The origin of the supreme power is practically inscrutable by the people who are placed under its authority. In other words, the subject need not reason too curiously in regard to its origin in the practical relation, as if the right of the obedience due to it were to be doubted (jus controversum). For as the people, in order to be able to abjudicate with a title of right regarding the supreme power in the state, must be regarded as already united under one common legislative will, it cannot judge otherwise than as the present supreme head of the state (summus imperans) wills. The question has been raised as to whether an actual contract of subjection (pactum subjectionis civilis) originally preceded the civil government as a fact; or whether the power arose first, and the law only followed afterwards, or may have followed in this order. But such questions, as regards the people already actually living under the civil law, are either entirely aimless, or even fraught with subtle danger to the state. For, should the subject, after having dug down to the ultimate origin of the state, rise in opposition to the present ruling authority, he would expose himself as a citizen, according to the law and with full right, to be punished, destroyed, or outlawed. A law which is so holy and inviolable that it is practically a crime even to cast doubt upon it, or to suspend its operation for a moment, is represented of itself as necessarily derived from some supreme, unblameable lawgiver. And this is the meaning of the maxim, “All authority is from God”, which proposition does not express the historical foundation of the civil constitution, but an ideal principle of the practical reason. It may be otherwise rendered thus: “It is a duty to obey the law of the existing legislative power, be its origin what it may.”
Hence it follows, that the supreme power in the state has only rights, and no (compulsory) duties towards the subject. Further, if the ruler or regent, as the organ of the supreme power, proceeds in violation of the laws, as in imposing taxes, recruiting soldiers, and so on, contrary to the law of equality in the distribution of the political burdens, the subject may oppose complaints and objections (gravamina) to this injustice, but not active resistance.
There cannot even be an Article contained in the political constitution that would make it possible for a power in the state, in case of the transgression of the constitutional laws by the supreme authority, to resist or even to restrict it in so doing. For, whoever would restrict the supreme power of the state must have more, or at least equal, power as compared with the power that is so restricted; and if competent to command the subjects to resist, such a one would also have to be able to protect them, and if he is to be considered capable of judging what is right in every case, he may also publicly order resistance. But such a one, and not the actual authority, would then be the supreme power; which is contradictory. The supreme sovereign power, then, in proceeding by a minister who is at the same time the ruler of the state, consequently becomes despotic; and the expedient of giving the people to imagine—when they have properly only legislative influence—that they act by their deputies by way of limiting the sovereign authority, cannot so mask and disguise the actual despotism of such a government that it will not appear in the measures and means adopted by the minister to carry out his function. The people, while represented by their deputies in parliament, under such conditions, may have in these warrantors of their freedom and rights, persons who are keenly interested on their own account and their families, and who look to such a minister for the benefit of his influence in the army, navy, and public offices. And hence, instead of offering resistance to the undue pretensions of the government—whose public declarations ought to carry a prior accord on the part of the people, which, however, cannot be allowed in peace, they are rather always ready to play into the hands of the government. Hence the so-called limited political constitution, as a constitution of the internal rights of the state, is an unreality; and instead of being consistent with right, it is only a principle of expediency. And its aim is not so much to throw all possible obstacles in the way of a powerful violator of popular rights by his arbitrary influence upon the government, as rather to cloak it over under the illusion of a right of opposition conceded to the people.
Resistance on the part of the people to the supreme legislative power of the state is in no case legitimate; for it is only by submission to the universal legislative will, that a condition of law and order is possible. Hence there is no right of sedition, and still less of rebellion, belonging to the people. And least of all, when the supreme power is embodied in an individual monarch, is there any justification, under the pretext of his abuse of power, for seizing his person or taking away his life (monarchomachismus sub specie tyrannicidii). The slightest attempt of this kind is high treason (proditio eminens); and a traitor of this sort who aims at the overthrow of his country may be punished, as a political parricide, even with death. It is the duty of the people to bear any abuse of the supreme power, even then though it should be considered to be unbearable. And the reason is that any resistance of the highest legislative authority can never but be contrary to the law, and must even be regarded as tending to destroy the whole legal constitution. In order to be entitled to offer such resistance, a public law would be required to permit it. But the supreme legislation would by such a law cease to be supreme, and the people as subjects would be made sovereign over that to which they are subject; which is a contradiction. And the contradiction becomes more apparent when the question is put: “Who is to be the judge in a controversy between the people and the sovereign?” For the people and the sovereign are to be constitutionally or juridically regarded as two different moral persons; but the question shows that the people would then have to be the judge in their own cause.
The dethronement of a monarch may be also conceived as a voluntary abdication of the crown, and a resignation of his power into the hands of the people; or it might be a deliberate surrender of these without any assault on the royal person, in order that the monarch may be relegated into private life. But, however it happen, forcible compulsion of it, on the part of the people, cannot be justified under the pretext of a right of necessity (casus necessitatis); and least of all can the slightest right be shown for punishing the sovereign on the ground of previous maladministration. For all that has been already done in the quality of a sovereign must be regarded as done outwardly by right; and, considered as the source of the laws, the sovereign himself can do no wrong. Of all the abominations in the overthrow of a state by revolution, even the murder or assassination of the monarch is not the worst. For that may be done by the people out of fear, lest, if he is allowed to live, he may again acquire power and inflict punishment upon them; and so it may be done, not as an act of punitive justice, but merely from regard to self-preservation. It is the formal execution of a monarch that horrifies a soul filled with ideas of human right; and this feeling occurs again and again as of as the mind realizes the scenes that terminated the fate of Charles I or Louis XVI. Now how is this feeling to be explained? It is not a mere aesthetic feeling, arising from the working of the imagination, nor from sympathy, produced by fancying ourselves in the place of the sufferer. On the contrary, it is a moral feeling arising from the entire subversion of all our notions of right. Regicide, in short, is regarded as a crime which always remains such and can never be expiated (crimen immortale, inexpiabile); and it appears to resemble that sin which the theologians declare can neither be forgiven in this world nor in the next. The explanation of this phenomenon in the human mind appears to be furnished by the following reflections upon it; and they even shed some light upon the principles of political right.
Every transgression of a law only can and must be explained as arising from a maxim of the transgressor making such wrong-doing his rule of action; for were it not committed by him as a free being, it could not be imputed to him. But it is absolutely impossible to explain how any rational individual forms such a maxim against the clear prohibition of the law-giving reason; for it is only events which happen according to the mechanical laws of nature that are capable of explanation. Now a transgressor or criminal may commit his wrong-doing either according to the maxim of a rule supposed to be valid objectively and universally, or only as an exception from the rule by dispensing with its obligation for the occasion. In the latter case, he only diverges from the law, although intentionally. He may, at the same time, abhor his own transgression, and without formally renouncing his obedience to the law only wish to avoid it. In the former case, however, he rejects the authority of the law itself, the validity of which, however, he cannot repudiate before his own reason, even while he makes it his rule to act against it. His maxim is, therefore, not merely defective as being negatively contrary to the law, but it is even positively illegal, as being diametrically contrary and in hostile opposition to it. So far as we can see into and understand the relation, it would appear as if it were impossible for men to commit wrongs and crimes of a wholly useless form of wickedness, and yet the idea of such extreme perversity cannot be overlooked in a system of moral philosophy.
There is thus a feeling of horror at the thought of the formal execution of a monarch by his people. And the reason it is that, whereas an act of assassination must be considered as only an exception from the rule which has been constituted a maxim, such an execution must be regarded as a complete perversion of the principles that should regulate the relation between a sovereign and his people. For it makes the people, who owe their constitutional existence to the legislation that issued from the sovereign, to be the ruler over him. Hence mere violence is thus elevated with bold brow, and as it were by principle, above the holiest right; and, appearing like an abyss to swallow up everything without recall, it seems like suicide committed by the state upon itself and a crime that is capable of no atonement. There is therefore reason to assume that the consent that is accorded to such executions is not really based upon a supposed principle of right, but only springs from fear of the vengeance that would be taken upon the people were the same power to revive again in the state. And hence it may be held that the formalities accompanying them have only been put forward in order to give these deeds a look of punishment from the accompaniment of a judicial process, such as could not go along with a mere murder or assassination. But such a cloaking of the deed entirely fails of its purpose, because this pretension on the part of the people is even worse than murder itself, as it implies a principle which would necessarily make the restoration of a state, when once overthrown, an impossibility.
An alteration of the still defective constitution of the state may sometimes be quite necessary. But all such changes ought only to proceed from the sovereign power in the way of reform, and are not to be brought about by the people in the way of revolution; and when they take place, they should only effect the executive, and not the legislative, power. A political constitution which is so modified that the people by their representatives in parliament can legally resist the executive power, and its representative minister, is called a limited constitution. Yet even under such a constitution there is no right of active resistance, as by an arbitrary combination of the people to coerce the government into a certain active procedure; for this would be to assume to perform an act of the executive itself. All that can rightly be allowed, is only a negative resistance, amounting to an act of refusal on the part of the people to concede all the demands which the executive may deem it necessary to make in behoof of the political administration. And if this right were never exercised, it would be a sure sign that the people were corrupted, their representatives venal, the supreme head of the government despotic, and his ministers practically betrayers of the people.
Further, when on the success of a revolution a new constitution has been founded, the unlawfulness of its beginning and of its institution cannot release the subjects from the obligation of adapting themselves, as good citizens, to the new order of things; and they are not entitled to refuse honourably to obey the authority that has thus attained the power in the state. A dethroned monarch, who has survived such a revolution, is not to be called to account on the ground of his former administration; and still less may he be punished for it, when with drawing into the private life of a citizen he prefers his own quiet and the peace of the state to the uncertainty of exile, with the intention of maintaining his claims for restoration at all hazards, and pushing these either by secret counter-revolution or by the assistance of other powers. However, if he prefers to follow the latter course, his rights remain, because the rebellion that drove him from his position was inherently unjust. But the question then emerges as to whether other powers have the right to form themselves into an alliance in behalf of such a dethroned monarch merely in order not to leave the crime committed by the people unavenged, or to do away with it as a scandal to all the states; and whether they are therefore justified and called upon to restore by force to another state a formerly existing constitution that has been removed by a revolution. The discussion of this question, however, does not belong to this department of public right, but to the following section, concerning the right of nations.
Is the sovereign, viewed as embodying the legislative power, to be regarded as the supreme proprietor of the soil, or only as the highest ruler of the people by the laws? As the soil is the supreme condition under which it is alone possible to have external things as one’s own, its possible possession and use constitute the first acquirable basis of external right. Hence it is that all such rights must be derived from the sovereign as overlord and paramount superior of the soil, or, as it may be better put, as the supreme proprietor of the land (dominus territorii). The people, as forming the mass of the subjects, belong to the sovereign as a people; not in the sense of his being their proprietor in the way of real right, but as their supreme commander or chief in the way of personal right. This supreme proprietorship, however, is only an idea of the civil constitution, objectified to represent, in accordance with juridical conceptions, the necessary union of the private property of all the people under a public universal possessor. The relation is so represented in order that it may form a basis for the determination of particular rights in property. It does not proceed, therefore, upon the principle of mere aggregation, which advances empirically from the parts to the whole, but from the necessary formal principle of a division of the soil according to conceptions of right. In accordance with this principle, the supreme universal proprietor cannot have any private property in any part of the soil; for otherwise he would make himself a private person. Private property in the soil belongs only to the people, taken distributively and not collectively; from which condition, however, a nomadic people must be excepted as having no private property at all in the soil. The supreme proprietor accordingly ought not to hold private estates, either for private use or for the support of the court. For, as it would depend upon his own pleasure how far these should extend, the state would be in danger of seeing all property in the land taken into the hands of the government, and all the subjects treated as bondsmen of the soil (glebae adscripti). As possessors only of what was the private property of another, they might thus be deprived of all freedom and regarded as serfs or slaves. Of the supreme proprietor of the land, it may be said that he possesses nothing as his own, except himself; for if he possessed things in the state alongside of others, dispute and litigation would be possible with these others regarding those things, and there would be no independent judge to settle the cause. But it may also be said that he possesses everything; for he has the supreme right of sovereignty over the whole people, to whom all external things severally (divisim) belong; and as such he assigns distributively to every one what is to be his.
Hence there cannot be any corporation in the state, nor any class or order, that as proprietors can transmit the land for a sole exclusive use to the following generations for all time (ad infinitum), according to certain fixed statutes. The state may annul and abrogate all such statutes at any time, only under the condition of indemnifying survivors for their interests. The order of knights, constituting the nobility regarded as a mere rank or class of specially titled individuals, as well as the order of the clergy, called the church, are both subject to this relation. They can never be entitled by any hereditary privileges with which they may be favoured, to acquire an absolute property in the soil transmissible to their successors. They can only acquire the use of such property for the time being. If public opinion has ceased, on account of other arrangements, to impel the state to protect itself from negligence in the national defence by appeal to the military honour of the knightly order, the estates granted on that condition may be recalled. And, in like manner, the church lands or spiritualities may be reclaimed by the state without scruple, if public opinion has ceased to impel the members of the state to maintain masses for the souls of the dead, prayers for the living, and a multitude of clergy, as means to protect themselves from eternal fire. But in both cases, the condition of indemnifying existing interests must be observed. Those who in this connection fall under the movement of reform are not entitled to complain that their property is taken from them; for the foundation of their previous possession lay only in the opinion of the people, and it can be valid only so long as this opinion lasts. As soon as this public opinion in favour of such institutions dies out, or is even extinguished in the judgement of those who have the greatest claim by their acknowledged merit to lead and represent it, the putative proprietorship in question must cease, as if by a public appeal made regarding it to the state (a rege male informato ad regem melius informandum).
On this primarily acquired supreme proprietorship in the land rests the right of the sovereign, as universal proprietor of the country, to assess the private proprietors of the soil, and to demand taxes, excise, and dues, or the performance of service to the state such as may be required in war. But this is to be done so that it is actually the people that assess themselves, this being the only mode of proceeding according to laws of right. This may be effected through the medium of the body of deputies who represent the people. It is also permissible, in circumstances in which the state is in imminent danger, to proceed by a forced loan, as a right vested in the sovereign, although this may be a divergence from the existing law.
Upon this principle is also founded the right of administering the national economy, including the finance and the police. The police has specially to care for the public safety, convenience, and decency. As regards the last of these—the feeling or negative taste for public propriety—it is important that it be not deadened by such influences as begging, disorderly noises, offensive smells, public prostitution (Venus vulgivaga), or other offences against the moral sense, as it greatly facilitates the government in the task of regulating the life of the people by law.
For the preservation of the state there further belongs to it a right of inspection (jus inspectionis), which entitles the public authority to see that no secret society, political or religious, exists among the people that can exert a prejudicial influence upon the public weal. Accordingly, when it is required by the police, no such secret society may refuse to lay open its constitution. But the visitation and search of private houses by the police can only be justified in a case of necessity; and in every particular instance, it must be authorized by a higher authority.
The sovereign, as undertaker of the duty of the people, has the right to tax them for purposes essentially connected with their own preservation. Such are, in particular, the relief of the poor, foundling asylums, and ecclesiastical establishments, otherwise designated charitable or pious foundations.
1. The people have in fact united themselves by their common will into a society, which has to be perpetually maintained; and for this purpose they have subjected themselves to the internal power of the state, in order to preserve the members of this society even when they are not able to support themselves. By the fundamental principle of the state, the government is justified and entitled to compel those who are able, to furnish the means necessary to preserve those who are not themselves capable of providing for the most necessary wants of nature. For the existence of persons with property in the state implies their submission under it for protection and the provision by the state of what is necessary for their existence; and accordingly the state founds a right upon an obligation on their part to contribute of their means for the preservation of their fellow citizens. This may be carried out by taxing the property or the commercial industry of the citizens, or by establishing funds and drawing interest from them, not for the wants of the state as such, which is rich, but for those of the people. And this is not to be done merely by voluntary contributions, but by compulsory exactions as state-burdens, for we are here considering only the right of the state in relation to the people. Among the voluntary modes of raising such contributions, lotteries ought not to be allowed, because they increase the number of those who are poor, and involve danger to the public property. It may be asked whether the relief of the poor ought to be administered out of current contributions, so that every age should maintain its own poor; or whether this were better done by means of permanent funds and charitable institutions, such as widows’ homes, hospitals, etc.? And if the former method is the better, it may also be considered whether the means necessary are to be raised by a legal assessment rather than by begging, which is generally nigh akin to robbing. The former method must in reality be regarded as the only one that is conformable to the right of the state, which cannot withdraw its connection from any one who has to live. For a legal current provision does not make the profession of poverty a means of gain for the indolent, as is to be feared is the case with pious foundations when they grow with the number of the poor; nor can it be charged with being an unjust or unrighteous burden imposed by the government on the people.
2. The state has also a right to impose upon the people the duty of preserving children exposed from want or shame, and who would otherwise perish; for it cannot knowingly allow this increase of its power to be destroyed, however unwelcome in some respects it may be. But it is a difficult question to determine how this may most justly be carried out. It might be considered whether it would not be right to exact contributions for this purpose from the unmarried persons of both sexes who are possessed of means, as being in part responsible for the evil; and further, whether the end in view would be best carried out by foundling hospitals, or in what other way consistent with right. But this is a problem of which no solution has yet been offered that does not in some measure offend against right or morality.
3. The church is here regarded as an ecclesiastical establishment merely, and as such it must be carefully distinguished from religion, which as an internal mode of feeling lies wholly beyond the sphere of the action of the civil power. Viewed as an institution for public worship founded for the people—to whose opinion or conviction it owes its origin—the church establishment responds to a real want in the state. This is the need felt by the people to regard themselves as also subjects of a Supreme Invisible Power to which they must pay homage, and which may of be brought into a very undesirable collision with the civil power. The state has therefore a right in this relation; but it is not to be regarded as the right of constitutional legislation in the church, so as to organize it as may seem most advantageous for itself, or to prescribe and command its faith and ritual forms of worship (ritus); for all this must be left entirely to the teachers and rulers which the church has chosen for itself. The function of the state in this connection, only includes the negative right of regulating the influence of these public teachers upon the visible political commonwealth, that it may not be prejudicial to the public peace and tranquility. Consequently the state has to take measures, on occasion of any internal conflict in the church, or on occasion of any collision of the several churches with each other, that civil concord is not endangered; and this right falls within the province of the police. It is beneath the dignity of the supreme power to interpose in determining what particular faith the church shall profess, or to decree that a certain faith shall be unalterably held, and that the church may not reform itself. For in doing so, the supreme power would be mixing itself up in a scholastic wrangle, on a footing of equality with its subjects; the monarch would be making himself a priest; and the churchmen might even reproach the supreme power with understanding nothing about matters of faith. Especially would this hold in respect of any prohibition of internal reform in the church; for what the people as a whole cannot determine upon for themselves cannot be determined for the people by the legislator. But no people can ever rationally determine that they will never advance farther in their insight into matters of faith, or resolve that they will never reform the institutions of the church; because this would be opposed to the humanity in their own persons and to their highest rights. And therefore the supreme power cannot of itself resolve and decree in these matters for the people. As regards the cost of maintaining the ecclesiastical establishment, for similar reasons this must be derived not from the public funds of the state, but from the section of the people who profess the particular faith of the church; and thus only ought it to fall as a burden on the community.
The right of the supreme authority in the state also includes:
1. The distribution of offices, as public and paid employments;
2. The conferring of dignities, as unpaid distinctions of rank, founded merely on honour, but establishing a gradation of higher and lower orders in the political scale; the latter, although free in themselves, being under obligation determined by the public law to obey the former so far as they are also entitled to command;
3. Besides these relatively beneficent rights, the supreme power in the state is also invested with the right of administering punishment.
As regards civil offices, the question arises as to whether the sovereign has the right, after bestowing an office on an individual, to take it again away at his mere pleasure, without any crime having been committed by the holder of the office. I say, “No.” For what the united will of the people would never resolve, regarding their civil officers, cannot (constitutionally) be determined by the sovereign regarding them. The people have to bear the cost incurred by the appointment of an official, and undoubtedly it must be their will that any one in office should be completely competent for its duties. But such competency can only be acquired by a long preparation and training, and this process would necessarily occupy the time that would be required for acquiring the means of support by a different occupation. Arbitrary and frequent changes would therefore, as a rule, have the effect of filling offices with functionaries who have not acquired the skill required for their duties, and whose judgements had not attained maturity by practice. All this is contrary to the purpose of the state. And besides it is requisite in the interest of the people that it should be possible for every individual to rise from a lower office to the higher offices, as these latter would otherwise fall into incompetent hands, and that competent officials generally should have some guarantee of life-long provision.
Civil dignities include not only such as are connected with a public office, but also those which make the possessors of them, without any accompanying services to the state, members of a higher class or rank. The latter constitute the nobility, whose members are distinguished from the common citizens who form the mass of the people. The rank of the nobility is inherited by male descendants; and these again communicate it to wives who are not nobly born. Female descendants of noble families, however, do not communicate their rank to husbands who are not of noble birth, but they descend themselves into the common civil status of the people. This being so, the question then emerges as to whether the sovereign has the right to found a hereditary rank and class, intermediate between himself and the other citizens? The import of this question does not turn on whether it is conformable to the prudence of the sovereign, from regard to his own and the people’s interests, to have such an institution; but whether it is in accordance with the right of the people that they should have a class of persons above them, who, while being subjects like themselves, are yet born as their commanders, or at least as privileged superiors? The answer to this question, as in previous instances, is to be derived from the principle that “what the people, as constituting the whole mass of the subjects, could not determine regarding themselves and their associated citizens, cannot be constitutionally determined by the sovereign regarding the people.” Now a hereditary nobility is a rank which takes precedence of merit and is hoped for without any good reason—a thing of the imagination without genuine reality. For if an ancestor had merit, he could not transmit it to his posterity, but they must always acquire it for themselves. Nature has in fact not so arranged that the talent and will which give rise to merit in the state, are hereditary. And because it cannot be supposed of any individual that he will throw away his freedom, it is impossible that the common will of all the people should agree to such a groundless prerogative, and hence the sovereign cannot make it valid. It may happen, however, that such an anomaly as that of subjects who would be more than citizens, in the manner of born officials, or hereditary professors, has slipped into the mechanism of government in olden times, as in the case of the feudal system, which was almost entirely organized with reference to war. Under such circumstances, the state cannot deal otherwise with this error of a wrongly instituted rank in its midst, than by the remedy of a gradual extinction through hereditary positions being left unfilled as they fall vacant. The state has therefore the right provisorily to let a dignity in title continue, until the public opinion matures on the subject. And this will thus pass from the threefold division into sovereign, nobles, and people, to the twofold and only natural division into sovereign and people.
No individual in the state can indeed be entirely without dignity; for he has at least that of being a citizen, except when he has lost his civil status by a crime. As a criminal he is still maintained in life, but he is made the mere instrument of the will of another, whether it be the state or a particular citizen. In the latter position, in which he could only be placed by a juridical judgement, he would practically become a slave, and would belong as property (dominium) to another, who would be not merely his master (herus) but his owner (dominus). Such an owner would be entitled to exchange or alienate him as a thing, to use him at will except for shameful purposes, and to dispose of his powers, but not of his life and members. No one can bind himself to such a condition of dependence, as he would thereby cease to be a person, and it is only as a person that he can make a contract. It may, however, appear that one man may bind himself to another by a contract of hire, to discharge a certain service that is permissible in its kind, but is left entirely undetermined as regards its measure or amount; and that as receiving wages or board or protection in return, he thus becomes only a servant subject to the will of a master (subditus) and not a slave (servus). But this is an illusion. For if masters are entitled to use the powers of such subjects at will, they may exhaust these powers—as has been done in the case of Negroes in the Sugar Islandand they may thus reduce their servants to despair and death. But this would imply that they had actually given themselves away to their masters as property; which, in the case of persons, is impossible. A person can, therefore, only contract to perform work that is defined both in quality and quantity, either as a day-labourer or as a domiciled subject. In the latter case he may enter into a contract of lease for the use of the land of a superior, giving a definite rent or annual return for its utilization by himself, or he may contract for his service as a labourer upon the land. But he does not thereby make himself a slave, or a bondsman, or a serf attached to the soil (glebae adscriptus), as he would thus divest himself of his personality; he can only enter into a temporary or at most a heritable lease. And even if by committing a crime he has personally become subjected to another, this subject-condition does not become hereditary; for he has only brought it upon himself by his own wrongdoing. Neither can one who has been begotten by a slave be claimed as property on the ground of the cost of his rearing, because such rearing is an absolute duty naturally incumbent upon parents; and in case the parents be slaves, it devolves upon their masters or owners, who, in undertaking the possession of such subjects, have also made themselves responsible for the performance of their duties.
The right of administering punishment is the right of the sovereign as the supreme power to inflict pain upon a subject on account of a crime committed by him. The head of the state cannot therefore be punished; but his supremacy may be withdrawn from him. Any transgression of the public law which makes him who commits it incapable of being a citizen, constitutes a crime, either simply as a private crime (crimen), or also as a public crime (crimen publicum). Private crimes are dealt with by a civil court; public crimes by a criminal court. Embezzlement or speculation of money or goods entrusted in trade, fraud in purchase or sale, if done before the eyes of the party who suffers, are private crimes. On the other hand, coining false money or forging bills of exchange, theft, robbery, etc., are public crimes, because the commonwealth, and not merely some particular individual, is endangered thereby. Such crimes may be divided into those of a base character (indolis abjectae) and those of a violent character (indolis violentiae).
Judicial or juridical punishment (poena forensis) is to be distinguished from natural punishment (poena naturalis), in which crime as vice punishes itself, and does not as such come within the cognizance of the legislator. juridical punishment can never be administered merely as a means for promoting another good either with regard to the criminal himself or to civil society, but must in all cases be imposed only because the individual on whom it is inflicted has committed a crime. For one man ought never to be dealt with merely as a means subservient to the purpose of another, nor be mixed up with the subjects of real right. Against such treatment his inborn personality has a right to protect him, even although he may be condemned to lose his civil personality. He must first be found guilty and punishable, before there can be any thought of drawing from his punishment any benefit for himself or his fellow-citizens. The penal law is a categorical imperative; and woe to him who creeps through the serpent-windings of utilitarianism to discover some advantage that may discharge him from the justice of punishment, or even from the due measure of it, according to the Pharisaic maxim: “It is better that one man should die than that the whole people should perish.” For if justice and righteousness perish, human life would no longer have any value in the world. What, then, is to be said of such a proposal as to keep a criminal alive who has been condemned to death, on his being given to understand that, if he agreed to certain dangerous experiments being performed upon him, he would be allowed to survive if he came happily through them? It is argued that physicians might thus obtain new information that would be of value to the commonweal. But a court of justice would repudiate with scorn any proposal of this kind if made to it by the medical faculty; for justice would cease to be justice, if it were bartered away for any consideration whatever.
But what is the mode and measure of punishment which public justice takes as its principle and standard? It is just the principle of equality, by which the pointer of the scale of justice is made to incline no more to the one side than the other. It may be rendered by saying that the undeserved evil which any one commits on another is to be regarded as perpetrated on himself. Hence it may be said: “If you slander another, you slander yourself; if you steal from another, you steal from yourself; if you strike another, you strike yourself; if you kill another, you kill yourself.” This is the right of retaliation (jus talionis); and, properly understood, it is the only principle which in regulating a public court, as distinguished from mere private judgement, can definitely assign both the quality and the quantity of a just penalty. All other standards are wavering and uncertain; and on account of other considerations involved in them, they contain no principle conformable to the sentence of pure and strict justice. It may appear, however, that difference of social status would not admit the application of the principle of retaliation, which is that of “like with like.” But although the application may not in all cases be possible according to the letter, yet as regards the effect it may always be attained in practice, by due regard being given to the disposition and sentiment of the parties in the higher social sphere. Thus a pecuniary penalty on account of a verbal injury may have no direct proportion to the injustice of slander; for one who is wealthy may be able to indulge himself in this offence for his own gratification. Yet the attack committed on the honour of the party aggrieved may have its equivalent in the pain inflicted upon the pride of the aggressor, especially if he is condemned by the judgement of the court, not only to retract and apologize, but to submit to some meaner ordeal, as kissing the hand of the injured person. In like manner, if a man of the highest rank has violently assaulted an innocent citizen of the lower orders, he may be condemned not only to apologize but to undergo a solitary and painful imprisonment, whereby, in addition to the discomfort endured, the vanity of the offender would be painfully affected, and the very shame of his position would constitute an adequate retaliation after the principle of “like with like.” But how then would we render the statement: “If you steal from another, you steal from yourself?” In this way, that whoever steals anything makes the property of all insecure; he therefore robs himself of all security in property, according to the right of retaliation. Such a one has nothing, and can acquire nothing, but he has the will to live; and this is only possible by others supporting him. But as the state should not do this gratuitously, he must for this purpose yield his powers to the state to be used in penal labour; and thus he falls for a time, or it may be for life, into a condition of slavery. But whoever has committed murder, must die. There is, in this case, no juridical substitute or surrogate, that can be given or taken for the satisfaction of justice. There is no likeness or proportion between life, however painful, and death; and therefore there is no equality between the crime of murder and the retaliation of it but what is judicially accomplished by the execution of the criminal. His death, however, must be kept free from all maltreatment that would make the humanity suffering in his person loathsome or abominable. Even if a civil society resolved to dissolve itself with the consent of all its members—as might be supposed in the case of a people inhabiting an island resolving to separate and scatter themselves throughout the whole world—the last murderer lying in the prison ought to be executed before the resolution was carried out. This ought to be done in order that every one may realize the desert of his deeds, and that blood-guiltiness may not remain upon the people; for otherwise they might all be regarded as participators in the murder as a public violation of justice.
The equalization of punishment with crime is therefore only possible by the cognition of the judge extending even to the penalty of death, according to the right of retaliation. This is manifest from the fact that it is only thus that a sentence can be pronounced over all criminals proportionate to their internal wickedness; as may be seen by considering the case when the punishment of death has to be inflicted, not on account of a murder, but on account of a political crime that can only be punished capitally. A hypothetical case, founded on history, will illustrate this. In the last Scottish rebellion there were various participators in it—such as Balmerino and others—who believed that in taking part in the rebellion they were only discharging their duty to the house of Stuart; but there were also others who were animated only by private motives and interests. Now, suppose that the judgement of the supreme court regarding them had been this: that every one should have liberty to choose between the punishment of death or penal servitude for life. In view of such an alternative, I say that the man of honour would choose death, and the knave would choose servitude. This would be the effect of their human nature as it is; for the honourable man values his honour more highly than even life itself, whereas a knave regards a life, although covered with shame, as better in his eyes than not to be. The former is, without gainsaying, less guilty than the other; and they can only be proportionately punished by death being inflicted equally upon them both; yet to the one it is a mild punishment when his nobler temperament is taken into account, whereas it is a hard punishment to the other in view of his baser temperament. But, on the other hand, were they all equally condemned to penal servitude for life, the honourable man would be too severely punished, while the other, on account of his baseness of nature, would be too mildly punished. In the judgement to be pronounced over a number of criminals united in such a conspiracy, the best equalizer of punishment and crime in the form of public justice is death. And besides all this, it has never been heard of that a criminal condemned to death on account of a murder has complained that the sentence inflicted on him more than was right and just; and any one would treat him with scorn if he expressed himself to this effect against it. Otherwise it would be necessary to admit that, although wrong and injustice are not done to the criminal by the law, yet the legislative power is not entitled to administer this mode of punishment; and if it did so, it would be in contradiction with itself.
However many they may be who have committed a murder, or have even commanded it, or acted as art and part in it, they ought all to suffer death; for so justice wills it, in accordance with the idea of the juridical power, as founded on the universal laws of reason. But the number of the accomplices (correi) in such a deed might happen to be so great that the state, in resolving to be without such criminals, would be in danger of soon also being deprived of subjects. But it will not thus dissolve itself, neither must it return to the much worse condition of nature, in which there would be no external justice. Nor, above all, should it deaden the sensibilities of the people by the spectacle of justice being exhibited in the mere carnage of a slaughtering bench. In such circumstances the sovereign must always be allowed to have it in his power to take the part of the judge upon himself as a case of necessity—and to deliver a judgement which, instead of the penalty of death, shall assign some other punishment to the criminals and thereby preserve a multitude of the people. The penalty of deportation is relevant in this connection. Such a form of judgement cannot be carried out according to a public law, but only by an authoritative act of the royal prerogative, and it may only be applied as an act of grace in individual cases.
Against these doctrines, the Marquis Beccaria has given forth a different view. Moved by the compassionate sentimentality of a humane feeling, he has asserted that all capital punishment is wrong in itself and unjust. He has put forward this view on the ground that the penalty of death could not be contained in the original civil contract; for, in that case, every one of the people would have had to consent to lose his life if be murdered any of his fellow citizens. But, it is argued, such a consent is impossible, because no one can thus dispose of his own life. All this is mere sophistry and perversion of right. No one undergoes punishment because he has willed to be punished, but because he has willed a punishable action; for it is in fact no punishment when any one experiences what he wills, and it is impossible for any one to will to be punished. To say, “I will to be punished, if I murder any one,” can mean nothing more than, “I submit myself along with all the other citizens to the laws”; and if there are any criminals among the people, these laws will include penal laws. The individual who, as a co-legislator, enacts penal law cannot possibly be the same person who, as a subject, is punished according to the law; for, qua criminal, he cannot possibly be regarded as having a voice in the legislation, the legislator being rationally viewed as just and holy. If any one, then, enact a penal law against himself as a criminal, it must be the pure juridically law-giving reason (homo noumenon), which subjects him as one capable of crime, and consequently as another person (homo phenomenon), along with all the others in the civil union, to this penal law. In other words, it is not the people taken distributively, but the tribunal of public justice, as distinct from the criminal, that prescribes capital punishment; and it is not to be viewed as if the social contract contained the promise of all the individuals to 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.
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.”
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.
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 who is the lawgiver. An aristocracy, as a form of government, is, however, compounded of the union of two relations: that of the nobles in relation to one another as the lawgivers, thereby constituting the sovereignty, and that of this sovereign power to the people. A democracy, again, is the most complex of all the forms of the state, for it has to begin by uniting the will of all so as to form a people; and then it has to appoint a sovereign over this common union, which sovereign is no other than the united will itself. The consideration of the ways in which these forms are adulterated by the intrusion of violent and illegitimate usurpers of power, as in oligarchy and ochlocracy, as well as the discussion of the so called mixed constitutions, may be passed over here as not essential, and as leading into too much detail.
As regards the administration of right in the state, it may be said that the simplest mode is also the best; but as regards its bearing on right itself, it is also the most dangerous for the people, in view of the despotism to which simplicity of administration so naturally gives rise. It is undoubtedly a rational maxim to aim at simplification in the machinery which is to unite the people under compulsory laws, and this would be secured were all the people to be passive and to obey only one person over them; but the method would not give subjects who were also citizens of the state. It is sometimes said that the people should be satisfied with the reflection that monarchy, regarded as an autocracy, is the best political constitution, if the monarch is good, that is, if be has the judgement as well as the will to do right. But this is a mere evasion and belongs to the common class of wise tautological phrases. It only amounts to saying that “the best constitution is that by which the supreme administrator of the state is made the best ruler”; that is, that the best constitution is the best!
It is vain to inquire into the historical origin of the political mechanism; for it is no longer possible to discover historically the point of time at which civil society took its beginning. Savages do not draw up a documentary record of their having submitted themselves to law; and it may be inferred from the nature of uncivilized men that they must have set out from a state of violence. To prosecute such an inquiry in the intention of finding a pretext for altering the existing constitution by violence is no less than penal. For such a mode of alteration would amount to revolution, that could only be carried out by an insurrection of the people, and not by constitutional modes of legislation. But insurrection against an already existing constitution, is an overthrow of all civil and juridical relations, and of right generally; and hence it is not a mere alteration of the civil constitution, but a dissolution of it. It would thus form a mode of transition to a better constitution by palingenesis and not by mere metamorphosis; and it would require a new social contract, upon which the former original contract, as then annulled, would have no influence.
It must, however, be possible for the sovereign to change the existing constitution, if it is not actually consistent with the idea of the original contract. In doing so it is essential to give existence to that form of government which will properly constitute the people into a state. Such a change cannot be made by the state deliberately altering its constitution from one of the three forms to one of the other two. For example, political changes should not be carried out by the aristocrats combining to subject themselves to an autocracy, or resolving to fuse all into a democracy, or conversely; as if it depended on the arbitrary choice and liking of the sovereign what constitution he may impose on the people. For, even if as sovereign he resolved to alter the constitution into a democracy, he might be doing wrong to the people, because they might hold such a constitution in abhorrence, and regard either of the other two as more suitable to them in the circumstances.
The forms of the state are only the letter (littera) of the original constitution in the civil union; and they may therefore remain so long as they are considered, from ancient and long habit (and therefore only subjectively), to be necessary to the machinery of the political constitution. But the spirit of that original contract (anima pacti originarii) contains and imposes the obligation on the constituting power to make the mode of the government conformable to its idea; and, if this cannot be effected at once, to change it gradually and continuously till it harmonize in its working with the only rightful constitution, which is that of a pure republic. Thus the old empirical and statutory forms, which serve only to effect the political subjection of the people, will be resolved into the original and rational forms which alone take freedom as their principle, and even as the condition of all compulsion and constraint. Compulsion is in fact requisite for the realization of a juridical constitution, according to the proper idea of the state; and it will lead at last to the realization of that idea, even according to the letter. This is the only enduring political constitution, as in it the law is itself sovereign, and is no longer attached to a particular person. This is the ultimate end of all public right, and the state in which every citizen can have what is his own peremptorily assigned to him. But so long as the form of the state has to be represented, according to the letter, by many different moral persons invested with the supreme power, there can only be a provisory internal right, and not an absolutely juridical state of civil society.
Every true republic is and can only be constituted by a representative system of the people. Such a representative system is instituted in name of the people, and is constituted by all the citizens being united together, in order, by means of their deputies, to protect and secure their rights. But as soon as a supreme head of the state in person—be it as king, or nobility, or the whole body of the people in a democratic union—becomes also representative, the united people then does not merely represent the sovereignty; but they are themselves sovereign. It is in the people that the supreme power originally resides, and it is accordingly from this power that all the rights of individual citizens as mere subjects, and especially as officials of the state, must be derived. When the sovereignty of the people themselves is thus realized, the republic is established; and it is no longer necessary to give up the reins of government into the hands of those by whom they have been hitherto held, especially as they might again destroy all the new institutions by their arbitrary and absolute will.
It was therefore a great error in judgement on the part of a powerful ruler in our time, when he tried to extricate himself from the embarrassment arising from great public debts, by transferring this burden to the people, and leaving them to undertake and distribute them among themselves as they might best think fit. It thus became natural that the legislative power, not only in respect of the taxation of the subjects, but in respect of the government, should come into the hands of the people. It was requisite that they should be able to prevent the incurring of new debts by extravagance or war; and in consequence, the supreme power of the monarch entirely disappeared, not by being merely suspended, but by passing over in fact to the people, to whose legislative will the property of every subject thus became subjected. Nor can it be said that a tacit and yet obligatory promise must be assumed as having, under such circumstances, been given by the national assembly, not to constitute themselves into a sovereignty, but only to administer the affairs of the sovereign for the time, and after this was done to deliver the reins of the government again into the monarch’s hands. Such a supposed contract would be null and void. The right of the supreme legislation in the commonwealth is not an alienable right, but is the most personal of all rights. Whoever possesses it can only dispose by the collective will of the people, in respect of the people; he cannot dispose in respect of the collective will itself, which is the ultimate foundation of all public contracts. A contract, by which the people would be bound to give back their authority again, would not be consistent with their position as a legislative power, and yet it would be made binding upon the people; which, on the principle that “No one can serve two masters,” is a contradiction.
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