The second form of private prosecution is that of the ``popular punitive action,'' which existed in the Roman penal law--which, it may be said in passing, is not so insignificant as the classical school has supposed. The statement of M. Carrara, too often repeated, that ``The Romans, who were giants in civil law, are pigmies in penal law,'' is not in my opinion correct. It is true that the Roman penal law was not organised in a philosophical system; but it exhibits throughout the wonderfully practical judgment of the Roman jurisconsults; and indeed one cannot see why they should have lost this sense when dealing with crimes and punishments. On the other hand, I am inclined to think that the importance of the Roman civil law has been exaggerated, and that the spirit of the corpus juris springs from social and economic conditions so different from our own that we can no longer feel bound to submit to its tyranny. The penal law of the Romans, however, contains several maxims based on unquestionable common sense, which deserve to be rescued from the oblivion to which they have been condemned by the dogmatism of the classical school. Examples of these are the popular punitive action; the distinction between dolus bonus and dolus malus, which belongs to the theory of motives; the stress laid upon intentions rather than upon their actual outcome; the law of exceptio veritatis in cases of slander, which under the pharisaism of the classical theory serves only to give immunity to knaves; the penalty of twofold or threefold restitution for theft, in place of a few days or weeks in prison; the condemnation of the most hardened criminals to the mines, instead of providing them with cells, as comfortable as they are ineffectual--apart from the consideration that the firedamp in mines and the unhealthiness of penal settlements would be less mischievous if their victims were the most dangerous criminals rather than honest miners and husbandmen.
To return to the popular penal action, it is so commonly advocated, even by the classical school, that it is necessary to say another word on the subject.
Gneist, from his special point of view, proposed that this action should be introduced into penal procedure, as against electoral and press offences, offences against the law of public meetings and associations, and the abuse of public authority. But I consider that this action would be a necessary guarantee, in the case of all crimes and offences, for a reasonable and definite adjustment of the rights of the individual and of society.
Another reform, tending to a more effective guarantee of individual rights, is the revision of judicial errors in the interests of all who are unjustly condemned or prosecuted. Such a reform has been advocated also by several members of the classical school; but it seemed only too likely to remain with them a mere benevolent expression of opinion; for it can only be carried into effect by curtailing imprisonment, and by a more frequent and stringent infliction of fines, as advocated by the positive school.
Sanctioned in some special cases, as an exceptional measure--as, for instance, in the last century by the Parliament of Toulouse, and in our age by the English Parliament--compensation for judicial errors was rendered necessary in France at the end of the eighteenth century, after a series of unjust condemnations, even death sentences, which led Voltaire and Beccaria to demand the abolition of capital punishment. In 1781 the Society of Art and Literature at Chalonssur-Marne offered a prize for an essay on the subject, and awarded it to Brissot de Warville, for his work, ``Le Sang Innocent Venge.'' In the records of the Etats Generaux there were many votes in favour of this reform, which Louis XVI. caused to be introduced on May 8, 1788. In 1790 Duport brought in a measure in the Constituent Assembly; but it was rejected after a short discussion in February, 1791, during which the same practical objections were urged as have been repeated up to the present time. Nevertheless, the Convention decreed special indemnities, as, for instance. a thousand francs in 1793 for one Busset, ``for arbitrary imprisonment and prosecution.'' In 1823 the above-named Society at Chalonssur- Marne proposed the same subject for an essay; and it has been the object of sundry proposals, all rejected, as in 1867 during the discussion on criminal appeals, on amendments moved by Jules Favre, Richard, and Ollivier; and again in 1883 by Depute Pieyre, and in 1890 by Depute Reinach.
This reform has been advocated by Necker, amongst other writers, in his memoir on ``Financial Administration in France,'' and by Pastoret, Voltaire, Bentham, Merlin, Legraverend, Helie, Tissot, and more comprehensively by Marsangy in his ``Reform of the Criminal Law'' (1864). Marsangy advocated many other practical reforms which have since been adopted, in substitution for the objectionable short terms of imprisonment. More recently the subject has been treated in France by the magistrates Bernard, Pascaud, Nicolas, Giacobbi, and by the Attorney-Generals Molines, Jourdan, Houssard, Dupry, Bujard, in their inaugural addresses.
In Italy there was a notable precedent for this reform in the Treasury of Fines, established for Tuscany in 1786, and for the kingdom of the Two Sicilies in the penal code of 1819, for the purpose of creating a fund for compensation in cases of judicial error. In 1886 Deputy Pavesi brought in a measure which was not discussed; and this indemnification, which had already been proposed in 1873 by De Falco, keeper of the seals, in his draft of an Italian penal code, was not included in subsequent Bills, mainly on account of the financial difficulties. Amongst writers on criminology, it was advocated in Italy by Carrara, Pessina, and Brusa; in Germany by Geyer and Schwarze; in Belgium by Prins and others, and more recently by M. Garofalo, in his report to the third National Congress on Law, at Florence, in September, 1891.
Amongst existing laws, indemnification for judicial errors, whether limited to cases in which the innocence of condemned persons can be proved, or extended to persons wrongfully prosecuted, is included in the penal codes of Hungary and Mexico, and by special laws in Portugal (1884), Sweden (1886), Denmark (1888), and especially in Switzerland, in the cantons of Fribourg, Vaud, Neuchatel, Geneva, Bale, and Berne.