done undoubtedly, in that the accused has been unjustly detained and put to the trouble and expense of defense against a criminal prosecution. Massachusetts, by an act of June 22, 1911 (ch. 577), authorizes compensation for lost income to acquitted or discharged persons confined in excess of six months while awaiting trial.

Yet the case of unjust detention pending trial is left aside for the present, in order that we may deal with the much more flagrant injustice of a conviction of an innocent person followed by sentence and imprisonment. Where the facts show that the conviction has resulted through no demerit of his own, certainly the state owes the victim compensation for the grievous wrong that he has been compelled to suffer. Most of the European countries provide for indemnification in both cases, that is, detention pending trial which results in acquittal, and the still harsher case of unjust conviction and imprisonment. We propose to deal now with the practical features of compensation in the case of erroneous conviction.

A right to relief of this kind might be abused if it were not strictly limited. We propose therefore so to limit the right to compensation that its benefits could be obtained only in cases of the grossest injustice and most deserving relief. Here again we may learn much from European laws.

It is clear that we can not compensate every acquitted person. In fact under our lax administration of the criminal law and the possibility of technicalities producing injustice, we know that many morally guilty persons are legally acquitted.

We would first, therefore, compel the unjustly convicted person claiming the right to relief to prove that he was innocent of the crime with which he was charged and not guilty of any other offense against the law. And here, he must satisfactorily show one of two things: that the crime, if committed, was not committed by the accused, or that the crime was not committed at all. This at once eliminates from consideration a vast class of possible claimants.

In the second place, the loss indemnified shall be confined to the pecuniary injury, that is, loss of income, costs for defense and for securing his ultimate acquittal or pardon, and similar losses. It is true that the pecuniary injury is in these cases the smallest element of loss; the damage to reputation and the mental suffering are by far the greater injuries. To compensate this moral injury, however, might entail severe burdens on the state treasury and open the way

to speculative claims. For this reason it might be better to exclude from all possibility of claim the moral injury suffered. In any event, we would limit the amount of the relief to $5,000, as the highest sum recoverable.

Again, certain other limitations must be provided for, either specifically, or by being taken into account by the court awarding the compensation. For example, the accused must not by censurable conduct of his own have caused his arrest, prosecution or conviction; thus, the concealment of evidence, the making of a false confession or any similar reprehensible act should operate as a bar to the claim. This follows the well-known maxims that a claimant must come into court with clean hands, and that no one shall profit by his own wrong. As the award of an indemnity is to be discretionary, the court should take into consideration all the circumstances of the case which may defeat or in any other way affect the right to and the amount of the relief.

Finally, the action must be brought within a brief period of his release from imprisonment; six months would be a reasonable time to allow.

There may be some difficulty in the matter of procedure, although this can easily be adjusted. We consider the court of claims, or similar state court having jurisdiction of claims against the state, as the forum appropriate for this relief, more so than the trial, appellate, or second trial court, even though these courts could perhaps better judge of the intrinsic merits and circumstances of the case. Moreover, an executive pardon is often based on evidence which has never been submitted to a court. We advocate jurisdiction being given to a court of claims in order to maintain the traditions of American judicial procedure. If the jury or trial court were given the right to pronounce on the propriety of an award in a case of acquittal (as is the case in some of the European countries), it would bring into our law a new kind of acquittal in which the jury or judge could acquit with degrees of approval or sympathy, a procedure which might give rise to odious distinctions. While it would be desirable to have the benefit of the special knowledge of the case secured by the trial court or by the jury, it is better to forego this advantage for the sake of conformity with legal custom and to leave the establishment of the damage to a court having jurisdiction of other claims against the state.

It may be argued as an objection to such a measure that the case is of rare occurrence. The very fact, however, that there will be few demands on the state treasury should overcome any hesitation there may be to enact appropriate legislation. The mere rarity of the case is no reason for a failure to acknowledge the principle and to remedy the evil. It makes the individual hardship when it does occur seem all the more distressing. Dean Wigmore has explained our previous indifference to the grievous injustice thus inflicted on innocent individuals as follows:

It is nobody's interest, apparently, to move for such a law. You and I have never suffered in that way; no large business is threatened; no class of persons feel a loss in their pockets; and so nobody exerts himself. Only the casual victims feel the wrong and to expect them to unite in a demand for legislation is absurd.

We have undertaken to draw a bill to regulate this question so far as it applies to convictions of innocent persons in the federal courts. The bill has been introduced in both houses of Congress; it is now before the judiciary committees, and it is hoped will become a law. The bill is here given in full:

A BILL

To grant relief to persons erroneously convicted in the courts of the United States. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any person who, having been convicted of any crime or offense against the United States, shall hereafter, on appeal from the judgment of conviction or on the retrial or rehearing of his case, be found to have been innocent of the crime with which he was charged and not guilty of any other offense against the United States, or who, after inquiry by the executive, has received a pardon on the ground of innocence, may, under the conditions hereinafter mentioned, apply by petition for indemnification for the pecuniary injury he has sustained through his erroneous conviction and imprisonment.

Sec. 2. That the claimant may, within six months after he has been finally acquitted or pardoned on the ground of innocence, petition the court of claims for the relief granted in this act.

Sec. 3. That the court is hereby authorized to make all needful rules and regulations, consistent with the law, for executing the provisions hereof.

Sec. 4. That the claimant shall have the burden of proving his innocence, in that he must show that the act with which he was charged was not committed at all or, if committed, was not committed by the accused.

Sec. 5. That the claimant must show that he has not, by his acts or fail

ure to act, either intentionally or by wilful misconduct or negligence, contributed to bring about his arrest and conviction.

Sec. 6. That the court of claims shall examine the validity and amount of all claims included within the description of this act; they shall receive all suitable testimony on oath or affirmation and all other proper evidence; and they shall report all such conclusions of fact and law as in their judgment may affect the right to relief.

Sec. 7. That upon proof satisfactory to the court of claims that the claimant is unable to advance the costs of court and of process, the cost of obtaining and printing the record of the original proceedings and of securing the attendance of such witnesses as the chief justice or the presiding judge of the court of claims shall certify to be necessary, and the service of all notices required by this act, shall be paid out of any general appropriation made by law for the payment and satisfaction of private claims, on presentation to the secretary of the treasury of a duly authenticated order, certified by the clerk of the court of claims and signed by the chief justice or, in his absence, by the presiding judge of said court.

Sec. 8. That the court shall cause notice of all petitions presented under this act to be served on the attorney-general of the United States, who shall be authorized, by himself or his assistant, to examine witnesses, to cause testimony to be taken, to have access to all testimony taken under this act, and to be heard by the court. He shall resist all claims presented under this act by all proper legal defenses.

Sec. 9. That the court of claims in granting or refusing the relief demanded shall take into consideration all the circumstances of the case which may defeat or in any other way affect the right to and the amount of the relief herein provided for, but in no case shall the relief granted exceed five thousand dollars.

Sec. 10. That in all cases of final judgments by the court of claims the sum due thereby shall be paid out of any general appropriation made by law for the payment and satisfaction of private claims, on presentation to the secretary of the treasury of a copy of said judgment, certified by the clerk of the court of claims, and signed by the chief justice or, in his absence, by the presiding judge of said court.

Since the enactment of this legislation was first proposed in this country, in January, 1913, two states of the Union, Wisconsin (Laws of 1913, ch. 189) and California (Laws of 1913, ch. 165), have enacted statutes on the lines of the above bill. The public press has given it more general support than is usually accorded to new proposals for specific improvements in the law. In these times, when social justice is the watchword of legislative reform, it is not an unreasonable expectation that statutes, carrying into effect this desirable reform, will soon be enacted by our federal and state governments, for which Wisconsin and California may be regarded as worthy examples.

CHICAGO COURT OF DOMESTIC RELATIONS

BY WILLIAM N. GEMMILL,

Judge of the Municipal Court of Chicago; President of the Illinois Branch of the American Institute of Criminal Law and Criminology.

This unique court was organized in April, 1911, by a resolution adopted by the judges of the municipal court. Under an act of the legislature creating this court, the judges were given the power to establish branch courts, and to prescribe the procedure for them. All cases involving wife and child desertion, contributing to the dependency or delinquency of children by parents and others, violations of the child labor law, and the law forbidding women to work more than ten hours during any one day, actions for selling liquor and cigarettes to minors, violations of the truancy laws, and actions in bastardy and against abortion are now all brought together in one centralized court and tried by one judge sitting continuously in that court. This court is called the court of domestic relations.

For the first year of the court, Chief Justice Harry Olson assigned Associate Judge Charles N. Goodnow to preside, and the writer was assigned in the same manner, for the second year, ending April 30, 1913.

While presiding over this court during the last year, the writer tried 3,699 cases, in 2,024 of which either the wife alone or the wife and children were deserted by the husband and father. To one who has listened through the whole year to the harrowing stories of abuse, privation, amounting often to starvation, as told by these deserted women and children, it becomes very apparent that women not only have a greater capacity than men for undergoing suffering and enduring hardship, but that they exhibit a greater loyalty towards their children and their dependent blood relations. Notwithstanding the fact that hundreds of these deserted women are often left, sometimes in the midst of severe winter, with several children dependent upon them, they always keep up the struggle, often by taking in washing, doing scrubbing, or other similar work, and at a great personal sacrifice, to keep the family together, and save them from starvation.