PROSECUTOR is the person who takes the initiative in punishing crimes. In England there is no public prosecutor, and the prosecution of crimes is left to the spontaneous acacia of the injured party. Hence it often happens that many crimes go unpunished, for the mere want of its being anybody's business to attend to this part of the public interest. It is true that the attorney-general is sometimes the prosecutor on behalf of the public; but this only happens in rare and exceptional cases connected with political government or some monstrous and abnormal crime. In all cases, therefore, it may be accurately stated that it is left to the uncontrolled discretion of anybody to commence a prosecution, however great a stranger to the circumstances. But though he may take the initiative, yet in the ordinary ffi course, a stranger seldom undertakes such a duty, and for very sufficient rea sons. If a party is robbed by a servant or clerk, or by burglars, he naturally desires to. prosecute them; if a person is murdered, some one of the relatives naturally prosecutes. Therefore, there is in most cases a sufficient motive impelling some party, or friend of the party injured by the crime, out of mere revenge, if for no other reason, to commence a prosecution. But it follows that, as there is no public prosecutor, and as lie who acts as such is a volunteer, he does so more or less at his own expense, and in the first instance must always do so. He must employ his own attorney and counsel, who. of' course, require to be paid for their services. It is true that the expenses of prosecuting most crimes are supposed to be ultimately repaid by the county in which the trial takes place; but this allowance is a wretched pittance, and is seldom one-fourth of the real expenses incurred by the private prosecutor. Hence, in the end, the prosecutor finds that he lose,s a great deal of money as Well as time in carrying on a prosecution. Indeed,.
in practice, the result is, that no person to whom his money is of much consequence ever prosecutes a second time, and the first time he almost invariably does so in ignor ance of the pecuniary result, there being s vague kind of popular belief that the expenses arc repaid. Few people, indeed, fail to repent of embarking in such a litigation; and the prudent and experienced are in the habit of remarking, that prosecutions are only kept going by the unbroken succession of young and inexperienced persons who do not know better. A person who prosecutes a small larceny of five shillings may incur expoases of from five to fifteen pounds, which is money out of pocket when his attor ney's bill is paid. But not only is there great expense and loss in the mere prosecution itself; there are far more grievous consequences. If it happen—and it seems in about half of the cases it really does happen—that the prisoner is not found guilty, or the case breaks down from defective evidence or otherwise, the first thing that the prisoner does is to bring an action for false imprisonment, or for malicious prosecution, against the prosecutor. It is said that attorneys infest all the police courts and petty sessions, by keeping an organized service of watchers to pick up cases of this kind, which are called speculative actions. The speculative attorney promises to take the chance of gaining
the action, and, of course, as it costs the prisoner nothing, he readily lends his name, and, out of revenge, joins keenly in the attempt to recover large damages. It is true that in all such cases the prosecutor ought not in theory to lose the verdict, if he acted under a reasonable and honest belief that a crime had been committed; but, however plausible this defense may be in theory, it is a very different thing to establish it in prac tice. At the trial of the action. counsel on such occasions enlarge on the monstrous oppression of having given an innocent man into custody, blasting his character and reputation for life, and attributing the prosecution to spite or malice; and as the pre sumption is always in favor of innocence, it is astonishing how easily a jury may be led away by a spurious sympathy in favor of the quondam prisoner. It is thus entirely a lottery in such cases how the verdict will go, and verdicts of ten, fifty, or a hundred pounds of damages are often obtained, simply because of the accidental defect of sonic conclusive piece of evidence, with which the defendant in the action had probably no more to do than any other person. When the quondam prosecutor is a person of sub stance and position—and, of course, a speculative attorney will not sue those who are not so—he often finds it prudent to compromise the action by paying a lump sum, rather than run the risk of a trial. Many attorneys in the metropolis and large towns of Eng land carry on a large and lucrative business by systematically bringing these speculative _actions against unsuccessful prosecutors. The evils of this state of the law have been -often complained of, but have not yet been remedied, probably because other systems of crime are open to objections.—In Scotland, a well-settled system of public prosecutors has long been in operation, which avoids most of the evils already described. The lord-advocate is ex officio the public prosecutor, and there are counsel called advo •ates-depute who assist him, besides a local functionary called a procurator-fiscal (q.v.) in all parts of the country. The public prosecutor's duty and business is to act on all reasonable suggestions that a crime has been committed, but he is not compelled to prosecute. If he refuse to do so, a private party may at his own risk, with the con -course of the lord-advocate, insist on the prosecution; but he may be called on to find -caution or give security. The usual course is for the procurator-fiscal to take the pre -cognitions; i.e., the examination of witnesses before the sheriff, a copy of which is laid before the crown-counsel, and if they are satisfied that a prima facie case is made out, the proceeding is carried on to trial; but if there is not sufficient evidence, the prisoner is ordered to be at once discharged. The entire expense of prosecuting crime in Scot land, whether at the higher or local tribunals, is borne by the public; the persons spe -daily injured having nothing whatever to do in the matter except to appear as witnesses when called upon. This system has worked for three centuries with entire satisfaction.