Criminal Sociology [66]
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, notwithstanding 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
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, notwithstanding 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