The Philosophy of Law/Part 2
|←Part I. Ch. 3||The Philosophy of Law by
The System of Those Laws Which Require Public Promulgation
- 1 Public Right
- 2 I. Right of the State and Constitutional Law.
- 2.1 44. Origin of the Civil Union and Public Right.
- 2.2 45. The Form of the State and its Three Powers.
- 2.3 46. The Legislative Power and the Members of the State.
- 2.4 47. Dignities in the State and the Original Contract.
- 2.5 48. Mutual Relations and Characteristics of the Three Powers.
- 2.6 49. Distinct Functions of the Three Powers. Autonomy of the State.
- 2.7 Constitutional and Juridical Consequences arising from the Nature of the Civil Union.
- 2.7.1 A. Right of the Supreme Power, Treason; Dethronement; Revolution; Reform.
- 2.7.2 B. Land Rights. Secular and Church Lands. Rights of Taxation; Finance; Police; Inspection.
- 2.7.3 C. Relief of the Poor. Foundling Hospitals. The Church.
- 2.7.4 D. The Right of assigning Offices and Dignities in the State.
- 2.7.5 E. The Right of Punishing and of Pardoning.
- 2.8 50. Juridical Relations of the Citizen to his Country and to other Countries. Emigration; Immigration; Banishment; Exile.
- 2.9 51. The Three Forms of the State. Autocracy; Aristocracy; Democracy.
- 2.10 52. Historical Origin and Changes. A Pure Republic. Representative Government.
- 3 II. The Right of Nations and International Law.
- 3.1 53. Nature and Division of the Right of Nations.
- 3.2 54. Elements of the Right of Nations.
- 3.3 55. Right of Going to War as related to the Subjects of the State.
- 3.4 56. Right of Going to War in relation to Hostile States.
- 3.5 57. Right during War.
- 3.6 58. Right after War.
- 3.7 59. The Rights of Peace.
- 3.8 60. Right as against an Unjust Enemy.
- 3.9 61. Perpetual Peace and a Permanent Congress of Nations.
- 4 III. The Universal Right of Mankind.
- 5 Conclusion.
- 6 Notes
THE PRINCIPLES OF RIGHT IN CIVIL SOCIETY.
Definition and Division of Public Right.
Public Right embraces the whole of the Laws that require to be universally promulgated in order to produce a juridical state of Society. It is therefore a System of those Laws that are requisite for a People as a multitude of men forming a Nation, or for a number of Nations, in their relations to each other. Men and Nations, on account of their mutual influence on one another, require a juridical Constitution uniting them under one Will, in order that they may participate in what is right.—This relation of the Individuals of a Nation to each other, constitutes the Civil Union in the social state; and, viewed as a whole in relation to its constituent members, it forms the political State (Civitas).
1. The State, as constituted by the common interest of all to live in a juridical union, is called, in view of its form, the Commonwealth or the Republic in the wider sense of the term (Res publica latius sic dicta). The Principles of Right in this sphere, thus constitute the first department of Public Right as the Right of the State (jus Civitatis) or National Right.—2. The State, again, viewed in relation to other peoples, is called a Power (potentia), whence arises the idea of Potentates. Viewed in relation to the supposed hereditary unity of the people composing it, the State constitutes a Nation (gens). Under the general conception of Public Right, in addition to the Right of the individual State, there thus arises another department of Right, constituting the Right of Nations (jus gentium) or International Right.—3. Further, as the surface of the earth is not unlimited in extent, but is circumscribed into a unity, National Right and International Right necessarily culminate in the idea of a Universal Right of Mankind, which may be called 'Cosmopolitical Right' (jus cosmopoliticum). And National, International, and Cosmopolitical Right are so interconnected, that if any one of these three possible forms of the juridical Relation fails to embody the essential Principles that ought to regulate external freedom by law, the structure of Legislation reared by the others will also be undermined, and the whole System would at last fall to pieces.
Right of the State and Constitutional Law.
Origin of the Civil Union and Public Right.
It is not from any Experience prior to the appearance of an external authoritative Legislation, that we learn of the maxim of natural violence among men, and their evil tendency to engage in war with each other. Nor is it assumed here that it is merely some particular historical condition or fact, that makes public legislative constraint necessary; for however well-disposed or favourable to Right men may be considered to be of themselves, the rational Idea of a state of Society not yet regulated by Right, must be taken as our starting-point. This Idea implies that before a legal state of Society can be publicly established, individual Men, Nations and States can never be safe against violence from each other; and this is evident from the consideration that every one of his own Will naturally does what seems good and right in his own eyes, entirely independent of the opinion of others. Hence, unless the institution of Right is to be renounced, the first thing incumbent on men is to accept the Principle that it is necessary to leave the state of Nature, in which every one follows his own inclinations, and to form a union of all those who cannot avoid coming into reciprocal communication, and thus subject themselves in common to the external restraint of public compulsory Laws. Men thus enter into a Civil Union, in which every one has it determined by Law what shall be recognised as his; and this is secured to him by a competent external Power distinct from his own individuality. Such is the primary Obligation, on the part of all men, to enter into the relations of a Civil State of Society.
The natural condition of mankind need not, on this ground, be represented as a state of absolute Injustice, as if there could have been no other relation originally among men but what was merely determined by force. But this natural condition must be regarded, if it ever existed, as a state of society that was void of regulation by Right (status justitiae vacuus), so that if a matter of Right came to be in dispute (jus controversum), no competent judge was found to give an authorized legal decision upon it. It is therefore reasonable that any one should constrain another by force, to pass from such a non-juridical state of life and enter within the jurisdiction of a civil state of Society. For, although on the basis of the ideas of Right held by individuals as such, external things may be acquired by Occupancy or Contract, yet such acquisition is only provisory so long as it has not yet obtained the sanction of a Public Law. Till this sanction is reached, the condition of possession is not determined by any public Distributive Justice, nor is it secured by any Power exercising Public Right.
- If men were not disposed to recognise any Acquisition at all as rightful— even in a provisional way—prior to entering into the Civil state, this state of Society would itself be impossible. For the Laws regarding the Mine and Thine in the state of Nature, contain formally the very same thing as they prescribe in the Civil state, when it is viewed merely according to rational conceptions: only that in the forms of the Civil state the conditions are laid down under which the formal prescriptions of the state of Nature attain realization conformable to Distributive Justice.—Were there, then, not even provisionally, an external Meum and Tuum in the state of Nature, neither would there be any juridical Duties in relation to them; and, consequently, there would be no obligation to pass out of that state into another.
The Form of the State and its Three Powers.
A State (Civitas) is the union of a number of men under juridical Laws. These Laws, as such, are to be regarded as necessary a priori,—that is, as following of themselves from the conceptions of external Right generally,—and not as merely established by Statute. The Form of the State is thus involved in the Idea of the State, viewed as it ought to be according to pure principles of Right; and this ideal Form furnishes the normal criterion of every real union that constitutes a Commonwealth.
Every State contains in itself three Powers, the universal united Will of the People being thus personified in a political triad. These are the Legislative Power, the Executive Power, and the Judiciary Power.—1. The Legislative Power of the Sovereignty in the State, is embodied in the person of the Lawgiver; 2. the Executive Power is embodied in the person of the Ruler who administers the Law; and 3. the Judiciary Power, embodied in the person of the Judge, is the function of assigning every one what is his own, according to the Law (Potestas legislatoria, rectoria et judiciaria). These three Powers may be compared to the three propositions in a practical Syllogism:—the Major as the sumption laying down the universal Law of a Will, the Minor presenting the command applicable to an action according to the Law as the principle of the subsumption, and the Conclusion containing the Sentence or judgment of Right in the particular case under consideration.
The Legislative Power and the Members of the State.
The Legislative Power, viewed in its rational Principle, can only belong to the united Will of the People. For, as all Right ought to proceed from this Power, it is necessary that its Laws should be unable to do wrong to any one whatever. Now, if any one individual determines anything in the State in contradistinction to another, it is always possible that he may perpetrate a wrong on that other; but this is never possible when all determine and decree what is to be Law to themselves. ' Volenti non fit injuria.' Hence it is only the united and consenting Will of all the People—in so far as Each of them determines the same thing about all, and All determine the same thing about each—that ought to have the power of enacting Law in the State.
The Members of a Civil Society thus united for the purpose of Legislation, and thereby constituting a State, are called its Citizens; and there are three juridical attributes that inseparably belong to them by Right. These are—1. Constitutional Freedom, as the Right of every Citizen to have to obey no other Law than that to which he has given his consent or approval; 2. Civil Equality, as the Right of the Citizen to recognise no one as a Superior among the people in relation to himself, except in so far as such a one is as subject to his moral power to impose obligations, as that other has power to impose obligations upon him; and 3. Political Independence, as the Right to owe his existence and continuance in Society not to the arbitrary Will of another, but to his own Rights and Powers as a Member of the Commonwealth; and, consequently, the possession of a Civil Personality, which cannot be represented by any other than himself.
- The capability of Voting by possession of the Suffrage, properly constitutes the political qualification of a Citizen as a Member of the State. But this, again, presupposes the Independence or Self-sufficiency of the individual Citizen among the people, as one who is not a mere incidental part of the Commonwealth, but a Member of it acting of his own Will in community with others. The last of the three qualities involved, necessarily constitutes the distinction between active and passive Citizenship; although the latter conception appears to stand in contradiction to the definition of a Citizen as such. The following examples may serve to remove this difficulty. The Apprentice of a Merchant or Tradesman, a Servant who is not in the employ of the State, a Minor (naturaliter vel civiliter), all Women, and, generally, every one who is compelled to maintain himself not according to his own industry, but as it is arranged by others (the State excepted), are without Civil Personality, and their existence is only, as it were, incidentally included in the State. The Woodcutter whom I employ on my estate; the Smith in India who carries his hammer, anvil, and bellows into the houses where he is engaged to work in iron, as distinguished from the European Carpenter or Smith, who can offer the independent products of his labour as wares for public sale; the resident Tutor as distinguished from the Schoolmaster; the Ploughman as distinguished from the Farmer and such like, illustrate the distinction in question. In all these cases, the former members of the contrast are distinguished from the latter by being mere subsidiaries of the Commonwealth and not active independent Members of it, because they are of necessity commanded and protected by others, and consequently possess no political Self-sufficiency in themselves. Such Dependence on the Will of others and the consequent Inequality are, however, not inconsistent with the Freedom and Equality of the individuals as Men helping to constitute the people. Much rather is it the case that it is only under such conditions, that a People can become a State and enter into a Civil Constitution. But all are not equally qualified to exercise the Right of the Suffrage under the Constitution, and to be full Citizens of the State, and not mere passive Subjects under its protection. For, although they are entitled to demand to be treated by all the other Citizens according to laws of natural Freedom and Equality, as passive parts of the State, it does not follow that they ought themselves to have the Right to deal with the State as active Members of it, to reorganize it, or to take action by way of introducing certain laws. All they have a right in their circumstances to claim, may be no more than that whatever be the mode in which the positive laws are enacted, these laws must not be contrary to the natural Laws that demand the Freedom of all the people and the Equality that is conformable thereto; and it must therefore be made possible for them to raise themselves from this passive condition in the State, to the condition of active Citizenship.
Dignities in the State and the Original Contract.
All these three Powers in the State are Dignities; and as necessarily arising out of the Idea of the State and essential generally to the foundation of its Constitution, they are to be regarded as political Dignities. They imply the relation between a universal Sovereign as Head of the State—which according to the laws of freedom can be none other than the People itself united into a Nation—and the mass of the individuals of the Nation as Subjects. The former member of the relation is the ruling Power, whose function is to govern (imperans); the latter is the ruled Constituents of the State, whose function is to obey (subditi).
The act by which a People is represented as constituting itself into a State, is termed the original Contract. This is properly only an outward mode of representing the idea by which the rightfulness of the process of organizing the Constitution, may be made conceivable. According to this representation, all and each of the people give up their external Freedom in order to receive it immediately again as Members of a Commonwealth. The Commonwealth is the people viewed as united altogether into a State. And thus it is not to be said that the individual in the State has sacrificed a part of his inborn external Freedom for a particular purpose; but he has abandoned his wild lawless Freedom wholly, in order to find all his proper Freedom again entire and undiminished, but in the form of a regulated order of dependence, that is, in a Civil state regulated by laws of Right. This relation of Dependence thus arises out of his own regulative law-giving Will.
Mutual Relations and Characteristics of the Three Powers.
The three Powers in the State, as regards their relations to each other, are, therefore—(1) co-ordinate with one another as so many Moral Persons, and the one is thus the Complement of the other in the way of completing the Constitution of the State; (2) they are likewise subordinate to one another, so that the one cannot at the same time usurp the function of the other by whose side it moves, each having its own Principle, and maintaining its authority in a particular person, but under the condition of the Will of a Superior; and, further, (3) by the union of both these relations, they assign distributively to every subject in the State his own Rights.
Considered as to their respective Dignity, the three Powers may be thus described. The Will of the Sovereign Legislator, in respect of what constitutes the external Mine and Thine, is to be regarded as irreprehensible; the executive Function of the supreme Ruler is to be regarded as irresistible; and the judicial Sentence of the Supreme Judge is to be regarded as irreversible, being beyond appeal.
Distinct Functions of the Three Powers. Autonomy of the State.
1. The Executive Power belongs to the Governor or Regent of the State, whether it assumes the form of a Moral or Individual Person, as the King or Prince (rex, princeps). This Executive Authority, as the Supreme Agent of the State, appoints the Magistrates, and prescribes the Rules to the people, in accordance with which individuals may acquire anything or maintain what is their own conformably to the Law, each case being brought under its application. Regarded as a Moral Person, this Executive Authority constitutes the Government. The Orders issued by the Government to the People and the Magistrates as well as to the higher Ministerial Administrators of the State (gubernatio), are Rescripts or Decrees, and not Laws; for they terminate in the decision of particular cases, and are given forth as unchangeable. A Government acting as an Executive, and at the same time laying down the Law as the Legislative Power, would be a Despotic Government, and would have to be contradistinguished from a patriotic Government. A patriotic Government, again, is to be distinguished from a paternal Government (regimen paternale) which is the most despotic Government of all, the Citizens being dealt with by it as mere children. A patriotic Government, however, is one in which the State, while dealing with the Subjects as if they were Members of a Family, still treats them likewise as Citizens, and according to Laws that recognise their independence, each individual possessing himself and not being dependent on the absolute Will of another beside him or above him.
2. The Legislative Authority ought not at the same time to be the Executive or Governor; for the Governor, as Administrator, should stand under the authority of the Law, and is bound by it under the supreme control of the Legislator. The Legislative Authority may therefore deprive the Governor of his power, depose him, or reform his administration, but not punish him. This is the proper and only meaning of the common saying in England, 'The King—as the Supreme Executive Power—can do no wrong.' For any such application of Punishment would necessarily be an act of that very Executive Power to which the supreme Right to compel according to Law pertains, and which would itself be thus subjected to coercion; which is self-contradictory.
3. Further, neither the Legislative Power nor the Executive Power ought to exercise the judicial Function, but only appoint Judges as Magistrates. It is the People who ought to judge themselves, through those of the Citizens who are elected by free Choice as their Representatives for this purpose, and even specially for every process or cause. For the judicial Sentence is a special act of public Distributive Justice performed by a Judge or Court as a constitutional Administrator of the Law, to a Subject as one of the People. Such an act is not invested inherently with the power to determine and assign to any one what is his. Every individual among the people being merely passive in this relation to the Supreme Power, either the Executive or the Legislative Authority might do him wrong in their determinations in cases of dispute regarding the property of individuals. It would not be the people themselves who thus determined, or who pronounced the judgments of 'guilty' or 'not guilty' regarding their fellow-citizens. For it is to the determination of this issue in a cause, that the Court has to apply the Law; and it is by means of the Executive Authority, that the Judge holds power to assign to every one his own. Hence it is only the People that properly can judge in a cause—although indirectly—by Representatives elected and deputed by themselves, as in a Jury.—It would even be beneath the dignity of the Sovereign Head of the State to play the Judge; for this would be to put himself into a position in which it would be possible to do Wrong, and thus to subject himself to the demand for an appeal to a still higher Power (a rege male informato ad regem melius informandum).
It is by the co-operation of these three Powers—the Legislative, the Executive, and the Judicial—that the State realizes its Autonomy. This Autonomy consists in its organizing, forming, and maintaining itself in accordance with the Laws of Freedom. In their union the Welfare of the State is realized. Salus reipublicae suprema lex. By this is not to be understood merely the individual well-being and happiness of the Citizens of the State; for—as Rousseau asserts—this End may perhaps be more agreeably and more desirably attained in the state of Nature, or even under a despotic Government. But the Welfare of the State as its own Highest Good, signifies that condition in which the greatest harmony is attained between its Constitution and the Principles of Right,—a condition of the State which Reason by a Categorical Imperative makes it obligatory upon us to strive after.
Constitutional and Juridical Consequences arising from the Nature of the Civil Union.
A. Right of the Supreme Power, Treason; Dethronement; Revolution; Reform.
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 adjudicate 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.—See Supplementary Explanations, IX.
- 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 often 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 lawgiving 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 of 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 affect 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 withdrawing 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.
B. Land Rights. Secular and Church Lands. Rights of Taxation; Finance; Police; Inspection.
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 Over-lord 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 be also 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 judgment 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.
C. Relief of the Poor. Foundling Hospitals. The Church.
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 often 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 tranquillity. 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.—See Supplementary Explanations, VIII.
D. The Right of assigning Offices and Dignities in the State.
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 judgments 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 the 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 judgment, 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 Islands,—and 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 wrong-doing. 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.
E. The Right of Punishing and of Pardoning.
I. The Right of Punishing.
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 peculation 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 (paena forensis) is to be distinguished from Natural Punishment (paena 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 judgment, 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 judgment 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 bloodguiltiness 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 Judgment 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 judgment 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 Judgment 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 Judgment 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 he 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, quâ 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 (πρώτον ψεϋδος) of this sophistry consists in regarding the judgment of the Criminal himself, necessarily determined by his Reason, that he is under obligation to undergo the loss of his life, as a judgment 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 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. [See Supplementary Explanations, V.]
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 on 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.'
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 the 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 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 a 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 he has the judgment 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!
Historical Origin and Changes. A Pure Republic. Representative Government.
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 uncivilised 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 a 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 judgment 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.
The Right of Nations and International Law.
Nature and Division of the Right of Nations.
The individuals, who make up a People, may be regarded as Natives of the Country sprung by natural descent from a Common Ancestry (congeniti), although this may not hold entirely true in detail. Again, they may be viewed according to the intellectual and juridical relation, as born of a common political Mother, the Republic, so that they constitute, as it were, a public Family or Nation (gens, natio) whose Members are all related to each other as Citizens of the State. As members of a State, they do not mix with those who live beside them in the state of Nature, considering such to be ignoble. Yet these savages, on account of the lawless freedom they have chosen, regard themselves as superior to civilised peoples; and they constitute tribes and even races, but not States.—The public Right of States (jus publicum Civitatum) in their relations to one another, is what we have to consider under the designation of the 'Right of Nations.' Wherever a State, viewed as a Moral Person, acts in relation to another existing in the condition of natural freedom, and consequently in a state of continual war, such Right takes it rise.
The Right of Nations in relation to the State of War may be divided into: 1. The Right of going to War; 2. Right during War; and 3. Right after War, the object of which is to constrain the nations mutually to pass from this state of war, and to found a common Constitution establishing Perpetual Peace. The difference between the Right of individual men or families as related to each other in the state of Nature, and the Right of the Nations among themselves, consists in this, that in the Right of Nations we have to consider not merely a relation of one State to another as a whole, but also the relation of the individual persons in one State to the individuals of another State, as well as to that State as a whole. This difference, however, between the Right of Nations and the Right of Individuals in the mere State of Nature, requires to be determined by elements which can easily be deduced from the conception of the latter.
Elements of the Right of Nations.
The elements of the Right of Nations are as follow:—
1. States, viewed as Nations, in their external relations to one another—like lawless savages—are naturally in a non-juridical condition;
2. This natural condition is a State of War in which the Right of the stronger prevails; and although it may not in fact be always found as a state of actual war and incessant hostility, and although no real wrong is done to any one therein, yet the condition is wrong in itself in the highest degree, and the Nations which form States contiguous to each other are bound mutually to pass out of it;
3. An Alliance of Nations, in accordance with the idea of an original Social Contract, is necessary to protect each other against external aggression and attack, but not involving interference with their several internal difficulties and disputes;
4. This mutual connection by Alliance must dispense with a distinct Sovereign Power, such as is set up in the Civil Constitution; it can only take the form of a Federation, which as such may be revoked on any occasion, and must consequently be renewed from time to time.
This is therefore a Right which comes in as an accessory (in subsidium) of another original Right, in order to prevent the Nations from falling from Right, and lapsing into the state of actual war with each other. It thus issues in the idea of a Faedus Amphictyonum.
We have then to consider, in the first place, the original Right of free States to go to War with each other as being still in a state of Nature, but as exercising this Right in order to establish some condition of society approaching the juridical state. And, first of all, the question arises as to what Right the State has in relation to its own Subjects, to use them in order to make war against other States, to employ their property and even their lives for this purpose, or at least to expose them to hazard and danger; and all this in such a way that it does not depend upon their own personal judgment whether they will march into the field of war or not, but the Supreme Command of the Sovereign claims to settle and dispose of them thus.
This Right appears capable of being easily established. It may be grounded upon the Right which every one has to do with what is his own as he will. Whatever one has made substantially for himself, he holds as his incontestable property. The following, then, is such a deduction as a mere Jurist would put forward.
There are various natural Products in a country which, as regards the number and quantity in which they exist, must be considered as specially produced (artefacta) by the work of the State; for the country would not yield them to such extent were it not under the Constitution of the State and its regular administrative Government, or if the inhabitants were still living in the State of Nature. Sheep, cattle, domestic fowl,—the most useful of their kind,—swine, and such like, would either be used up as necessary food or destroyed by beasts of prey in the district in which I live, so that they would entirely disappear, or be found in very scant supplies, were it not for the Government securing to the inhabitants their acquisitions and property. This holds likewise of the population itself, as we see in the case of the American deserts; and even were the greatest industry applied in those regions—which is not yet done—there might be but a scanty population. The inhabitants of any country would be but sparsely sown here and there were it not for the protection of Government; because without it they could not spread themselves with their households upon a territory which was always in danger of being devastated by enemies or by wild beasts of prey; and further, so great a multitude of men as now live in any one country could not otherwise obtain sufficient means of support. Hence, as it can be said of vegetable growths, such as potatoes, as well as of domesticated animals, that because the abundance in which they are found is a product of human labour, they may be used, destroyed, and consumed by man; so it seems that it may be said of the Sovereign as the Supreme Power in the State, that he has the Right to lead his Subjects, as being for the most part productions of his own, to war, as if it were to the chase, and even to march them to the field of battle, as if it were on a pleasure excursion.
This principle of Right may be supposed to float dimly before the mind of the Monarch, and it certainly holds true at least of the lower animals which may become the property of man. But such a principle will not at all apply to men, especially when viewed as citizens who must be regarded as members of the State, with a share in the legislation, and not merely as means for others but as Ends in themselves. As such they must give their free consent, through their representatives, not only to the carrying on of war generally, but to every separate declaration of war; and it is only under this limiting condition that the State has a Right to demand their services in undertakings so full of danger.
We would therefore deduce this Right rather from the duty of the Sovereign to the people than conversely. Under this relation the people must be regarded as having given their sanction; and, having the Right of voting, they may be considered, although thus passive in reference to themselves individually, to be active in so far as they represent the Sovereignty itself.
Right of Going to War in relation to Hostile States.
Viewed as in the state of Nature, the Right of Nations to go to War and to carry on hostilities is the legitimate way by which they prosecute their Rights by their own power when they regard themselves as injured; and this is done because in that state the method of a juridical Process, although the only one proper to settle such disputes, cannot be adopted.
The threatening of War is to be distinguished from the active injury of a first Aggression, which again is distinguished from the general outbreak of Hostilities. A threat or menace may be given by the active preparation of Armaments, upon which a Right of Prevention (jus praeventionis) is founded on the other side, or merely by the formidable increase of the power of another State (potestas tremenda) by acquisition of Territory. Lesion of a less powerful country may be involved merely in the condition of a more powerful neighbour prior to any action at all; and in the State of Nature an attack under such circumstances would be warrantable. This international relation is the foundation of the Right of Equilibrium, or of the 'balance of Power,' among all the States that are in active contiguity to each other.
The Right to go to War is constituted by any overt act of Injury. This includes any arbitrary Retaliation or act of Reprisal (retorsio) as a satisfaction taken by one people for an offence committed by another, without any attempt being made to obtain reparation in a peaceful way. Such an act of retaliation would be similar in kind to an outbreak of hostilities without a previous Declaration of War. For if there is to be any Right at all during the state of war, something analogous to a Contract must be assumed, involving acceptance on the one side of the declaration on the other, and amounting to the fact that they both will to seek their Right in this way.
Right during War.
The determination of what constitutes Right in War, is the most difficult problem of the Right of Nations and International Law. It is very difficult even to form a conception of such a Right, or to think of any Law in this lawless state without falling into a contradiction. Inter arma silent leges. It must then be just the right to carry on War according to such principles as render it always still possible to pass out of that natural condition of the states in their external relations to each other, and to enter into a condition of Right.
No war of independent States against each other, can rightly be a war of Punishment (bellum punitivum). For punishment is only in place under the relation of a Superior (imperantis) to a Subject (subditum); and this is not the relation of the States to one another. Neither can an international war be 'a war of Extermination' (bellum internicinum), nor even 'a war of Subjugation' (bellum subjugatorium); for this would issue in the moral extinction of a State by its people being either fused into one mass with the conquering State, or being reduced to slavery. Not that this necessary means of attaining to a condition of peace is itself contradictory to the right of a State; but because the idea of the Right of Nations includes merely the conception of an antagonism that is in accordance with principles of external freedom, in order that the State may maintain what is properly its own, but not that it may acquire a condition which, from the aggrandizement of its power, might become threatening to other States.
Defensive measures and means of all kinds are allowable to a State that is forced to war, except such as by their use would make the Subjects using them unfit to be citizens; for the State would thus make itself unfit to be regarded as a person capable of participating in equal rights in the international relations according to the Right of Nations. Among these forbidden means are to be reckoned the appointment of Subjects to act as spies, or engaging Subjects or even strangers to act as assassins, or poisoners (in which class might well be included the so-called sharpshooters who lurk in ambush for individuals), or even employing agents to spread false news. In a word, it is forbidden to use any such malignant and perfidious means as would destroy the confidence which would be requisite to establish a lasting peace thereafter.
It is permissible in war to impose exactions and contributions upon a conquered enemy; but it is not legitimate to plunder the people in the way of forcibly depriving individuals of their property. For this would be robbery, seeing it was not the conquered people but the State under whose government they were placed that carried on the war by means of them. All exactions should be raised by regular Requisition, and Receipts ought to be given for them, in order that when peace is restored the burden imposed on the country or the province may be proportionately borne.
Right after War.
The Right that follows after War, begins at the moment of the Treaty of Peace and refers to the consequences of the war. The conqueror lays down the conditions under which he will agree with the conquered power to form the conclusion of Peace. Treaties are drawn up; not indeed according to any Right that it pertains to him to protect, on account of an alleged lesion by his opponent, but as taking this question upon himself, he bases the right to decide it upon his own power. Hence the conqueror may not demand restitution of the cost of the war; because he would then have to declare the war of his opponent to be unjust. And even although he should adopt such an argument, he is not entitled to apply it; because he would have to declare the war to be punitive, and he would thus in turn inflict an injury. To this right belongs also the Exchange of Prisoners, which is to be carried out without ransom and without regard to equality of numbers.
Neither the conquered State nor its Subjects, lose their political liberty by conquest of the country, so as that the former should be degraded to a colony, or the latter to slaves; for otherwise it would have been a penal war, which is contradictory in itself. A colony or a province is constituted by a people which has its own constitution, legislation, and territory, where persons belonging to another State are merely strangers, but which is nevertheless subject to the supreme executive power of another State. This other State is called the 'mother-country.' It is ruled as a daughter, but has at the same time its own form of government, as in a separate Parliament under the presidency of a Viceroy (civitas hybrida). Such was Athens in relation to different islands; and such is at present  the relation of Great Britain to Ireland.
Still less can Slavery be deduced as a rightful institution, from the conquest of a people in war; for this would assume that the war was of a punitive nature. And least of all can a basis be found in war for a hereditary Slavery, which is absurd in itself, since guilt cannot be inherited from the criminality of another.
Further, that an Amnesty is involved in the conclusion of a Treaty of Peace, is already implied in the very idea of a Peace.
The Rights of Peace.
The Rights of Peace are:—
1. The Right to be in Peace when War is in the neighbourhood, or the Right of Neutrality.
2. The Right to have Peace secured so that it may continue when it has been concluded, that is, the Right of Guarantee.
3. The Right of the several States to enter into a mutual Alliance, so as to defend themselves in common against all external or even internal attacks. This Right of Federation, however, does not extend to the formation of any League for external aggression or internal aggrandizement.
Right as against an Unjust Enemy.
The Right of a State against an unjust Enemy has no limits, at least in respect of quality as distinguished from quantity or degree. In other words, the injured State may use—not, indeed, any means, but yet—all those means that are permissible and in reasonable measure in so far as they are in its power, in order to assert its Right to what is its own. But what then is an unjust enemy according to the conceptions of the Right of Nations, when, as holds generally of the state of Nature, every State is judge in its own cause? It is one whose publicly expressed Will, whether in word or deed, betrays a maxim which, if it were taken as a universal rule, would make a state of Peace among the nations impossible, and would necessarily perpetuate the state of Nature. Such is the violation of public Treaties, with regard to which it may be assumed that any such violation concerns all nations by threatening their freedom, and that they are thus summoned to unite against such a wrong, and to take away the power of committing it. But this does not include the Right to partition and appropriate the country, so as to make a State as it were disappear from the earth; for this would be an injustice to the people of that State, who cannot lose their original Right to unite into a Commonwealth, and to adopt such a new Constitution as by its nature would be unfavourable to the inclination for war.
Further, it may be said that the expression 'an unjust enemy in the state of Nature' is pleonastic; for the state of Nature is itself a state of injustice. A just Enemy would be one to whom I would do wrong in offering resistance; but such a one would really not be my Enemy.
Perpetual Peace and a Permanent Congress of Nations.
The natural state of Nations as well as of individual men is a state which it is a duty to pass out of, in order to enter into a legal state. Hence, before this transition occurs, all the Right of Nations and all the external property of States acquirable or maintainable by war, are merely provisory; and they can only become peremptory in a universal Union of States analogous to that by which a Nation becomes a State. It is thus only that a real state of Peace could be established. But with the too great extension of such a Union of States over vast regions any government of it, and consequently the protection of its individual members, must at last become impossible; and thus a multitude of such corporations would again bring round a state of war. Hence the Perpetual Peace, which is the ultimate end of all the Right of Nations, becomes in fact an impracticable idea. The political principles, however, which aim at such an end, and which enjoin the formation of such unions among the States as may promote a continuous approximation to a Perpetual Peace, are not impracticable; they are as practicable as this approximation itself, which is a practical problem involving a duty, and founded upon the Right of individual men and States.
Such a Union of States, in order to maintain Peace, may be called a Permanent Congress of Nations; and it is free to every neighbouring State to join in it. A union of this kind, so far at least as regards the formalities of the Right of Nations in respect of the preservation of peace, was presented in the first half of this century, in the Assembly of the States-General at the Hague. In this Assembly most of the European Courts, and even the smallest Republics, brought forward their complaints about the hostilities which were carried on by the one against the other. Thus the whole of Europe appeared like a single Federated State, accepted as Umpire by the several nations in their public differences. But in place of this agreement, the Right of Nations afterwards survived only in books; it disappeared from the cabinets, or, after force had been already used, it was relegated in the form of theoretical deductions to the obscurity of Archives.
By such a Congress is here meant only a voluntary combination of different States that would be dissoluble at any time, and not such a union as is embodied in the United States of America, founded upon a political constitution, and therefore indissoluble. It is only by a Congress of this kind that the idea of a Public Right of Nations can be established, and that the settlement of their differences by the mode of a civil process, and not by the barbarous means of war, can be realized.
The Universal Right of Mankind.
Nature and Conditions of Cosmopolitical Right.
The rational idea of a universal, peaceful, if not yet friendly, Union of all the Nations upon the earth that may come into active relations with each other, is a juridical Principle, as distinguished from philanthropic or ethical principles. Nature has enclosed them altogether within definite boundaries, in virtue of the spherical form of their abode as a globus terraqueus; and the possession of the soil upon which an inhabitant of the earth may live, can only be regarded as possession of a part of a limited whole, and consequently as a part to which every one has originally a Right. Hence all nations originally hold a community of the soil, but not a juridical community of possession (communio), nor consequently of the use or proprietorship of the soil, but only of a possible physical intercourse (commercium) by means of it. In other words, they are placed in such thoroughgoing relations of each to all the rest, that they may claim to enter into intercourse with one another, and they have a right to make an attempt in this direction, while a foreign nation would not be entitled to treat them on this account as enemies. This Right, in so far as it relates to a possible Union of all Nations, in respect of certain laws universally regulating their intercourse with each other, may be called 'Cosmopolitical Right' (jus cosmopoliticum).
It may appear that seas put nations out of all communion with each other. But this is not so; for by means of commerce, seas form the happiest natural provision for their intercourse. And the more there are of neighbouring coast-lands, as in the case of the Mediterranean Sea, this intercourse becomes the more animated. And hence communications with such lands, especially where there are settlements upon them connected with the mother countries giving occasion for such communications, bring it about that evil and violence committed in one place of our globe are felt in all. Such possible abuse cannot, however, annul the Right of man as a citizen of the world to attempt to enter into communion with all others, and for this purpose to visit all the regions of the earth, although this does not constitute a right of settlement upon the territory of another people (jus incolatus), for which a special contract is required.
But the question is raised as to whether, in the case of newly discovered countries, a people may claim the right to settle (accolatus), and to occupy possessions in the neighbourhood of another people that has already settled in that region; and to do this without their consent.
Such a Right is indubitable, if the new settlement takes place at such a distance from the seat of the former, that neither would restrict or injure the other in the use of their territory. But in the case of nomadic peoples, or tribes of shepherds and hunters (such as the Hottentots, the Tungusi, and most of the American Indians), whose support is derived from wide desert tracts, such occupation should never take place by force, but only by contract; and any such contract ought never to take advantage of the ignorance of the original dwellers in regard to the cession of their lands. Yet it is commonly alleged that such acts of violent appropriation may be justified as subserving the general good of the world. It appears as if sufficiently justifying grounds were furnished for them, partly by reference to the civilisation of barbarous peoples (as by a pretext of this kind even Busching tries to excuse the bloody introduction of the Christian religion into Germany), and partly by founding upon the necessity of purging one's own country from depraved criminals, and the hope of their improvement or that of their posterity, in another continent like New Holland. But all these alleged good purposes cannot wash out the stain of injustice in the means employed to attain them. It may be objected that had such scrupulousness about making a beginning in founding a legal State with force been always maintained, the whole earth would still have been in a state of lawlessness. But such an objection would as little annul the conditions of Right in question as the pretext of the political revolutionaries, that when a constitution has become degenerate, it belongs to the people to transform it by force. This would amount generally to being unjust once and for all, in order thereafter to found justice the more surely, and to make it flourish.
If one cannot prove that a thing is, he may try to prove that it is not. And if he succeeds in doing neither (as often occurs), he may still ask whether it is in his interest to accept one or other of the alternatives hypothetically, from the theoretical or the practical point of view. In other words, a hypothesis may be accepted either in order to explain a certain Phenomenon (as in Astronomy to account for the retrogression and stationariness of the planets), or in order to attain a certain end, which again may be either pragmatic as belonging merely to the sphere of Art, or moral as involving a purpose which it is a duty to adopt as a maxim of action. Now it is evident that the assumption (suppositio) of the practicability of such an End, though presented merely as a theoretical and problematical judgment, may be regarded as constituting a duty; and hence it is so regarded in this case. For although there may be no positive obligation to believe in such an End, yet even if there were not the least theoretical probability of action being carried out in accordance with it, so long as its impossibility cannot be demonstrated, there still remains a duty incumbent upon us with regard to it.
Now, as a matter of fact, the morally practical Reason utters within us its irrevocable Veto: ' There shall be no War.' So there ought to be no war, neither between me and you in the condition of Nature, nor between us as members of States which, although internally in a condition of law, are still externally in their relation to each other in a condition of lawlessness; for this is not the way by which any one should prosecute his Right. Hence the question no longer is as to whether Perpetual Peace is a real thing or not a real thing, or as to whether we may not be deceiving ourselves when we adopt the former alternative, but we must act on the supposition of its being real. We must work for what may perhaps not be realized, and establish that Constitution which yet seems best adapted to bring it about (mayhap Republicanism in all States, together and separately). And thus we may put an end to the evil of wars, which have been the chief interest of the internal arrangements of all the States without exception. And although the realization of this purpose may always remain but a pious wish, yet we do certainly not deceive ourselves in adopting the maxim of action that will guide us in working incessantly for it; for it is a duty to do this. To suppose that the moral Law within us is itself deceptive, would be sufficient to excite the horrible wish rather to be deprived of all Reason than to live under such deception, and even to see oneself, according to such principles, degraded like the lower animals to the level of the mechanical play of Nature.
It may be said that the universal and lasting establishment of Peace constitutes not merely a part, but the whole final purpose and End of the Science of Right as viewed within the limits of Reason. The state of Peace is the only condition of the Mine and Thine that is secured and guaranteed by Laws in the relationship of men living in numbers contiguous to each other, and who are thus combined in a Constitution whose rule is derived not from the mere experience of those who have found it the best as a normal guide for others, but which must be taken by the Reason a priori from the ideal of a juridical Union of men under public laws generally. For all particular examples or instances, being able only to furnish illustration but not proof, are deceptive, and at all events require a Metaphysic to establish them by its necessary principles. And this is conceded indirectly even by those who turn Metaphysics into ridicule, when they say, as they often do, 'The best Constitution is that in which not Men but Laws exercise the power.' For what can be more metaphysically sublime in its own way than this very Idea of theirs, which according to their own assertion has, notwithstanding, the most objective reality? This may be easily shown by reference to actual instances. And it is this very Idea which alone can be carried out practically, if it is not forced on in a revolutionary and sudden way by violent overthrow of the existing defective Constitution; for this would produce for the time the momentary annihilation of the whole juridical state of Society. But if the idea is carried forward by gradual Reform, and in accordance with fixed Principles, it may lead by a continuous approximation to the highest political Good, and to Perpetual Peace.
- Animam praeferre pudori, Juven.
- In the old German language ' Elend,' which in its modern use means 'misery.'