# Popular Science Monthly/Volume 25/August 1884/Reparation to Innocent Convicts

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* REPARATION TO INNOCENT CONVICTS.
By Dr. HEINRICH JAQUES,
OF THE AUSTRIAN CHAMBER OF DEPUTIES.
LEGISLATIVE problems are, like books, subject to vicissitudes. Solutions of the particular questions involved in single cases may seem adequate to satisfy deeply-felt wants of the public; yet it may happen that the attention of the latter is—to the scorn of the previous scientific work of years—first suddenly called to the problems by some unexpected, exciting event. It may equally well happen that a single sensational event may bring into current discussion some legislative question hitherto wholly unconsidered by science. The interest of all students is then turned for a short time to this point; its discussion occupies the saloons, fills the columns of the ​journals, and is echoed from the chairs of the learned; but, after a brief period of agitation, the current interest in the subject declines, other events awaken sympathy or antipathy, and the want which the solution of the question seemed destined to meet, appears to have sunk into abeyance. A third condition is also possible and not rare; it is that science and investigation—even bee-busy German science and investigation—may for years overlook the speculative problem and the real need.
The subject which now engages our attention, and the collateral one of indemnification for unjust or unjustified arrests, have not been spared fatalities of this kind. Under the passionate excitement aroused by the judicial murder of Jean Galas, in France, to which Voltaire gave a world-wide notoriety, public attention was turned with feverish anxiety to the question of indemnifying persons who had suffered under judicial sentence for offenses of which they had been found to be innocent, although the subject had never yet been made a matter of scientific consideration. The Academy of Châlons-sur-Marne made its celebrated offer of prizes for the solution of the question. The subject had a place in the memorable portfolio of the deputies to the States-General of 1789; and Louis XVI himself and his statesmen, a Necker and a Pastoret, had it on their programmes. Excessively crude and ill-considered attempts were made to solve it. Two of the prize-writers, Brissot de Warville and Philippon de la Madeleine, proposed decorations, especial rewards, and national honors for persons who had suffered under unjust condemnation, as if the bearing of a wrong and the rendering of a service stood on the same level; as if the award of distinctions and elevation in rank could be made adequate equivalents for injuries inflicted by the mistakes of the state's agents. The visionary mood of the French people subsided, the excitement passed away; and, although the question has never since been lost sight of in the criminal literature of the country, it has not yet been solved. Napoleon III of his own initiative issued pardons in several cases in which no right of appeal had been recognized in legislation. In Italy, a mark was made by Filangieri's efforts to introduce reforms, and legislative recognition of the right to indemnity was secured for the first time in the laws of Leopold II of Tuscany, and of Naples; but the question was overlooked in the codification of the laws of the new kingdom, and the noble efforts of Carrara and Lucchini to secure consideration of it have remained to this day without practical result. In England, except for Jeremy Bentham, juridical literature is, so far as we know, silent on the subject. Those acts of Parliament which have awarded indemnities in cases of peculiar hardship, as in those of the German preacher Hessel and of Bewicke, have advisedly left out of sight the point of principle, which Lord Grey warned his countrymen was entirely sentimental and unapproachable. The cantonal legislation of Switzerland, which Geyer has recently elucidated in a ​number of valuable expositions, is, in respect to our question, far in advance of that of the whole continent. In Germany, Heinze brought the problem in its wider aspects under discussion about ten years ago, and the German Juristentag began a searching investigation of it. But so remote was the subject then for the otherwise far-sighted legal world of Germany, that the Juristentag had to speak three times upon it, at Hanover, Nuremberg, and Salzburg, before it could arrive at a communis opinio. This ten years' work would have gone without result, had not a number of striking cases of unjust condemnation recently grieved the public sense of right, led to the introduction of motions in the German Reichstag and the Austrian Reichsrath, and called out a considerable literature of pamphlets and essays by Geyer, Jaques, Schwarze, Lilienthal, List, Kronecker, Gernerth, Bar, Bähr, Jacobi, and the anonymous author of the admirable little treatise, "Gerichtsaal." If, on the other hand, we review the German literature—including discussions of principles and text-books—on criminal process up to the papers that were prepared for the Juristentag of 1874, we shall find it wholly silent with respect to our question. This silence is easily understood, in view of what we have said. For the monographic division and subdivision to which legal science, after premature and futile efforts to give it philosophical comprehension, was subjected, with the object of sounding it in detail and mastering the concrete material, involved the laying aside of those problems which had to be solved rather by a simultaneous and uniform review than by any special legal study. To this class of problems belongs our question, which appears to partake at once of the nature of public and private right; to it, to cite a pair of related examples, belong the testing of the constitutionality of laws by the courts, which enters at the same time into the administrative and the judicial domain; and the question of the distinctions between civil and criminal injuries, the scientific solution of which is deduced from both private and criminal law. To it belongs also the question of the responsibility of the state for the faults of its officers, the solution of which again presumes a weighing of factors of private and public law, and this solution science has not until very recently troubled itself to advance.
These changes of aspect and alternatives, by reason of which the cause of reproach exists, that, except in Switzerland, the right of innocent convicts to indemnification has not till the present time received legislative recognition in any European state, have their deeper causes in closest connection with the course of civilizational and political development. So long as the right of the whole public was embodied in the absolute lord's will—so long as the principle prevailed of that lex regia transmitted from the Roman law which said, "Princeps legihus solutus est"—so long could there not be the remotest suggestion of the right to an indemnity based upon the fact of an unjust condemnation, or of an appeal by the individual against the state. How could a claim ​be established against the state, which could not offend, or against its agents, who as such could do no wrong? Even in a much later stage of development, at the epoch when the germs of the modern legal state began to strike root in the public consciousness—at the epoch when there no longer existed any hesitation in affirming that the state could justly carry out its action toward individuals only according to constitutional and legal forms, and that, on the other hand, the individual must be given valid security and effective protection in his constitutional rights and liberties—even at this epoch the ground was not prepared for the admission of claims for damages in cases of injurious misjudgments by the officers of justice. It could indeed be remarked on this point that the state organs could injure and wrong the individual if they designedly or carelessly failed to regard constitutional rules as toward him. But if there could be in this case consideration of claims for damages, did they not have to rest upon two principles that stood in inseparable connection with the traditional categories of the Roman civil law, which has prevailed even in public life until very recently? First, upon the fact that a wrong, of design or negligence, is in question; and, second, upon the other fact that the injured person has to look for the bearer of the responsibility in the matter, not to the state, a juristic impersonation incapable of wrong, but to the individual author of the injury himself, in the present case to the judge, who has not fully discharged his official duty in the particular case, but has rather violated it. Then arose the further advanced idea, only corresponding with the gradual growth of strength in the civic feeling and with the more deep-reaching demands of freedom, that the state itself ought to make amends for injuries to civil rights by its officers, and that this duty of indemnification was imposed upon it, when, although still only objectively infringing upon the sphere of individual rights, it should be found doing wrong and inflicting injury, and that independently of and wholly uninfluenced by the consideration of whether or not a subjective injury existed in consequence of its act.
Yet another most important advance had to be made to give full clearness to the position in public law of the individual as toward the state, and sharply to describe the circle of competence of the public as well as of individuals toward one another. It was to secure an acknowledgment resting upon economical and social as well as upon ethical principles, that all the burdens that are laid upon individuals must be laid with perfect impartiality; and that if the state would be a law-regulated state, a kingdom of justice in the true sense of the word, it should not oblige any individual to make a greater sacrifice for it than all the others.
Not till this principle was recognized was a solid basis gained for the legal right of an innocent convict to demand an indemnity from the state. It must now be plain to every one, and as clear as the ​sunlight, that the same rule should prevail with respect to the burden of justice which the state imposes upon individuals as with respect to the burden of taxation or of military service. As the state exacts a universal military obligation which no individual has a right to evade, so, inversely, the individual who enjoys the knowledge of his own innocence has the right to require that the law, to which every one without exception has to submit unconditionally without resistance and without objection, shall commit no offense toward him. If, however, by a casual concatenation of circumstances, or through erroneous suspicions, or by means of false evidence, more suffering or a greater sacrifice is imposed upon one individual than all the others have to bear, it becomes the unavoidable obligation of the state to make amends to him for the excessive burden he has to carry. The duty is an obligation in the strongest sense of the word, and not in the remotest degree a mere matter of equity or of humanity or of favor. For why does this individual have, at the price of his freedom, his honor, his social position, his power to make money, his health and ability to work, of pain and care, and perhaps of misery to his family, to appear and make a sacrifice of himself that the judicial department of the state may exercise its function? Why must he suffer for the mistakes, even if they are unavoidable mistakes, of the state organs? If any one is assessed too highly by some mistake in taxation, even though the error may be in fact pardonable and perhaps unavoidable, does not the financial department consider itself obliged to return to him the whole amount of the excess of the levy, with interest? And if another person has been obliged without any real ground of justice to make a gratuitous sacrifice of his best goods to the judicial administration of the state, is not the state unavoidably pledged to make to him as adequate a reparation for the wrong as is possible? All the analogies of private law, which have been adduced in rebuttal of the state's obligation, fail in the application. The maxim "qui suo jure utiter, neminem lœdit" ("he who exercises his own right is responsible for no one's injury") does not apply, for the prosecuting state can exercise suum jure (its right) only against one who has been delinquent, but no right, rather a wrong, toward a guiltless person. Inapplicable also is the maxim, "casus nocet domino" ("damage from accident falls upon the lord"), for if by a false generalization the error of judicial organs is designated as a casus (an accident), as force majeure (superior force), the dominus (or lord), upon whom the burden of the casus (or accident) follows, is no other than the state itself. Futile and confusing to clear judgment is also the introduction of other apparently closer-lying analogies of private law, as, for example, of the right of condemnation for railroad and mining enterprises, insurance against violence, and the like. For the legal claim we are speaking of here rests on a basis of public right, on the just limitation of the right and duty of the state as the incorporation of the whole public ​as toward the individual, and vice versa; it has, besides, its own independent bases, and the other cases are essentially not competent to sustain it.
Respecting the provisions of a law embodying the principle we have been trying to elucidate, but little more can be said than to refer to the bill which has been approved by the Austrian Chamber of Deputies, and whose passage in the Upper Legislative House is anticipated. The easiest accessibility to the courts for the parties, an obligatory stipulation for the gratuitous representation of poor suitors in establishing their claim, an official preliminary investigation, public oral pleadings according to the rules of civil process, the free examination of witnesses, the designation of the amount of indemnity after an open judicial estimation, inquiry into every kind of injury that may have been suffered, and a system of procedure corresponding with these conditions, are obvious points. To these may be added the lapse of the privilege of making the claim after a properly defined interval (one year in the Austrian bill), and in cases where the condemned person has voluntarily filled out his sentence. Extreme care should, however, be taken to give a precise definition to the latter limitation; for it would be wholly unjustifiable to punish the thoughtlessness or ordinary negligence of an uneducated or imperfectly informed person, in failing to produce the evidence in his favor, with the loss of the right of appeal. But gross negligence may be considered in concrete cases to have been designed.
We have thought it proper to limit our discussion in this place to the question of the indemnification of persons who have been unjustly condemned, and have advisedly left out of view the question, closely connected with it in principle, of damages to those who have been subjected to causeless prosecutions. It is well to be satisfied for the time with securing the more important object as a beginning, without imperiling it by complicating it with other conditions. The principle of the matter is carried with the first part, while the second part of our problem may be left to mature itself and pass its course of scientific discussion. In the mean time we, who have labored for ten years in this cause, will regard the result we expect soon to obtain as only a step—as an installment—and will be encouraged by our success to strive for the attainment of the other object.—Translated for the Popular Science Monthly from the Deutsche Rundschau.