The King's Friends
England in the 18th century had neither police nor public prosecutors; any crime could be prosecuted by any Englishman. In practice most criminal cases, like tort cases in our legal system, were prosecuted by the victim or his agent. The quote above suggests one reason why they did it that way, one advantage of a legal system where offenses are privately prosecuted, such as tort law, over a system where prosecution is by the state, such as modern criminal law.
I was reminded of this point by the recent controversy over warrentless wiretaps. FISA, the Foreign Intelligence Surveillance Act, which was created to control such activities, provides for a special court to issue warrants for wiretaps intended to intercept communications by a foreign enemy or "a group engaged in international terrorism or activities in preparation therefor." The National Security Agency, by its own admission, engaged in a large number of such wiretaps without such warrants, in apparent violation of the clear letter of the law.
The administration argues, on grounds that I, at least, find unconvincing, that the acts were legal. Presumably the question will eventually reach the Supreme Court. It is at least possible that the court will reach the same conclusion that I, the Congressional Research Service, and at least some legal scholars have reached.
FISA prescribes penalties for anyone who "engages in electronic surveillance under color of law except as authorized by statute." If the Supreme Court finds the administration's arguments unconvincing, that describes hundreds, perhaps thousands, of people working for the NSA. It also prescribes penalties for anyone who "discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute." That describes any member of the Administration, from the President down, who was aware of the NSA program and used the information it produced.
"An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both." Foreign Intelligence Surveillance Act § 1809. c.
What odds would anyone like to offer that any of the people arguably guilty of that offense will end up spending five years in prison, or paying a $10,000 fine?
My article "Making Sense of English Law Enforcement in the 18th Century"
An examination of the legality of the NSA wiretapping from The Volokh Conspiracy