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.
