按键盘上方向键 ← 或 → 可快速上下翻页，按键盘上的 Enter 键可回到本书目录页，按键盘上方向键 ↑ 可回到本页顶部！
————未阅读完？加入书签已便下次继续阅读！
allow themselves to be punished； thus disposing of themselves and
their lives。 For if the right to punish must be grounded upon a
promise of the wrongdoer； whereby he is to be regarded as being
willing to be punished； it ought also to be left to him to find
himself deserving of the punishment； and the criminal would thus be
his own judge。 The chief error （proton pseudos） of this sophistry
consists in regarding the judgement of the criminal himself；
necessarily determined by his reason； that he is under obligation to
undergo the loss of his life； as a judgement that must be grounded
on a resolution of his will to take it away himself； and thus the
execution of the right in question is represented as united in one and
the same person with the adjudication of the right。
There are； however； two crimes worthy of death； in respect of
which it still remains doubtful whether the legislature have the right
to deal with them capitally。 It is the sentiment of honour that
induces their perpetration。 The one originates in a regard for womanly
honour； the other in a regard for military honour； and in both cases
there is a genuine feeling of honour incumbent on the individuals as a
duty。 The former is the crime of maternal infanticide （infanticidium
maternale）； the latter is the crime of killing a fellow…soldier in a
duel （commilitonicidium）。 Now legislation cannot take away the shame
of an illegitimate birth； nor wipe off the stain attaching from a
suspicion of cowardice； to an officer who does not resist an act
that would bring him into contempt； by an effort of his own that is
superior to the fear of death。 Hence it appears that； in such
circumstances； the individuals concerned are remitted to the state
of nature； and their acts in both cases must be called homicide； and
not murder； which involves evil intent （homicidium dolosum）。 In all
instances the acts are undoubtedly punishable； but they cannot be
punished by the supreme power with death。 An illegitimate child
comes into the world outside of the law which properly regulates
marriage； and it is thus born beyond the pale or constitutional
protection of the law。 Such a child is introduced； as it were； like
prohibited goods； into the commonwealth； and as it has no legal
right to existence in this way； its destruction might also be ignored；
nor can the shame of the mother； when her unmarried confinement is
known； be removed by any legal ordinance。 A subordinate officer；
again； on whom an insult is inflicted； sees himself compelled by the
public opinion of his associates to obtain satisfaction； and； as in
the state of nature； the punishment of the offender can only be
effected by a duel； in which his own life is exposed to danger； and
not by means of the law in a court of justice。 The duel is therefore
adopted as the means of demonstrating his courage as that
characteristic upon which the honour of his profession essentially
rests； and this is done even if it should issue in the killing of
his adversary。 But as such a result takes place publicly and under the
consent of both parties； although it may be done unwillingly； it
cannot properly be called murder （homicidium dolosum）。 What then is
the right in both cases as relating to criminal justice？ Penal justice
is here in fact brought into great straits； having apparently either
to declare the notion of honour； which is certainly no mere fancy
here； to 'be nothing in the eye of the law； or to exempt the crime
from its due punishment； and thus it would become either remiss or
cruel。 The knot thus tied is to be resolved in the following way。
The categorical imperative of penal justice； that the killing of any
person contrary to the law must be punished with death； remains in
force； but the legislation itself and the civil constitution
generally； so long as they are still barbarous and incomplete； are
at fault。 And this is the reason why the subjective
motive…principles of honour among the people do not coincide with
the standards which are objectively conformable to another purpose； so
that the public justice issuing from the state becomes injustice
relatively to that which is upheld among the people themselves。
II。 The Right of Pardoning。
The right of pardoning （jus aggratiandi）； viewed in relation to
the criminal； is the right of mitigating or entirely remitting his
punishment。 On the side of the sovereign this is the most delicate
of all rights； as it may be exercised so as to set forth the splendour
of his dignity； and yet so as to do a great wrong by it。 It ought
not to be exercised in application to the crimes of the subjects
against each other； for exemption from punishment （impunitas criminis）
would be the greatest wrong that could be done to them。 It is only
an occasion of some form of treason （crimen laesae majestatis）； as a
lesion against himself； that the sovereign should make use of this
right。 And it should not be exercised even in this connection； if
the safety of the people would be endangered by remitting such
punishment。 This right is the only one which properly deserves the
name of a 〃right of majesty。〃
50。 Juridical Relations of the Citizen to his Country and
to Other Countries。 Emigration； Immigration； Banishment；
Exile。
The land or territory whose inhabitants… in virtue of its
political constitution and without the necessary intervention of a
special juridical act… are； by birth； fellow…citizens of one and the
same commonwealth； is called their country or fatherland。 A foreign
country is one in which they would not possess this condition； but
would be living abroad。 If a country abroad form part of the territory
under the same government as at home； it constitutes a province；
according to the Roman usage of the term。 It does not constitute an
incorporated portion of the empire （imperii） so as to be the abode
of equal fellow…citizens； but is only a possession of the
government； like a lower house； and it must therefore honour the
domain of the ruling state as the 〃mother country〃 （regio domina）。
1。 A subject； even regarded as a citizen； has the right of
emigration； for the state cannot retain him as if he were its
property。 But he may only carry away with him his moveables as
distinguished from his fixed possessions。 However； he is entitled to
sell his immovable property； and take the value of it in money with
him。
2。 The supreme power； as master of the country； has the right to
favour immigration and the settlement of strangers and colonists。 This
will hold even although the natives of the country may be unfavourably
disposed to it； if their private property in the soil is not
diminished or interfered with。
3。 In the case of a subject who has committed a crime that renders
all society of his fellow…citizens with him prejudicial to the
state； the supreme power has also the right of inflicting banishment
to a country abroad。 By such deportation； he does not acquire any
share in the rights of citizens of the territory to which he is
banished。
4。 The supreme power has also the right of imposing exile
generally （jus exilii）； by which a citizen is sent abroad into the
wide world as the 〃out…land。〃 And because the supreme authority thus
withdraws all legal protection from the citizen； this amounts to
making him an 〃outlaw〃 within the territory of his own country。
51。 The Three Forms of the State： Autocracy；
Aristocracy； Democracy。
The three powers in the state； involved in the conception of a
public government generally （res publica latius dicta）； are only so
many relations of the united will of the people which emanates from
the a priori reason； and viewed as such it is the objective
practical realization of the pure idea of a supreme head of the state。
This supreme head is the sovereign； but conceived only as a
representation of the whole people； the idea still requires physical
embodiment in a person； who may exhibit the supreme power of the state
and bring the idea actively to bear upon the popular will。 The
relation of the supreme power to the people is conceivable in three
different forms： either one in the state rules over all； or some；
united in relation of equality with each other； rule over all the
others； or all together rule over each and all individually； including
themselves。 The form of the state is therefore either autocratic； or
aristocratic； or democratic。 The expression monarchic is not so
suitable as autocratic for the conception here intended； for a monarch
is one who has the highest power； an autocrat is one who has all
power； so that this latter is the sovereign； whereas the former merely
represents the sovereignty。
It is evident that an autocracy is the simplest form of government
in the state； being constituted by the relation of one； as king； to
the people； so that there is one only w