512 THE POPULAR SCIENCE MONTHLY, 



light, 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, how- 

 ever, by a casual concatenation of circumstances, or through erro- 

 neous 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 admin- 

 istration 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 IcediV ("he who exercises his own right is respon- 

 sible for no one's injury ") does not apply, for the prosecuting state 

 can exercise suumjure (its right) only against one who has been de- 

 linquent, but no right, rather a wrong, toward a guiltless person. In- 

 applicable 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, insur- 

 ance against violence, and the like. For the legal claim we are speak- 

 ing 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 



