To return to the popular penal action, it is so com<p 158>monly 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 Ch<a^>lonssur-Marne offered a prize for an essay on the subject, and awarded it to Brissot de Warville, for his work, <p 159>``Le Sang Innocent Veng<e'>.'' In the records of the <E'>tats G<e'>n<e'>raux 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 Ch<a^>lonssur- 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 D<e'>put<e'> Pieyre, and in 1890 by D<e'>put<e'> 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, H<e'>lie, 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 <p 160>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, Neuch<a^>tel, Geneva, B<a^>le, and Berne.
The legal principle that the State ought to indemnify material and moral injury inflicted by its functionaries, through malice or negligence, on a citizen who has done nothing to subject himself to prosecution or condemnation, cannot be seriously contested. But the whole difficulty is reduced to deciding in what cases the right to indemnification ought to be <p 161>recognised, and then to providing a fund out of which the State can discharge this duty.
For the latter purpose it would be necessary to include an adequate sum in the Budget. This was done in Bavaria, in 1888, by setting apart 5,000 marks annually; and the first who profited by this provision received a pension of 300 marks per annum, after being rendered incapable of work by seven years' imprisonment for a crime which he had not committed. But if the policy of retrenchment imposed on the European States by their insane military expenditure and their chronic wars prevents the carrying out of this proposal, there is the Italian precedent of the Treasury of Fines, which, with the fines inflicted, or which ought to be inflicted on convicted persons, and the product of prison labour, would provide the necessary amount for the indemnities which the State ought to pay to innocent persons who have been condemned or prosecuted, as well as to the victims of offences.
As for the cases in which a right to indemnification for judicial errors ought to be acknowledged, it seems to me evident in the first place that we must include those of convicted persons found to be innocent on a revision of the sentence. Amongst persons wrongfully prosecuted, I think an indemnity is due to those who have been acquitted because their action was neither a crime nor an offence, or because they had no part in the action (whence also follows the necessity of verdicts of Not Proven, so as to distinguish cases of acquittal on the ground of proved innocence)—always provided that the prosecuted persons have not given a reasonable pretext for their trial by their <p 162>own conduct, or their previous relapse, or their habitual criminality. The third proposition of the positive school in regard to individual guarantees, which was also advanced by M. Puglia, is connected with reform of the penal code, and especially with the more effectual indemnification of the victims of crime. The object is to prune the long and constantly increasing list of crimes, offences, and contraventions of all acts which result in slight injury, committed by occasional offenders, or ``pseudo- criminals''—that is, by normal persons acting merely with negligence or imprudence. In these cases the personal and social injury is not caused maliciously, and the agent is not dangerous, so that imprisonment is more than ever inappropriate, unjust, and even dangerous in its consequences. Deeds of this kind ought to be eliminated from the penal code, and to be regarded merely as civil offences, as __*simple__ theft was by the Romans; for a strict indemnification will be for the authors of these deeds a more effectual and at the same time a less demoralising and dangerous vindication of the law than the grotesque condemnation to a few days or weeks in prison. It will be understood that the classical theory of absolute and eternal justice cannot concern itself with these trifles, which, nevertheless, constitute two-thirds of our daily social and judicial existence; for, according to this theory, there is always an offence to be visited with a proportionate punishment, just as with a murder, or a highway robbery, or a slanderous word. <p 163>But for the positive school, which realises the actual and practical conditions of social and punitive justice, there is on the other hand an evident need of relieving the codes, tribunals, and prisons from these microbes of the criminal world, by excluding all punishments by imprisonment for what Venturi and Turati happily describe as the atomic particles of crime, and by relaxing in some degree that monstrous network of prohibitions and punishments which is so inflexible for petty transgressors and offenders, but so elastic for serious evil-doers.