The execution of a law cannot be enforced, unless the violation of it be denounced; the assistance of the informer is therefore altogether as necessary and as meritorious as that of the judge.
We have already had occasion to remark, that with respect to public offences, where no one individual more than another is interested in their prosecution, it has been found necessary to create a sort of magistrate, an accuser-general, to carry on such prosecutions in virtue of his office; but it is indispensably necessary that offences should be denounced to him, before he can begin to act.
In a well-ordered community it would be the duty of every individual possessing evidence of the commission of a crime, to denounce the criminal to the tribunals; and such individual would be disposed so to do. In most countries, however, men in general are desirous of withdrawing from the performance of this duty. Some refuse to perform it from mistaken notions of pity towards the delinquent; others, because they disapprove of some part of the law; others, from the fear of making enemies; many from indolence; almost all from a disinclination to submit to that loss which would arise from the interruption of their ordinary occupations.
In these countries, therefore, it has been found necessary to offer pecuniary rewards to informers.
So far as my knowledge extends, governments have never been advised to discontinue this practice. It is supported by authority, but it is condemned by public opinion: mercenary informations are considered disgraceful, salaried informers, odious. Hence it results, that the reward offered by the law does not possess all its nominal value; the disgrace attached to the service is a drawback upon its amount. The individual is rewarded by the state, and punished by the moral sanction.
Let us examine the usual objections made against mercenary informations.
1. It is odious (it is said) to profit by the evil we have caused to others.
This objection is founded upon a feeling of improper commiseration for the offender; since pity towards the guilty is cruelty towards the innocent. The reward paid to the informer has for its object, the service he has performed; in this respect, he is upon a level with the judge who is paid for passing sentence. The informer is a servant of the government, employed in opposing the internal enemies of the state, as the soldier is a servant employed in opposing its external foes.
2. It introduces into society a system of espionage.
To the word espionage, a stigma is attached: let us substitute the word inspection, which is unconnected with the same prejudices. If this inspection consist in the maintenance of an oppressive system of police, which subjects innocent actions to punishment, which condemns secretly and arbitrarily, it is natural that such a system and its agents should become odious. But if this inspection consist in the maintenance of a system of police, for the preservation of the public tranquillity and the execution of good laws, all its inspectors, and all its guardians, act a useful and salutary part: it is the vicious only who will have reason to complain; it will be formidable to them alone.
3. Pecuniary rewards may induce false witnesses to conspire against the innocent.
If we suppose a public and well-organized system of procedure, in which the innocent are not deprived of any means of defence, the danger resulting from conspiracy will appear but small. Besides the prodigious difficulty of inventing a coherent tale capable of enduring a rigorous examination, there is no comparison between the reward offered by the law, and the risk to which false witnesses are exposed. Mercenary witnesses also are exactly those who excite the greatest distrust in the mind of a judge, and if they are the only witnesses, a suspicion of conspiracy instantly presents itself, and becomes a protection to the accused.
These objections are urged in justification of the prejudice which exists; but the prejudice itself has been produced by other causes; and those causes are specious. The first, with respect to the educated classes of society, is a prejudice drawn from history, especially from that of the Roman emperors. The word informer at once recalls to the mind those detestable miscreants, the horror of all ages, whom even the pencil of Tacitus failed to cover with all the ignominy they deserved: but these informers were not the executors of the law, they were the executors of the personal and lawless vengeance of the sovereign.
The second and most general cause of this prejudice is founded upon the employment given to informers by religious intolerance: in the ages of ignorance and bigotry, barbarous laws having been enacted against those who did not profess the dominant religion, informers were then considered as zealous and orthodox believers; but in proportion to the increase of knowledge, the manners of men have been softened, and these laws having become odious, the informers, without whose services they would have fallen into disuse, partook of the hatred which the laws themselves inspired. It was an injustice in respect to them, but a salutory effect resulted from it, to the classes exposed to oppression.
These cases of tyranny excepted, the prejudice which condemns mercenary informers is an evil. It is a consequence of the inattention of the public to their true interests, and of the general ignorance in matters of legislation. Instead of acting in consonance with the dictates of the principle of utility ,people in general have blindly abandoned themselves to the guidance of sympathy and antipathy---of sympathy in favour of those who injure---of antipathy to those who render them essential service. If an informer deserves to be hated, a judge deserves to be abhorred.
This prejudice also partly springs from a confusion of ideas. No distinction is made between the judicial and the private informer; between the man who denounces a crime in a court of justice, and he who secretly insinuates accusations against his enemies; between the man who affords to the accused an opportunity of defending himself, and he who imposes the condition of silence with respect to his perfidious reports. Clandestine accusations are justly considered as the bane of society: they destroy confidence, and produce irremediable evils; but they have nothing in common with judicial accusations.
It is extremely difficult to eradicate prejudices so deeply rooted and natural. From necessity, the practice of paying public informers continues to be in use; but the character of an informer is still regarded as disgraceful, and by some strange fatality the judges make no efforts to enlighten the public mind on this subject, and to protect this useful and even necessary class of men from the rigour of public opinion. They ought not to suffer the eloquence of the bar to insult before their faces these necessary assistants in the administration of justice. The conduct of the English law towards informers furnishes a curious but deplorable instance of human frailty. It employs them, oftentimes deceives them, and always holds them up to contempt.
It is time for lawgivers at least to wean themselves from these schoolboy prejudices which can consist only with a gross inattention to the interests of the public, joined to a gross ignorance of the principles of human nature. They should settle with themselves once for all what it is they would have: they should strike, somehow or other, a balance between the benefit expected from the effects of a law, and the inconveniences, or supposed inconveniences, inseparable from its execution. If the inconveniences preponderate, let there be an end of the law; if the benefits, let there be an end of all obstacles which an aversion to the necessary instruments which its efficacy depends, would oppose to its execution.