On a day in 1853, an event occurred that was unusual even for the court of quarter sessions. A man who was accused of assault and battery waited for his case to be called. As he surveyed the courtroom, he recognized several of the faces in the crowd, witnesses to the alleged assault who he assumed were present to testify against him. When the district attorney called the case, the defendant approached the bench but the prosecutor failed to appear. There was certainly nothing unusual about this, one of the common occurrences that so annoyed judges and other court officials, but what happened next was surely out of the ordinary. Intimidated by the presence of witnesses, unsure of what was about to happen next, and unaccompanied by counsel, the defendant confessed. Judge Oswald Thompson saw an opportunity to provide everyone with a lesson in how the criminal law ought to operate, and he took it. Portending a position that would be adopted frequently by the bench in the years to come, he declared that he was concerned only with the "outrage to the public" not with the "private wrong," and so, despite the absence of the prosecutor, he sentenced the man to six months.1
This distinction was a key element in the transition from a criminal justice process controlled by private citizens and aldermen to one controlled by salaried state officials. Thompson's comment suggested that jurists were becoming aware by mid-century of a divergence between the interests of the state and those of the citizenry regarding the accessibility and usefulness of criminal justice. Most judges, like Thompson, conceived of this as a distinction between private and public and saw themselves as responsible to the latter, but this was, at best, a partial truth. It really represented two competing forms of public administration: one that had been evolving for over half a century and drew an indistinct line between the public and the private, and another that made the distinction much more sharply and depended upon a more proactive state to enforce it.
Though by 1853, the latter was still not the dominant belief among jurists, Thompson was able to articulate it so clearly, in part, because of the court's decades of frustration in trying to control the process of criminal prosecution. Private prosecutors had less control over the courts of record than over primary justice, but this was little comfort to court officials. From their