Origins of Public Prosecution at Common Law

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ORIGINS OF PUBLIC PROSECUTION AT COMMON LAW

The figure of the public prosecutor appeared later in British life. The institutions of

Judge and Jury that can be traced back to the high Middle Ages. The public prosecutor became a regular figure during Tudor times, though it has been ignored in historicalliterature, which comes as a surprise when it is discovered that the prosecutorial officewas originally lodged with a much-studied institution such as the English magistracy.The present article documents and accounts for the development by which the justicesof the peace became the ordinary public prosecutors in cases of serious crime (p313,par1).

I. The Medieval BackgroundThe public prosecutor performs two primary functions. One is the investigatorial-evidence gathering-and this has no firm border with the higher levels of the policingfunction. The other is the forensic prosecutorial role-presenting the evidence to the trier (incident to which was developed the power to decide whether to prosecute) (p313,par2).

The public prosecutor appeared as a consequence of the change in the structure of jury trial which took place in late medieval times. There was no need for an outsider officer investigating crime in the Angevin system of self-informing juries and to inform

jurors of the evidence. Jurors where drawn from the neighbourhood where the crimehad been committed, that is why jurors might be witnesses and triers at the same time.Denunciation and proof of guilt operated informally, out of court and in advance of thecourt´s sitting. During the thirteenth century, the jurors had the duties of makinginquiries, collect testimony, weigh it and state the result in a verdict. These juries cameto court more to speak than to listen (314, par2).

The transformation of active juries into passive courtroom triers is still a mystery of English legal history. By the 1460s it was established that the English jury mergedwitnesses and triers. On the other hand, a separation of witnesses and jurors could befound even in the early thirteen century in cases disputing the genuineness of deeds,and a similar distinction seems to have been taken in some felony trials of thefourteenth and fifteenth centuries, according to Thayer (p314, par3).

By the sixteenth century it had become expectable that jurors would be ignorant of thecrimes they denounced and determined (p315, par1).

The medieval system of self-informing juries could not have survived into moderntimes. It presupposed a static populace and forms of communal social organizationwhich were dissolving. What matters for present purposes is the consequence: the juries were ceasing to be self-informing. As the jurors became bare lay judges, itbecame essential that outsiders undertake for the jurors the job we now call theprosecutor´s (p315, par2).



II The Lawyer-Prosecutor?

In the American system the state´s chief lawyer in the jurisdiction, the attorney general,is nominally responsible for prosecuting crime, aided by however district attorneys andtheir hirelings. These kinds of arrangements can be traced back to the renaissance. Inthe cases reported in the State Trials series, the law officers of the crown did regularlyprosecute. To prove this, it can be mentioned the shameful prosecution of Sir Walter Raleigh by Attorney General Sir Edward Coke in 1603 (p315, par3).

The State Trials were extraordinary cases, touching the interests of political authorities.They were the subject of special procedures not followed in cases of ordinary felony.(p315, par4).

Legislation had established in the middle of the fourteenth century the principle thatcapital cases were outside the trial jurisdiction the Council. Within common law criminalprocedure, there were significant differences between the State Trials and ordinarycriminal cases. For the State Trials the judges were handpicked. They sat under special commissions of oyer and terminer-in London, under the eyes of the politicalauthorities. By contrast, ordinary felony was tried locally, usually before royal judges ontheir regular assize circuits. In most State Trials the juries were also hand picked for the particular case, and they heard only that case. In ordinary cases the jurors wereassembled by the sheriff for both the criminal and civil work of the assizes. Once

impanelled, a criminal trial jury could hear the evidence in six or seven unrelated casesbefore retiring to formulate verdicts in all (p316, par1).

Lawyers were usually not involved in the prosecution or defence in cases of ordinaryfelony. The accused was regularly denied defence counsel in all trials of the period,political or not. In the few contemporary sources which do purport to describe ordinarycriminal trials, there is no prosecuting counsel. The absence if law reports for thecriminal process when they do exist for contemporary civil litigation is itself telling(p316, par2).

The principal job of modern prosecuting counsel is to manipulate the rules of evidence

at trial, and those rules were non-existent through the sixteenth and most of theseventeenth centuries. The other important responsibility of prosecuting counsel inmodern law is the operation of complex pre-trial procedural rules-the making of timelymotions to suppress and the like. Many of the modern procedural intricacies arederivative to the law of evidence. Because the possibilities for appellate review wererestricted, there was no effective mode of enforcing procedural "rights". The writ of error lay only for technical defects, defects of records, and two practices of the timemade it all but certain that such defects would not be recognized. One was the ruleforbidding defence counsel in most cases. The other was the practice of withholdingfrom the accused any copy of the indictment, the significant item of record (p317, par2).



III The Marian StatutesDue to the fact that juries were becoming passive, it became necessary that outsiderscome forward to inform them (p317, par3).

The aggrieved citizen could inform the juries in court as in medieval times he had

informed them out of court. The citizen volunteer was expected in the sixteenth centurycriminal trial. The assize judge who was conducting the trial exercised a generalsuperintendence over those who responded to the call, but witness and prosecutor were one. The citizen prosecutor was neither a lawyer nor an officer of the state. Inmodern American practice, where he public prosecutor has developed a monopolyover the instigation and conduct of criminal litigation, this citizen figure lives on as thecomplaining witness (p318, par1).

Any system of citizen prosecution is unreliable. In some cases no aggrieved citizenswould survive to prosecute, or decline to prosecute, or be inept at it, that is why theEnglish had to admit an official element into their system of citizen prosecution. . Themajor steps were given by Mary who raised up the justices of the peace as the publicprosecutors for felony in England (p318, par2).

The justices of the peace were the Tudor men of all work. They were leading localgentry, appointed by royal commission for each country and certain cities. Theyoriginated in the fourteenth century as law enforcers, keepers of the peace, amongwhose duties was the arrest of vagabonds and rioters. Sitting collectively in their quarterly sessions they comprised a law court for criminal matters (p318, par3).

Felons were routinely indicted, convicted and executed at sessions of the peace. By

the mid-sixteenth century the assize system had been revitalized, and felony caseswere being held for trial before the royal judges on their periodic circuits. But theJustices of the Peace became a licensing and administrative body. This happenedbecause much of the administrative business was being conducted in the form of criminal litigation, with presenting or indicting juries being used to take orders inmatters such as road repairs and drainage (p319, par1).

Individual Justices of the Peace also had the power to bind over various troublemakersto keep the peace; to order the arrest of offenders; to commit accused persons to gaoluntil trial; and to release gaol suspects on bail pending trial. In other matters, thestatutes and the commission of the peace which governed these out of court powers,

required that two or more Justices of the Peace join in the action. Well before theMarian statutes the Justices of the Peace were the officers to whom the aggrievedcitizens would make complaint of serious crime. The Justices of the Peace wereempowered to examine witnesses and suspects incident to summary powers of conviction or accusation in various petty matters. Sources from the early sixteenthcentury show that the Justices of the Peace in at least some places had also taken toexamining witnesses and suspects in cases of serious crime-conducting what wewould call pre-trial or preliminary examination (p319, par2).

Individual Justices of the Peace had also been empowered to grant bail under

prescribed conditions to persons awaiting trial for some offenses including somefelonies. The Marian bail statute was by its terms no more than a further regulation of



the JP`s power to grant bail due to abuses that JPs had committed in the use of their powers. The statute required the simultaneous action of two JPs in granting bail.Further, the assize court was now to be given a proper basis to reviewing the proprietyof defaulted bailments. The Marian act laid down a new procedure to be followed bythe JPs before they released an accused felon on bail (p320, par1).

In 1555 the next Parliament enacted the Marian committal statute, which extended thisprocedure of the Marian bail statute to cases in which bail was denied, that is, to casesin which the JP committed the accused felon to gaol to await trial. The bail statute hadbeen designed to provide the assize judges with an account of the evidence againstthe accused in order that they might have a basis for reviewing the propriety of thebailment in any case in which the accused had turned fugitive and the issue now waswhether to discipline the bailing JPs. But when the accused was going to be gaoledthere was no danger that he might not appear to stand trial (p321, par1).

Not only was the examining JP to question and transcribe the statements of the

accused and the accusers and to certify the document to the trial court of gaol, he wasalso to bind all such by Recognizance or Obligation, as do declare anything material toprove the Felony against such Prisoner to appear at the next general Gaol Delivery togive evidence against him (p321, par2).

The committal statute turned the pre-trial investigation into a device for the productionof prosecution evidence at trial in every case of felony in the realm (p321, par3).

The committal statute provided the means to remedy the more troublesomedeficiencies of a system of gratuitous citizen prosecution. It regularized and reinforcedthe developed pattern of private prosecution, transformed the role of the privateaccuser from option to obligation. The accuser would be obliged to appear at gaoldelivery to give evidence before the assize judges and the two juries. The citizen wholost his taste for revenge would now be bound to attend and to give evidence (p322,par1).

The committal statute directed the JPs to bind over the accusers who could declareanything material to prove the Felony. They were empowered to separate the materialwitnesses from the others in a case where many accusers had come forward. But whatwould happen with a covert crime which would require active investigation to identifythe culprit and any witnesses? The statute does not by its terms direct that the JP do

more than examine an accused and those who bring him. The oversight caused noimmediate difficulty, no rush to revise the language to make the active role moreexplicit, because he mechanics of examination were adequately set forth, and becausethe purpose revealed itself to contemporaries without better labelling. The investigatingmagistrate was not a figure novel to the Marian statutes. The JPs already had bystatute lesser duties which acclimated them to the role of investigating magistrate; andthere is some evidence that they actually assumed the role of investigating magistratefor felony in advance of the Marian statutes (p322, par2).

The decisive fact for present purposes is that the contemporary magistracy didunderstand that an active role was expected in difficult cases (p322, par3).



Private Citizens would continue to prosecute most cases. But when there were noprivate accusers it was the JP who would investigate, bind witnesses, and appear atassizes to orchestrate prosecution. At the trial he could testify about his investigation,and he would sometimes undertake the further forensic role of interrogating theaccused publicly before the jury (p323, par2).

The most recent history of the magistracy overlooks the Marian statutes and therefore,the prosecutorial role of the JPs. There are several for this miss-appreciation of theMarian statutes. The State Trials have lulled us into assuming that if any officer wasprosecuting, he must have been a law officer, further, the derivative craftsmanship of the Marian committal statute has helped to conceal the purpose and function of the act. And because the JP was an interstitial prosecutor, his hand has been hard to detect.We have been also misled by Holdsworth, who made of the Marian statutes another chapter in his dubious thesis that English criminal procedure under the Tudors wasundergoing a reception of Continental inquisitorial ideas (p323, par3).

By deeming the Marian magistrate´s examination a foreign graft, the reception thesisobscured both its context and its function within the changing common law criminalprocedure (p324, par1).

IV. The Prosecuting JP in Action

The lack of historical sources worked on behalf of considering the prosecutorial role of

the Justices of the Peace. Nevertheless, in some reports form ordinary criminal trialsfrom Restoration times, there is a clear presence of the prosecuting JP (p324, par2).

There are examination documents and recognizances binding over witnesses toprosecute which were submitted by the JPs, as prescribed by the Marian statutes, inthe assize files in the central archives, some dated within a few years of the Marianstatutes that prove the prosecuting role of the JP. On the other hand, this records areambiguous for present purposes, because it is difficult to infer from the examinationdocuments alone how they related to the rest of the criminal procedure (p324, par3).

In the tract De Repblica Anglorum (1565), Sir Thomas Smith discusses judicialprocedure and the activities of the JPs as part of his larger commentary on theworkings of English government (p324, par4).

In one passage he explains the control exercised by the JPs over the constables, acontrol he instances by showing JP actively investigating examination and committal of an accused. Elsewhere, Smith shows us how the JP used the pre-trial examination tobuild the case against the accused (p325, par1).

Sir Thomas Smith continues his account to the trial itself. The accusing witnesses whohave been bound over do in the usual case appear, and are led in their testimony by

the presiding assize judge.



For Jacobean times the figure of the JP as courtroom prosecutor is at leastoccasionally evidenced in the peculiar "chap-books" or lay pamphlets, which describedthe investigation of particular crimes. They were written by non-lawyers for the generalpublic, the authors were anonymous, and they were sensationalist press. There werethree different kinds of crimes they narrated:

1. Gruesome murders, often involving dismemberment or the burning of thecorpse.

2. Crimes of witchcraft

3. Crimes of betrayal against a spouse or a master.

The pamphlets feature crude drawings on the title page (the witch with her demons, thedismembered corpse, or the hanged felons dangling in their nooses. They appear quiterapidly after the events (p326, par2).

The work of the JPs is a relatively peripheral aspect of the chap-books. What interestedthe author was the gore of the crime (p327, par1).

For the present purposes the Dell´s Case narrated in the Chap-books is useful. Itinvolves the slaying of a three-year-old boy by an elderly woman, Annis Dell, and her grown son, both of whom were convicted and executed for the murder (p327, par2).

The case is attractive for present purposes because it illustrates so clearly the way inwhich the investigating JP was led to take up a forensic role at trial (p329, par1).

The chap-books tend to portray the prosecuting JP solely in his investigatorial role, and

this is as we should expect. The JP´s forensic role was exceptional, and the proceduraldtail of the trial held no interest for these lay authors and readers. The few Elizabethanpamphlets are not so revealing about the work of the JPs as some of the later ones(p330, par 2).

Numerous chap-books chronicle the investigating JPs in witchcraft cases. Arthur Bill(1612) is a convenient case to mention because it shows the JPs investigating in afashion well beyond the Marian statutory minimum of oral examination andtranscription. Bill was convicted at assizes and executed (p332, par5).

V. Why the JPs?England must have been full of people who were not burdened with the statutes whichthe JPs had to administer and enforce. Granted that the prosecutorial office developedin response to the increasing passivity of the juries, why was it that the job came to belodged with the JPs? (p334, par3).

Before the Marian statutes, the JPs had to assume investigatorial duties in order toexercise wisely their powers to commit and to bail accused felons, and their

responsibilities in keeping the peace. In turn, the investigatorial role tended to importthe forensic (p335, par1).



The institution of the prosecuting JP was not the only solution. There was also thegrowth of the Star Chamber and the intervention of the Council in difficult criminalinvestigations. The growth of statutory qui tam actions is the most revealing of thecrown´s experiments, because it shows the length to which the crown was willing to goto avoid the creation of an expensive, centrally-directed professional prosecutorial

corps. The experiment does show in a related sphere the two themes which underliethe Marian solution for prosecuting felony by the justices of the peace. Prosecutionshould be local, to draw upon the knowledge of the community. And it should be cheap,costing the crown as little as possible. There was only one workable alternative to theprosecuting JPs, rewarded with honour and authority rather that money: professionalprosecution by a centrally organized and paid prosecutorial corps. There is noevidence that the English gave it any thought. The tradition was otherwise, and neither the money not the personnel were to hand (p335, par1).

BIBLIOGRAFÍA

Langbein, J. H, (1973), The Origins of Public Prosecution at Common Law , Boston,President and Fellows of Harvard College

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Origins of Public Prosecution at Common Law