminated in the late 1840s and early 1850s when constitutional conven- tions in Michigan, Ohio, and Indiana entertained various proposals to eliminate the institution. Of the three states, only In- diana included a clause in its constitution permitting the legislature to take such an action. This essay will examine the debate as it developed in the Hoosier state and will seek to explain why delegates acted as they did.

Attempts to abolish the grand jury began in Indiana in the 1830s and centered on the expense and inconvenience that the institution imposed on taxpayers. Underlying these concerns was a continuing debate on the relationship between criminal justice, the nation's republican heritage, and its increasingly democratic future. To its proponents, the grand jury was an essential instrument in the continuing battle to maintain public order and to promote public virtue. Opponents, who proposed an alternate system of public examination and presentment, viewed the institution as inimical to individual liberty because of its secrecy

Mr. Bodenhamer, a member of the Department of History, is also Assis- tant Vice President for Academic Affairs at the University of Southern Mississippi in Hattiesburg.

JOURNAL OF THE EARLY REPUBLIC, 5 (Winter 1985). @ Society for Historians of the Early American Republic.



482 JOURNAL OF THE EARLY REPUBLIC

and supposed anti-republican character. The basic political divi- sion was between Whigs and Democrats. Thus, the movement to abolish the grand jury reveals much about the relationship between criminal justice and democratic theory in this midwestern state.

Grand juries had long been an important part of Anglo- American criminal justice. The Assizes of Clarendon (1166) and

Northampton (1176) provided that twelve good and lawful men from every hundred would represent to the king's justices all the crimes that they knew of or had heard about. From bringing for- ward a personal knowledge or reputation of criminal behavior, the grand jury had evolved into an institution that, at least in

theory, prevented indiscriminate prosecutions by refusing to sanc- tion doubtful charges of criminal misconduct.'

In Indiana, as in other states, the grand jury was one of two

institutions--the other being the petit jury-through which members of the community participated directly in law enforcement. Only upon a formal accusation by the grand jury could a suspected criminal offender be required to stand trial.2 But, as in other western states, the institution was more than simply a body of citizens chosen to help police the community. It also exercised important administrative responsibilities. By state law, Indiana grand juries had to inquire into the condition of the county jail and to report their recommendations in open court. Another act required jurors to investigate highway supervisors and local tavern owners to insure that each complied with laws regulating their activities.3 In addition, grand juries occasionally acted on their own initiative and issued reports criticizing public officials or suggesting new laws that might benefit their communities.4

i Sir Frederick Pollock and Frederic William Maitland, The History of English Law Before the Time of Edward 1 (2 vols., Cambridge, England 1903), II, 642-643.

2 The Indiana Constitution of 1816 (Article I, section 12) stated that "no

person . . . shall be . . . put to answer any criminal charge, but by present-

ment[,] indictment, or impeachment." 3 Indiana, Laws (1817-18), 221; ibid. (1820-21), 94. For more on the grand

jury in other areas of the antebellum west, see Richard D. Younger, "The

Grand Jury on the Frontier," Wisconsin Magazine of History, 40 (Autumn 1956),

3-8, 56.

4 A good example of this was a Marion County grand jury report in 1841 that criticized the leniency of local authorities in granting tavern licenses: "The

Grand Jury think they have sufficient evidence before them to produce the



THE GRAND JURY DEBATE 483

In democratic theory and in law, grand jury duty imposed an obligation on all white adult males to take part in governing their community. Once each year, clerks of Indiana circuit courts prepared a list of freeholders eligible for jury service. From this roster the board of county commissioners drew by lot the names of those who would fill the panel for each court term. The law gave commissioners some flexibility in the number of jurors required, but the usual number selected was eighteen. This figure was reduced to twelve by the end of the antebellum period.5

Filling a venire did not ensure attendance. Although jurors' pay was adequate, many of those selected to serve failed to appear. Evidently it was cheaper to pay the small fine for contempt than to lose more money because of court attendance. In such cases, the General Assembly authorized the sheriff to call jurors from bystanders at court.6 At times, this produced juries dominated by quasi-professional jurors. In fact, it was not unusual to see the same person sitting on the grand jury at several con- secutive sessions.7

conviction, that most of the offences such as gambling, betting, assaults and batteries, etc. are committed in or about retail groceries of this County . The remedy for this growing Evil is not within the power of the Grand Jury, all they can do is present the Evil, the remedy whereof seems to be at the direction of the Courts . . . . And the Grand Jury intertains [sic] the hope that the march of good morals and the steady forces of the public judgement, will also regulate that direction as to entirely cure the Evils here complained of." Marion Circuit Court, Order Book 6, 92-93 (Indiana Historical Society Library, Indianapolis). See also Richard D. Younger, The People's Panel. The GrandJury in the United States, 1634-1941 (Providence 1963), 80. Colonial grand juries had similar powers to recommend new laws and ordinances. Julius Goebel, Jr., and T. Raymond Naughton, Law Enforcement in Colonial New York. A Study in Criminal Procedure, 1664-1776 (New York 1944), 90-91.

- Indiana, Revised Laws (1823-24), 234-236; Indiana, Revised Statutes (1852), II, 387. Occasionally the law changed to allow selection of grand jurors directly without lots being drawn. See Indiana, Revised Laws (1830-31), 291.

6 Indiana, Laws (1817-18), 301; Indiana, Revised Laws (1830-31), 292; In- diana, Revised Statutes (1842-43), 987. Jurors' pay increased from seventy-five cents a day in 1817 to one dollar in 1845 to $1.25 in 1855. The fine set for non-attendance was three dollars. Indiana, Laws (1817-18), 244; Indiana, General Laws (1845-46), 41; Indiana, Laws (1855), 112.

7 Bystanders were called at virtually every court session in which the grand jury met. For example, in May term, 1840, six of eighteen jurors were bystanders; in May 1841, seven of eighteen; in April 1844, six of eighteen; in April 1845, two of eighteen. The ratio often was much higher. In October




After impanelment, grand juries met in secret and investigated all charges or rumors concerning criminal violations. Because the

goal of the inquiry was to frame an indictment, the proceedings were ex parte, with evidence presented only to substantiate accusations. Witnesses for the defense did not appear until trial, and prosecution attorneys could attend jury deliberations only to advise on matters of law. Courts usually protected a grand jury's autonomy in this regard. If, for example, a prosecuting attorney attempted to persuade jurors on questions of fact, courts would look favorably on a motion to void the indictment.8 Given the legal ignorance of jurors and the requirement that indictments

embody proper technical language, however, it seems probable that prosecutors effectively influenced indictments both by their

presence and by subtle suggestion.9

1847, it was 1:2; in June 1848, 11:7; in October 1849, 14:4. In April 1855, all but one juror were bystanders. Generally, the number of bystanders to

regularly summoned jurors increased in the mid-forties and remained high throughout the rest of the period under study.

A good illustration of the value of serving as a grand juror is seen in the case of William McCaw of Marion County. McCaw had frequently been indicted in the early forties for retailing without a license, a minor offense but one that was costly for a person who violated the law as often as McCaw did.

Beginning in October term, 1846, and continuing through October term, 1849, McCaw sat on five of seven grand juries, each time as a bystander. During that time, McCaw avoided indictment for any offense, although his indictment rate before this period was well above average. See Marion Circuit Court, Order Book 9; Order Book 10, 12, 183, 344, 514; Order Book 11, 1, 137.

8 Shattuck v. State, 11 Ind. 477 (1858). Most observers accepted the idea that a prosecutor's service was necessary for grand juries to meet their obliga- tions in a proper manner. See Indianapolis Indiana Journal, Dec. 4, 1833, Dec.

17, 1842. The only questions concerned the prosecutor's role within the jury room. Some critics blamed the expense of the grand jury investigations on the

inability of prosecutors to direct jurors' attention to pertinent information. In-

stead of endorsing indictments already prepared for their consideration and

examining witnesses already subpoenaed, the grand jury had to investigate and

decide indictments without adequate counsel on the facts that made laws ap-

plicable to individual actions. See Letter to Editor, Indianapolis Indiana State

Journal, Jan. 5, 1847.

9 One modem scholar asserts that both antebellum prosecutors and judges directed grand jury deliberations. Helene E. Schwartz, "Demythologizing the

Historic Role of the Grand Jury," American Criminal Law Review, 10 (Summer 1972), 755-759. At least one case decided by the Indiana Supreme Court ap-

pears to support Schwartz. In that instance, the appellant complained that his

conviction should be voided because the prosecutor was present during grand




Grand jury reform did not begin in Indiana. Despite the high esteem held for the grand inquest during the colonial and revolutionary periods, the nineteenth century witnessed a movement to reform or abolish the institution.'1 In the Midwest, advocates of grand jury reform had a strong ally in Timothy Walker, federal judge, organizer of a law school in Cincinnati, and founder of the region's premier law review, the Western Law Journal. In a charge delivered in 1843, he had instructed grand jurors in an Ohio district court, "your sole function is to pass upon indictments. The term presentment confers no special authority. ... Yet in some states advantage had been taken of a similar expression to convert the grand jury into a body of political supervisors." To emphasize this point further, Walker reminded the jurors that the prosecutor framed indictments and that their only power was to say whether they were true."

Reform efforts began to bear fruit during the late forties and early fifties. In 1849 a commission established to codify the laws of New York and headed by David D. Field, a leading propo- nent of legal reform, presented a draft to the legislature which warned that the grand jury's unbridled power of inquiry had

jury deliberations and had advised jurors on questions of law and fact. The courts held that to advise on the facts was illegal even if requested by the jury, but the justices refused to reverse the conviction because of form of pleading; doubt remained that the prosecutor had indeed been guilty of this. The court further decided that it was wise to let no one in the jury room while jurors were voting but was "not prepared to say that they may not, in their discre- tion, permit the prosecuting attorney to remain." Shattuck v. State, 11 Ind. 475-477 (1858). The quotation is at 477.

10 Younger, People's Panel, 56. The grand jury was not the only part of the criminal justice system to receive scrutiny in antebellum America. Changes occurred in law enforcement with the development of urban police and in methods of punishment as witnessed by the rise of the modern penitentiary system. See Roger Lane, Policing the City: Boston, 1822-1885 (New York 1971), 3-117; David J. Rothman, The Discovery of the Asylum: Social Order and Disorder in the New Republic (Boston 1971), 57-108. The issue of abolition of capital punishment also aroused major debate. Like reform of the grand jury, the death penalty controversy involved ideological divisions "over the ultimate source of justice, the degree of human responsibility, the fallibility of the courts, the progress or decline of society, the metaphysical origins of good and evil . . . ." David Brion Davis, "The Movement to Abolish Capital Punishment in America, 1787-1861," American Historical Review, 63 (Oct. 1957), 23.

11 T[imothy] Walker, "Rights and Duties of Grand Jurors," Western Law

Journal, 1 (May 1844), 338.




resulted in the loss of its moral authority. The report concluded that this could be restored only by severely restricting the jury's power. Another voice joined the reformers when an important American law journal, the United States Monthly Law Magazine, urged in 1850 that American lawyers and judges follow British

jurists and campaign for the abolition of the grand jury.12 In Indiana, the debate over the grand jury had emerged dur-

ing the forties when members of the General Assembly voiced demands for change in this area of criminal justice. These early attacks did not originate in a desire to restrict jurors' proclivity for political mischief; legislators simply wanted to reduce the ex-

pense of the criminal process and to increase its efficiency in sup- pressing crime. For example, by mid-decade the General Assembly began enacting local legislation restricting the number of days those bodies could sit. In early laws applying only to certain coun-

ties, the legislature forbade jurors to sit beyond three days unless a capital or penitentiary offense was before them for investigation. In such cases the circuit judge could grant an extension.13 Grand juries evidently took advantage of this loophole. One letter writer to an Indianapolis newspaper complained that "under this law I have not known a grand jury to adjourn on Wednes-

day evening; so that the expenses of these counties have not lessened by it."14

The writer thought the blame lay with prosecutors. Under common law and the law of most states, prosecutors presented jurors with a bill of indictment, complete with witnesses' en-

dorsements, so that the grand jury had only to examine the charges and to proclaim the bill a true one.'5 This was not the case in

12 New York Committee on Practice and Pleading, Fourth Report of the Com-

missioners on Practice and Pleading, Code of Criminal Procedure (Albany 1849), 118; "Grand Juries," United States Monthly Law Magazine, 1 (Feb. 1850), 200.

13 For example, see Indiana, General Laws (1843-44), 106 (Hancock County); Indiana, General Laws (1848-49), 44-45 (Greene and Brown counties). Legislators were influenced by considerations other than a desire to save money. Comment-

ing on changes affecting the grand jury some years later, the Indiana Supreme Court observed that the system had been changed "to administer justice in

criminal cases more speedily, more efficiently, [and] at less expense." Lindville

v. State, 3 Ind. 582 (1852). 14 Indianapolis Indiana State Journal, Jan. 5, 1847.

15 This was true of several of the colonies, including New York. Goebel

and Naughton, Law Enforcement, 347-348. Other antebellum states also adopted




Indiana. Unlike their modern counterparts, grand juries often investigated charges and prepared indictments without aid and direction because the court circuit of several counties often delayed the district prosecutor's arrival until after the beginning of court. Lack of legal knowledge prevented jurors from framing proper indictments; inexperience and the press of time forced prosecutors into careless errors that inevitably voided indictments. The result was time and money wasted.'16

In 1848, a year after reestablishing the office of county prosecutor, the House of Representatives considered a bill to limit to one day the time in which a grand jury could find a true bill. According to the legislator who introduced the measure, grand juries were "a general subject of complaint" because of their lengthy sessions. Newspaper opinion reflected this legislative criticism. The Indianapolis Indiana StateJournal noted that the Marion County grand jury for fall term, 1848, sat for nine days, yet found only twenty-two indictments. During the previous spring term, grand jurors returned more than eighty indictments, a fact that did not escape the paper's notice. The editor sarcastically concluded that "the morals of the community are greatly improv- ing, else vice has been scared back into its den. . . . It is hoped that the picket guard of society will not be delayed so long as nine days hereafter, in fixing the eye of the law upon offenders.""17

While no law applicable to the entire state passed during the 1840s, bills to restrict the length of grand jury sessions in individual counties received overwhelming legislative approval. At one time or other during the decade, a substantial number of Indiana counties were allowed to limit the time in which grand juries could conduct their business. Clearly the purpose of these measures was to reduce expenses. There were other complaints,

the practice. For South Carolina, see Jack K. Williams, Vogues in Villainy: Crime and Retribution in Ante-bellum South Carolina (Columbia 1959), 80.

16 "The prosecutor having so many indictments to write and so little time to prepare them, commits errors fatal to them. Hence it is that so many are quashed, even when the prosecutor is a good lawyer. The law is laughed at; counties have grand and petit jurors and bailiffs to pay; witnesses are obliged to attend the circuit courts without pay; all for nothing. These are some of the fruits of having a prosecutor for a district [as opposed to county prosecutors]." Indianapolis Indiana State Journal, Jan. 5, 1847.

17 Indianapolis Tri- Weekly State Journal, Jan. 17, 19, 1848; Indianapolis In- diana State Journal, Oct. 18, 1848.




some of which foreshadowed the tack taken by opponents of the

system in the constitutional convention. Two arguments reflected early concerns: delay in prosecution by the grand jury resulted in inefficient law enforcement; and grand juries were undemocratic institutions. A legislative opponent best expressed the latter sentiment when he complained that grand jurors "acted too much like a secret Spanish inquisition." Even the state supreme court

acknowledged that "the grand jury, whether justly or not, had

impaired its standing in public confidence."18

Delegates to Indiana's constitutional convention of 1850-1851 debated these themes and others in great detail. Reform of the

grand jury, of course, was not the sole, or even the primary, item on the convention agenda. Statewide constitutional referen- dums in 1846 and .1849 had stimulated numerous proposed amendments to the Constitution of 1816, including calls for bien- nial legislative sessions, restrictions on local and special legislation, prohibition of state debt, abolition of poll taxes, divorce law reform, liberalization of suffrage requirements, and direct election of all judges and state officials. But the debate over the

grand jury, perhaps more than any other single issue, most

dramatically illustrated the sharp philosophical differences that existed between the 55 Whig and 95 Democratic delegates.'9

On October 10, 1850, three days after the convention opened, John Pettit, a prominent Democratic lawyer from Tippecanoe County and United States Representative from 1843 to 1849, notified his colleagues that he intended to introduce a resolution

mandating public examinations in lieu of indictments by the grand jury. Later that day, an Owen County delegate introduced a resolution calling for the abolition of the grand jury. The second resolution was tabled, but Pettit's motion stirred a debate that revealed deep ideological differences concerning the role of criminal

justice in a democratic society. Pettit signaled three major avenues of attack for anti-jury

delegates when he rose to explain his resolution: the grand jury was an antiquated institution in a progressive age; the secrecy

18 Indianapolis Tri-Weekly State Journal, Jan. 19, 1848; Lindville v. State, 3 Ind. 582 (1852).

19 Charles Kettleborough, Constitution Making in Indiana (3 vols., In-

dianapolis, 1916, 1930), I, lxi-lxxxiii.




and ex parte proceedings of the body were contrary to republican principles; and pre-indictment public examinations would be more efficient in prosecuting crime than continuation of the present system. These arguments can be fully understood, however, only in light of a view of history, particularly that of the grand jury, shared by those who advocated grand jury abolition in the convention debates.

To opponents of the grand jury, history was progressive. In all areas of life-physical, spiritual, political, and economic- each generation had surpassed the knowledge and wisdom of its ancestors. Belief in an idea of progress was not, of course, peculiar to this group of men; the tenet was widely held in the nineteenth century. Because of this belief, Pettit scoffed at any suggestion that the grand jury's antiquity shielded it from reform. The wisdom of the past was overrated, he asserted, arguing that "We are certainly as competent now to change . . our political system, as were those people in barbarous ages, before the dawn of civiliza- tion had fairly swept the mists of moral darkness from the men- tal vision of the inhabitants of Great Britain."20 Others advanced similar claims for the superiority of the modern mind: "We S

. . may not have arrived at the maturity of our race, but we

have undoubtedly made some farther progress towards its ad- vancing manhood than had the people of mediaeval antiquity

" History had recorded man's progress; its lessons exposed "errors and evils of the past" and served as guides or "warnings for the future.""21

Not only was the moral authority of antiquity suspect, but the history of the grand inquest was peculiarly tainted. Accord- ing to reformers, the crown had created grand juries as another instrument of tyranny. In England, they argued, all power flowed from the king, and all officials were responsible to him alone. This meant that whenever the king desired an indictment,

20 Report of the Debates and Proceedings of the Convention for the Revision of the Constitution of the State of Indiana (2 vols., Indianapolis 1850), I, 145. The nineteenth century, of course, witnessed the growth of an optimistic liberalism that emphasized the idea of progress as an article of faith. See J. B. Bury, The Idea of Progress: An Inquiry into Its Origin and Growth (London 1920), 278-352, and Arthur A. Ekirch, The Idea of Progress in America, 1815-1860 (New York 1944).

21 Report of the Debates, I, 182. For further evidence supporting grand jury reform because of demands of progress, see ibid., I, 137, 140, 196; II, 1372.




compliant grand juries responded to his wish. The institution had been established because "it was a convenient and most powerful prerogative of the Crown to the aggrandizement and

strengthening of which it has always contributed."22 Some supporters of the jury were willing to concede this ac-

count of the institution's origin, while others claimed that the crown's intentions were largely irrelevant. Despite the king's desire to use the grand jury for popular control, history had proved it to be "another of those popular triumphs which, in the course of time, have resulted in the com[p]lete enfranchisement of the

people.'"23 The perfection of the grand jury as a bulwark against tyranny had come with the American Revolution, when the crown had found it resistant to the prosecution of rebels. To its defenders, this was conclusive evidence that the "very system of grand juries had . . . impregnated the community with liberal notions ... " The world had been turned upside down; royal institutions had become instruments of popular sovereignty, a fact verified when the founding fathers included the right of indictment by a grand jury in the Fifth Amendment to the federal constitution.24

Not every reformer who addressed the convention felt com-

pelled to denounce the jury's history as one of barbarism or

tyranny. As its supporters noted, such denunciations failed to

explain why the grand jury had been included in the Bill of Rights. Once again, many reformers appealed to progress: "We should remember . . . that . . . [the nation's] builders were not infalli-

ble; and that time, and the progressive spirit, and searching in- tellectual energy of the age, demand great changes in the policy of governments." At least two reformers, including Pettit,

recognized the problem but chose to avoid it by emphasizing that

22 Ibid., I, 136. Frequent disparaging attacks on Great Britain by opponents of the grand jury suggest that their position was tinged by an active anglophobia. One speaker was more blunt than most when he commented on the English love of the grand jury: "When you trace this system, . . . you will find that

the more uninformed and unenlightened the people, the more has it been rever- enced." Ibid., 140.

23 Ibid., 157; also see 142, 165. 24 Ibid., 139, 189, 213-215. The federal Bill of Rights stipulated that "No

person shall be held to answer for a capital or otherwise infamous crime, unless

on presentment or indictment of a Grand Jury . " United States Constitu-

tion, Amendment V.




the Supreme Court had ruled in Barron v. Baltimore (1833) that the Fifth Amendment did not bind the states.25

To reformers, the grand jury was a bastard child of the common law. They considered both its secrecy and its tradition of ex parte examinations to be anti-republican. The demand of liberty was clear: free people, free examinations.26 Republican governments required openness and fairness, especially in the criminal process where personal freedom was so directly at issue. Pettit put the matter bluntly: "And now, I ask, if this [the grand jury] savors anything, either of the spirit or republicanism or of common justice. . . . There is neither fairness nor honesty about it." Other delegates denounced secrecy as "anti-American." Ex parte examinations were unfair because jurors based indictments on evidence presented only by accusers and heard no evidence from the accused. An indictment, opponents charged, was a more effective assassin of character than conviction. One reformer candidly admitted that he often saw guilt in the accused's countenance as soon as the grand jury issued its indictment. This concern may have been overstated. There is some reason to doubt that an indictment, at least for minor offenses, was so harmful to one's reputation. Not a few times, minor offenders at one term served as grand jurors at a subsequent session. Still, reformers believed that the manner in which grand jurors indicted made a fair trial impossible; form controlled substance, and liberty was the loser.27

Grand jury supporters were convinced that secrecy was the sine qua non that explained the institution's effectiveness in pro- moting social order. Instead of undermining republican ideals, secrecy allowed jurors to consider accusations rationally and removed emotion from the criminal process. Secret proceedings offered advantages equally important to both state and accused. Apprehension of criminals demanded secrecy; publicity only encouraged the guilty to escape. Secrecy, moreover, permitted moral- ly or physically weak persons to testify without fear of retribution. This was considered especially important in cases of master- servant relations and of men mistreating their wives or children.

25 Report of the Debates, II, 1371; I, 135-136, 149. As late as 1859 some Indiana newspapers thought the amendment prohibited states from abolishing grand juries. See New Albany Tribune, Apr. 2, 1859.

26 Report of the Debates, I, 140. 27 Ibid., 147, 149-150. See also ibid., I, 184, 197, 296-297; II, 1372-1373.




It also ensured that the conduct of the rich and powerful would be examined. Finally, secrecy prevented innocent parties from

being stigmatized by false charges. Accusations with substance would receive a vigorous and appropriate response; those without foundation would be dismissed with little or no damage done to one's reputation.28

Ironically, the very secrecy of grand jury deliberations makes it impossible for the historian to evaluate properly the debate over its effects. Neither side could argue from empirical evidence because none existed. Supporters of the grand jury failed to show that the secrecy afforded jurors caused them to refuse to indict those maliciously accused of crimes; opponents failed to prove that the reverse was true. Undoubtedly, many delegates knew of cases that would support their own position, but no one knew if a pattern of either fairness of malfeasance existed. But the lack of convincing evidence did not deter the debaters because the

argument, it will be seen, was not over the reality of grand jury deliberations. Instead, it involved major ideological differences over the meaning of American democracy and the grand jury's role within that tradition.

Reformers offered public examinations as a fair and effective substitute for the grand jury. Advocates of change outlined the benefits of a new system while candidly admitting that not all

procedures of this alternative were "well matured."" 29The most attractive proposal for an open examination appeared early in the debate when John B. Niles, Whig from La Porte County, suggested that criminal accusations be heard before a tribunal of three to five justices of the peace selected from different

townships in each county. Citizens having knowledge of criminal

activity could appear voluntarily before this board and openly enter an accusation. The defendant would then be arraigned, testimony taken from all parties, and each side given the right to question and cross-examine the other's evidence.30

28 Ibid., I, 162, 165, 169, 180, 206, 208, 318, 488-489, 776. These ra-

tionales for grand jury secrecy still find judicial support. See Pittsburgh Plate

Glass Company v. United States, 360 U.S. 395 (1959); Wood v. Georgia, 370 U.S.

390 (1962). 29 Report of the Debates, I, 297. 30 Ibid., 186-187, 297-298. Niles proposed that accusations could also be

made to county prosecutors, who would present them to the board of justices.




Several benefits were anticipated. Republican theory would be satisfied because all proceedings would be public. In addition, an increase in efficiency could be expected because legal process would more accurately reflect reality. Reformers noted that indictments actually began before a justice of the peace who decided whether to dismiss the complaint, fine the defendant, or bind him over to the circuit court for trial. The grand jury simply duplicated the work of justices and at greater expense to taxpayers. Abolition of the jury would greatly increase the efficiency and economy of criminal justice.31 In theory, not only would criminals be prosecuted more rapidly and at less expense, but public examinations would also save county citizens from the time- consuming duty of serving on or testifying before the grand jury.

Undoubtedly, this benefit seemed attractive to many delegates. Testifying before a grand jury was particularly onerous. State witnesses were usually compelled to attend at least two court sessions-one for the finding of the indictment, and another at a succeeding term to testify at the defendant's trial. If key witnesses did not appear upon trial, either because of their neglect or the neglect of an officer of the court, the case was often continued. Because witnesses were not paid, any delay was more than a mere annoyance; at times it constituted a real financial burden.32 Also obnoxious to reformers was the possibility of massive numbers of subpoenas based on little more than rumors heard by grand jurors. One leading advocate of reform charged that in his personal experience a call of three hundred witnesses at a single term was not unusual.33 This expended public resources of time and

31 Ibid., I, 195; II, 1372-1373. Some opponents claimed that only one prosecution in twenty originated in grand jury proceedings. A survey of the records of justices of the peace for Marion County, Indiana (Indianapolis), casts doubt on this assertion, however. In handling over 1350 prosecutions from 1827-1833 and 1845-1854, Marion County justices sent only a handful to the circuit court for trial. But Goebel and Naughton report that in colonial New York "the bulk of the cases which would come up for consideration by the grand jury were those were the magistrates had bound over to the court persons complained against or examined before them." Law Enforcement, 347.

32 Report of the Debates, I, 183; II, 1373. 33 Ibid., II, 1373. Despite the same delegate's assertion that three hun-

dred and fifty indictments at one term were not unusual, the experience of Marion County suggests otherwise. Only in 1860 did the number of indictments in that county exceed three hundred. David J. Bodenhamer, "Law and




money needlessly and strengthened reformers' belief that grand juries contributed more harm than good to the criminal justice system.

Supporters of the grand jury disputed these arguments. Much of their objection to public examinations stemmed from a basic distrust of the ability of justices of the peace to administer the criminal process adequately. These officials, they argued, were ignorant of the law, especially the fine points of evidence. A par- ticular concern was that justices would be easily maneuvered by skilled attorneys in public examinations. This was dangerous. If

justices were unduly influenced by the prosecutor, rights of the accused suffered; if justices accepted the law as interpreted by defendant's counsel, community security was jeopardized. The

legal ignorance of justices of the peace made them incapable of

withstanding pressures exerted either by momentary popular ex- citement or lawyers. Grand juries had the advantage of numbers and distance. A tribunal of only a few justices whose actions were

open to public scrutiny might be subject to intense popular pressure that a larger body of men meeting secretly could with- stand. The grand jury was safe because it sat apart from "ex- citements of passion or prejudice, and [had] an opportunity of

calmly and dispassionately considering the question of guilt or innocence. '34"

Supporters of the jury questioned what practical effect public examination might have on law enforcement. Some delegates charged that abolition of grand juries would remove a bulwark of protection for all citizens and institute a "railroad system of criminal jurisprudence" that would ignore individual rights in its haste to prosecute. Others alleged that, instead of semi-annual

grand jury sessions, justices would constantly conduct public examinations. The imagined result was frightening: overzealous enforcement of the law would threaten a citizen's liberty, with justices becoming "petty tyrants of the village or the neighborhood."35

A fear of unrestrained power reminiscent of the revolutionary era laced the dire predictions and warnings about public examinations given by supporters of the jury. The refrain was unmistakably

Disorder on the Early Frontier: Marion County, Indiana, 1823-1850," Western Historical Quarterly, 10 (July 1979), 323-336.

34 Report of the Debates, I, 320, 179. See also ibid., 206-207, 320, 490.

35 Ibid., 165, 163.




similar to that issued in the 1770s: "Place power, irresponsible power, in the hands of any man, and as certainly as water runs downwards, he will become a despot in its exercise.'"36 Unlike the proposed panel of justices, grand jurors were not dangerous because they were only temporary representatives of the community. This isolated them from the seductive pull of power. Justices, on the other hand, were more susceptible to human pas- sions and prejudices, including the desire for power, because they sat for much longer terms.37

In attacking the plan to give powers of public inquiry to justices of the peace, defenders of the grand jury may have been on solid ground. Most justices in Indiana lacked legal training. To claim, as their defenders did, that these men would more effectively protect the rights of criminal defendants ignored frequent complaints by Hoosiers that justices too often favored the prosecutor in criminal actions. This charge may not have been greatly exaggerated. A survey of records submitted by Marion County justices to the county's board of commissioners reveals only ten of 1,465 criminal cases where the state's prosecution against the defendant was dismissed or where the accused was found "not guilty."38

Even so, Pettit and his followers harbored no doubts about "the general worth and fidelity of this most useful, though humble class of public officers. "39 Indeed, opponents of grand juries argued that public examinations by justices had two advantages over grand juries- efficiency and economy. Throughout the state, Pettit claimed, only one in twenty felony indictments ended in conviction. Others advanced similar figures.40 To reformers, grand juries were inherently inefficient. Their secret and ex parte examinations encouraged malicious prosecutions that inevitably failed on trial.

36 Ibid., 163. For the concern of American revolutionaries about the abuse of power, see Gordon S. Wood, The Creation of the American Republic, 1776-1787 (Chapel Hill 1969), especially 18-28.

37 Report of the Debates, I, 206-207, 321. 38 These records, labeled variously as "Dockets" or "Registers," may

be found in the Indiana Historical Society Library. 39 Ibid., I, 155. See also ibid., II, 1373. 40 Ibid., I, 148. In Marion County, the indictment to conviction ratio,

while still low, was considerably higher than the figures given by those who wanted to abolish the grand jury. See Bodenhamer, "Law and Disorder," 328-334.




Even the most honest and conscientious jurors produced bad indictments. Fault did not lie with jurors but with the system. It would be better to have public examinations to expose all the evidence and to assure a fair hearing. More important, such a preliminary proceeding would aid in forming a "correct public judgment of the guilt or innocence of the accused.4"" This would

speed trial and the final determination of the accused's fate.

Opponents of the grand jury also argued that indictments were too often delayed, frequently resulting in the escape of felons before they could be tried. Delays in prosecution contributed to a rise in crime. Swift and certain punishment was the key to its reduction. Public examinations conducted immediately after the commission of a crime allowed the legal system to react quickly to violations of law. This, in turn, would deter criminals. The number of crimes would be reduced because "the evil doer would know that retribution would follow upon the heel of the criminal, with rapidity and unerring certainty.""42

In view of this emphasis on more efficient punishment, one

might interpret attacks on the grand jury as a plea for a criminal

justice system centered on crime control. It might also suggest that supporters of grand juries desired a criminal process dominated by considerations of due process. Either interpreta- tion would be misleading. Both sides wanted criminals prosecuted vigorously; both claimed allegiance to nineteenth century traditions of due process; both desired an inexpensive legal system. But the two groups differed in their definition of political democracy and in their understanding of the relationship between

democracy and criminal justice. From its inception, American democratic theory had linked

liberty and equality. But the union of the two was fragile; they did "not unite as easily as democrats of Thomas Jefferson's

generation had hoped."43 Jefferson's conception of America as

41 Report of the Debates, I, 185. See also ibid., 148; II, 1375. 42 Ibid., I, 156. "If . . . courts were always open, and these matters were

given in charge of the justices of the peace, you would see a speedy administra-

tion of justice, and a prompt punishment of all offenders." Ibid., 154.

43 George H. Sabine, "The Two Democratic Traditions," Philosophical

Review, 61 (Oct. 1952), 451-452. On theoretical difficulties inherent in the join-

ing of the two concepts, see Robert A. Dahl, A Preface to Democratic Theory

(Chicago 1956), 3-32.




a "Middling Landscape" where middle class landholders met on grounds of independence and equality had dissolved as economic growth increased disparities in wealth and power. Societal changes demanded an adjustment in democratic ideals. Economic change magnified the hidden paradox: the more liberty, the less equality; the more equality, the less liberty. Growing economic in- equality in the middle decades split the always uneasy alliance between the two concepts and forced a public debate, often vague and ill-defined, on their proper relationship in American democracy.44

The debate over the grand jury was part of this process of adjustment. To supporters of the institution, liberty consisted of men submerging personal interests to those of the general public. James Rariden, former United States Representative and a Whig leader in the fight to defeat Pettit's motion to abolish the jury, quoted Blackstone on liberty to illustrate this point. "Civil liberty," the eighteenth century English jurist had written, "comports with such restrictions upon individuals as are necessary for the good of the community or of society." Governments did not impose these necessary limitations on a passive populace; people restricted themselves. Rariden and his followers accepted the idea of popular sovereignty, but they defined it conservatively. Popular sovereignty meant that men had the right, indeed the duty, to "yield the exercise of such natural rights and privileges as would conflict with the well-being and prosperity of the community at large."45 These restrictions enhanced the freedom of both individual citizens and society. The grand jury's supporters saw no conflict between governmental authority and individual liberty. They fully sub- scribed to the view expressed by a modern scholar that "the more definitely a community is directed toward its common good and protected from disunity in its common action, the more perfect and the more free it is. "46

In return for restrictions on their rights, government's duty to its citizens was explicit: it "must be so administered as to give

44 Sabine, "Two Traditions," 453. 45 Report of the Debates, I, 138. 46 Yves R. Simon, Philosophy of Democratic Government (Chicago 1951),

140-141. Also see Arthur E. Murphy, "An Ambiguity in Professor Simon's Philosophy of Democratic Government, " Philosophical Review, 61 (Apr. 1952), 199.




a virtuous direction to the public mind.'"" Grand juries played an important role in this promotion of public virtue. Selected from the great mass of society, jurors represented the commu-

nity. It was their duty "to act for the interests of the community in which they live[d]" rather than for the interests of a few. In their official capacity, jurors had no temptation to do wrong. Freed from fear of reprisal by their shield of secrecy, jurors, Rariden claimed, would not contravene the political community's desire to preserve ordered liberty. Through the maintenance of order, jury investigations promoted the public good. The grand jury, after all, was "but an auxiliary to the system of common schools, and churches, and sabbath schools, and all institutions for the furtherance of good morals and the well-being of society.'"48

To supporters of the grand jury, any violation of law threatened public order and, hence, public virtue. They com-

plained that even with grand juries too many misdemeanors went

unpunished. The answer to better law enforcement was not to substitute public examinations for grand jury inquests. If that were done, minor offenses would go unpunished except where "law was made the engine of private malice."49 And to allow malice to determine whether or not a crime was prosecuted would do more harm than to allow some crimes to go unpunished. Private morality would replace public morality; society would become fragmented; and all sense of community would be lost.

On the other hand, a grand jury, "composed of the indepen- dent, and virtuous, and upright citizens . . . who look to no interests except to those . . . of the whole community," was well suited to define public morality and prosecute its violation. In

47 Report of the Debates, I, 138. The meaning of public virtue in the early nation is explained in Drew R. McCoy, The Elusive Republic: Political Economy in Jeffersonian America (Chapel Hill 1980).

48 Report of the Debates, I, 139. This argument swayed at least one jury

opponent. Joseph H. Mather, Whig lawyer from Elkhart and one of the con-

vention's youngest delegates, supported Pettit's proposal for public examina-

tions, but only for felonies. Mather preferred that grand juries continue to in-

vestigate misdemeanors. Felonies, he argued, would always find a prosecutor

among the public, but the prosecution for minor offenses required a special kind of moral courage best found in groups like the grand jury. Society, accord-

ing to Mather, benefited from a vigorous prosecution of both major and minor

crimes. Ibid., 195-196. 49 Ibid., 163.




his second speech to the convention, Rariden questioned if there is not something in the idea of such a tribunal, selected and charged as it is, calling upon the most respectable citizens in the State to appear before them to aid in the great work of maintaining public morals and private rights through the inquiries they may see fit to make ... .50

In a democracy the grand jury had an important function. It was an agent of public virtue and an instrument of communal values. Without it, social bonds would weaken, and freedom would perish.

Opponents of the grand jury rejected the conservative doc- trine of freedom through adherence to a public morality, publicly maintained. They did not spurn the idea of virtuous men; they simply placed responsibility for development and sustenance of virtue on the individual, not the community. Advocates of public examinations rejected arguments that grand juries aided the preser- vation of public virtue. Grand juries, they maintained, often destroyed one of virtuous man's greatest assets, his reputation, by its use of secrecy and ex parte proceedings. Instead of upholding community morality, these procedures allowed vindictive persons to pursue their enemies through malicious prosecutions, inject- ing bitter hatred into the body politic: "in ninety-nine cases out of a hundred, the bitterness of the heart is put forth with all the venom of the serpent's tongue.'"51 It also effectively restricted liberty by stigmatizing and inhibiting those under investigation.

Public examinations would place responsibility for law enforcement on individual courage and vigilance. Society had no need for secretive investigative bodies to administer public morality; individuals kept their own conscience. As one grand jury opponent noted, "there is an inherent feeling of right and justice, and a disposition to see the laws executed inherent in . . . every good citizen of our State, that will bring the man who has been guilty of any flagrant violation of the laws to immediate punishment." Society would benefit from abolition of grand juries because every man would be required to enforce law. Abolition would "add to the manly firmness and dignity of [the] popula- tion." No one needed to fear that the absence of the institution

50 Ibid., 160, 190. 51 Ibid., 147.




would contribute to increased lawlessness or a decline in moral-

ity. Under a system of public examinations, vigilance would increase because "it becomes every man's interest as he loves his own peace, the security of his property, and the quiet and hap- piness of his family, to give prompt information of the disturber of the public peace .... ."52 The key to virtue lay with individuals, not institutions.

In sum, both sides emphasized different strains in a domi- nant republican ideology. Without an understanding of the different ideological perspectives, attempts to explain attacks on the

grand jury are less than satisfactory. One way to interpret the debate is to analyze crucial convention votes on the grand jury and to examine the socioeconomic status and political affiliation of those casting ballots. During the entire debate, however, there was only one roll-call test of delegate sentiment on the grand jury. This occurred midway through the convention and involved a

compromise amendment for Pettit's original motion to abolish the institutions.

On the last day of December, James Lockhart, Democratic

delegate from Vanderburgh and Posey counties and a supporter of the grand jury, proposed that prosecution by grand jury indictment be required for "capital or otherwise infamous crimes," but that offenses punished by imprisonment in jail or by fine be prosecuted under any method prescribed by the legislature.53 This substitute resolution was an obvious attempt to find a middle

ground between those who wanted the grand jury kept without

change and those who desired its abolition. It allowed a different

system of public prosecution, but it did not mandate abolition of the jury.

Some opponents of the grand jury had indicated a willingness to vote for a similar compromise. Conversely, only a few supporters insisted that grand juries be kept without any change. Pettit, however, secured a delay in voting on the substitute. Three weeks later the issue came before the convention again. At that time Pettit moved to table all amendments and to replace them

52 Ibid., I, 196, 153, 155. 53 Journal of the Convention of the People of the State of Indiana, to Amend the

Constitution (Indianapolis 1851), 571.




with a section that allowed the legislature to "continue, abolish, or modify" the grand jury. Delegates considered the amendments one by one, and consented viva voce to table all of them. Only on the motion to table Lockhart's resolution did enough members demand a roll call.54 This vote was crucial. It was a test of whether some guarantee of the grand jury would be written into a new constitution.

The motion to table carried, sixty-seven to fifty-one. Democrats provided the necessary strength for passage by casting fifty-two affirmative votes, with twelve Whigs joining them. Whigs provided the bulk of votes in opposition, twenty-eight, and gained nineteen Democrats as allies.55 Of all the variables examined, only party affiliation appears to be important in explaining the vote. This is not surprising. Even though Whigs and Democrats shared a general ideology-"a democratized version of the liberal republicanism fashioned in the Revolutionary struggle"-the parties "disagreed over the proper role of government in securing liberal republican ends and in shaping American culture.""56 Many scholars have emphasized the negative liberalism and in- dividualistic rhetoric of Jacksonian Democracy and have contrasted this with the state-oriented commonwealth conception of society held by many Whigs. For the latter, especially northern members of the party, social reform meant using government to legislate acceptable social and moral behavior.57 Whigs were more closely connected to reform movements of the day because those

54 Ibid., 717-718.

55 Ibid. Delegates did not vote by party. The information on party affiliation (and other variables, such as age, occupation, and years in state) comes from a broadside issued at the meeting of the convention. This document was used in conjunction with the vote to provide the figures given in the text. Baker and McFarland [printers?], Members of the Convention to Amend the Constitution of the State of Indiana, Assembled at Indianapolis, October, 1850, Giving Name, Age, Post Office, County Represented, Nativity, Years in State, Boarding House, Occupation, Politics, Married or Single, and Remarks [Indianapolis 1850?], copy in Indiana State Library (Indianapolis).

56 Herbert Ershkowitz and William G. Shade, "Consensus or Conflict? Political Behavior in the State Legislature during the Jacksonian Era, "

Journal of American History, 58 (Dec. 1971), 614.

57 For evidence of this, see Joseph R. Gusfield, Symbolic Crusade: Status Politics and the American Temperance Movement (Urbana 1963), 36-60; Clifford S. Griffin, Their Brothers' Keepers: Moral Stewardship in the United States, 1800-1865 (New Brunswick 1960).




movements offered the best chance to set moral norms for society. Democrats were less optimistic than Whigs and more fearful of centralized government and its threat to individual liberty. In- stead of viewing reform as a communal response to a changing and disoriented world, most Democrats "looked upon it as meddle- some interferences with individual liberty ... .,"58

Different ideological perspectives, then, explain why the convention vote on grand juries divided roughly along party lines. A majority of Democrats, led by Pettit, saw grand juries as another example of government's interference with their individual liberty. When combined with the supposed anti-republican character of the institution, this meant that grand juries must be purged from the criminal process or freedom would suffer. Whigs, however, thought of grand juries as essential instruments in the continu-

ing battle to maintain public order and public virtue. This at- titude makes intelligible the seeming anomaly of lawyers, who were primarily Whig, voting in support of the jury when they might reasonably have expected to gain clients from a system of public examinations.59 Party affiliation, dictated by different beliefs on how best to secure individual republican ends, was crucial. To both its supporters and opponents, belief in the value or worthlessness of the grand jury represented an article of faith in separate canons of democratic theory. In expressing their

preference on this part of the criminal process, delegates engaged in more than a search for adequate judicial machinery to control

crime; they voiced their opinion on the relationship between democratic beliefs and criminal justice.

58 Ershkowitz and Shade, "Consensus or Conflict?" 617. This study of

the political behavior of antebellum state legislatures reveals a split along party lines on major issues of the day, including votes concerning reform proposals. Ibid., 610-611, 617.

59 Of twenty-one lawyers voting on Pettit's motion, sixteen voted against it. Two thirds of those lawyers in opposition were Whigs. By contrast, a large

majority of all farmers, thirty-one of fifty, voted for Pettit's proposal.



criminal justice and democratic theory in antebellum america: the grand jury debate in indiana

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