“I confess, it is my nature’s plague, To spy into abuses; and oft my jealousy Shapes faults that are not.” – Othello
COMMON INFORMERS GOOD AND EVIL
DAVID ARTHUR WALTERS
A wise man may live well, and a government that knows all may govern for the common good. The good citizen not only obeys the laws, he bears witness against law breakers. He is a common informer. If everyone, although not personally aggrieved, had the duty and material incentives and standing in court to personally or by his private attorney denounce and prosecute, as a representative and common informer of the people, without resort to public prosecutors, anyone for any civil or penal violation of law that he has espied or become aware of, the proverbial war against incivilities and crimes including the malfeasances of government would be won. Or so it seems.
The good man has introjected the mores of his culture, concealing his resentment the best he can, hence he is self-governed even to the extent of punishing himself for real and imaginary infractions. Alas then that man by nature is inclined to break every law made by others and himself at one time or another, and sometimes almost all the time. So the individual is a natural born criminal. He is divided within, fundamentally set against the impositions of the forces that he must love and obey or else perish. There exists a struggle for survival where some live at the expense of others when individual life is god.
So the other side of the story is that man “is born in sin,” that is, with a will of his own, opposed as it is from time to time not only to the will of a few others around him, but to the common good. And the trouble with the common good on this planet is that Good wants definition by people who are inherently selfish and thus differ in their definitions; even majority rule falls short of the common good. If the will of a faction small or large is uniformly imposed on all, their version of the common good could constitute the worst state of affairs, either chaos at one extreme, or a totalitarian police state at the other.
Indeed, the notion that the ability of a “common informer” to prosecute others for violations of law in the stead of a public prosecutor guarantees the freedom of the people and ensures integrity in government has proven to be a very bad idea when there are few civil rights including due process of law, and the motive for complaining is revenge or greed for property and other forms of power. In any case, it is highly unlikely that the motivation of a common informer is altruistic, or that he acts for the sake of duty. We may concur with Kant that it is “absolutely impossible by experience to discern with complete certainty a single case” of anyone acting solely for the sake of duty, and that a “cool observer is bound to be doubtful sometimes whether true virtue can really be found anywhere in the world.”
Today we have whistleblowers in the United States who are rewarded for prosecuting persons for making false claims on the government or who otherwise cheat the treasury. The public prosecutor may or may not step in after the informer complains; if he does, the prize will more likely be won. The whistleblower may recover his costs if he must prosecute a case himself, and the reward may be substantial, running into millions of dollars in some cases. Whistleblowers are naturally despised by the persons exposed. Everyone has something to hide, so he tends to hate “rats,” but he also cannot help admiring one who brings down the rich and powerful, and he envies one whose reward is substantial.
The federal and local whistleblower acts are a vestige of English law derived from Roman law. There was no official public prosecutor such as an attorney-general available in ancient Rome. Citizens, foreigners, and even slaves could originate libels or suits against prominent persons, currying favor with emperors and nobles, taking advantage of their resentments, jealousies, and rivalries, and in the process slaves won their freedom and other persons of low birth sometimes won great fortunes and high office for themselves. The most successful of these “common informers” were advocates i.e. lawyers. The whole lot of them, the paid informers, accusers, denunciators, witnesses and calumniators as well as those who served their mandating clients as advocates in the court of justice and the senate, were impugned as “delators,” meaning tattlers.
The most infamous form of delation endured nearly a century during the Roman Empire, reaching its height during the imperium of Tiberius Caesar. The practice had begun with laying the name (nomen deferre) of someone who owed property or taxes to the treasury before a magistrate. These fiscal delators, who received a portion of the value collected, as do whistleblowers today, were part of the state machinery. The category of offenses was extended to include celibacy, adultery, defamation, collusion (prevarication), perjury, tergiversation (bribery or intimidation to drop cases instead of resorting to a formal abolition), perjury, and treason.
The delator received roughly a fourth of the penalty, which could included the entire estate of a wealthy person exiled or executed, and the treasury got the rest. The reward could include high office. The denounced person, to salvage whatever he could, might denounce himself for the delator’s portion of the reward. If his life was at risk, suicide would save his estate against the judgment; the delator would still get his reward but it would come from the treasury. Political cases were tried before the senate.
Eventually a charge of treason was added to every offense charged against prominent persons since every crime is in a sense against the state or the emperor, the incarnation of the people. Nowadays we distinguish political crimes from civil crimes. But all crimes are political inasmuch as they are crimes against the state to be prosecuted by someone on behalf of the state and not by particular victims. Happily, that advance in procedure, based on the notion that a realm belongs to its sovereign and all crimes committed therein are therefore offenses against him, supplanted feuding, where everyone was a law unto himself except when on royal grounds and highways. In any case, it served delators, the emperor, and the treasury well to make the emperor an offended party to every kind of complaint no matter how remote the offense was from political business.
Delators always found plenty of muck to rake given the corruption of their day. Of course some sort of documentation was required to support a charge, yet clever sophists could create muck out of thin air if none were found. If their case failed, however, the delator and his mandator or sponsor would have to suffer the penalty they wanted for the accused.
Commoners were not the only informers. Even senators stooped to betray their colleagues and best friends and family members for the rewards. So it is no wonder that delation fell into disrepute. The muckraking delator had a status lower than the garbage collector.
The infamous practice waned by the time of Tacitus, the historian credited with rendering Tiberius so infamous by emphasizing the evils in his contradictory anecdotal gossip in his Annals. Tacitus was himself a muckraker or sort of common informer, laying the evils of the times on Tiberius, who reportedly attempted to follow in the steps of Augustus, his august predecessor, who had made use of common informers. Tiberius lacked the charisma and passion of Augustus. He took occasional steps to curb delation, perhaps with ulterior motives, and instituted other reforms. At least one academic, the Reverend John Rendle, MA, has pointed out the contradictions in Tacitus’ account, painting Tiberius as a great emperor, with a few qualifications of course, at book length in The History of That Inimitable Monarch Tiberius (1811). In sum, the Reverend agreed with “seven contemporary and other writers” that:
Tiberius was very studious of every liberal and useful science; the friend of none but virtuous and learned men as long as he lived; most cordially beloved by all his officers and men when commander and chief; the sole supporter of the Roman super-eminence during the Pannonian and German wars; by the senate made equal in power to Augustus five years before he became a Monarch; a detester of flattery and all pompous titles long after he was a monarch; the abhorrent opposer of his own deification in the tenth year of his monarchy; most eminent, exemplary, great, just and humane long after the disaster at Fidenae (collapse of the amphitheatre that killed or injured 20,000); an eater of human flesh and drinker of human blood after he was so very exemplary; the universal dispenser of the blessings of peace during most of his reign; permitted the worst of all civil wars to rage at Rome from the fourteenth to the nineteenth of his reign; overcome by the pressure of family affections during the first years of the same period; negligent of the gods, but attentive to some one god in the decline of life; a friend of Jews and the maintainer of Jewish rights always; a hearer of the law and a partial doer of it from the time he went to Rhodes; remarkably inquisitive about futurity sometime before he died; a believer in the divinity of Jesus Christ in the fourteenth year of his reign; the abolisher of al sanctuary protections after the Jews and preferred Barabbas to Jesus; the first prohibitor of immediate executions before the death of Sejanus; the nursing father of the infant Catholic Church during the last eight years of his reign; the protection of Jewish Christians as not blasphemers in the sixteenth year of his reign; of all kings or autocrats the most venerable when old; as some affirmed, prefigured by that of a phoenix; solemnized with due pomp and at the public expense as his funeral; and, lastly, who, at his death, followed Augustus to the residence of the gods.
Tacitus’ descriptions of the pestilent effects of delation rings true, however, reminding us of East Berlin under surveillance by the Stasi, the U.S.S.R secured by the KGB, and other totalitarian states that have been established throughout the world.
This was the most pestilent calamity of those times, that the first men of the senate performed the office of the meanest informers: some openly, many in secrecy; nor could you observe any distinction between kinsmen and aliens, friends and strangers,—whether the acts imputed were recent, or fetched from the obscurity of past times: equally for words spoken in the forum,—at entertainments,—upon whatsoever subject,—the speakers were accused, according as everyone hastened to get the start and point out the culprit : some did it for their own protection, but the generality infected, as it were, with the malady and contagion of the times….. At no time was the city in a state of deeper anxiety and alarm, never was there greater need of caution against a man’s nearest relatives; men were afraid to meet, afraid to discourse: silence and distrust extended alike to strangers and acquaintance, and both were equally avoided: even things dumb and inanimate, roofs and walls, were regarded with apprehension. Annals
An example related by Tacitus was the case of four informers who had all been praetors (elected magistrates) set up a trap to gather evidence against a Roman knight by the name of Titus Sabinus. They endeavored to get rid of him because he stood in the way of their aspirations to consulship, which could be obtained through the auspices of Lucius Aelieus Sejanus, the praetor prefect who practically ruled Rome during the moody absences of his best friend Tiberius, who would eventually become wary of a coup and have him imprisoned, strangled and tossed down the Gemonian stairs to rot. Sabinus’ offense was his friendship for Tiberius’s nephew, “Germanicus,” the agnomen given him after to his victories in Germany. Germanicus died of a mysterious disease, rumored to have been poisoned at the behest of Tiberius. The praetors Latinius Latiaris was enlisted to curry favor with Sabinus, attracting him into his home, where senators were hidden in the attic with their ears glued to “nooks and crannies.” Latiaris induced Sabinus to denounce Sejanus for his cruelty, pride, and terrible plots, and, in the process of doing so, Tiberius was uttered against as well. This information was dispatched in the form of a written memorial to Tiberius, who sent a letter a letter to the senate on the matter, then indicted Sabinus before the senate for treason in terms that required vengeance. The historical accounts of his death are contradictory; Tacitus claims that Sabinus was dragged out and immediately put to death.
Naturally paranoid megalomaniacal emperors representing themselves as the divine incarnation of the people could take offense at almost any offense reported by a common informer as treason, striking fear into the hearts of the people they supposedly represented that the slightest hint of disagreement or even a tear shed over the death of a relative who happened to be the emperor’s enemy might result in their own prosecution and demise. A modern historian sums up the ancient annals as follows:
“The law decreed that the informer should receive a quarter of the goods belonging to the condemned, but this sum was often exceeded when the victim was a person of importance. After the condemnation of Thrasea and Soranus the chief informers each received five million terces (one million francs), and by these means scandalously large fortunes were quickly acquired. Epriuss Marcellus and Vibius Crispus earned at this trade three hundred million sesterces (sixty million francs). The Emperor was not satisfied with repaying their services by money, he also lavished upon them all the State dignities. After each important case there was a distribution of praetorships and edileships. These ancient republican dignities served as a price for shameful compliance. Nothing, according to Tacitus, was a greater offence to honest people than to see the informers “displaying the sacerdotal offices and the consulate, as though they were spoils taken from the enemy.” At the end of Tiberius’ reign men only became consul when they had ruined one of Caesar’s enemies. And under Domitian it was the shortest road by which public dignities could be attained. In this way, towards the time of Tiberius, informers issued from all ranks of this corrupt society. Seneca tells us, “That on every side there was a mania for informing which emptied Rome more quickly than a civil war.”Nothing is richer in contrasts than the group of informers that Tacitus describes to us; every social rank and position are represented in it. By the side of this crowd of smaller people-slaves, freedmen, soldiers, schoolmasters–we also find the names of a few of the old nobility, a Dulabella, a Scaurus, and even a Cato. There were bold cynical informers, who prided themselves on defying public opinion, who made honest men blush and were proud of doing so, who boasted of their great deeds and claimed glory for them. There were informers belonging to the lower classes, who commenced by the vilest functions, and who having reached wealth and power always retained something of their origin, like Vatinius, whom Tacitus calls one of the monstrosities of Nero’s court. He was formerly a cobbler, and owed his fortune to the buffoonery of his mind and the deformities of his body. And lastly, there were elegant informers, who piqued themselves on their distinction and fine manners, and who gracefully asked for a man’s death. One day an informer of this class appeared before the Senate, dressed in the latest fashion, a smile upon his lips, he came to accuse his father. [Gaston Boissier “Etudes des Moeurs Romaines sous I’Empire,” in The History of Ancient Civilization, A Handbook Based Upon m. Gustave Ducoudray’s Histoire Sommaire de la Civilization, Ed. Rev. J, Verschoyle, New York, Appleton & Company 1889]
Common informers albeit always despised continued to pester the Empire after Tiberius from time to time. His successor Caligula (37-41), who would eventually be assassinated, declared an amnesty and halted the treason trials, thus getting rid of the informers except himself. Much maligned Nero (54-68), who famously committed suicide following a false report that he was about to be executed as a public enemy number one, reduced the rewards to common informers. Titus (79-81), an anti-Semite whom the Talmud reports died pleading with YHWH for mercy because a gnat flew up his nose and turned into a bird, persecuted the informers. His younger brother, totalitarian-minded Domition (81-96), who would be assassinated, encouraged them.
Edward Gibbons’ Decline and Fall of the Roman Empire recounts that Commodus (177-192), the son of Marcus Aurelius, the last of the Five Good Emperors, became suspicious that senators were conspiring to assassinate him. The senators hated the megalomaniacal Commodus, who considered himself to be a demigod, and celebrated himself as the new Hercules and Romulus, but the conspiracy that had him strangled in his bath by his wrestling partner, Narcissus, was actually formed by a prefect named Laetus; the Senate thereafter declared Commodus to be a public enemy. Common informers enjoyed a resurgence of delation due to his delusions of grandeur and persecution (paranoia).
The Delators, a race of men discouraged, and almost extinguished, under the former reigns, again became formidable as soon as they discovered that the emperor was desirous of finding disaffection and treason in the senate. That assembly, whom Marcus had ever considered as the great council of the nation, was composed of the most distinguished of the Romans; and distinction of every kind soon became criminal. The possession of wealth stimulated the diligence of the informers; rigid virtue implied a tacit censure of the irregularities of Commodus; important services implied a dangerous superiority of merit, and the friendship of the father always insured the aversion of the son. Suspicion was equivalent to proof; trial to condemnation. The execution of a considerable senator was attended with the death of all who might lament or revenge his fate; and when Commodus had once tasted human blood, he became incapable of pity of remorse.
Eventually offenses other than treason were prosecuted in the courts of justice by the aggrieved parties or their attorneys. Constantine (306-337), reputedly the first Christian emperor, punished them. Edward Gibbon’s research of ancient writers who freely exposed the faults of Constantine confessed that his predecessor Maxentius (306-312), who drowned in a river fleeing Constantine’s victorious army, was far worse than Constantine, that he was cruel, rapacious, and profligate, and that his suppression of a slight rebellion in Africa “was followed by the abuse of law and justice. A formidable army of sycophants and delators invaded Africa; the rich and the noble were easily convicted of a connection with the rebels; and those among them who experienced the emperor’s clemency were only punished by the confiscation of their estates.”
Theodosius (379-395), whose will divided a reunified empire between East and West at his death, made a nice distinction between common informers and persons willing to denounce pagans and heretics such as the Manicheans:
“In the mind of Theodosius Christianity and citizenship were coterminous and anyone who denied Christ automatically made himself an outlaw of the Christian Roman society. An even more sternly worded edict against the Manicheans was issued by Theodosius (31 March 382) in which the recipient, Florus, the praetorian prefect, was told to establish special courts for the trial of Manicheans and receive (anonymous) informers (indices) and denouncers (denunctiatores) without the odium of delation. It was a well-held principle of Roman Law that frivolous or baseless accusations put forward by anonymous indices should be discouraged and all accusation should be conducted by formal delation in which an unsuccessful delator was liable to an action for calumnia. Constantine laid down in a law of 313 a certain regulations concerning informers and threatened those who broke them with the death penalty and this was reaffirmed by a later law of 319.” (Samuel N.C. Lieu, Manichaeism in the Later Roman Empire and Medieval China (1992)]
Given human nature, vestiges of delation were destined to survive and bloom full after the end of the Western Roman Empire in 476 when Romulus Augustulus was deposed by the Germanic King Odoacer (476 CE). Sidonius Apollinaris (430-489), prefect of Gaul, denounced them in a letter: “They are the wretches, as you yourself have heard me say upon the spot, whom Gaul endures with groans these many years, and who make the barbarians themselves seem merciful in comparison. They are the scoundrels whom even the formidable fear. They are the men whose peculiar province it seems to be to calumniate, to denounce, to intimidate and to plunder.”
Byzantine Emperor Justinian (527-565) had the ancient Roman laws compiled, using as primary source the Institutes of Roman Law (160 AD) composed by the celebrated Roman jurist Gaius. Delation was described therein as a popular action brought by an informer for a reward, where the informer enforces a public right, suing as a procurator for the people. Infamous or ignominious persons such as prostitutes, pimps, gladiators, dancers, alien homosexuals and others defamed by a censor or praetor were not allowed to serve in that capacity. Criminals, however, were naturally encouraged to inform on others.
Justinian’s Code, a unit within his Corpus Juris Civilis along with the Digest and Institutes, clearly prohibits delation unless the “detestable” or “execrable” delator is a fiscal informer who benefits the state treasury. Informers who protect the property interests of cities, however, shall not be considered odious. Slaves who inform on their masters shall be executed even if their accusations are true.
“Neither a servant nor freeman shall be permitted to be an informer and no one need fear death or loss of property from that source. And if anyone informs against another that he has found a treasure or for some other reason, he shall, if he be a slave, be at once delivered to a death by fire, especially if he should inform against his master; if he be free, his goods shall be confiscated, he shall lose his citizenship and shall be banished from the soil of the Roman Empire.”
If an informer is “proven to be a malicious accuser, or if he desists from the accusation and hides, he shall, if he disdains a pecuniary punishment on account of the smallness of his property, be subjected to lashes and to perpetual banishment; but if he belongs to the imperial service or has an honorable position of possesses ample property, he shall lose both his position and property, and will be forbidden to reside in the imperial city or in the province.”
The Turkish Ottomans brought the Eastern Roman (Byzantine) Empire in the East to an end with a 53-day siege culminating with the fall of its capital, Constantinople, to an army led by a 21-year old sultan in 1453, a grievous blow as well to Christendom in the East. By then common informers had by no means vanished from the face of the Earth. Delation persisted in Europe where Romans had established themselves, thriving, for example, for centuries in Britain. The English would put so-called common informers to use whether they could personally prosecute a case or not. For example, Catholicism was harassed by them by virtue or vice of the 1699 “Act for further preventing the growth of Popery (11 & 12 Gul. III, 4) offer a reward to common informers of a 100-pound reward for the apprehension of priests.
The libels or writs of common informers who could prosecute cases themselves in England were called as a qui tam (“who as well”) writs, from qui tam pro domino rege quam pro se ipso in hac parte sequitur, “he who sues in this matter for the king as well as himself.” More specifically, a qui tam was an action under a statute which imposes a penalty for the doing or not doing an act, and gives that penalty in part to whosoever will sue for the same, and the other part to the commonwealth, or some charitable, literary, or other institution, and makes it recoverable by action. The plaintiff describes himself as suing as well for the commonwealth for example, as for himself.
In the thirteenth century, prior to the inclusion of qui tam in statutes, qui tam was a means of bringing a suit rather than a peculiar form of action, so a non-statutory qui tam plaintiff filed his suit in an ordinary general writ as if he were suing to recover for an ordinary wrong. There were two types of non-statutory qui tam, then, that allowed private plaintiffs to file complaints in the emerging royal courts: one served the interests of parties who had actually suffered a wrong; the other included the interests of the common informer in their bounties. Eventually, in the fourteenth century, the jurisdiction of the royal courts was extended to the hearing of complaints from the aggrieved parties themselves without the qui tam means, leaving qui tam as the tool of common informers.
A qui tam action has rarely if ever been used in England since the Common Informers Act of 1951 abolished the provision of rewards to private citizens for bring suits on behalf of the state. Qui tam is, however, alive and well in the United States in so-called whistleblower acts; e.g. the federal False Claims Act where a “relator,” someone who relates information to obtain a specific reward, can step in and file a writ against someone defrauding or cheating the government.
Edward Coke (1552-1634), who served Britain variously as Chief Justice of the King’s Bench, Chief Justice of the Common Pleas, Attorney General and Solicitor General for England and Wales, took common informers to task in his Institutes of English Law: Third Part Concerning High Treason, And Other Pleas of the Crown, and Criminal Causes (1798) Capitulo 88, “Against Vexatious Relators, Informers, Promoters upon Penal Statutes.” The foregoing persons he labeled in Latin “turbidum hominem genus” i.e., men who stir up trouble i.e. muckrakers. He attributed a “multiplication of suits in law” in part to “the swarm of informers” and a “multitude of attorneys.”
“Informers and relators,” he wrote, “raised many suits, by informations, writs, &c. in the King’s Courts as Westminster upon penal statutes, many whereof were obsolete, inconvenient, and not fit for those days, and yet remain snares upon the subject…. Lastly, the multitude of attorneys, more than is limited by law, is a great cause of increase in suits.”
Informers, he claimed, are “viperous vermin, which endeavored to have eaten out the sides of the church and the commonwealth.” So laws were made in the 18th and 28th and 31st year of Queen Elizabeth’s reign including corporal punishment to rein in common informers, but another law to the same end is required because there people are still causing a great deal of grief to the Queen’s subjects. He explained that many obsolete penal laws remain on the books as snares which relators, informers and promoters used to vex and entangle subjects. For example: statutes regulating the price of poultry, the transportation of corn, the price of hats, caps, candles. broadcloth, concerning vagabonds, unlawful games, and alehouses, the sale of wine, decay of houses, buying of wool, keeping of great horses, manufacture of locks, rings and crosses, the sale of colored cloth, and so on. The king’s courts in Westminster are being clogged with suits brought by common informers from counties everywhere so that Westminster is likely to suffer from apoplexy. To make matters worse, an informer in one county can at his pleasure bring suit against an alleged infraction in other counties where parties and witnesses are unknown.
Therefore the “Act for the Ease of the Subject concerning the Informations upon Penal Statutes,” in short, “the Common Informers Act of 1623,” (21 Jac. 1, c. 4), specifies “That all offences hereafter to be committed against any penal statute, for which any common informer or promoter may lawfully ground any popular action, bill, plaint, suit or information, &c. shall be commenced, sued, prosecuted, &c. in the counties where the offenses were committed, and not elsewhere.”
The foregoing was apparently insufficient, as we can see from “The Common Informer,” an article by dramatist (“the little Shakespeare”) and journalist Douglas William Jerrold (1803-1857), published in London in 1840 by Vizetelly & Co. in the book entitled, Heads of the People, Portraits of the English.
We all know that many people love to complain about trivial breaches of conduct. They will complain all the more given a reward for complaining, no matter how small. “It is but a few days since,” indited Jerrold, “that a celebrated Informer laid an information against the servants of our maiden queen for having failed to emblazon her initials on the vehicle, and thereby having exposed their gracious mistress to the fatal visitation of a fine. But queens are seldom caught tripping; and, by some means, we are happy to state that Her Majesty escaped the stern sense of justice animating the bosom of the Informer, though we have felt it due to him to chronicle the circumstance, as displaying the virtuous boldness of his character.”
He observed that “The Common Informer so generally confines himself to the healthful castigation of the poor, that he is assuredly an Informer very far from the common who has the moral courage to make known the peccadillo of a queen.” That was certainly not the case in Rome of yore, where vast fortunes were made by delators.
What does a common informer look like? According to Jerrold:
“The Common Informer combines in his visage the offensive acuteness of a sharp-practicing attorney, with the restlessness of an illegal pickpocket: we have seen a Common Informer with a face that reminded us of a shaven ferret. We have read what we think may be adduced as good reason for this. Babies feeding at the breast, and gazing up at the face of the parent, are said to become endowed with a resemblance of the mother: the Common Informer, with his eyes constantly fixed on the flaws and crookednesses of the statutes, and feeding upon them, contracts in his features an habitual sharpness and wary meanness of expression, a sort of hungry half-sagacity, illustrative of his beloved studies. The Common Informer is, in fact, the child, the lawful offspring of the silly, the bungling, and the bigoted legislator: hence, the Most Noble the Marquis of —– may, and know it not, be the legislative father of a Johnson and a Byers. If Common Informers have a patron saint, sure we are it must be Saint Stephen.”
“But, it shall be opposed, the Common Informer may be an injured goodness, a real benevolence under a cloud of odium; inasmuch as his labors, suspected and despised as they always are, may, in many instances, enforce the working out of legislative wisdom, and thus ensure to society the blessings of parliamentary philanthropy. All praise to the Common Informer when such is his design! He is then, indeed, a moral presence,–a philosophic goodness toiling under a bad name. Great, indeed, is his character; noble his purpose, contemplated by this light: and yet, unhappily, we cannot call to our recollection the names of any illustrious Informers who, with valuable eccentricity, have worked for the public good in the abstract, where half the imposed fine did not revert to themselves in the concrete….. Bentham has declared the functions of the Common Informer to be most honorable: in truth, Cato, with his sour face and bare feet, might have plied the trade, gaining a civic wreath for the energy and utility of his practice….”
Indeed, the benevolent side of the story had been well elucidated by the inestimable jurist and reformer Jeremy Bentham (1748-1832) and is well worth quoting at length. He rationalized, under the title, “Rationale of Reward,” the provision of bounties to informers:
In this country where, properly speaking, there is no public prosecutor, many offences, which no individual has any peculiar interest in prosecuting, are liable to remain unpunished. In the way of remedy, the law offers from £10 to £20, to be levied upon the goods of the offender, to whoever will successfully undertake this function: sometimes it is added, that the expenses will be repaid in case of conviction: sometimes this is not promised. These expenses may amount to thirty, fifty, and even one hundred pounds; it is seldom as little as twenty pounds. After this, can we be surprised that the laws are imperfectly obeyed?
It may be added, that it is considered dishonorable to attend to this summons of the laws. An individual, who in this manner endeavors to serve his country, is called an informer; and lest public opinion should not be sufficient to brand him with infamy, the servants of the law, and even the laws themselves, have on some occasions endeavoured to fix the stain. The number of private prosecutors would be much more numerous, if, instead of the insidious offer of a reward, an indemnification were substituted. The dishonorable offer being suppressed, the dishonor itself would cease.
And who can say, when by such an arrangement the circumstance which offends it is removed, whether honor itself may not be pressed into the service of the laws? …. In vain did the Roman emperors bestow honors upon the most odious informers; they degraded the honors, but the informers were not the less infamous. But it is not enough that it does not oppose the prejudices: it is desirable that every reward should obtain the approbation of the public. 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.
It is odious (it is said) to profit by the evil we have caused to others. This objection is found on 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 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. 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. Pecuniary may induce false to conspire against the government. If we suppose a public and well-organized system of procedure in which the innocent are not deprived of any means of defense, the danger resulting from conspiracy will appear but small.
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 has failed to cover with all the ignominy they deserve: but these informers were not the executors of the law; they were the executors of the personal and lawless vengeance of the sovereign.
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.
The prejudice also 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.
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.
Three years prior to the publication of Jerrold’s article in the mother country, we find this report, entitled “Report On The Abolition of Capital Punishment” (Paper No. 4, 1837, issued by the Massachusetts House of Representatives Committee on Capital Punishment:
Whereas Revenge is an Unholy Passion and the Law must be Wholly Passionless: There may have been many cases where government found it expedient to employ revenge, as well as other bad passions, to execute its decrees: such a necessity is to be regretted, and the practice abandoned as soon as the necessity ceases. Encouraging common informers was an expedient of this sort, very common in our own laws, but it has been wisely stricken out in almost every instance from the Revised Statutes.” Fixing a price upon the head of a refugee was once thought just and useful, but is now condemned. Promising pardon to an accomplice, to induce him to testify against his fellow criminal, is a use now made of the treachery which is despised while it is used. In a state of nature, every man revenges to the utmost of his power the injury that he has received: retaliation is the only rule of punishment. In a rude state of society these practices are suffered to continue, because they cannot be prevented. The law only undertakes to restrict them within certain limits, and to forbid their most cruel excesses. The legislator, who should enact laws which presuppose a more elevated standard of morality, would find that public opinion did not sustain him, and that his statutes would remain inoperative and useless. It has been observed, that among a people hardly yet emerged from barbarity, punishments should be most severe, as strong impressions are required; but in proportion as the minds of men become softened by their intercourse in society, the severity should be diminished, if it be intended that the necessary relation between the infliction and its object should be maintained. For this reason, the indulgence of individual revenge is much less an evil, while society is obliged to tolerate it, than it would be in a later stage, when it might be, and ought to be suppressed.
Bentham’s suasions held for a century and a half in Britain, but in 1951 fell to an ‘Act to abolish the common informer procedure’ (14 & 15 Geo. 6, c. 39):
“No proceedings for a penalty or forfeiture under any Act in the Schedule to this Act or under any local and private Act shall be instituted in Great Britain against any person after the commencement of this Act. Provided that no part of the penalty or forfeiture is payable to a common informer….”
British lawmakers have since regretted the abolition of rewards to common informers. The practice is alive and well in the United States. On the federal level, the False Claims Act, called the Lincoln Law, was legislated in 1863, subsequently amended, to curb frauds on the government by punishing crooked contractors. To wit, 31 U.S.C. § 3729 et seq., provides for liability for triple damages and a penalty from $5,500 to $11,000 per claim for anyone who knowingly submits or causes the submission of a false or fraudulent claim to the United States. A qui tam provision allows common informers i.e. whistleblowers to sue on behalf of the government and collect from 10 to 30% of the amount recovered. The federal government recovered an estimated $60 billion under the Act since 1987, of which over two-thirds was derived from qui tam actions brought by relators. States and other jurisdictions have similar statutes on the books that allow informants to collect finders’ fees. The rewards may be large. Whistleblowers, who are likely to be fired if they work for the organizations that makes the false claim, may retain law firms to have them reinstated with double back pay and to pursue the case if the government declines to intervene. The chances of recovery are much higher if the government does intervene, accounting for over 95% of recoveries as of 2015.
False claim acts do not include tax fraud. The federal and state governments otherwise pay bounties on amounts recovered from tax fraud to informants who make formal claims with governments when submitting information. Those non-qui-tam informants may not bring the suit for recovery themselves.
As we have seen, the evils of delation are believed to due to pecuniary and other material rewards made available to greedy common informers. On the other hand, greed, if that is what we must call the passion, and protection from retaliation, has results superior to other base motives such as pride, envy, wrath, malice and such. So-called qui tam actions where delators, now called relators, have a right to prosecute as private persons on behalf of government may indeed provide a better incentive for insiders to out wrongdoers than a conscious will to do their ethical duty for the public. Most whistleblowers are insiders simply because they have access inside information. Employers who treat their employees very well are unlikely to be outed by them. And the very high rate of recovery obtained when government intervenes in qui tam filings indicates that the imagination or malicious motives of common informants lead them to file frivolous or false informations.
The good citizen is expected to altruistic or to be good from a sense of duty to the common good and not from selfish reasons. But we cannot be absolutely certain in any case that an actor is self-interested. Why should he be, when the egoistic or “Dear Self” (Kant) is essential to the survival and progress of the human race?
We all have some complaints in common and are all informers to the degree we voice them. The question is, what sort of informers are we, and to what extent? We may reflect on history as if in a mirror and beg askance of our motives for answers.
No doubt the common informer is as good and evil as any other man or single god for that matter. Therefore it behooves government to make the best of him.