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28.36. 36. Of the public Prosecutor.

As by the Salic, Ripuarian, and other barbarous laws, crimes were punished with pecuniary fines; they had not in those days, as we have at present, a public officer who had the care of criminal prosecutions. And, indeed, the issue of all causes being reduced to the reparation of injuries, every prosecution was in some measure civil, and might be managed by any one. On the other hand, the Roman law had popular forms for the prosecution of crimes which were inconsistent with the functions of a public prosecutor.

The custom of judicial combats was no less opposite to this idea; for who is it that would choose to be a public prosecutor and to make himself every man's champion against all the world?

I find in the collection of formulas, inserted by Muratori in the laws of the Lombards, that under our princes of the second race there was an advocate for the public prosecutor. [261] But whoever pleases to read the entire collection of these formulas will find that there was a total difference between such officers and those we now call the public prosecutor, our attorneys-general, our king's solicitors, or our solicitors for the nobility. The former were rather agents to the public for the management of political and domestic affairs, than for the civil. And, indeed, we did not find in those formulas that they were entrusted with criminal prosecutions, or with causes relating to minors, to churches, or to the condition of any one.

I said that the establishment of a public prosecutor was repugnant to the usage of judicial combats. I find, notwithstanding, in one of those formulas, an advocate for the public prosecutor, who had the liberty to fight. Muratori has placed it just after the constitution of Henry I, for which it was made. [262] In this constitution it is said, "That if any man kills his father, his brother, or any of his other relatives, he shall lose their succession, which shall pass to the other relatives, and his own property shall go to the exchequer." Now it was in suing for the estate which had devolved to the exchequer, that the advocate for the public prosecutor, by whom its rights were defended, had the privilege of fighting: this case fell within the general rule.

We see in those formulas the advocate for the public prosecutor proceeding against a person who had taken a robber, but had not brought him before the count; [263] against another who had raised an insurrection or tumult against the count; [264] against another who had saved a man's life whom the count had ordered to be put to death; [265] against the advocate of some churches, whom the count had commanded to bring a robber before him, but had not obeyed; [266] against another who had revealed the king's secret to strangers; [267] against another, who with open violence had attacked the emperor's commissary; [268] against another who had been guilty of contempt to the emperor's rescripts, and he was prosecuted either by the emperor's advocate or by the emperor himself; [269] against another who refused to accept of the prince's coin; [270] in fine, this advocate sued for things which by the law were adjudged to the exchequer. [271]

But in criminal causes, we never meet with the advocate for the public prosecutor; not even where duels are used; [272] not even in the case of incendiaries; [273] not even when the judge is killed on his bench; [274] not even in causes relating to the conditions of persons, [275] to liberty and slavery. [276]

These formulas are made, not only for the laws of the Lombards, but likewise for the capitularies added to them, so that we have no reason to doubt of their giving us the practice observed with regard to this subject under our princes of the second race.

It is obvious that these advocates for a public prosecutor must have ended with our second race of kings, in the same manner as the king's commissioners in the provinces; because there was no longer a general law nor general exchequer, and because there were no longer any counts in the provinces to hold the assizes, and, of course, there were no more of those officers whose principal function was to support the authority of the counts.

As the usage of combats became more frequent under the third race, it did not allow of any such thing as a public prosecutor. Hence Boutillier, in his Somme Rurale, speaking of the officers of justice, takes notice only of the bailiffs, the peers and serjeants. See the Institutions [277] and Beaumanoir [278] concerning the manner in which prosecutions were managed in those days.

I find in the laws of James II, King of Majorca, [279] a creation of the office of king's attorney-general, with the very same functions as are exercised at present by the officers of that name among us. It is manifest that this office was not instituted till we had changed the form of our judiciary proceedings.

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