REPARATION TO INNOCENT CONVICTS, 511 



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 consti- 

 tutional and legal forms, and that, on the other hand, the individual 

 must be given valid security and effective protection in his constitu- 

 tional rights and liberties — even at this epoch the ground was not pre- 

 pared 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 indi- 

 vidual 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 indi- 

 vidual 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, al- 

 though 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 ac- 

 knowledgment 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 sun- 



