Exploring the Origins of Public Prosecution

DOI10.1177/1057567708319204
Published date01 June 2008
Date01 June 2008
Author Yue Ma
Subject MatterArticles
ICJR319204.qxd International Criminal
Justice Review
Volume 18 Number 2
June 2008 190-211
Exploring the Origins of
© 2008 Georgia State University
Research Foundation, Inc.
10.1177/1057567708319204
Public Prosecution
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hosted at
http://online.sagepub.com
Yue Ma
John Jay College of Criminal Justice
Public prosecution is an indispensable feature of the modern day administration of criminal
justice. Public prosecution as we know it today, however, is a product of long evolution.
Historically, pursuit of crime was a private affair and there was no official involvement in
criminal prosecution. This article explores the development of criminal prosecution in England,
on the European continent, and in America. The first part of the article traces the evolution of
modes of accusation in England and on the European continent. The second part of the article
focuses on the development of prosecution in America from the colonial days until the for-
mation of the modern American prosecutorial system. The article highlights the historical
events that contributed to the evolution and transition of modes of prosecution and analyzes
the impact of different historical, cultural, and political values on the shaping of the present
prosecutorial systems in Europe and in America.
Keywords:
prosecution; history; Europe; America
Public prosecution is an indispensable feature of the modern administration of criminal
justice. Nowadays, people take it for granted that when a crime is committed the public
prosecutor will take the responsibility of bringing the suspected offender before the court
of law. Public prosecution as we know it today, however, is a product of long evolution. For
centuries, crime was a private affair to be dealt with by the injured party. Self-redress took
different forms. In ancient times and the early Middle Ages, private vengeance was the pre-
dominant form of response to crime. In the latter part of the Middle Ages, kings and tribal
leaders placed restrictions on the use of private vengeance to minimize the disruption caused
by the wild justice. The aggrieved party was required to first seek monetary compensation
from the offender and was permitted to resort to vengeance only when the offender refused
to pay legally prescribed compensations. With the emergence of the law courts, private
vengeance and settlement were replaced by judicial settling of dispute. The advent of law
courts nonetheless did not change the nature of crime. Crime remained a private wrong and
it fell on the aggrieved party to bring an accusation before the court (Esmein, 1913;
Forsyth, 1852; Plucknett, 1956;Van Caenegem, 1991).
The modern day students of comparative law are familiar with the distinction between
the English adversarial system and the continental inquisitorial system. Before the 13th
century, however, there would have been no occasion to make a comparative study of the
two systems, for the two systems were identical. In both England and continental Europe,
the predominant mode of accusation was private and guilt or innocence was determined by
God’s verdict (Mueller & Poole-Griffiths, 1969).
The 13th century saw significant changes in the modes of criminal trial and accusation.
Irrational ways of guilt determination were condemned in England and on the European
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Ma / The Origins of Public Prosecution
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continent. With the abandonment of the archaic methods of proof, English and peoples on the
continent were both in quest of alternate, that is, more rational, modes of determining guilt or
innocence. At this juncture, England and the continent parted each other’s company and set-
tled on different modes of criminal trial and accusation. England turned to the use of laymen
in its system of justice, whereas continental Europe embraced the inquisitorial system. With
respect to the mode of criminal accusation, England in the ensuing 600 years held on to pri-
vate prosecution. The European continent, by contrast, shifted to public prosecution (Esmein,
1913; Forsyth, 1852; Merryman, 1985; Plucknett, 1956; Van Caenegem, 1991).
The American legal system owes its origins to English common law, but the public pros-
ecutor is not part of English heritage. When colonists first arrived on North American
shores, they brought with them the English court system as well as the institution of private
prosecution. Private prosecution nonetheless did not gain a lasting foothold in America.
Public prosecution emerged in America much earlier than in England. This, however, does
not mean that the English system did not in any way contribute to the evolution of public
prosecution in America. The American district attorney may indeed claim remote ancestry
to the English attorney general (Chitwood, 1905; Jacoby, 1980). Apart from the English
influence, the mode of prosecution in the colonial days was also influenced by continental
European institutions, most notably, the Dutch schout (magistrate) and the French ministère
publique
(public prosecutor; Friedman, 1985; Goulka, 2002; Levasseur, 1996; National
Commission on Law Observance and Enforcement, 1931; Van Alstyne, 1952).
Despite the early European influence, the office of district attorney is not an institution
taken from European experience, for there has never been an exact counterpart of the
American district attorney in England or any continental European country. The district attor-
ney, as a locally elected official with enormous discretionary power, is a product of American
experience and “a distinctive and uniquely American contribution” (Kress, 1976, p. 100).
This article explores the origins and historical development of public prosecution in
England, on the European continent, and in America. It first traces the evolution of prose-
cutorial systems in England and on the European continent. It then focuses on the devel-
opment of public prosecution in America. The article explores the influence of European
models in the development of early American prosecution system and discusses the events
that contributed to the shaping of the modern-day American prosecution system.
English Tradition of Private Prosecution
In early Anglo-Saxon times, crime was a personal matter to be dealt with through private
vengeance. Later in the Middle Ages, kings and tribal leaders placed restrictions on private
vengeance to alleviate the disruption caused by the wild justice of vengeance. A system of
wergild, monetary compensation, was created. The law required that an injured party must
first seek compensation from the offender. The aggrieved party was permitted to resort
to vengeance only when the offender refused to pay legally prescribed compensation
(Forsyth, 1852).
Although crime was predominantly a private affair, there had never been a complete lack
of official interest in criminal matters. Even in Anglo-Saxon times, crime was perceived in
twofold light. On one hand, it was a private matter to be resolved by the injured party. On

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International Criminal Justice Review
the other hand, crime was also seen as an offense against the peace of the state. For that reason,
the offender was required not only to pay wergild to the injured party but also a fine, known as
wite, to the state. The king’s involvement in criminal matters nonetheless was driven more
by the desire to collect revenue than to help the injured party seek justice. The king had no
obligation to pursue the criminal wrongdoer. It was up to the private individual to seek
redress from the offender. But when the offender agreed to pay compensation to the injured
party, he was also required to pay a fine to the state (Forsyth, 1852).
In the absence of an organized police force, the Anglo-Saxons maintained the peace and
order through the Frank-pledge system. The Frank-pledge system was not only the first
organized mechanism of law enforcement but also an organ of criminal accusation. Tithings
were the basic units of the pledge system. Families in a tithing were bound by the pledge,
each promising to cooperate in policing their own problems. If a tithing member committed a
crime, it was the duty of other members to bring the offender before the court for punishment.
Tithings thus carried out the function of criminal accusation (Critchley, 1972).
The tithing was the smallest subdivision of the pledge system. Next in order came the
hundred and the shire. The courts of shires and hundreds were among the earliest Anglo-Saxon
courts (Forsyth, 1852; Van Caenegem 1991). With the emergence of law courts, private
vengeance and wergild were replaced by judicial settling of disputes. The advent of judicial
settling of disputes did not alter the private nature of crime. An aggrieved party was no longer
permitted to resort to private vengeance, but it still fell on him to make an accusation
(Forsyth, 1852; Plucknett, 1956; Van Caenegem, 1991).
The Norman Conquest (1066) brought the Anglo-Saxon era to an end. The Normans ini-
tially kept intact many Anglo-Saxon institutions, including the pledge system, the hundred and
shire courts, trial by oath-taking or ordeal, and private prosecution (Forsyth, 1852; Plucknett,
1956; Van Caenegem, 1991). Compurgation and trial by ordeal were the most common
methods of guilt determination. When being accused, the accused person was required to
produce a specified number of oath-helpers to swear that the oath taken by him was trust-
worthy. The oath-helpers were not witnesses. They came to court not to give evidence about
the commission of the crime but to attest that the accused was a person of...

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