Criminal Sociology [68]
seemed only too likely to remain with them a mere benevolent expression of opinion; for it can only be carried into effect by curtailing imprisonment, and by a more frequent and stringent infliction of fines, as advocated by the positive school.
Sanctioned in some special cases, as an exceptional measure--as, for instance, in the last century by the Parliament of Toulouse, and in our age by the English Parliament--compensation for judicial errors was rendered necessary in France at the end of the eighteenth century, after a series of unjust condemnations, even death sentences, which led Voltaire and Beccaria to demand the abolition of capital punishment. In 1781 the Society of Art and Literature at Chalonssur-Marne offered a prize for an essay on the subject, and awarded it to Brissot de Warville, for his work, ``Le Sang Innocent Venge.'' In the records of the Etats Generaux there were many votes in favour of this reform, which Louis XVI. caused to be introduced on May 8, 1788. In 1790 Duport brought in a measure in the Constituent Assembly; but it was rejected after a short discussion in February, 1791, during which the same practical objections were urged as have been repeated up to the present time. Nevertheless, the Convention decreed special indemnities, as, for instance. a thousand francs in 1793 for one Busset, ``for arbitrary imprisonment and prosecution.'' In 1823 the above-named Society at Chalonssur- Marne proposed the same subject for an essay; and it has been the object of sundry proposals, all rejected, as in 1867 during the discussion on criminal appeals, on amendments moved by Jules Favre, Richard, and Ollivier; and again in 1883 by Depute Pieyre, and in 1890 by Depute Reinach.
This reform has been advocated by Necker, amongst other writers, in his memoir on ``Financial Administration in France,'' and by Pastoret, Voltaire, Bentham, Merlin, Legraverend, Helie, Tissot, and more comprehensively by Marsangy in his ``Reform of the Criminal Law'' (1864). Marsangy advocated many other practical reforms which have since been adopted, in substitution for the objectionable short terms of imprisonment. More recently the subject has been treated in France by the magistrates Bernard, Pascaud, Nicolas, Giacobbi, and by the Attorney-Generals Molines, Jourdan, Houssard, Dupry, Bujard, in their inaugural addresses.
In Italy there was a notable precedent for this reform in the Treasury of Fines, established for Tuscany in 1786, and for the kingdom of the Two Sicilies in the penal code of 1819, for the purpose of creating a fund for compensation in cases of judicial error. In 1886 Deputy Pavesi brought in a measure which was not discussed; and this indemnification, which had already been proposed in 1873 by De Falco, keeper of the seals, in his draft of an Italian penal code, was not included in subsequent Bills, mainly on account of the financial difficulties. Amongst writers on criminology, it was advocated in Italy by Carrara, Pessina, and Brusa; in Germany by Geyer and Schwarze; in Belgium by Prins and others, and more recently by M. Garofalo, in his report to the third National Congress on Law, at Florence, in September, 1891.
Amongst existing laws, indemnification for judicial errors, whether limited to cases in which the innocence of condemned persons can be proved, or extended to persons wrongfully prosecuted, is included in the penal codes of Hungary and Mexico, and by special laws in Portugal (1884), Sweden (1886), Denmark (1888), and especially in Switzerland, in the cantons of Fribourg, Vaud, Neuchatel, Geneva, Bale, and Berne.
The legal principle that the State ought to indemnify material and moral injury inflicted by its functionaries, through malice or negligence, on a citizen who has done nothing to subject himself to prosecution or condemnation, cannot be seriously contested. But the whole difficulty is reduced to deciding in what cases the right to indemnification ought to be recognised, and then to providing a fund out of which the State can discharge this duty.
For the latter
Sanctioned in some special cases, as an exceptional measure--as, for instance, in the last century by the Parliament of Toulouse, and in our age by the English Parliament--compensation for judicial errors was rendered necessary in France at the end of the eighteenth century, after a series of unjust condemnations, even death sentences, which led Voltaire and Beccaria to demand the abolition of capital punishment. In 1781 the Society of Art and Literature at Chalonssur-Marne offered a prize for an essay on the subject, and awarded it to Brissot de Warville, for his work, ``Le Sang Innocent Venge.'' In the records of the Etats Generaux there were many votes in favour of this reform, which Louis XVI. caused to be introduced on May 8, 1788. In 1790 Duport brought in a measure in the Constituent Assembly; but it was rejected after a short discussion in February, 1791, during which the same practical objections were urged as have been repeated up to the present time. Nevertheless, the Convention decreed special indemnities, as, for instance. a thousand francs in 1793 for one Busset, ``for arbitrary imprisonment and prosecution.'' In 1823 the above-named Society at Chalonssur- Marne proposed the same subject for an essay; and it has been the object of sundry proposals, all rejected, as in 1867 during the discussion on criminal appeals, on amendments moved by Jules Favre, Richard, and Ollivier; and again in 1883 by Depute Pieyre, and in 1890 by Depute Reinach.
This reform has been advocated by Necker, amongst other writers, in his memoir on ``Financial Administration in France,'' and by Pastoret, Voltaire, Bentham, Merlin, Legraverend, Helie, Tissot, and more comprehensively by Marsangy in his ``Reform of the Criminal Law'' (1864). Marsangy advocated many other practical reforms which have since been adopted, in substitution for the objectionable short terms of imprisonment. More recently the subject has been treated in France by the magistrates Bernard, Pascaud, Nicolas, Giacobbi, and by the Attorney-Generals Molines, Jourdan, Houssard, Dupry, Bujard, in their inaugural addresses.
In Italy there was a notable precedent for this reform in the Treasury of Fines, established for Tuscany in 1786, and for the kingdom of the Two Sicilies in the penal code of 1819, for the purpose of creating a fund for compensation in cases of judicial error. In 1886 Deputy Pavesi brought in a measure which was not discussed; and this indemnification, which had already been proposed in 1873 by De Falco, keeper of the seals, in his draft of an Italian penal code, was not included in subsequent Bills, mainly on account of the financial difficulties. Amongst writers on criminology, it was advocated in Italy by Carrara, Pessina, and Brusa; in Germany by Geyer and Schwarze; in Belgium by Prins and others, and more recently by M. Garofalo, in his report to the third National Congress on Law, at Florence, in September, 1891.
Amongst existing laws, indemnification for judicial errors, whether limited to cases in which the innocence of condemned persons can be proved, or extended to persons wrongfully prosecuted, is included in the penal codes of Hungary and Mexico, and by special laws in Portugal (1884), Sweden (1886), Denmark (1888), and especially in Switzerland, in the cantons of Fribourg, Vaud, Neuchatel, Geneva, Bale, and Berne.
The legal principle that the State ought to indemnify material and moral injury inflicted by its functionaries, through malice or negligence, on a citizen who has done nothing to subject himself to prosecution or condemnation, cannot be seriously contested. But the whole difficulty is reduced to deciding in what cases the right to indemnification ought to be recognised, and then to providing a fund out of which the State can discharge this duty.
For the latter