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 historical literature, which comes as a surprise when it is discovered that the prosecutorial office was originally lodged with a much-studied institution such as the English magistracy. The present article documents and accounts for the development by which the justices of the peace became the ordinary public prosecutors in cases of serious crime (p313, par1).

I. The Medieval Background

The public prosecutor performs two primary functions. One is the investigatorialevidence gathering-and this has no firm border with the higher levels of the policing function. 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 crime had 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 the courts sitting. During the thirteenth century, the jurors had the duties of making inquiries, collect testimony, weigh it and state the result in a verdict. These juries came to 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 merged witnesses and triers. On the other hand, a separation of witnesses and jurors could be found 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 the fourteenth and fifteenth centuries, according to Thayer (p314, par3). By the sixteenth century it had become expectable that jurors would be ignorant of the crimes they denounced and determined (p315, par1). 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. What matters for present purposes is the consequence: the juries were ceasing to be self-informing. As the jurors became bare lay judges, it became essential that outsiders undertake for the jurors the job we now call the prosecutors (p315, par2).

II The Lawyer-Prosecutor?
In the American system the states chief lawyer in the jurisdiction, the attorney general, is nominally responsible for prosecuting crime, aided by however district attorneys and their hirelings. These kinds of arrangements can be traced back to the renaissance. In the cases reported in the State Trials series, the law officers of the crown did regularly prosecute. 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 that capital cases were outside the trial jurisdiction the Council. Within common law criminal procedure, there were significant differences between the State Trials and ordinary criminal 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 political authorities. By contrast, ordinary felony was tried locally, usually before royal judges on their 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 were assembled 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 cases before retiring to formulate verdicts in all (p316, par1). Lawyers were usually not involved in the prosecution or defence in cases of ordinary felony. 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 ordinary criminal trials, there is no prosecuting counsel. The absence if law reports for the criminal 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 the seventeenth centuries. The other important responsibility of prosecuting counsel in modern law is the operation of complex pre-trial procedural rules-the making of timely motions to suppress and the like. Many of the modern procedural intricacies are derivative to the law of evidence. Because the possibilities for appellate review were restricted, 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 time made it all but certain that such defects would not be recognized. One was the rule forbidding defence counsel in most cases. The other was the practice of withholding from the accused any copy of the indictment, the significant item of record (p317, par2).

III The Marian Statutes

Due to the fact that juries were becoming passive, it became necessary that outsiders come 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 century criminal trial. The assize judge who was conducting the trial exercised a general superintendence 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. In modern American practice, where he public prosecutor has developed a monopoly over the instigation and conduct of criminal litigation, this citizen figure lives on as the complaining witness (p318, par1). Any system of citizen prosecution is unreliable. In some cases no aggrieved citizens would survive to prosecute, or decline to prosecute, or be inept at it, that is why the English had to admit an official element into their system of citizen prosecution. . The major steps were given by Mary who raised up the justices of the peace as the public prosecutors for felony in England (p318, par2). The justices of the peace were the Tudor men of all work. They were leading local gentry, appointed by royal commission for each country and certain cities. They originated in the fourteenth century as law enforcers, keepers of the peace, among whose 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 cases were being held for trial before the royal judges on their periodic circuits. But the Justices of the Peace became a licensing and administrative body. This happened because much of the administrative business was being conducted in the form of criminal litigation, with presenting or indicting juries being used to take orders in matters such as road repairs and drainage (p319, par1). Individual Justices of the Peace also had the power to bind over various troublemakers to keep the peace; to order the arrest of offenders; to commit accused persons to gaol until trial; and to release gaol suspects on bail pending trial. In other matters, the statutes 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 the Marian statutes the Justices of the Peace were the officers to whom the aggrieved citizens would make complaint of serious crime. The Justices of the Peace were empowered to examine witnesses and suspects incident to summary powers of conviction or accusation in various petty matters. Sources from the early sixteenth century show that the Justices of the Peace in at least some places had also taken to examining witnesses and suspects in cases of serious crime-conducting what we would 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 some felonies. 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 propriety of defaulted bailments. The Marian act laid down a new procedure to be followed by the JPs before they released an accused felon on bail (p320, par1). In 1555 the next Parliament enacted the Marian committal statute, which extended this procedure of the Marian bail statute to cases in which bail was denied, that is, to cases in which the JP committed the accused felon to gaol to await trial. The bail statute had been designed to provide the assize judges with an account of the evidence against the accused in order that they might have a basis for reviewing the propriety of the bailment in any case in which the accused had turned fugitive and the issue now was whether to discipline the bailing JPs. But when the accused was going to be gaoled there 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 was also to bind all such by Recognizance or Obligation, as do declare anything material to prove the Felony against such Prisoner to appear at the next general Gaol Delivery to give evidence against him (p321, par2). The committal statute turned the pre-trial investigation into a device for the production of prosecution evidence at trial in every case of felony in the realm (p321, par3). The committal statute provided the means to remedy the more troublesome deficiencies of a system of gratuitous citizen prosecution. It regularized and reinforced the developed pattern of private prosecution, transformed the role of the private accuser from option to obligation. The accuser would be obliged to appear at gaol delivery to give evidence before the assize judges and the two juries. The citizen who lost 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 declare anything material to prove the Felony. They were empowered to separate the material witnesses from the others in a case where many accusers had come forward. But what would happen with a covert crime which would require active investigation to identify the 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 no immediate difficulty, no rush to revise the language to make the active role more explicit, because he mechanics of examination were adequately set forth, and because the purpose revealed itself to contemporaries without better labelling. The investigating magistrate was not a figure novel to the Marian statutes. The JPs already had by statute lesser duties which acclimated them to the role of investigating magistrate; and there is some evidence that they actually assumed the role of investigating magistrate for felony in advance of the Marian statutes (p322, par2). The decisive fact for present purposes is that the contemporary magistracy did understand that an active role was expected in difficult cases (p322, par3).

Private Citizens would continue to prosecute most cases. But when there were no private accusers it was the JP who would investigate, bind witnesses, and appear at assizes to orchestrate prosecution. At the trial he could testify about his investigation, and he would sometimes undertake the further forensic role of interrogating the accused 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 the Marian statutes. The State Trials have lulled us into assuming that if any officer was prosecuting, 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 was undergoing a reception of Continental inquisitorial ideas (p323, par3). By deeming the Marian magistrates examination a foreign graft, the reception thesis obscured both its context and its function within the changing common law criminal procedure (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 trials from Restoration times, there is a clear presence of the prosecuting JP (p324, par2). There are examination documents and recognizances binding over witnesses to prosecute which were submitted by the JPs, as prescribed by the Marian statutes, in the assize files in the central archives, some dated within a few years of the Marian statutes that prove the prosecuting role of the JP. On the other hand, this records are ambiguous for present purposes, because it is difficult to infer from the examination documents alone how they related to the rest of the criminal procedure (p324, par3). In the tract De Repblica Anglorum (1565), Sir Thomas Smith discusses judicial procedure and the activities of the JPs as part of his larger commentary on the workings of English government (p324, par4). In one passage he explains the control exercised by the JPs over the constables, a control 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 to build the case against the accused (p325, par1). Sir Thomas Smith continues his account to the trial itself. The accusing witnesses who have 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 least occasionally evidenced in the peculiar "chap-books" or lay pamphlets, which described the investigation of particular crimes. They were written by non-lawyers for the general public, the authors were anonymous, and they were sensationalist press. There were three different kinds of crimes they narrated: 1. Gruesome murders, often involving dismemberment or the burning of the corpse. 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, the dismembered corpse, or the hanged felons dangling in their nooses. They appear quite rapidly after the events (p326, par2). The work of the JPs is a relatively peripheral aspect of the chap-books. What interested the author was the gore of the crime (p327, par1). For the present purposes the Dells Case narrated in the Chap-books is useful. It involves 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 in which 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 JPs forensic role was exceptional, and the procedural dtail of the trial held no interest for these lay authors and readers. The few Elizabethan pamphlets 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 a fashion well beyond the Marian statutory minimum of oral examination and transcription. 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 which the JPs had to administer and enforce. Granted that the prosecutorial office developed in response to the increasing passivity of the juries, why was it that the job came to be lodged with the JPs? (p334, par3). Before the Marian statutes, the JPs had to assume investigatorial duties in order to exercise wisely their powers to commit and to bail accused felons, and their responsibilities in keeping the peace. In turn, the investigatorial role tended to import the forensic (p335, par1).

The institution of the prosecuting JP was not the only solution. There was also the growth of the Star Chamber and the intervention of the Council in difficult criminal investigations. The growth of statutory qui tam actions is the most revealing of the crowns experiments, because it shows the length to which the crown was willing to go to avoid the creation of an expensive, centrally-directed professional prosecutorial corps. The experiment does show in a related sphere the two themes which underlie the Marian solution for prosecuting felony by the justices of the peace. Prosecution should 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 the prosecuting JPs, rewarded with honour and authority rather that money: professional prosecution by a centrally organized and paid prosecutorial corps. There is no evidence that the English gave it any thought. The tradition was otherwise, and neither the money not the personnel were to hand (p335, par1).

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