In some of the original States a justice of the peace or higher magistrate, in whose actual presence certain misdemeanors were committed, could deal with the offender summarily and sentence him to a fine without any written complaint or warrant. This was a survival of colonial conceptions of the majesty of official station, and the statutes justifying the practice soon became practically obsolete.
It is one of the distinguishing features of the English system of criminal procedure that any private individual can initiate a criminal prosecution, and that prosecutions are generally instituted in that manner. In doing so, he exercises a right belonging to every member of the general public, and the proceeding is, in that point of view, a public one.[Footnote: See Maitland, "Justice and Police," 141.] At common law there were but two guaranties against thus bringing forward frivolous or malicious accusations. The complainant was obliged to verify his charge by oath, and he was liable to a civil action if the defendant was acquitted and it appeared that there was no reasonable ground for the prosecution.
In some of our States, also, if any private individual files a complaint under oath before a proper magistrate accusing another of a properly specified offense, a warrant of arrest may issue. In many there are statutes authorizing _qui tam_ actions to be brought by any one. These are actions to recover a statutory penalty prescribed for some wrongful act in the nature of a misdemeanor. The term _qui tam_ comes from the Latin terms of the old English writ used for such proceedings, in which the plaintiff describes himself as one _qui tam pro domino rege quam pro seipso in hoc parte sequitur_. The plaintiff is styled "a common informer," and his action is for the joint benefit of himself and of the State, or of some other public corporation or officers designated by the statute. He is sometimes given an option to sue in the form of a civil action, or by an information and the use of criminal process. In proceedings of the latter description a warrant issues upon which the defendant is liable to arrest.[Footnote: Canfield _v._ Mitchell, 43 Conn. Reports, 169.] The action may, under some statutes, be brought in the name of the government, though by and at the cost of the informer. In such case, unless it is otherwise provided, he retains the exclusive management of the cause as fully as if he appeared as the sole plaintiff on the face of the record. If the plaintiff obtains judgment, and collects the penalty, he must pay half of it over to the government. If he fails, he is personally liable to the defendant for the taxable costs of the action. Under such a statute, a public prosecuting officer can sue for the entire penalty, whenever no action has been brought by a private individual.