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.
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