unnecessary harshness in their proceedings (a). But on the other hand, at least in cases of greater offences, which affect the public, they have no right to forgive the injury which society in general has sustained, or to deprive mankind of that security which can alone result from the prompt detection and punishment of those by whom it is broken (b). The object of criminal prosecutions is not vengeance for the past, but safety for the future; and to the furtherance of this design every man is bound to contribute. This moral obligation is, in many cases, enforced by the laws themselves; and in many more is encouraged by their sanction. Thus, in cases of treason and felony, any person knowing the crime to have been committed, and concealing it, even though he has not actively assisted the offender, will be guilty of a misprision of the crime which he has been instrumental in concealing. For this he may be punished, in case of treason, by the forfeiture of his goods, the loss of all profits of his lands during life, and the -imprisonment of his person for the same period; and where a felony has been thus covered, if a public officer, by fine and imprisonment for a year and a day, and, if a private individual, by fine and confinement for a less time, at the discretion of the judges. In all cases, therefore, when a capital offence has been committed, it is the absolute duty, and only safe conduct of the party who is aware of the circumstance, to reveal it as soon as possible to some judge of assize, or justice of the peace (c). And though in case of misdemeanors the neglect is not in general thus punishable, yet if the crime is of a public character it is illegal to receive, or stipulate to receive, a consideration for suppressing a prosecution for it, or compromising it, without the sanction of the court in which the proceedings were commenced (d). (a) See Lord Mansfield's observations on the proceedings by appeal, 5 Burr. 2643. 2 Wooddes. 565, 6. 4 Bla. Com. 316. Paley, Mor. et Pol. Phil. vol. i. b. 3. part 2. ch. 8. Puffend. 1. de J. B. et P. lib. 2. c. 20. s. 5. Grotius Law of Nations, b. 2. c. 4. s. 12. et b. 8. c. 3, s. 19. 23. (b) Becc. c. 46. Phil. vol. ii. c. 9. 364. Paley, Mor. (c) 1 Hale, 371 to 375. 3 (d) 5 East, 298, 302. 11 [ 4 ] [ 5 ] 3d, The inducements to prosecute. And any contract or security made in consideration of dropping a criminal prosecution, suppressing evidence, soliciting a pardon, or compounding any public offence without leave of the court, is invalid (a). In order further to compel persons who are acquainted with the circumstances attendant on crimes to perform the duty imposed on them by law, every magistrate has a power, at least on a charge of felony, to bind them over to prosecute and give evidence, and to commit them upon their refusal (b). Justices of the peace are themselves bound to present highways which are suffered to be in decay (c). And any constable of a parish may, on the application of two of the inhabitants, be compelled to indict a disorderly house within it (d). So the clerk of the peace in any county where a wreck has been plundered, is bound to proceed against the suspected individual (e). And any judge at the assize, during the session of the court, or within twenty-four hours after it is concluded, may direct a person examined as a witness on a trial before him to be indicted for perjury, either by the party immediately injured by his testimony, or by any other, to whom he may think the prosecution should most properly be entrusted (ƒ). But a coroner has not any power to direct an overseer or other parish officer as such to prosecute; nor can a magistrate direct an overseer or constable to prosecute for an assault, so as to entitle him to deduct or recover the costs out of the poor-rate, under the 18 Geo. 3. c. 19. s. 4. (g). There are also many instances in which the law has rendered it either necessary or advantageous to the party immediately injured to prosecute, as it affects his own private interests; wisely inter (a) 5 East, 298. 302. 11 East, 46. 16 East, 301. 1 Campb. 46. 55. 3 T. R. 17. 2 Esp. Rep. 643. 3 Esp. Rep. 253. 7 T. R. 475. 3 Pr. Wms. 279. 2 Wils. 349, but see 1 Stark. 88. 1 Bing. 105; but a party may refer to arbitration a prosecution for an assault. 1 J. B. Moore, 120. (b) 3 M. & S. 1. Dalt. Just. c. 164. Toone, 140. Post, as to Magistrates' power to bind over to prosecute. (c) 13 Geo. 3. c. 78. s. 23, 14. (d) 25 Geo. 2. c. 36. s. 5. made perpetual by 28 Geo. 2. c. 19. Constructions of this act, 1 B. & A. 694. 58 Geo. 3. c. 70. s. 7. (e) 26 Geo. 2. c. 19. s. 8. (ƒ) 23 Geo. 2. c. 11. s. 3. (g) 2 B. & A. 522. 5 B.& A. 182. Cald. 510. Sed vide Imp. Off. Cor. 477. Umfrival's Off. Cor. 20. 313. 522. weaving his own advantage with the public benefit. Thus in some cases a criminal proceeding is the only course he can pursue to obtain redress. In every case of felony and treason, his civil remedy is entirely suspended until he has performed his duty to society by an endeavour to bring the offender to justice, and he is indictable in case he agrees to a compromise (a). This civil right, however, is neither destroyed nor merged; for, after the party on whom suspicion was fixed has been convicted or acquitted without collusion, the prosecutor may support an action for the same cause, as that on which the criminal prosecution was founded (b). In misdemeanors, however, the party injured has, in general, the option of bringing an action, or preferring an indictment (c); and where the commissioners under a private inclosure act, have disobeyed an order of sessions directing them to set out a public road, they may either be indicted for their neglect, or the court of King's Bench will, on motion, proceed against them by a writ of mandamus (d). But though in all cases of offences inferior to felony, the person immediately injured has the option either of proceeding criminally, or of bringing an action, there are cases, in which, on the mere ground of interest, the former course will most properly be adopted. Thus the rank or situation of either of the parties may render a criminal prosecution expedient. It is also frequently necessary, from a defect in the evidence, when the testimony of the party immediately injured may be necessary to substantiate the charge; for though incompetent in a civil proceeding to be a witness in his own cause, he may, except in case of forgery, appear to support an indictment, because the latter proceeding is at the suit of the crown, and carried on for the public, and not for his private benefit (e). When a party applies to the Court of King's Bench, for a criminal information, it has been supposed that he must waive his [ 6 ] [ 7 ] right of action, or the court will not grant a rule to shew cause, but this is not at present the practice, and after the granting an in formation has been refused, the party applying is at liberty to pro ceed by indictment, or at liberty to resort to his civil remedy (a). In an indictment, on the other hand, the proceedings will not be stayed in an action depending for the same cause, because the damages consequent on the one, and the punishment on the other, are entirely different in their nature and intention (b). Where, however, this kind of double proceeding is carried on for a trifling assault, or any other misdemeanor more immediately affecting the individual, with a spirit apparently vindictive, the Attorney-General will, on the application of the defendant, compel the prosecutor to elect which course he will pursue, or will direct a nolle prosequi (c). It is, therefore, in general advisable not to commence any civil action, at least until the criminal prosecution is con cluded. Besides these inducements to prosecute, there are various advantages, rewards, and immunities, which have been given by particular legislative provisions, and which will only be alluded to here, as we shall fully consider them when they arise after the conviction (d). Of these the restitution of stolen goods is one of the most ancient (e). By the common law, indeed, this was only to be obtained on an appeal, and consequently the proceeding by indictment was much less beneficial to the party injured (ƒ). But, as at length it being considered that the latter course was, at least, as much deserving of encouragement as the former, the statute 21 H. S. c. 11. provided, that after the conviction of an offender of robbery, on an indictment preferred by the party aggrieved, or by any other through his exertions, full restitution of his property should be made him by a writ to be granted by the justices (g). And so beneficially is this provision construed in favor of the prosecutor, that he may recover his goods though (a) 2 Burr. 719. 2 T. R. 198. (b) 2 Burr. 719. 1 B. & P. (d) See post, Chapter, As to Rewards, &c. (e) See post. (g) 1 Hale, 538 to 547. Com. Dig. Justices, A. 4 Bla. Com. 362. Burn's Just. Restitutions. Williams's Just. Felony, VIII. they have been sold in market overt to a bona fide purchaser; because the person who has performed an active service in bringing an offender to justice, is regarded as more worthy of protection, than he who has the mere negative merit of innocence (a). Another mode of rewarding the prosecutor in case of mere personal injuries, is by suffering the defendant to compromise, or, as it is sometimes technically called, " to speak with him," before any judgment is pronounced, and if he declares himself satisfied, to inflict but a trifling penalty:-This is done both to reimburse him for his expenses, and to give him some compensation for the damage he has sustained, without the trouble and circuity of a civil action (b). This practice has been censured, particularly when employed at the Quarter Sessions, and other courts of inferior jurisdiction, where, it is said, prosecutions for assaults are more frequently commenced for private lucre, than the ends of public justice (c). But, it may be urged, on the other hand, that country magistrates, from their local knowledge, and more accurate acquaintance with the character of the parties, are more fit to be intrusted with this power than the Judges of Assize, who generally know little more than the facts detailed in evidence (d). Against this practice it has also been contended, that where the testimony of the prosecutor is necessary to convict the defendant, the rules of evidence are subverted, as he is allowed to be a witness in the cause from the success of which he may derive a pecuniary benefit (e). But it should be remembered, that this case would be by no means singular; for there are a variety of instances in which the legislature offers a specific reward to a prosecutor, on the conviction of a defendant, and yet he is fully competent to give evidence (f). It must, however, be allowed, that this mode of remuneration ought to be used with great caution, and requires a considerable degree of prudence in its exer cise. [ 8 ] (a) 1 Hale, 543. 4 Bla. Com. 363. Post, Chapter, As to Rewards. (b) 4 Bla.Com. 364. Hullock, 557 to 559, and cases there collected. (c) 4 Bla. Com. 364. (f) See post, Chapter, As to |