The Origins of Public Prosecution at Common Law
However fundamental he may appear to us, the public prosecutor was an historical latecomer. Judge and jury we can trace back to the high Middle Ages. But the prosecutor became a regular
figure of Anglo-American criminal procedure only in Tudor times.Further, his appearance then has not been noticed in our historical literature, an especially remarkable omission when we discover that the prosecutorial office was originally lodged with a much-studied institution, the English magistracy. Ever since Maitland coined his famous phrase, that under the Tudors and Stuarts the justices of the peace became the “rulers of the county,”l they have attracted
a substantial scholarship. Nevertheless, this major aspect of the work of the magistracy has remained unknown. The present article documents and accounts for the development by which the justices of the peace became the ordinary public prosecutors in cases of
. 1. The Medieval Background
The public prosecutor in Anglo-American criminal procedure perfonns two primary functions. One is investigatorial–evidence gathering-and this has no finn border with the higher levels of
the policing function. The other is the forensic prosecutorial rolepresenting the evidence to the trier (incident to which has developed the power to decide whether to prosecute). If the
Office to which the justices of the peace acceded was a creation of the sixteenth century, crime itself was no novelty of those years.
CopyrIght 1973 by the_ President and Fellows of Harvard College.
This article was presented in an earlier version as a paper at the 1972 meeting of the American Society for Legal History, Williamsburg. Certain portions will appear in the author’s forthcoming book, Prosecuting Crime in the Renaissance: England, Germany, France. A grant in aid of the research was given by the National Endowment for the Humanities.
**Professor of Law, University of Chicago Law School.
1. F. W. Maitland, Justice and Police, p. 80 (1885).
THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XVII
How, then, had the English managed throughout the Middle Ages to dispense with the figure of the public prosecutor? The public prosecutor appeared in consequence of the fundamental change in the structure of jury trial which took place in late nmedieval times. The Angevin system of self-informing juries had required no outside officer to investigate crime and to inform the jurors of the evidence. Jurors “were men chosen as being likely to be already informed;”2 the vicinage requirement, the rule that jurors be drawn from the neighborhood where the crime had been
committed, was meant to produce jurors who might be witnesses as well as triers. a Denunciation (to the jury of accusation) and proof of guilt (to the jury of trial) operated informally, that is,
out of court and in advance of the court’s sitting. In the thirteenth century “it is the duty of the jurors, so soon as they have been summoned, to make inquiries about the facts of which they will have to speak when they come before the court. They must collect testimony; they must weigh it and state the net result in a verdict.”4 Medieval juries came to court more to speak than to listen.
The Angevin system of self-informing juries was breaking down in the late Middle Ages. This transformation of the active medieval juries into passive courtroom triers is among the greatest
mysteries of English legal history, still no better understood than when Thayer wrote.s As late as Fortescue (1460s) it was being boasted that the English jury merged witnesses and triers. On the
other hand, Thayer noticed that a separation of witnesses and jurors could be found even in the early thirteenth century in cases disputing the genuineness of deeds,6 and a similar distinction
seems to have been taken in some felony trials of the fourteenth and fifteenth centuries. i Probably in the later fifteenth century, but 2. James B. Thayer, A Preliminary Treatise on Evidence at the Common Law, p. 90 (1898).
3. Thayer, op. cit. supra, note 2, p. 91.
4. Frederick Pollock & F. W. Maitland, The History of English Law,
v. 2, pp. 624-25 (2d ed., 1898) (footnote omitted).
As late as 1427 it
was provided by statute of 6 Hen. VI c. 2 “that in certain [civil] cases
the sheriffs must furnish the parties with the jury’s names six days before
the session, if they ask for it, since (it is recited as a grievance)
defendants.heretofore could not know who the jury were, ‘so as to inform
them of their right and title before the day of the session,’ …” Thayer,
op. cit. supra, note 2, p. 92. Compare the position by 1624 as illustrated
in the case of Trat’s Murder, discussed infra, where the assize
judge altered the composition of the Somerset grand jury to maximize
the number ofjurymen unfamiliar with the parties. .
5. Thayer, op. cit. supra, note 2, pp. 130-36.
6. Thayer, op. cit. supra, note 2, p. 97.
7. Thayer, op. cit. supra, note 2, p. 124.
1973 ORIGINS OF PUBLIC PROSECUTION
certainly by the sixteenth, it had become expectable that jurors
would be ignorant of the crimes they denounced and determined.H
We cannot seriously hope to identify the cause of a phenomenon
whose internal development and timing we so little understand.
Yet this much can be said with confidence: the medieval system of
self-informing juries could not have survived into modern times.
It presupposed a static populace and forms of communal social
organization which were dissolving. Be that as it may, what matters
for present purposes is not the cause but the consequence:
the juries were ceasing to be self-informing. If the jury system
were not to perish in England as it already had on the Continent,
some other agency would have to come forward to assume the
lapsed function. As the jurors became bare lay judges, it became
essential that outsiders undertake for the jurors the job we now
call the prosecutor’s.