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 <p 157>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<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.