Prosecution: History of the Public Prosecutor

In the seventeenth and eighteenth centuries, a system of private prosecution prevailed in England. No public official was designated as a public prosecutor, either locally or nationally, although the local justice of the peace sometimes assumed the role. The attorney general of England could initiate prosecutions but did so only in cases of special importance to the Crown. He did, however, play an occasional part in controlling the excesses of private prosecution. By filing a writ of nolle prosequi, indicating his intention not to prosecute, he could dismiss any prosecution and his decisions in such matters were treated by the courts as entirely within his discretion.

Criminal procedure in the American colonies tended to follow this pattern. There was an attorney general in each colony, the first appointed in Virginia in 1643. Like their English counterparts, the American attorneys general could represent the Crown in both civil and criminal cases but left criminal prosecution largely to the victim. This system of private prosecution proved even more poorly suited to the needs of the new society than to the older one. Grand jurors were often in need of professional guidance and complainants were easily deterred by the difficulty and expense of conducting their own prosecutions, particularly when the distances to be traveled between settlement and colonial capital were great and communications rudimentary. Moreover, the severe criminal sanctions of the period were powerful spurs to abuse of the judicial system—by victims initiating prosecution to exert pressure for financial reparation, and by offenders avoiding criminal sanctions by settling their cases privately.

As population and crime increased, the single criminal court in each colony, and the sole attorney general, were replaced by county courts and by county attorneys attached to each court. This occurred as early as 1704 in Connecticut. These county prosecutors came to be regarded as local officials rather than as agents of a central colonial authority. In their counties, they were treated as if they were attorneys general and the prosecuting role of the colony's attorney general became a vestigial one.

While public prosecution was superimposed on private prosecution in most colonies, it emerged more directly in others, especially in areas that had been settled by the Dutch in the seventeenth century. In these settlements—constituting New Netherlands and counties of parts of what are now Connecticut, New York, New Jersey, Pennsylvania, and Delaware—the Dutch brought public prosecution with them. Prosecutions were conducted by an official called a schout. When the British took New York from the Dutch in 1664, criminal prosecution remained much as it had been under the Dutch administration, except that the schout was replaced by a sheriff.

In the British colonies of the Middle Atlantic seaboard, therefore, public prosecution was a practice that had been introduced either by a continental predecessor or was an expression of local self-government, replacing a system of private prosecution that was viewed as inefficient, elitist, and sometimes vindictive. It is impossible to say whether the movement to public prosecution reflected, in addition, a desire on the part of Scottish, French, and Swedish settlers to follow the systems they knew in their countries of origin.

In any event, by the time of the American Revolution, each colony had some form of public prosecution exercised on a local basis. In many instances, a dual pattern was established within the same geographical area, by county attorneys for violations of state law and by town prosecutors for ordinance violations. This pattern was carried over into the states as they became part of the new nation. The federal system of prosecution at first followed the state pattern with authority to "prosecute in each district" for federal crimes vested in local United States district attorneys appointed by the president. Not until the Civil War broke out in 1861 did Congress give the Attorney General of the United States "superintendence and direction of United States Attorneys" and lay the foundation for the United States Department of Justice.