Bruce P. Smith


Historians of English criminal justice administration have long asserted that criminal prosecution in England before the second half of the nineteenth century was overwhelmingly "private" in nature. Before the mid-nineteenth century, so the received wisdom goes, "prosecution was almost invariably the sole responsibility of the victim." As the subject's leading historian has observed, "the typical prosecution" in England in the eighteenth and early nineteenth century was "at the initiative of a private citizen who was the victim of a crime and who conducted the prosecution in almost all cases." Indeed, Parliament did not even establish a public prosecutor's office until 1879, and, thereafter, the office only gradually assumed prosecutorial responsibilities in a small subset of criminal cases.

Considered from a comparative perspective, England's apparent disinterest in public prosecution before the second half of the nineteenth century appears strikingly anomalous. By 1800, countries on the European Continent had long come to rely on public officials to investigate and conduct criminal cases. Even within Britain itself, public prosecution existed by the early years of the nineteenth century: in Scotland, by that time, an official known as the "Procurator Fiscal" essentially "monopolized all serious criminal prosecutions." And in the United States, which adopted the principal aspects of English criminal law and procedure, states, counties, and cities routinely relied upon public prosecutors to investigate, manage, and argue a broad range of criminal cases by the early years of the nineteenth century.