510 THE POPULAR SCIENCE MONTHLY. 



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, Bahr, 

 Jacobi, and the anonymous author of the admirable little treatise, 

 " Gerichtsaal." If, on the other hand, we review the German litera- 

 ture — 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 pre- 

 mature 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 ques- 

 tion, 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 test- 

 ing 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 inno- 

 cent 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 de- 

 velopment. 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 esf^ — 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 



