Page:Popular Science Monthly Volume 25.djvu/525

Rh 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