In re Opinion to the Governor

• Decision Date: 25 February 1939
• Parties: In re OPINION TO THE GOVERNOR.
• Court: Rhode Island Supreme Court

4 A.2d 487

In re OPINION TO THE GOVERNOR.

Supreme Court of Rhode Island.

Feb. 25, 1939.

Opinion of the Justices of the Supreme Court in response to questions propounded by His Excellency, William H. Vanderbilt, Governor of the State of Rhode Island and Providence Plantations. To His Excellency, William H. Vanderbilt, Governor of the State of Rhode Island and Providence Plantations:

We have received from Your Excellency a request for our written opinion, in accordance with the provisions of sec. 2 of article 12 of amendments to the constitution of this state, upon the following questions, viz.:

"1. May the Legislature authorize and empower the Superior Court sitting in any county to impanel a special or additional grand jury to attend said Superior Court to serve for such time as may be required and until discharged by said court, said special or additional grand jury to sit in the same county, whenever necessary, contemporaneously with the regular grand jury which, in accordance with the existing law, has been impanelled and is then in attendance on said Superior Court?

"2. If the answer to Question 1 is in the affirmative, may the Legislature further provide that such special or additional grand jury be confined in its inquiries and investigations to only such matters as shall be presented to it by the Attorney General, Assistant Attorneys General, special Attorneys General, or special counsel appointed by the Attorney General?"

"3. If the answers to Questions 1 and 2 are in the affirmative, may such matters referred to in Question 2 be confined and restricted to such special or additional grand jury while it is in attendance so that such matters shall not be inquired into or investigated by the regular Grand Jury which has been impanelled and is then in attendance on the Superior Court in the county in which special or additional grand jury is in attendance?"

In response to these questions, we have the honor to submit the following opinion:

The existence of a power in the legislature to authorize the impaneling of an additional grand jury, to function at the same time and in the same county with a regular grand jury attending upon the same court, at once suggests possible conflict with at least three sections in our constitution. These sections read as follows :

"Article 1. * * * Sec. 7. No person shall be held to answer for a capital or other infamous crime, unless on presentment or indictment by a grand jury, except in cases of impeachment, or of such offences as are cognizable by a justice of the peace; or in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger. No person shall, after an acquittal, be tried for the same offence. * * *

"Sec. 10. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury; to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining them in his favor, to have the assistance of counsel in his defence, and shall be at liberty to speak for himself; nor shall he be deprived of life, liberty, or property, unless by the judgment of his peers, or the law of the land. * * *

"Sec. 15. The right of trial by jury shall remain inviolate."

These provisions relate to various phases of the same general subject matter and all appear in the very first article of our constitution, wherein is recited substantially the bill of rights. Together these three sections constitute the essential guarantees of an accused in certain cases to a proper indictment by a grand jury, and a trial by petit jury which shall be inviolate. If the existence of the power in the legislature, as referred to in question 1, is found to be repugnant to the guarantees in any of these sections, the answer to the first question should be in the negative.

The question therefore presented for our immediate consideration is whether the power in the legislature suggested in question 1 substantially infringes or limits the rights of the citizen as guaranteed by the bill of rights in any of these sections. In approaching and dealing with this question, we must keep in mind that the preamble to the bill of rights in article 1 of our constitution expressly declares "that the essential and unquestionable rights and principles hereinafter mentioned shall be established, maintained and preserved, and shall be of paramount obligation in all legislative, judicial, and executive proceedings."

It is unnecessary here to go at great length into the history of the grand jury. It was so definitely fixed and established in the law of England that its composition, purpose and scope of power in certain criminal matters were universally known and accepted, and they are not now open to dispute. Almost from time immemorial, the grand jury was composed of not more than twenty-three sworn members and the concurrence of at least twelve of such members was always necessary in order to return a valid indictment. One of its main purposes was to protect the rights of the individual citizen against possible oppression by the crown or its agencies in the prosecution of crimes: or, as has been elsewhere stated, to safeguard the individual's rights against private malice, party passion or governmental abuse.

The powers of the grand jury were indeed broad and were not specially limited merely to matters presented by the crown or the charge of the court. Certainly the common law grand jury in England was not so limited. This readily appears from the form of oath administered, under which it could also investigate and act upon matters which might come properly befor it through such knowledge of any of its own members as was based upon their own observations or evidence, but not upon mere rumor or reports. A grand jury thus constituted functioned in this manner in England without any substantial change for several hundred years prior to the adoption of our constitution. No other kind of grand jury was known.

It seems clear, too, that this kind of grand jury and no other was contemplated by certain express language in the royal charter granted in 1663, which continued in force until our constitution was adopted in 1842. By the charter the legislature received a grant of the power to make laws thereunder but only "so as such laws, ordinances and constitutions, so made, be not contrary and repugnant unto, but, as near as may be, agreeable to the laws of this our realm of England, considering the nature and constitution of the place and people there." See Gunn v. Union Railroad Co., 23 R.I. 289 at page 292, 49 A. 999, at page 1000.

While some minor variations in connection with a trial by petit jury in civil matters may have taken place from time to time, it is important to note that no variation in the substantial requirements of a presentment or indictment by a grand jury in certain crimes was ever attempted by the legislature or any agency under our government before the adoption of the constitution. Nor was there any deviation from the customary procedure by a grand jury as it was known at common law and was established in England. The guide-posts and safeguards in such criminal ratters, which were provided by the common law grand jury, were so entirely known and accepted that they were adhered to continuously and without substantial change for over one hundred fifty years before the adoption of our constitution.

When our constitution was adopted in 1842 no change was made in that respect. The three above-quoted sections, 7, 10 and 15, were written into the bill of rights and were placed in the very first article thereof. These three sections should be read together as expressly providing certain essential guarantees intended for the protection of one accused of a capital or infamous crime. They provide the basic principles of law and procedure which must be complied with in order to have a valid trial of an accused in such a case. The main purpose of these provisions, it seems to us, was to guarantee expressly to the accused in such a case the same kind of protection against possible oppression by any department or agents of government under the constitution as was afforded previously through the agency of a common law grand jury.

It certainly was not intended that such guarantees in the bill of rights should provide less protection than was afforded under the charter. In the time at our disposal, we have found no instance, under our charter form of government before the adoption of our constitution or in this state since the adoption of our constitution, where the legislative branch of our government ever attempted to exercise power to make any substantial changes in the composition, purpose or prerogatives customarily associated with and accorded to a grand jury under the common law. Nor have we found any such instance in England prior to the declaration of our state's independence on May 4, 1776.

From the history of the grand jury, only briefly outlined here, in England and in Rhode Island up to the time of the adoption of our constitution, and from a consideration of the language of sec. 7, we draw the natural and, as we think, the necessary conclusion that the framers of our constitution, by writing that section into the bill of rights, intended to secure thereby to every person who might be accused of a serious crime the same protection as had been provided by the common law, through the same kind of grand jury which was traditional at common law and functioning in substantially the same way, being the only kind of grand jury that such framers knew. See Mathews v. Tripp, 12 R.I. 256. Among other things which they intended when they wrote into our constitution: "No person shall be held to answer for a capital or other infamous crime, unless on presentment or indictment by a grand jury; except in cases of impeachment * * *", the...