AuthorBarth, Jonathan


A great deal of confusion and mystery surrounds the history of American criminal prosecution. This is particularly true of our understanding of the evolution of the office of the public prosecutor. To what extent did private prosecution survive the early colonial period in what later became the United States? Some legal scholars insist that private prosecution all but disappeared by the eighteenth century; others say that private prosecution disappeared around the ratification of the Constitution; still others claim that it disappeared around the second quarter of the nineteenth century. (1) Professor William F. McDonald tells us that the onset of public prosecution in America, together with the role of the victim in the prosecution of criminal cases, is remarkably "difficult to trace," and its historical development remains, for the most part, an unresolved "puzzle," having "received only limited scholarly treatment." (2)

Such an extraordinary gap in the historical record, nevertheless, has not prevented most legal historians from tacitly assuming that private prosecution--if it survived at all in America beyond the mid-eighteenth century--was a virtual dead letter by the dawn of the nineteenth century. (3) "Public prosecutions began to replace the system of private prosecutions long before the colonies gained their independence," writes Professor John D. Bessler; (4) "by the advent of the American Revolution," legal historian Joan E. Jacoby argues, "private prosecution had been virtually eliminated in the American colonics." (5) The question of the origins of public prosecution in America bears enormous implications for today's debate over victims' rights. Supporters of the Crime Victims' Rights Act of 2004 ("CVRA") generally espouse the view that victim participation in criminal prosecution was more prolific at the framing of the Constitution than it is today. (6) Opponents of the CVRA, on the other hand, typically assert that private prosecution had almost completely disappeared in criminal proceedings by the time of the nation's founding. (7)

There is no reason at all for such ambiguity and acute, factual disagreements to persist in today's legal debate over the proper role of the victim in criminal prosecution. This article aims to clarify our historical understanding of the institution of the prosecutor, tracing, very carefully, the origins and evolution of American prosecution. This article incontrovertibly demonstrates that early Americans, from the colonial period through at least the middle of the nineteenth century, if not a few decades beyond, utilized a hybrid system of criminal prosecution. The frequency of public prosecution--the ratio of public to private prosecutions--undoubtedly increased from the early eighteenth century to the mid-nineteenth century, albeit gradually. Nevertheless, private prosecution remained a core tenet of American criminal justice for much longer than many legal theorists realize, and it certainly remained prolific at the time of the framing of the Constitution.

This article begins with a description of the origins of the adversarial system in England and then carefully investigates the prosecutorial system in colonial America in the seventeenth and eighteenth centuries, continuing onward to the early national period, nineteenth and twentieth centuries, to the passing of the CVRA in 2004. Finally, I conclude with an analysis of the current debate and a proposal on how to return the United States to a hybrid system of criminal prosecution for the twenty-first century.



    Many of the English migrants who settled in North America in the seventeenth century left their home country because they wished to improve upon or discard the many social, political, religious, and economic orders of the Old World. They wished to start afresh in a land where they might possess greater opportunity, individually and collectively, to mold a new society after their own particular liking. It should come as no surprise, however, that most, if not all, of the same immigrants--yearning for the comforts of familiarity amid the vastly unfamiliar--imported, simultaneously, a vast array of ideas from the Old World. They brought with them, in many cases, traditional notions of criminal justice, dating all the way back to the High Middle Ages. (8)

    After the fall of the western half of the Roman Empire in the fifth century, criminal justice became a matter largely between the victim and the offender. (9) Criminal justice in the early Middle Ages was a wholly private system of sanction and vengeance; it was fraught with many of the problems that we might naturally expect from a world largely absent of third-party arbiters, not to mention formal juries and courts. (10) Yet as the Middle Ages proceeded, and as the English nationstate gradually consolidated and augmented power, a more regular and organized judicial system evolved in England, founded upon the ancient premises of common law, but in which the state became closely wrapped up in law enforcement. (11) State administrators in the Middle Ages increasingly believed that the criminal offender, besides wronging the victim, had also violated the king's peace, threatening the sovereignty of his Majesty's government. (12) The formal commission of the Justice of the Peace ("JP") first appeared in the thirteenth century, having evolved from King Richard I's authorizing a survey of knights to keep the peace within certain turbulent areas in the country. (13) By the late fourteenth century, the function of the JPs included powers to arrest any persons suspected of criminal activity. (14) The apprehension of suspected offenders was no longer the sole responsibility of the victim, family, or neighborhood, though private persons still legally and frequently engaged in powers of arrest. (15)

    By the mid-sixteenth century, the functions of the JP expanded to include the binding over of witnesses to the king's court, active investigations of the most serious crimes, and occasional prosecutorial assistance when requested by the victim. (16) Even so, under common law, crime in England remained a matter between victim and offender. (17) The State certainly had an interest in criminal justice; its interest, however, was not as the prosecutor, but as the neutral arbiter or umpire, under an adversarial system of plainti ff versus defendant. (18) Indeed, the typical JP preferred not to prosecute at trial at all, leaving this duty rather to the victim. (19) This was no dereliction of duty; on the contrary, English subjects preferred the system to operate this way: the JP was a Crown-appointed officer, and the English were extraordinarily jealous of a royal power that might abuse its prosecutorial role to persecute perceived enemies of the state. (20)

    Private prosecution in England was thus the default position in the early modern period. It avoided the pitfalls of Crown-directed prosecutions, while also functioning as a civilized substitute for the older, unregulated system of purely private vengeance, where victims had formerly acted as judge, jury, and executioner. (21) Under private prosecution, the victim--after having consulted the JP--possessed the burden of presenting a convincing case before a neutral, third-party arbiter: first, to the grand jury (consisting of private citizens, determining whether or not criminal charges should proceed), and then, to the state-run court, operated by the State because the king had an interest in preserving the peace. (22) If the prosecution was overzealous, deceitful, or malicious, the grand jury or the court would effectively check the accuser by acquitting the accused. (23) If the judge, on the contrary, found the defendant guilty--of larceny, for instance--restitution was the chief mode of punishment, with the State receiving its due portion and the victim the other. (24)

    No doubt the State still played a vital and significant role in criminal justice in early modern England. Besides running the court system, and aside from the expanding role of JPs, the Crown retained several prosecutorial prerogatives. For the most serious crimes, victims led and organized the prosecution in the name of the Crown; though here, to be clear, a private party still initiated, conducted, and controlled the actual prosecution itself. (25) Prosecuting in the name of the Crown was largely symbolic but not unimportant. The State also interpreted certain anti-societal or political crimes without any clear-cut victim as a violation of the individual right of the king, and so the king, as "victim," proceeded directly with criminal charges, prosecuted by the king's attorney--the attorney general--who acted as a "private" citizen. (26) This was an important and frequently exercised prerogative. Most important of all was the attorney general's right, on behalf of the king, to intervene and put a stop to any private prosecution. (27) Upon the attorney general issuing a writ of nolle prosequi, the private prosecution immediately terminated without any further inquiry from the court (nolle prosequi means "unwilling to pursue" and is sometimes shortened to "mol. pros."). (28) The nol. pros, prerogative had existed since the sixteenth century, occasionally utilized by the attorney general to interrupt a frivolous or chimerical prosecution. (29)

    Even so, despite these regal prerogatives, the victim always retained the right to initiate proceedings, and this alone distinguished the English system from other competing Continental systems in Europe. (30) European use of the inquisitorial system--in contrast to the adversarial system--necessitated, by its very nature, a public prosecution. (31) Under the inquisitorial system, the court, rather than acting as a neutral arbiter, actively administers the case, with the judge and court appointees initiating proceedings, investigating the...

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