Montesquieu

As by the Salic and Ripuarian laws, and in the other laws of the bar­ba­rian peo­ples, penal­ties for cri­mes were pecu­niary ; there was then no public pro­se­cu­tor, as there is among us today, char­ged with pur­suing cri­mes. Indeed eve­ry­thing came down to res­to­ra­tions of dama­ges ; all pur­suit was more or less civil, and every indi­vi­dual could do it. On the other hand, Roman law had popu­lar forms for the pur­suit of cri­mes, which were inconsis­tent with the minis­try of a public pro­se­cu­tor.

The prac­tice of judi­cial com­bats was not less ini­mi­cal to this idea : for who would have wan­ted to be the public pro­se­cu­tor and make him­self the cham­pion of eve­ryone against eve­ryone else ?

In a com­pen­diu­mof for­mu­las which Mr. Muratori has inser­ted into the laws of the Lombards, I find that in the second dynasty there was an attor­ney for the public.1 But if we read the entire com­pen­dium of these for­mu­las, we will see that there was a total dif­fe­rence bet­ween these offi­cers and what today we call the public pro­se­cu­tor, our royal or sei­gnio­rial pro­se­cu­tors. The first were rather agents of the public for poli­ti­cal and domes­tic admi­nis­tra­tion than for civil admi­nis­tra­tion. Indeed, one does not find in these for­mu­las that they were res­pon­si­ble for the pur­suit of cri­mes and for mat­ters concer­ning minors, the chur­ches, or the state of per­sons.

I have said that the esta­blish­ment of a public pro­se­cu­tor was averse to the prac­tice of judi­cial com­bat. I find, howe­ver, in one of these for­mu­las an attor­ney for public pro­se­cu­tion who is at liberty to fight. Mr. Muratori has pla­ced it in the wake of the cons­ti­tu­tion of Henry II, for which it was made.2 It is said in that cons­ti­tu­tion that “if someone kills his father, his bro­ther, his nephew, or ano­ther of his rela­ti­ves, he shall lose their suc­ces­sion, which shall pass to the other rela­ti­ves ; and his own will belong to the public trea­sury.” But it is for the pur­suit of this suc­ces­sion which has devol­ved to the trea­sury that the public attor­ney, who main­tai­ned its rights, was at liberty to fight : this case fell back within the gene­ral rule.

We see in these for­mu­las the public attor­ney acting against3 the man who had cap­tu­red a thief, and had not led him to the count ; against the man4 who had led an insur­rec­tion or assem­bly against the count ; against the man5 who had saved the life of a man whom the count had given him to have killed ; against the attor­ney of the chur­ches6 whom the count had orde­red to bring a thief to him, and who had not obeyed ; against the man7 who had revea­led the king’s secret to forei­gners ; against the man who had pur­sued armed the empe­ror’s envoy8 ; against the man who had scor­ned the empe­ror’s let­ters, and was pur­sued by the empe­ror’s attor­ney, or by the empe­ror him­self9 ; against the man10 who had been unwilling to accept the prince’s money ; in short, this attor­ney was deman­ding the things which the law awar­ded to the trea­sury.11

But in the pur­suit of cri­mes, we see no attor­ney for the public, even when duels are in use,12 even when there has been a fire,13 even when the judge is killed on his bench14 ; even when the issue is the state of per­sons,15 liberty, and ser­vi­tude.16

These for­mu­las are made not only for the laws of the Lombards but for the appen­ded capi­tu­la­ries ; there is thus no doubt that on this mat­ter they fur­nish us with the prac­tice of the second dynasty.

The prac­tice of com­bats, which had become more fre­quent in the third dynasty, did not allow the esta­blish­ment of a public pro­se­cu­tor. Thus Boutillier, in his Somme rurale, spea­king of the offi­cers of jus­tice, cites only bai­liffs, peers, and ser­geants.17

I find in the laws of James II king of Majorca18 a crea­tion of the posi­tion of royal pro­se­cu­tor with the func­tions which ours have today.19 Visibly, they came only after the judi­ciary form had chan­ged here.

Advocatus de parte publica.

See that constitution and that formula in the second volume of the historians of Italy, p. 175.

Muratori’s Compendium, p. 104, on law 88 of Charlemagne, book I, tit. 26, §78.

Another formula, ibid., p. 87.

Formula, p. 104.

Ibid., p. 95.

Ibid., p. 88.

Ibid., p. 98.

Ibid., p. 132.

Ibid.

Ibid., p. 137.

Ibid., p. 147.

Ibid.

Formulas, p. 168.

Ibid., p. 134.

Ibid., p. 107.

See also Establishments, book I, ch. i, book II, ch. xi and xiii, and Beaumanoir, ch. i and ch. lxi, p. 308 on the manner in which pursuits were done in those times.

See these laws in the Lives of the saints of the month of June, vol. III, p. 26.

Qui continue nostram sacram curiam sequi teneatur, instituatur qui facta and causas in ipsa curia promoveat atque prosequatur.