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The Origins of Public Prosecution at Common Law

The Origins of Public Prosecution at Common Law

By John H. Langbein

American Journal of Legal History, No.313 (1973)

Introduction: 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,” 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 serious crime.

The public prosecutor in Anglo-American criminal procedure per fonns 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 role – presenting the evidence to the trier (incident to which has developed the power to decide whether to prosecute). If the prosecutorial office to which the justices of the peace acceded was a creation of the sixteenth century, crime itself was no novelty of those years. How, then, had the English managed throughout the Middle Ages to dispense with the figure of the public prosecutor?

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