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3.1. I.

In the first place, whilst the positive theories largely reduce the practical importance of the penal code, yet they do more to increase the importance of the rules of penal procedure, which are intended to give practical and daily effect to penal measures, for the defence of society against criminals. For, as I maintained in the Italian Parliament, if the penal code is a code for evil-doers, that of penal procedure is a code

for honest people, who are placed on their trial but not yet found guilty.

This is all the more true because, if it is possible to have penal codes whose machinery of psychological coercion is planted on a platonic platform of penitentiary systems written out fair in their symmetrical clauses, but still non-existent, as is the case in Italy, this is not possible in regard to penal procedure. The regulations of the code of "instruction" must of necessity be carried out by a judicial routine. The penal code may remain a dead letter, as, for instance, when it says that punishment by detention is to be inflicted in prisons constructed with cells; for, happily, the cells necessary in Italy for fifty or sixty thousand prisoners (or in France for thirty or forty thousand) are too expensive to admit of the observance of these articles of the penal code—which nevertheless have cost so many academic discussions as to the best penitentiary system: "Auburn," "Philadelphian," "Irish," or "progressive." In the organisation of justice, on the other hand, every legal regulation has its immediate application, and therefore reforms of procedure produce immediate and visible results.

It may be added that, if the slight deterrent influence which it is possible for punishment to exercise depends, with its adaptation to various types of criminals, on the certitude and promptitude of its application, the others depend precisely and solely on the organisation of the police, and of penal procedure.

Passing over special and technical reforms which

even the classical experts in crime demand in the systems of procedure, and often rather on behalf of the criminals than on behalf of society, we may connect the positive innovations in judicial procedure with these two general principles:—(1) the equal recognition of the rights and guarantees of the prisoner to be tried and of the society which tries him; and (2) the legal sentence, whereof the object is not to define the indeterminable moral culpability of the prisoner, nor the impersonal applicability of an article in the penal code to the crime under consideration; but the application of the law which is most appropriate to the perpetrator of the crime, according to his more or less anti-social characteristics, both physiological and psychological.

From Beccaria onward, penal law developed by reaction against the excessive and arbitrary severity of the Middle Ages—a reaction which led to a progressive decrease of punishments. Similarly official penal procedure in the nineteenth century has been, and continues to be, a reaction against the mediæval abuses of the inquisitorial system, in the sense of a progressive increase of individual guarantees against the domination of society.

As we considered it necessary in the interests of social self-defence, in the case of criminal law, to combat the individualist excesses of the classical school, so in regard to penal procedure, whilst admitting the irrevocable guarantees of individual liberty, secured under the old system, we think it necessary to restore the equilibrium between individual and social rights, which has been disturbed

by the many exaggerations of the classical theories, as we will now proceed to show by a few examples.

The presumption of innocence, and therewith the more general rule, "in dubio pro reo," is certainly based on an actual truth, and is doubtless obligatory during the progress of the trial. Undetected criminals are fortunately a very small minority as compared with honest people; and we must consequently regard every man who is placed on his trial as innocent until the contrary has been proved.

But when proof to the contrary is evident, as, for instance, in the case of a flagrant crime, or of confession confirmed by other elements in the trial, it seems fit that the presumption should cease in view of absolute fact; and especially when we have to do with habitual criminals.

Even the criminals of this class whom I have questioned recognise a presumption of the opposite kind. "They have convicted me," said an habitual thief, "because they knew I might have done it, without any proof; and they were in the right. You will never be convicted, because you never stole; and if we happen to be innocent once in a way, that must be set against the other times when we are not discovered." And the ironical smile of several of these prisoners, condemned on circumstantial evidence, reminded me of a provision which was once proposed in the Italian penal code, under which a person surprised in the attempt to commit a crime, if it was not known what precise form his crime would have taken, was to be found guilty of a less serious offence. This might be good for an occasional criminal,

or a criminal of passion, but would be absurd and dangerous for habitual criminals and old offenders.

The exaggerations of the presumption "in dubio pro reo" are due to a sort of mummification and degeneracy of the legal maxims, whereby propositions based upon observation and generalisation from existing facts continue in force and are mechanically applied after the facts have changed or ceased to exist.

What reason can there be for extending provisional freedom, pending an appeal, to one who has already been found guilty and liable to punishment for a crime or offence, under sentence of a court of first instance? To presume the innocence of every one during the first trial is reasonable; but to persist in a presumption which has been destroyed by facts, after a first condemnation, would be incomprehensible if it were not a manifestly exaggerated outcome of classical and individualist theories, which can only see a "victim of authority" in every accused person, and in every condemned person also.

Another point is that of acquittal in case of an equality of votes, especially where born and habitual criminals are concerned. I think it would be much more reasonable to restore the verdict of "not proven," which the Romans admitted under the form of "non liquet," as an alternative to "absolvo" and "condemno," and which may be delivered by juries in Scotland. Every one who has been put on his trial is entitled to have his innocence declared, it it has been actually proved. But if the proofs remain incomplete, his only right is not to be condemned,

since his culpability has not been proved. But it is not the duty of society to declare him absolutely innocent, when suspicious circumstances remain. In this case the only logical and just verdict is one of "not proven." Such a verdict would obliterate the shadow of doubt which rests on persons who have been acquitted, by reason of the identical verdicts in cases of proved innocence and inadequacy of proof, and on the other hand it would avoid the tendency to compromise, under which judges and juries, in place of acquitting when the proof is insufficient, sometimes prefer to convict, but make the punishment lighter.

Another case of exaggeration in the presumption of innocence is afforded by the regulations as to contradictory or irregular verdicts, which may be corrected only when there has been a conviction; whilst if the error has led to the acquittal of an accused person, it cannot be put right. The influence of the individualist and classical school is here manifest, for, as M. Majno says, "the justice of sentences rests as much on just condemnations as upon just acquittals." If the individual has a right to claim that he shall not be condemned through the mistake or ignorance of his judges, society also has the right to demand that those whose acquittal is equally the result of mistake or ignorance shall not be allowed to go free.

On the same ground of equilibrium between the rights of the individual and the rights of society, which the positive school aims at restoring, something must be said as to the regulation by which, if the

appeal is brought by a condemned person, the punishment cannot be increased. One classical expert in an official position would not even give the right to appeal at all.

Now if appeal is allowed for the purpose of correcting possible mistakes on the part of the original judges, why must we allow this correction in mitigation, and not in increase of punishment? And to this practical assurance of the condemned person that he has nothing to fear from a second trial, which seems to have been given to him for the sole purpose of encouraging him to abuse his power, since appeals are too often a mere dilatory pretext, there is a pendant in the right of the public prosecutor to demand a re-hearing, but only "in the interest of the law, and without prejudice to the person acquitted."

A last instance of the same kind of protective regulation for the protection of evil-doers is to be found in the new trials which are permitted only in cases where there has been a condemnation, and that on arbitrary and superficial grounds. Most of the classical commentators on procedure do not dream of the possibility of revision in the case of acquittals, and yet, as Majno justly says, "even if he has profited by false witness, forged documents, intimidation or corruption of a judge, or any other offence, the acquitted person calmly enjoys his boast, and can even plume himself on his own share in the business without fear of being put on his trial again." The Austrian and German codes of procedure admit revision in cases of acquittal; and the positive rule in this connection ought to be that a case should be

re-heard when the sentence of condemnation or acquittal is evidently erroneous.

From the same principle of equality between the guarantees of the individual criminal and of honest society we infer the necessity of greater strictness in the idemnification of the victims of crime. For the platonic damages now added to all sorts of sentences, but nearly always ineffectual, we believe that a strict obligation ought to be substituted, the operation of which should be superintended by the State, in the same way as the other consequence of the crime, which is called the punishment. I will return to this when I trace the outline of the positive system of social defence against criminals.

The positive school, precisely because it aims at an equilibrium between individual and social rights, is not content with taking the part of society against the individual. It also takes the part of the individual against society.

In the first place, the very reforms which we propose for the indemnification of the victims of crime, regarded as a social function, as well as the operation of the punishment, have an individualist character. The individualism of the classical school was not even complete as a matter of fact; for the guarantees which it proposed took account of the individual criminal only, and did not touch his victims, who are also individuals, and far more worthy of sympathy and protection.

But, beyond this, we may point to three reforms as an instance of the positive and reasonable guarantees of the individual against the abuse or the defects of

social authority. Of these reforms two have been put forward by the classical school also, but, like criminal lunatic asylums, alternatives for short terms of imprisonment, and so on, they have generally remained inoperative, for they are not in harmony with the bulk of traditional theory, and only in a positive system have they any organic and efficacious connection with the data of criminal sociology. I refer to the exercise of popular opinion, the correction of judicial mistakes, and the transfer of sundry punishable offences to the category of civil contraventions.

The institution of a Ministry of Justice corresponds to the demands of general sociology, which exacts division of labour even in collective organisms, and to those of criminal sociology, which requires a special and distinct organ for the social function of defence against crime. Indeed it has become indispensable as a necessary judicial organ, even in nations like England which have not yet formally established it. So that, far from confounding the Public Prosecutor with the judicial body, we see the necessity of giving to this office a more elevated character and a distinct personality, with ampler guarantees of independence of the executive power.

Nevertheless the action of the Ministry of Justice, as now commonly organised, may be inadequate for the protection of the victims of crime, either indirectly through the insufficient number of its functionaries, or directly, through the functional defect insisted on by M. Gneist, "party spirit or prejudice in favour of the governing powers." The latter, indeed, notwith

standing M. Glaser's objection that government pressure is impossible, have no need to give special instructions, of a more or less compromising character, in order to exercise a special influence in any particular case. There is no necessity for anything beyond the conservative spirit natural to every institution of the State, or the principle of authority which is a special form of it, apart from the less respectable motives of interested subservience to such as are in office and dispense promotion.

Hence it will be useful, in initiating criminal proceedings, to add to the action of a Public Prosecutor (but not to substitute for him) the action of private persons.

Criminal proceedings by citizens may take two forms, according as they are put in operation only by the injured person or by any individual.

The first mode, already allowed in every civilised nation, needs amendment in various ways, especially in regard to the subordination of the penal action to the plaint of the injured person, which ought to be restrained, and even abolished. In fact, whereas this right has hitherto been regulated by law only in view of the legal and material gravity of the offence, it should in future be made to depend on the perversity of the offender; for society has a much greater interest in defending itself against the author of a slight offence if he is a born criminal or a criminal lunatic, than in defending itself against the author of a more serious crime, if he is an occasional criminal or a criminal of passion. And the necessity of bringing a private action in regard to certain offences

is only a source of abuses, and of demoralising bargains between offenders and injured persons.

On the other hand, this prosecution by a citizen who has been injured by a crime or an offence ought to have more efficacious guarantees, either for the exercise of the rights of the injured person, or against the possible neglect or abuse of the Public Prosecutor. If, indeed, he is obliged to take up every charge and action, he is also (in Italy and France, but not in Austria or Germany, for instance) the only authority as to penal actions, and consequently as to penal judgments.

In Italy, out of 264,038 cases which came before the Public Prosecutor in 1880, six per cent., or 16,058, were "entered on the records," or, in other words, they were not followed up; and in 1889, out of a total of 271,279, the number of unprosecuted cases was 27,086, or ten per cent. That is, the number had almost doubled in ten years.

In France the annual average of plaints, charges, and trials with which the Public Prosecutor was concerned stood at 114,181 in the years 1831-5; at 371,910 in 1876-80; and at 459,319 in 1887. And the cases not proceeded with were 34,643, or thirty per cent., in 1831-5; 181,511, or forty-eight per cent., in 1876-80; and 239,061, or fifty-two per cent., in 1887. That is to say, their actual and relative numbers mere nearly doubled in fifty years.

Is it possible that in ten, or even in fifty years, the moral conditions of a nation, and its inclination to bring criminal charges, should be so modified that the number of cases devoid of foundation should have

been almost doubled? It is certain that in different nations and different provinces there are varying degrees of readiness to bring charges against lawbreakers rather than to take personal vengeance. But in one and the same nation this vindictive spirit and this readiness to bring charges cannot vary so greatly and rapidly, especially within ten years, as in Italy; for the persistence of popular sentiment is a well-known fact. It is rather in the disposition of the functionaries of the Ministry of Justice, which is far more variable, that we must look for an explanation of this fact, which is also accounted for by the tendency to diminish the statistical records of crime.

Now, why must the citizen who lodges a complaint of what he considers a crime or offence submit to the decision of the Public Prosecutor, who has allowed his action to drop? This consideration has led to the subsidiary penal action, already allowed in Germany and Austria, and introduced in the draft codes of procedure in Hungary, Belgium, and France, which is a genuine guarantee of the individual as against the social authority. We must not, however, deceive ourselves as to the efficacy or frequency of its operation, especially in the Latin nations, which have none too much individual initiative.

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 com

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 Châlonssur-Marne offered a prize for an essay on the subject, and awarded it to Brissot de Warville, for his work,

"Le Sang Innocent Vengé." In the records of the États Généraux 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 Châlonssur-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 Député Pieyre, and in 1890 by Député 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, Hélie, 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, Neuchâtel, Geneva, Bâle, 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

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

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.

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.