The rational Title of Acquisition can therefore only lie originally in the Idea of the Will of all united implicitly, or necessarily to be united, which is here tacitly assumed as an indispensable Condition ( Conditio sine qua non ). For by a single Will there cannot be imposed upon others an obligation by which they would not have been otherwise bound.—But the fact formed by Wills actually and universally united in a Legislation, constitutes the Civil state of Society. Hence, it is only in conformity with the idea of a Civil state of Society, or in reference to it and its realization, that anything External can be acquired. Before such a state is realized, and in anticipation of it, Acquisition, which would otherwise be derived, is consequently only provisory. The Acquisition, which is peremptory, finds place only in the Civil state.
Nevertheless, such provisory Acquisition is real Acquisition. For, according to the Postulate of the juridically Practical Reason, the possibility of Acquisition in whatever state men may happen to be living beside one another, and therefore in the State of Nature as well, is a Principle of Private Right. And in accordance with this Principle, every one is justified or entitled to exercise that compulsion by which it alone becomes possible to pass out of the state of Nature, and to enter into that state of Civil Society which alone can make all Acquisition peremptory.
All men are originally in a common collective possession of the Soil of the whole Earth ( Communio fundi originaria ), and they have naturally each a Will to use it ( lex justi ). But on account of the opposition of the free Will of one to that of the other in the sphere of action, which is inevitable by nature, all use of the soil would be prevented did not every will contain at the same time a Law for the regulation of the relation of all Wills in action, according to which a particular possession can be determined to every one upon the common soil. This is the juridical Law ( lex juridica ). But the distributive Law of the Mine and Thine, as applicable to each individual on the soil, according to the Axiom of external Freedom, cannot proceed otherwise than from a primarily united Will à priori —which does not presuppose any juridical act as requisite for this union. This Law can only take form in the Civil State ( lex justitiæ distributivæ ); as it is in this state alone that the united common Will determines what is right, what is rightful, and what is the constitution of Right. In reference to this state, however,—and prior to its establishment and in view of it,—it is provisorily a Duty for every one to proceed according to the Law of external Acquisition; and accordingly it is a juridical procedure on the part of the Will to lay every one under Obligation to recognise the act of possessing and appropriating, although it be only unilaterally. Hence a provisory Acquisition of the Soil, with all its juridical consequences, is possible in the state of Nature.
Such an Acquisition, however, requires and also obtains the favour of a Permissive Law ( Lex permissiva ), in respect of the determination of the limits of juridically possible Possession. For it precedes the juridical state, and as merely introductory to it is not yet peremptory; and this favour does not extend farther than the date of the consent of the other co-operators in the establishment of the Civil State. But if they are opposed to entering into the Civil State, as long as this opposition lasts it carries all the effect of a guaranteed juridical Acquisition with it, because the advance from the state of nature to the Civil State is founded upon a Duty.
We have found the Title of Acquisition in a universal original community of the Soil, under the conditions of an external Acquisition in space; and the Mode of Acquisition is contained in the empirical fact of taking possession ( Apprehensio ), conjoined with the Will to have an external object as one’s own. It is further necessary to unfold from the Principles of the pure juridically Practical Reason involved in the conception, the juridical Acquisition proper of an object,—that is, the external Mine and Thine that follows from the two previous conditions, as Rational Possession ( possessio noumenon ).
The juridical Conception of the external Mine and Thine, so far as it involves the category of Substance, cannot by ‘that which is external to me’ mean merely ‘ in a place other than that in which I am;’ for it is a rational conception. As under the conceptions of the Reason only intellectual conceptions can be embraced, the expression in question can only signify ‘something that is different and distinct from me’ according to the idea of a non-empirical Possession through, as it were, a continuous activity in taking possession of an external object; and it involves only the notion of ‘ having something in my power, ’ which indicates the connection of an object with myself, as a subjective condition of the possibility of making use of it. This forms a purely intellectual conception of the Understanding. Now we can leave out or abstract from the sensible conditions of Possession, as relations of a Person to objects which have no obligation. This process of elimination just gives the rational relation of a Person to Persons; and it is such that he can bind them all by an obligation in reference to the use of things through his act of Will, so far as it is conformable to the Axiom of Freedom, the Postulate of Right, and the universal Legislation of the common Will conceived as united à priori. This is therefore the rational intelligible possession of things as by pure Right, although they are objects of sense.
An external Object, which, in respect of its Substance, can be claimed by some one as his own, is called the Property ( dominium ) of that Person to whom all the Rights in it as a thing belong, like the Accidents inhering in a Substance, and which, therefore, he as the Proprietor ( dominus ) can dispose of at will ( jus disponendi de re sua ). But from this it follows at once, that such an object can only be a Corporeal Thing towards which there is no direct personal Obligation. Hence a man may be his own Master ( sui juris ) but not the Proprietor of himself ( sui dominus ), so as to be able to dispose of himself at will, to say nothing of the possibility of such a relation to other men; because he is responsible to Humanity in his own person. This point, however, as belonging to the Right of Humanity as such, rather than to that of individual men, would not be discussed at its proper place here, but is only mentioned incidentally for the better elucidation of what has just been said. It may be further observed that there may be two full Proprietors of one and the same thing, without there being a Mine and Thine in common, but only in so far as they are common Possessors of what belongs only to one of them as his own. In such a case the whole Possession without the Use of the thing, belongs to one only of the Co-proprietors ( condomini ); while to the other belongs all the Use of the thing along with its Possession. The former as the direct Proprietor ( dominus directus ), therefore, restricts the latter as the Proprietor in use ( dominus utilis ) to the condition of a certain continuous performance, with reference to the thing itself, without limiting him in the use of it.
The possession of the active free-will of another person, as the power to determine it by my Will to a certain action, according to Laws of Freedom, is a form of Right relating to the external Mine and Thine, as affected by the Causality of another. It is possible to have several such Rights in reference to the same Person or to different persons. The Principle of the System of Laws, according to which I can be in such possession, is that of Personal Right, and there is only one such Principle.
The Acquisition of a Personal Right can never be primary or arbitrary; for such a mode of acquiring it would not be in accordance with the Principle of the harmony of the freedom of my will with the freedom of every other, and it would therefore be wrong. Nor can such a Right be acquired by means of any unjust act of another ( facto injusti alterius ), as being itself contrary to Right; for if such a wrong as it implies were perpetrated on me, and I could demand satisfaction from the other, in accordance with Right, yet in such a case I would only be entitled to maintain undiminished what was mine, and not to acquire anything more than what I formerly had.
Acquisition by means of the action of another, to which I determine his Will according to Laws of Right, is therefore always derived from what that other has as his own. This derivation, as a Juridical act, cannot be effected by a mere negative relinquishment or renunciation of what is his ( per derelictionem aut renunciationem ); because such a negative Act would only amount to a cessation of his Right, and not to the acquirement of a Right on the part of another. It is therefore only by positive Transference ( translatio ), or Conveyance, that a Personal Right can be acquired; and this is only possible by means of a common Will, through which objects come into the power of one or other, so that as one renounces a particular thing which he holds under the common Right, the same object when accepted by another, in consequence of a positive act of Will, becomes his. Such transference of the Property of one to another is termed its Alienation. The act of the united Wills of two Persons, by which what belonged to one passes to the other, constitutes Contract.
In every Contract there are four Juridical Acts of Will involved; two of them being preparatory Acts, and two of them constitutive Acts. The two Preparatory Acts, as forms of treating in the Transaction, are Offer ( oblatio ) and Approval ( approbatio ); the two Constitutive Acts, as the forms of concluding the transaction, are Promise ( promissum ) and Acceptance ( acceptatio ). For an offer cannot constitute a Promise before it can be judged that the thing offered ( oblatum ) is something that is agreeable to the Party to whom it is offered, and this much is shown by the first two declarations; but by them alone there is nothing as yet acquired.
Further, it is neither by the particular Will of the Promiser nor that of the Acceptor that the property of the former passes over to the latter. This is effected only by the combined or united Wills of both, and consequently so far only as the Will of both is declared at the same time or simultaneously. Now, such simultaneousness is impossible by empirical acts of declaration, which can only follow each other in time, and are never actually simultaneous. For if I have promised, and another person is now merely willing to accept, during the interval before actual Acceptance, however short it may be, I may retract my offer, because I am thus far still free; and, on the other side, the Acceptor, for the same reason, may likewise hold himself not to be bound, up till the moment of Acceptance, by his counter-declaration following upon the Promise. — The external Formalities or Solemnities ( solemnia ) on the conclusion of a Contract, — such as shaking hands or breaking a straw ( stipula ) laid hold of by two persons, — and all the various modes of confirming the Declarations on either side, prove in fact the embarrassment of the contracting parties as to how and in what way they may represent Declarations, which are always successive, as existing simultaneously at the same moment; and these forms fail to do this. They are, by their very nature, Acts necessarily following each other in time, so that when the one Act is, the other either is not yet or is no longer.
It is only the philosophical Transcendental Deduction of the Conception of Acquisition by Contract, that can remove all these difficulties. In a juridical external relation, my taking possession of the free-will of another, as the cause that determined it to a certain Act, is conceived at first empirically by means of the declaration and counter-declaration of the free-will of each of us in time, as the sensible conditions of taking possession; and the two juridical Acts must necessarily be regarded as following one another in time. But because this relation, viewed as juridical, is purely Rational in itself, the Will as a law-giving faculty of Reason represents this possession as intelligible or rational ( possessio noumenon ), in accordance with conceptions of Freedom and under abstraction of those empirical conditions. And now, the two Acts of Promise and Acceptance are not regarded as following one another in time, but, in the manner of a pactum re initum, as proceeding from a common Will, which is expressed by the term ‘at the same time,’ or ‘simultaneous,’ and the object promised ( promissum ) is represented, under elimination of empirical conditions, as acquired according to the Law of the pure Practical Reason.
But what is that, designated as ‘External,’ which I acquire by Contract? As it is only the Causality of the active Will of another, in respect of the Performance of something promised to me, I do not immediately acquire thereby an external Thing, but an Act of the Will in question, whereby a Thing is brought under my power so that I make it mine.—By the Contract, therefore, I acquire the Promise of another, as distinguished from the Thing promised; and yet something is thereby added to my Having and Possession. I have become the richer in possession ( locupletior ) by the Acquisition of an active Obligation that I can bring to bear upon the Freedom and Capability of another. — This my Right, however, is only a personal Right, valid only to the effect of acting upon a particular physical Person and specially upon the Causality of his Will, so that he shall perform something for me. It is not a Real Right upon that Moral Person, which is identified with the Idea of the united Will of All viewed à priori, and through which alone I can acquire a Right valid against every Possessor of the Thing. For, it is in this that all Right in a Thing consists.
A thing is not acquired in a case of Contract by the Acceptance ( acceptatio ) of the Promise, but only by the Delivery ( traditio ) of the object promised. For all Promise is relative to Performance; and if what was promised is a Thing, the Performance cannot be executed otherwise than by an act whereby the Acceptor is put by the Promiser into possession of the Thing; and this is Delivery. Before the Delivery and the Reception of the Thing, the Performance of the act required has not yet taken place; the Thing has not yet passed from the one person to the other, and consequently has not been acquired by that other. Hence the Right arising from a Contract, is only a Personal Right; and it only becomes a Real Right by Delivery.
(Jus realiter personale.)
Personal Right of a real kind is the Right to the possession of an external object as a Thing, and to the use of it as a Person. —The Mine and Thine embraced under this Right relate specially to the Family and Household; and the relations involved are those of free beings in reciprocal real interaction with each other. Through their relations and influence as Persons upon one another, in accordance with the principle of external Freedom as the cause of it, they form a Society composed as a whole of members standing in community with each other as Persons; and this constitutes the Household. —The mode in which this social status is acquired by individuals, and the functions which prevail within it, proceed neither by arbitrary individual action ( facto ), nor by mere Contract ( pacto ), but by Law ( lege ). And this Law as being not only a Right, but also as constituting Possession in reference to a Person, is a Right rising above all mere Real and Personal Right. It must, in fact, form the Right of Humanity in our own Person; and, as such, it has as its consequence a natural Permissive Law, by the favour of which such Acquisition becomes possible to us.
The Acquisition that is founded upon this Law is, as regards its objects, threefold. The Man acquires a Wife; the Husband and Wife acquire Children, constituting a Family; and the Family acquire Domestics. All these objects, while acquirable, are inalienable; and the Right of Possession in these objects is the most strictly personal of all Rights.
The domestic Relations are founded on Marriage, and Marriage is founded upon the natural Reciprocity or intercommunity ( commercium ) of the Sexes. 1 This natural union of the sexes proceeds either according to the mere animal Nature ( vaga libido, venus vulgivaga, fornicatio ), or according to Law. The latter is Marriage ( matrimonium ), which is the Union of two Persons of different sex for life-long reciprocal possession of their sexual faculties.—The End of producing and educating children may be regarded as always the End of Nature in implanting mutual desire and inclination in the sexes; but it is not necessary for the rightfulness of marriage that those who marry should set this before themselves as the End of their Union, otherwise the Marriage would be dissolved of itself when the production of children ceased.
And even assuming that enjoyment in the reciprocal use of the sexual endowments is an end of marriage, yet the Contract of Marriage is not on that account a matter of arbitrary will, but is a Contract necessary in its nature by the Law of Humanity. In other words, if a man and a woman have the will to enter on reciprocal enjoyment in accordance with their sexual nature, they must necessarily marry each other; and this necessity is in accordance with the juridical Laws of Pure Reason.
For, this natural ‘ Commercium ’—as a ‘ usus membrorum sexualium alterius ’—is an enjoyment for which the one person is given up to the other. In this relation the human individual makes himself a ‘ res, ’ which is contrary to the Right of Humanity in his own Person. This, however, is only possible under the one condition, that as the one Person is acquired by the other as a res, that same Person also equally acquires the other reciprocally, and thus regains and re-establishes the rational Personality. The Acquisition of a part of the human organism being, on account of its unity, at the same time the acquisition of the whole Person, it follows that the surrender and acceptation of, or by, one sex in relation to the other, is not only permissible under the condition of Marriage, but is further only really possible under that condition. But the Personal Right thus acquired is at the same time, real in kind; and this characteristic of it is established by the fact that if one of the married Persons run away or enter into the possession of another, the other is entitled, at any time, and incontestably, to bring such a one back to the former relation, as if that Person were a Thing.
For the same reasons, the relation of the Married Persons to each other is a relation of Equality as regards the mutual possession of their Persons, as well as of their Goods. Consequently Marriage is only truly realized in Monogamy; for in the relation of Polygamy the Person who is given away on the one side, gains only a part of the one to whom that Person is given up, and therefore becomes a mere res. But in respect of their Goods, they have severally the Right to renounce the use of any part of them, although only by a special Contract.
The Contract of Marriage is completed only by conjugal cohabitation. A Contract of two Persons of different sex, with the secret understanding either to abstain from conjugal cohabitation or with the consciousness on either side of incapacity for it, is a simulated Contract; it does not constitute a marriage, and it may be dissolved by either of the parties at will. But if the incapacity only arises after marriage, the Right of the Contract is not annulled or diminished by a contingency that cannot be legally blamed.
The Acquisition of a Spouse either as a Husband or as a Wife, is therefore not constituted facto —that is, by Cohabitation—without a preceding Contract; nor even pacto —by a mere Contract of Marriage, without subsequent Cohabitation; but only lege, that is, as a juridical consequence of the obligation that is formed by two Persons entering into a sexual Union solely on the basis of a reciprocal Possession of each other, which Possession at the same time is only effected in reality by the reciprocal ‘usus facultatum sexualium alterius.’
From the Duty of Man towards himself—that is, towards the Humanity in his own Person—there thus arises a personal Right on the part of the Members of the opposite sexes, as Persons, to acquire one another really and reciprocally by Marriage. In like manner, from the fact of Procreation in the union thus constituted, there follows the Duty of preserving and rearing Children as the Products of this Union. Accordingly Children, as Persons, have, at the same time, an original congenital Right—distinguished from mere hereditary Right—to be reared by the care of their Parents till they are capable of maintaining themselves; and this provision becomes immediately theirs by Law, without any particular juridical Act being required to determine it.
For what is thus produced is a Person, and it is impossible to think of a Being endowed with personal Freedom as produced merely by a physical process. And hence, in the practical relation, it is quite a correct and even a necessary Idea to regard the act of generation as a process by which a Person is brought without his consent into the world, and placed in it by the responsible free will of others. This Act, therefore, attaches an obligation to the Parents to make their Children—as far as their power goes—contented with the condition thus acquired. Hence Parents cannot regard their Child as, in a manner, a Thing of their own making, for a Being endowed with Freedom cannot be so regarded. Nor, consequently, have they a Right to destroy it as if it were their own property, or even to leave it to chance; because they have brought a Being into the world who becomes in fact a Citizen of the world, and they have placed that Being in a state which they cannot be left to treat with indifference, even according to the natural conceptions of Right.
From the Duty thus indicated, there further necessarily arises the Right of the Parents to the Management and Training of the Child, so long as it is itself incapable of making proper use of its body as an Organism, and of its mind as an Understanding. This involves its nourishment and the care of its Education. This includes, in general, the function of forming and developing it practically, that it may be able in the future to maintain and advance itself, and also its moral Culture and Development, the guilt of neglecting it falling upon the Parents. All this training is to be continued till the Child reaches the period of Emancipation ( emancipatio ), as the age of practicable self-support. The Parents then virtually renounce the parental Right to command, as well as all claim to repayment for their previous care and trouble; for which care and trouble, after the process of Education is complete, they can only appeal to the Children by way of any claim, on the ground of the Obligation of Gratitude as a Duty of Virtue.
From the fact of Personality in the Children, it further follows that they can never be regarded as the Property of the Parents, but only as belonging to them by way of being in their possession, like other things that are held apart from the possession of all others and that can be brought back even against the will of the Subjects. Hence the Right of the Parents is not a purely Real Right, and it is not alienable ( jus personalissimum ). But neither is it a merely Personal Right; it is a Personal Right of a real kind, that is, a Personal Right that is constituted and exercised after the manner of a Real Right.
It is therefore evident that the Title of a Personal Right of a Real Kind must necessarily be added, in the Science of Right, to the Titles of Real Right and Personal Right, the Division of Rights into these two being not complete. For, if the Right of the Parents to the Children were treated as if it were merely a Real Right to a part of what belongs to their house, they could not found only upon the Duty of the Children to return to them in claiming them when they run away, but they would be then entitled to seize them and to impound them like things or runaway cattle.
The Children of the House, who, along with the Parents, constitute a Family, attain majority, and become Masters of Themselves ( majorennes, sui juris ), even without a Contract of release from their previous state of Dependence, by their actually attaining to the capability of self-maintenance. This attainment arises, on the one hand, as a state of natural Majority, with the advance of years in the general course of Nature; and, on the other hand, it takes form, as a state in accordance with their own natural condition. They thus acquire the Right of being their own Masters, without the interposition of any special juridical act, and therefore merely by Law ( lege ); and they owe their Parents nothing by way of legal debt for their Education, just as the parents, on their side, are now released from their Obligations to the Children in the same way. Parents and Children thus gain or regain their natural Freedom; and the domestic society, which was necessary according to the Law of Right, is thus naturally dissolved.
Both Parties, however, may resolve to continue the Household, but under another mode of Obligation. It may assume the form of a relation between the Head of the House as its Master, and the other members as domestic Servants, male or female; and the connection between them in this new regulated domestic economy ( societas herilis ) may be determined by Contract. The Master of the House, actually or virtually, enters into Contract with the Children, now become major and masters of themselves; or, if there be no Children in the Family, with other free Persons constituting the membership of the Household; and thus there is established a domestic relationship not founded on social equality, but such that one commands as Master, and another obeys as Servant ( Imperantis et subjecti Domestici ).
The Domestics or Servants may then be regarded by the Master of the household, as thus far his. As regards the form or mode of his Possession of them, they belong to him as if by a Real Right; for if any of them run away, he is entitled to bring them again under his power by a unilateral act of his will. But as regards the matter of his Right, or the use he is entitled to make of such persons as his Domestics, he is not entitled to conduct himself towards them as if he was their proprietor or owner ( dominus servi ); because they are only subjected to his power by Contract, and by a Contract under certain definite restrictions. For a Contract by which the one party renounced his whole freedom for the advantage of the other, ceasing thereby to be a person and consequently having no duty even to observe a Contract, is self-contradictory, and is therefore of itself null and void. The question as to the Right of Property in relation to one who has lost his legal personality by a Crime, does not concern us here.
This Contract, then, of the Master of a Household with his Domestics, cannot be of such a nature that the use of them could ever rightly become an abuse of them; and the judgment as to what constitutes use or abuse in such circumstances is not left merely to the Master, but is also competent to the Servants, who ought never to be held in bondage or bodily servitude as Slaves or Serfs. Such a Contract cannot, therefore, be concluded for life, but in all cases only for a definite period, within which one party may intimate to the other a termination of their connection. Children, however, including even the children of one who has become enslaved owing to a Crime, are always free. For every man is born free, because he has at birth as yet broken no Law; and even the cost of his education till his maturity, cannot be reckoned as a debt which he is bound to pay. Even a Slave, if it were in his power, would be bound to educate his children without being entitled to count and reckon with them for the cost; and in view of his own incapacity for discharging this function, the Possessor of a Slave, therefore, enters upon the Obligation which he has rendered the Slave himself unable to fulfil.
It is reasonable to demand that a metaphysical Science of Right shall completely and definitely determine the members of a logical Division of its Conceptions à priori, and thus establish them in a genuine System. All empirical Division, on the other hand, is merely fragmentary Partition, and it leaves us in uncertainty as to whether there may not be more members still required to complete the whole sphere of the divided Conception. A Division that is made according to a Principle à priori may be called, in contrast to all empirical Partitions, a dogmatic Division.
Every Contract, regarded in itself objectively, consists of two juridical Acts: the Promise and its Acceptance. Acquisition by the latter, unless it be a pactum re initum which requires Delivery, is not a part, but the juridically necessary Consequence of the Contract. Considered again subjectively, or as to whether the Acquisition, which ought to happen as a necessary Consequence according to Reason, will also follow, in fact, as a physical Consequence, it is evident that I have no Security or Guarantee that this will happen by the mere Acceptance of a Promise. There is therefore something externally required connected with the mode of the Contract, in reference to the certainty of Acquisition by it; and this can only be some element completing and determining the Means necessary to the attainment of Acquisition as realizing the purpose of the Contract. And in his connection and behoof, three Persons are required to intervene—the Promiser, the Acceptor, and the Cautioner or Surety. The importance of the Cautioner is evident; but by his intervention and his special Contract with the Promiser, the Acceptor gains nothing in respect of the Object, but the means of Compulsion that enable him to obtain what is his own.
According to these rational Principles of logical Division, there are properly only three pure and simple Modes of Contract. There are, however, innumerable mixed and empirical Modes, adding statutory and conventional Forms to the Principles of the Mine and Thine that are in accordance with rational Laws. But they lie outside of the circle of the Metaphysical Science of Right, whose Rational Modes of Contract can alone be indicated here.
All Contracts are founded upon a purpose of Acquisition, and are either
A. The Gratuitous Contracts ( pacta gratuita ) are—
B. The Onerous Contracts, are Contracts either of Permutation or of Hiring.
C. The Cautionary Contracts ( cautiones ) are:—
This List of all the modes in which the property of one Person may be transferred or conveyed to another, includes conceptions of certain objects or Instruments required for such transference ( translatio ). These appear to be entirely empirical, and it may therefore seem questionable whether they are entitled to a place in a Metaphysical Science of Right. For, in such a Science the Divisions must be made according to Principles à priori; and hence the matter of the juridical relation, which may be conventional, ought to be left out of account, and only its Form should be taken into consideration.
Such conceptions may be illustrated by taking the instance of Money, in contradistinction from all other exchangeable things as Wares and Merchandise; or by the case of a Book. And considering these as illustrative examples in this connection, it will be shown that the conception of Money as the greatest and most useable of all the Means of human intercommunication through Things, in the way of Purchase and Sale in commerce, as well as that of Books as the greatest Means of carrying on the interchange of Thought, resolve themselves into relations that are purely intellectual and rational. And hence it will be made evident that such Conceptions do not really detract from the purity of the given Scheme of pure Rational Contracts, by empirical admixture.
Money is a thing which can only be made use of, by being alienated or exchanged. This is a good Nominal Definition, as given by Achenwall; and it is sufficient to distinguish objects of the Will of this kind from all other objects. But it gives us no information regarding the rational possibility of such a thing as money is. Yet we see thus much by the Definition: (1) that the Alienation in this mode of human intercommunication and exchange is not viewed as a Gift, but is intended as a mode of reciprocal Acquisition by an Onerous Contract; and (2) that it is regarded as a mere means of carrying on Commerce, universally adopted by the people, but having no value as such of itself, in contrast to other Things as mercantile Goods or Wares which have a particular value in relation to special wants existing among the people. It therefore represents all exchangeable things.
A bushel of Corn has the greatest direct value as a means of satisfying human wants. Cattle may be fed by it; and these again are subservient to our nourishment and locomotion, and they even labour in our stead. Thus by means of corn men are multiplied and supported, who not only act again in reproducing such natural products, but also by other artificial products they can come to the relief of all our proper wants. Thus are men enabled to build dwellings, to prepare clothing, and to supply all the ingenious comforts and enjoyments which make up the products of industry.—On the other hand, the value of Money is only indirect. It cannot be itself enjoyed, nor be used directly for enjoyment; it is, however, a Means towards this, and of all outward things it is of the highest utility.
We may found a Real Definition of Money provisionally upon these considerations. It may thus be defined as the universal means of carrying on the Industry of men in exchanging intercommunications with each other. Hence national Wealth, in so far as it can be acquired by means of Money, is properly only the sum of the Industry or applied Labour with which men pay each other, and which is represented by the Money in circulation among the people.
The Thing which is to be called Money must, therefore, have cost as much Industry to produce it, or even to put it into the hands of others, as may be equivalent to the Industry or Labour required for the acquisition of the Goods or Wares or Merchandise, as natural or artificial products, for which it is exchanged. For if it were easier to procure the material which is called Money than the goods that are required, there would be more Money in the market than goods to be sold; and because the Seller would then have to expend more labour upon his goods than the Buyer on the equivalent, the Money coming in to him more rapidly, the Labour applied to the preparation of goods and Industry generally, with the industrial productivity which is the source of the public Wealth, would at the same time dwindle and be cut down. — Hence Bank Notes and Assignations are not to be regarded as Money although they may take its place by way of representing it for a time; because it costs almost no Labour to prepare them, and their value is based merely upon the opinion prevailing as to the further continuance of the previous possibility of changing them into Ready Money. But on its being in any way found out that there is not Ready Money in sufficient quantity for easy and safe conversion of such Notes or Assignations, the opinion gives way, and a fall in their value becomes inevitable. Thus the industrial Labour of those who work the Gold and Silver Mines in Peru and Mexico—especially on account of the frequent failures in the application of fruitless efforts to discover new veins of these precious metals—is probably even greater than what is expended in the manufacture of Goods in Europe. Hence such mining Labour, as unrewarded in the circumstances, would be abandoned of itself, and the countries mentioned would in consequence soon sink into poverty, did not the Industry of Europe, stimulated in turn by these very metals, proportionally expand at the same time so as constantly to keep up the zeal of the Miners in their work by the articles of luxury thereby offered to them. It is thus that the concurrence of Industry with Industry, and of Labour with Labour, is always maintained.
But how is it possible that what at the beginning constituted only Goods or Wares, at length became Money? This has happened wherever a Sovereign as a great and powerful consumer of a particular substance, which he at first used merely for the adornment and decoration of his servants and court, has enforced the tribute of his subjects in this kind of material. Thus it may have been Gold, or Silver, or Copper, or a species of beautiful shells called Cowries, or even a sort of mat called Makutes, as in Congo; or Ingots of Iron, as in Senegal; or Negro Slaves, as on the Guinea Coast. When the Ruler of the country demanded such things as imposts, those whose Labour had to be put in motion to procure them were also paid by means of them, according to certain regulations of commerce then established, as in a Market or Exchange. As it appears to me, it is only thus that a particular species of goods came to be made a legal means of carrying on the industrial labour of the Subjects in their commerce with each other, and thereby forming the medium of the national Wealth. And thus it practically became Money.
The Rational Conception of Money, under which the empirical conception is embraced, is therefore that of a thing which, in the course of the public permutation or Exchange of possessions ( permutatio publica ), determines the Price of all the other things that form products or Goods — under which term even the Sciences are included, in so far as they are not taught gratis to others. The quantity of it among a people constitutes their Wealth ( opulentia ). For Price ( pretium ) is the public judgment about the Value of a thing, in relation to the proportionate abundance of what forms the universal representative means in circulation for carrying on the reciprocal interchange of the products of Industry or Labour. 1 The precious metals, when they are not merely weighed but also stamped or provided with a sign indicating how much they are worth, form legal Money, and are called Coin.
According to Adam Smith, ‘Money has become, in all civilised nations, the universal instrument of Commerce, by the intervention of which Goods of all kinds are bought and sold or exchanged for one another.’—This Definition expands the empirical conception of Money to the rational idea of it, by taking regard only to the implied form of the Reciprocal Performances in the Onerous Contracts, and thus abstracting from their matter. It is thus conformable to the conception of Right in the Permutation and Exchange of the Mine and Thine generally ( commutatio late sic dicta ). The Definition, therefore, accords with the representation in the above Synopsis of a Dogmatic Division of Contracts à priori, and consequently with the Metaphysical Principle of Right in general.
A Book is a Writing which contains a Discourse addressed by some one to the Public, through visible signs of Speech. It is a matter of indifference to the present considerations whether it is written by a pen or imprinted by types, and on few or many pages. He who speaks to the Public in his own name, is the Author. He who addresses the writing to the Public in the name of the Author, is the Publisher. When a Publisher does this with the permission or authority of the Author, the act is in accordance with Right, and he is the rightful Publisher; but if this is done without such permission or authority, the act is contrary to Right, and the Publisher is a counterfeiter or unlawful Publisher. The whole of a set of Copies of the original Document, is called an Edition.
A Writing is not an immediate direct presentation of a conception, as is the case, for instance, with an Engraving that exhibits a Portrait, or a Bust or Caste by a Sculptor. It is a Discourse addressed in a particular form to the Public; and the Author may be said to speak publicly by means of his Publisher. The Publisher, again, speaks by the aid of the Printer as his workman ( operarius ), yet not in his own name,—for otherwise he would be the Author,—but in the name of the Author; and he is only entitled to do so in virtue of a Mandate given him to that effect by the Author.—Now the unauthorized Printer and Publisher speaks by an assumed authority in his Publication; in the name indeed of the Author, but without a Mandate to that effect ( gerit se mandatarium absque mandato ). Consequently such an unauthorized Publication is a wrong committed upon the authorized and only lawful Publisher, as it amounts to a pilfering of the Profits which the latter was entitled and able to draw from the use of his proper Right ( furtum usus ). Unauthorized Printing and Publication of Books is therefore forbidden—as an act Counterfeit and Piracy—on the ground of Right.
There seems, however, to be an impression that there is a sort of common Right to print and publish Books; but the slightest reflection must convince any one that this would be a great injustice. The reason of it is found simply in the fact that a Book, regarded from one point of view, is an external product of mechanical art ( opus mechanicum ), that can be imitated by any one who may be in rightful possession of a Copy; and it is therefore his by a Real Right. But from another point of view, a Book is not merely an external Thing, but is a Discourse of the Publisher to the public, and he is only entitled to do this publicly under the Mandate of the Author ( præstatio operæ ); and this constitutes a Personal Right. The error underlying the impression referred to, therefore, arises from an interchange and confusion of these two kinds of Right in relation to Books.
The confusion of Personal Right with Real Right may be likewise shown by reference to a difference of view in connection with another Contract, falling under the head of Contracts of Hiring (B. II. 1), namely, the Contract of Lease ( jus incolatus ). The question is raised as to whether a Proprietor when he has sold a house or a piece of ground held on lease, before the expiry of the period of Lease, was bound to add the condition of the continuance of the Lease to the Contract of Purchase; or whether it should be held that ‘Purchase breaks Hire,’ of course under reservation of a period of warning determined by the nature of the subject in use.—In the former view, a house or farm would be regarded as having a Burden lying upon it, constituting a Real Right acquired in it by the Lessee; and this might well enough be carried out by a clause merely indorsing or ingrossing the Contract of Lease in the Deed of Sale. But as it would no longer then be a simple Lease, another Contract would properly be required to be conjoined, a matter which few Lessors would be disposed to grant. The proposition, then, that ‘Purchase breaks Hire’ holds in principle; for the full Right in a Thing as a Property, overbears all Personal Right which is inconsistent with it. But there remains a Right of Action to the Lessee, on the ground of a Personal Right for indemnification on account of any loss arising from breaking of the Contract. [See Supplementary Explanations, IV.]
I call that mode of Acquisition ideal which involves no Causality in time, and which is founded upon a mere Idea of pure reason. It is nevertheless actual, and not merely imaginary Acquisition; and it is not called real only because the Act of Acquisition is not empirical. This character of the Act arises from the peculiarity that the Person acquiring, acquires from another who either is not yet, and who can only be regarded as a possible Being, or who is just ceasing to be, or who no longer is. Hence such a mode of attaining to Possession is to be regarded as a mere practical Idea of Reason.
There are three Modes of Ideal Acquisition:—
I. Acquisition by Usucapion;
II. Acquisition by Inheritance or Succession;
III. Acquisition by Undying Merit ( meritum immortale ), or the Claim by Right to a good name at Death.
These three Modes of Acquisition can, as a matter of fact, only have effect in a public juridical state of existence, but they are not founded merely upon the Civil Constitution or upon arbitrary Statutes; they are already contained à priori in the conception of the state of Nature, and are thus necessarily conceivable prior to their empirical manifestation. The Laws regarding them in the Civil Constitution ought to be regulated by that rational Conception.
(Acquisitio per Usucapionem.)
I may acquire the Property of another merely by long possession and use of it ( Usucapio ). Such Property is not acquired, because I may legitimately presume that his Consent is given to this effect ( per consensum præsumptum ); nor because I can assume that as he does not oppose my Acquisition of it, he has relinquished or abandoned it as his ( rem derelictam ). But I acquire it thus, because even if there were any one actually raising a claim to this Property as its true Owner, I may exclude him on the ground of my long Possession of it, ignore his previous existence, and proceed as if he existed during the time of my Possession as a mere abstraction, although I may have been subsequently apprized of his reality as well as of his claim. This Mode of Acquisition is not quite correctly designated Acquisition by Prescription ( per præscriptionem ); for the exclusion of all other claimants is to be regarded as only the Consequence of the Usucapion; and the process of Acquisition must have gone before the Right of Exclusion. The rational possibility of such a Mode of Acquisition, has now to be proved.
Any one who does not exercise a continuous possessory activity ( actus possessorius ) in relation to a Thing as his, is regarded with good Right as one who does not at all exist as its Possessor. For he cannot complain of lesion so long as he does not qualify himself with a Title as its Possessor. And even if he should afterwards lay claim to the Thing when another has already taken possession of it, he only says he was once on a time Owner of it, but not that he is so still, or that his Possession has continued without interruption as a juridical fact. It can, therefore, only be by a juridical process of Possession, that has been maintained without interruption and is proveable by documentary fact, that any one can secure for himself what is his own after ceasing for a long time to make use of it.
For, suppose that the neglect to exercise this possessory activity had not the effect of enabling another to found upon his hitherto lawful, undisputed and bona fide Possession, an irrefragable Right to continue in its possession so that he may regard the thing that is thus in his Possession as acquired by him. Then no Acquisition would ever become peremptory and secured, but all Acquisition would only be provisory and temporary. This is evident on the ground that there are no historical Records available to carry the investigation of a Title back to the first Possessor and his act of Acquisition.—The Presumption upon which Acquisition by Usucapion is founded is, therefore, not merely its conformity to Right as allowed and just, but also the presumption of its being Right ( præsumtio juris et de jure ), and its being assumed to be in accordance with compulsory Laws ( suppositio legalis ). Any one who has neglected to embody his possessory Act in a documentary Title, has lost his Claim to the Right of being Possessor for the time; and the length of the period of his neglecting to do so—which need not necessarily be particularly defined—can be referred to only as establishing the certainty of this neglect. And it would contradict the Postulate of the Juridically Practical Reason to maintain that one hitherto unknown as a Possessor, and whose possessory activity has at least been interrupted, whether by or without fault of his own, could always at any time reacquire a Property; for this would be to make all Ownership uncertain ( Dominia rerum incerta facere ).
But if he is a member of the Commonwealth or Civil Union, the State may maintain his Possession for him vicariously, although it may be interrupted as private Possession; and in that case the actual Possessor will not be able to prove a Title of Acquisition even from a first occupation, nor to found upon a Title of Usucapion. But in the state of Nature Usucapion is universally a rightful ground of holding, not properly as a juridical mode of requiring a Thing, but as a ground for maintaining oneself in possession of it where there are no Juridical Acts. A release from juridical claims is commonly also called Acquisition. The Prescriptive Title of the older Possessor, therefore, belongs to the sphere of Natural Right ( est juris naturæ ). [See Supplementary Explanations, VI.]
(Acquisitio hæreditatis.)
Inheritance is constituted by the transfer ( translatio ) of the Property or goods of one who is dying to a Survivor, through the consent of the Will of both. The Acquisition of the Heir who takes the Estate ( hæredis instituti ) and the Relinquishment of the Testator who leaves it, being the acts that constitute the Exchange of the Mine and Thine, take place in the same moment of time— in articulo mortis —and just when the Testator ceases to be. There is therefore no special Act of Transfer ( translatio ) in the empirical sense; for that would involve two successive acts, by which the one would first divest himself of his Possession, and the other would thereupon enter into it. Inheritance as constituted by a simultaneous double Act is, therefore, an ideal Mode of Acquisition. Inheritance is inconceivable in the State of Nature without a Testamentary Disposition ( dispositio ultimæ voluntatis ); and the question arises as to whether this mode of Acquisition is to be regarded as a Contract of Succession, or a unilateral Act instituting an Heir by a Will ( testamentum ). The determination of this question depends on the further question, Whether and How, in the very same moment in which one individual ceases to be, there can be a transition of his Property to another Person. Hence the problem as to how a mode of Acquisition by Inheritance is possible, must be investigated independently of the various possible forms in which it is practically carried out, and which can have place only in a Commonwealth.
‘It is possible to acquire by being instituted or appointed Heir in a Testamentary Disposition.’ For the Testator Caius promises and declares in his last Will to Titius, who knows nothing of this Promise, to transfer to him his Estate in case of death, but thus continuing as long as he lives sole Owner of it. Now by a mere unilateral act of Will, nothing can in fact be transmitted to another person, as in addition to the Promise of the one party there is required Acceptance ( acceptatio ) on the part of the other, and a simultaneous bilateral act of Will ( voluntas simultanea ) which, however, is here awanting. So long as Caius lives, Titius cannot expressly accept in order to enter on Acquisition, because Caius has only promised in case of death; otherwise the Property would be for a moment at least in common possession, which is not the Will of the Testator.—However, Titius acquires tacitly a special Right to the Inheritance as a Real Right. This is constituted by the sole and exclusive Right to accept the Estate ( jus in re jacente ), which is therefore called at that point of time a hæreditas jacens. Now as every man—because he must always gain and never lose by it—necessarily, although tacitly, accepts such a Right, and as Titius after the death of Caius is in this position, he may acquire the succession as Heir by Acceptance of the Promise. And the Estate is not in the meantime entirely without an Owner ( res nullius ), but is only in abeyance or vacant ( vacua ); because he has exclusively the Right of Choice as to whether he will actually make the Estate bequeathed to him, his own or not.
Hence Testaments are valid according to mere Natural Right ( sunt juris naturæ ). This assertion, however, is to be understood in the sense that they are capable and worthy of being introduced and sanctioned in the Civil state, whenever it is instituted. For it is only the Common Will in the Civil state that maintains the possession of the Inheritance or Succession, while it hangs between Acceptance or Rejection and specially belongs to no particular individual. [See Supplementary Explanations, VII.]
(Bona fama Defuncti.)
It would be absurd to think that a dead Person could possess anything after his death, when he no longer exists in the eye of the Law, if the matter in question were a mere Thing. But a good Name is a congenital and external, although merely ideal possession, which attaches inseparably to the individual as a Person. Now we can and must abstract here from all consideration as to whether the Persons cease to be after death or still continue as such to exist; because in considering their juridical relation to others, we regard Persons merely according to their humanity and as rational Beings ( homo noumenon ). Hence any attempt to bring the Reputation or good Name of a Person into evil and false repute after death, is always questionable, even although a well-founded charge may be allowed—for to that extent the brocard ‘ De mortuis nil nisi bene ’ is wrong. Yet to spread charges against one who is absent and cannot defend himself, shows at least a want of magnanimity.
By a blameless life and a death that worthily ends it, it is admitted that a man may acquire a (negatively) good reputation constituting something that is his own, even when he no longer exists in the world of sense as a visible Person ( homo phænomenon ). It is further held that his Survivors and Successors—whether relatives or strangers—are entitled to defend his good Name as a matter of Right, on the ground that unproved accusations subject them all to the danger of similar treatment after death. Now that a Man when dead can yet acquire such a Right is a peculiar and, nevertheless, an undeniable manifestation in fact, of the à priori law-giving Reason thus extending its Law of Command or Prohibition beyond the limits of the present life. If some one then spreads a charge regarding a dead person that would have dishonoured him when living, or even made him despicable, any one who can adduce a proof that this accusation is intentionally false and untrue, may publicly declare him who thus brings the dead person into ill repute to be a Calumniator, and affix dishonour to him in turn. This would not be allowable unless it were legitimate to assume that the dead person was injured by the accusation, although he is dead, and that a certain just satisfaction was done to him by an Apology, although he no longer sensibly exists. A Title to act the part of the Vindicator of the dead person does not require to be established; for every one necessarily claims this of himself, not merely as a Duty of Virtue regarded ethically, but as a Right belonging to him in virtue of his Humanity. Nor does the Vindicator require to show any special personal damage, accruing to him as a friend or relative, from a stain on the character of the Deceased, to justify him in proceeding to censure it. That such a form of ideal Acquisition, and even a Right in an individual after death against survivors, is thus actually founded, cannot, therefore, be disputed, although the possibility of such a Right is not capable of logical Deduction.
Natural Right, understood simply as that Right which is not statutory, and which is knowable purely à priori, by every man’s Reason, will include Distributive Justice as well as Commutative Justice. It is manifest that the latter as constituting the Justice that is valid between Persons in their reciprocal relations of intercourse with one another, must belong to Natural Right. But this holds also of Distributive Justice, in so far as it can be known à priori; and Decisions or Sentences regarding it, must be regulated by the Law of Natural Right.
The Moral Person who presides in the sphere of Justice and administers it, is called the Court of Justice, and as engaged in the process of official duty, the Judicatory; the Sentence delivered in a case, is the Judgment ( judicium ). All this is to be here viewed à priori, according to the rational Conditions of Right, without taking into consideration how such a Constitution is to be actually established or organized, for which particular Statutes, and consequently empirical Principles, are requisite.
The question, then, in this connection, is not merely ‘What is right in itself? in the sense in which every man must determine it by the Judgment of Reason; but ‘What is Right as applied to this case?’ that is, what is right and just as viewed by a Court? The rational and the judicial points of view, are therefore to be distinguished; and there are four Cases in which the two forms of Judgment have a different and opposite issue. And yet they may coexist with each other, because they are delivered from two different, yet respectively true points of view: the one from regard to Private Right, the other from the Idea of Public Right. They are: I. The Contract of Donation ( pactum donationis ), II. The Contract of Loan ( commodatum ), III. The Action of Real Revindication ( vindicatio ), and IV. Guarantee by Oath ( juramentum ).
(Pactum donationis.)
The Contract of Donation signifies the gratuitous alienation ( gratis ) of a Thing or Right that is Mine. It involves a relation between me as the Donor ( donans ), and another Person as the Donatory ( donatarius ), in accordance with the Principle of Private Right, by which what is mine is transferred to the latter, on his acceptance of it, as a Gift ( donum ). However, it is not to be presumed that I have voluntarily bound myself thereby so as to be compelled to keep my Promise, and that I have thus given away my Freedom gratuitously, and, as it were, to that extent thrown myself away. Nemo suum jactare præsumitur. But this is what would happen, under such circumstances, according to the principle of Right in the Civil state; for in this sphere the Donatory can compel me, under certain conditions, to perform my Promise. If, then, the case comes before a Court, according to the conditions of Public Right, it must either be presumed that the Donor has consented to such Compulsion, or the Court would give no regard, in the Sentence, to the consideration as to whether he intended to reserve the Right to resile from his Promise or not; but would only refer to what is certain, namely, the condition of the Promise and the Acceptance of the Donatory. Although the Promiser, therefore, thought—as may easily be supposed—that he could not be bound by his Promise in any case, if he ‘rued’ it before it was actually carried out, yet the Court assumes that he ought expressly to have reserved this condition if such was his mind; and if he did not make such an express reservation, it will be held that he can be compelled to implement his Promise. And this Principle is assumed by the Court, because the administration of Justice would otherwise be endlessly impeded, or even made entirely impossible.
(Commodatum.)
In the Contract of Commodate-Loan ( commodatum ) I give some one the gratuitous use of something that is mine. If it is a Thing that is given on Loan, the contracting Parties agree that the Borrower will restore the very same thing to the power of the Lender. But the Receiver of the Loan ( commodatarius ) cannot, at the same time, assume that the Owner of the Thing lent ( commodans ) will take upon himself all risk ( casus ) of any possible loss of it, or of its useful quality, that may arise from having given it into the possession of the Receiver. For it is not to be understood of itself, that the Owner, besides the use of the Thing, which he has granted to the Receiver, and the detriment that is inseparable from such use, also gives a Guarantee or Warrandice against all damage that may arise from such use. On the contrary, a special Accessory Contract would have to be entered into for this purpose. The only question, then, that can be raised is this: Is it incumbent on the Lender or the Borrower to add expressly the condition of undertaking the risk that may accrue to the Thing lent; or, if this is not done, which of the Parties is to be presumed to have consented and agreed to guarantee the property of the Lender, up to restoration of the very same Thing or its equivalent? Certainly not the Lender; because it cannot be presumed that he has gratuitously agreed to give more than the mere use of the Thing, so that he cannot be supposed to have also undertaken the risk of loss of his property. But this may be assumed on the side of the Borrower; because he thereby undertakes and performs nothing more than what is implied in the Contract.
For example, I enter a house when overtaken by a shower of rain, and ask the Loan of a cloak. But through accidental contact with colouring matter, it becomes entirely spoiled while in my possession; or on entering another house, I lay it aside and it is stolen. Under such circumstances, everybody would think it absurd for me to assert that I had no further concern with the cloak but to return it as it was, or, in the latter case, only to mention the fact of the theft; and that, in any case, anything more required would be but an act of Courtesy in expressing sympathy with the Owner on account of his loss, seeing he can claim nothing on the ground of Right.—It would be otherwise, however, if on asking the use of an article, I discharged myself beforehand from all responsibility, in case of its coming to grief among my hands, on the ground of my being poor, and unable to compensate any incidental loss. No one could find such a condition superfluous or ludicrous, unless the Borrower were, in fact, known to be a well-to-do and well-disposed man; because in such a case it would almost be an insult not to act on the presumption of generous compensation for any loss sustained.
Now by the very nature of this Contract, the possible damage ( casus ) which the Thing lent may undergo cannot be exactly determined in any Agreement. Commodate is therefore an uncertain Contract ( pactum incertum ), because the consent can only be so far presumed. The Judgment, in any case, deciding upon whom the incidence of any loss must fall, cannot therefore be determined from the conditions of the Contract in itself, but only by the Principle of the Court before which it comes, and which can only consider what is certain in the Contract; and the only thing certain is always the fact as to the possession of the Thing as property. Hence the Judgment passed in the state of Nature, will be different from that given by a Court of Justice in the Civil state. The Judgment from the standpoint of Natural Right will be determined by regard to the inner rational quality of the Thing, and will run thus: ‘Loss arising from damage accruing to a Thing lent falls upon the Borrower ’ ( casum sentit commodatarius ); whereas the Sentence of a Court of Justice in the Civil state will run thus: ‘The Loss falls upon the Lender ’ ( casum sentit dominus ). The latter Judgment turns out differently from the former as the Sentence of the mere sound Reason, because a Public Judge cannot found upon presumptions as to what either party may have thought; and thus the one who has not obtained release from all loss in the Thing by a special Accessory Contract, must bear the loss.—Hence the difference between the Judgment as the Court must deliver it, and the form in which each individual is entitled to hold it for himself by his private Reason, is a matter of importance, and is not to be overlooked in the consideration of Juridical Judgments.
(Vindicatio.)
It is clear from what has been already said that a Thing of mine which continues to exist, remains mine although I may not be in continuous occupation of it; and that it does not cease to be mine without a Juridical Act of dereliction or alienation. Further, it is evident that a Right in this Thing ( jus reale ) belongs in consequence to me ( jus personale ), against every holder of it, and not merely against some Particular Person. But the question now arises as to whether this Right must be regarded by every other person as a continuous Right of Property per se, if I have not in any way renounced it, although the Thing is in the possession of another.
A Thing may be lost ( res amissa ), and thus come into other hands in an honourable bonâ fide way as a supposed ‘Find;’ or it may come to me by formal transfer on the part of one who is in possession of it, and who professes to be its Owner, although he is not so. Taking the latter case, the question arises, Whether, since I cannot acquire a Thing from one who is not its Owner ( a non domino ), I am excluded by the fact from all Right in the Thing itself, and have merely a personal Right against a wrongful Possessor? This is manifestly so, if the Acquisition is judged purely according to its inner justifying grounds and viewed according to the State of Nature, and not according to the convenience of a Court of Justice.
For everything alienable must be capable of being acquired by any one. The Rightfulness of Acquisition, however, rests entirely upon the form in accordance with which what is in possession of another, is transferred to me and accepted by me. In other words, rightful Acquisition depends upon the formality of the juridical act of commutation or interchange between the Possessor of the Thing and the Acquirer of it, without its being required to ask how the former came by it; because this would itself be an injury, on the ground that Quilibet præsumitur bonus. Now suppose it turned out that the said Possessor was not the real Owner, I cannot admit that the real Owner is entitled to hold me directly responsible, or so entitled with regard to any one who might be holding the Thing. For I have myself taken nothing away from him, when, for example, I bought his horse according to the Law ( titulo empti venditi ) when it was offered for sale in the public market. The Title of Acquisition is therefore unimpeachable on my side; and as Buyer I am not bound, nor even have I the Right, to investigate the Title of the Seller; for this process of investigation would have to go on in an ascending series ad infinitum. Hence on such grounds I ought to be regarded, in virtue of a regular and formal purchase, as not merely the putative, but the real Owner of the horse.
But against this position, there immediately start up the following juridical Principles. Any Acquisition derived from one who is not the Owner of the Thing in question, is null and void. I cannot derive from another anything more than what he himself rightfully has; and although as regards the form of the Acquisition—the modus acquirendi —I may proceed in accordance with all the conditions of Right when I deal in a stolen horse exposed for sale in the market, yet a real Title warranting the Acquisition was awanting; for the horse was not really the property of the Seller in question. However I may be a bonâ fide Possessor of a Thing under such conditions, I am still only a putative Owner, and the real Owner has the Right of Vindication against me ( rem suam vindicandi ).
Now, it may be again asked, what is right and just in itself regarding the Acquisition of external things among men in their intercourse with one another—viewed in the state of Nature—according to the Principles of Commutative Justice? And it must be admitted in this connection, that whoever has a purpose of acquiring anything, must regard it as absolutely necessary to investigate whether the Thing which he wishes to acquire does not already belong to another person. For although he may carefully observe the formal conditions required for appropriating what may belong to the property of another, as in buying a horse according to the usual terms in a market, yet he can, at the most, acquire only a Personal Right in relation to a Thing ( jus ad rem ) so long as it is still unknown to him whether another than the Seller may not be the real Owner. Hence, if some other person were to come forward, and prove by documentary evidence a prior Right of property in the Thing, nothing would remain for the putative new Owner but the advantage which he has drawn as a bonâ fide Possessor of it up to that moment. Now it is frequently impossible to discover the absolutely first original Owner of a Thing in the series of putative Owners, who derive their Rights from one another. Hence no mere exchange of external things, however well it may agree with the formal conditions of Commutative Justice, can ever guarantee an absolutely certain Acquisition.
Here, however, the juridically law-giving Reason comes in again with the Principle of Distributive Justice; and it adopts as a criterion of the Rightfulness of Possession, not what it is in itself in reference to the Private Will of each individual in the state of Nature, but only the consideration of how it would be adjudged by a Court of Justice in a Civil state, constituted by the united Will of all. In this connection, fulfilment of the formal conditions of Acquisition that in themselves only establish a Personal Right, is postulated as sufficient; and they stand as an equivalent for the material conditions which properly establish the derivation of Property from a prior putative Owner, to the extent of making what is in itself only a Personal Right, valid before a Court, as a Real Right. Thus the horse which I bought when exposed for sale in the public market under conditions regulated by the Municipal Law, becomes my property if all the conditions of Purchase and Sale have been exactly observed in the transaction; but always under the reservation that the real Owner continues to have the Right of a claim against the Seller, on the ground of his prior unalienated possession. My otherwise Personal Right is thus transmuted into a Real Right, according to which I may take and vindicate the object as mine wherever I may find it, without being responsible for the way in which the Seller had come into possession of it.
It is therefore only in behoof of the requirements of juridical decision in a Court ( in favorem justitiæ distributivæ ) that the Right in respect of a Thing is regarded, not as Personal, which it is in itself, but as Real, because it can thus be most easily and certainly adjudged; and it is thus accepted and dealt with according to a pure Principle à priori. Upon this Principle various Statutory Laws come to be founded which specially aim at laying down the conditions under which alone a mode of Acquisition shall be legitimate, so that the Judge may be able to assign every one his own as easily and certainly as possible. Thus, in the brocard, ‘Purchase breaks Hire,’ what by the nature of the subject is a Real Right—namely the Hire—is taken to hold as a merely Personal Right; and, conversely, as in the case referred to above, what is in itself merely a Personal Right is held to be valid as a Real Right. And this is done only when the question arises as to the Principles by which a Court of Justice in the Civil state is to be guided, in order to proceed with all possible safety in delivering judgment on the Rights of individuals.
(Cautio juratoria.)
Only one ground can be assigned on which it could be held that men are bound in the juridical relation, to believe and to confess that there are Gods, or that there is a God. It is that they may be able to swear an Oath; and that thus by the fear of an all-seeing Supreme Power, whose revenge they must solemnly invoke upon themselves in case their utterance should be false, they may be constrained to be truthful in statement and faithful in promising. It is not Morality but merely blind Superstition that is reckoned upon in this process; for it is evident it implies that no certainty is to be expected from a mere solemn declaration in matters of Right before a Court, although the duty of truthfulness must have always appeared self-evident to all, in a matter which concerns the Holiest that can be among men—namely, the Right of Man. Hence recourse has been had to a motive founded on mere myths and fables as imaginary guarantees. Thus among the Rejangs, a heathen people in Sumatra, it is the custom—according to the testimony of Marsden—to swear by the bones of their dead relatives, although they have no belief in a life after death. In like manner the negroes of Guinea swear by their Fetish, a bird’s feather, which they imprecate under the belief that it will break their neck. And so in other cases. The belief underlying these oaths is that an invisible Power—whether it has Understanding or not—by its very nature possesses magical power that can be put into action by such invocations. Such a belief—which is commonly called Religion, but which ought to be called Superstition—is, however, indispensable for the administration of Justice; because, without referring to it, a Court of Justice would not have adequate means to ascertain facts otherwise kept secret, and to determine rights. A Law making an Oath obligatory, is therefore only given in behoof of the judicial Authority.
But then the question arises as to what the obligation could be founded upon, that would bind any one in a Court of Justice to accept the Oath of another person, as a right and valid proof of the truth of his statements which are to put an end to all dispute. In other words, What obliges me juridically to believe that another person when taking an Oath has any Religion at all, so that I should subordinate or entrust my Right to his Oath? And, on like grounds, conversely, Can I be bound at all to take an Oath? It is evident that both these questions point to what is in itself morally wrong.
But in relation to a Court of Justice—and generally in the Civil state—if it be assumed there are no other means of getting to the truth in certain cases than by an Oath, it must be adopted. In regard to Religion, under the supposition that every one has it, it may be utilized as a necessary means ( in causu necessitatis ), in behoof of the legitimate procedure of a Court of Justice. The Court uses this form of spiritual compulsion ( tortura spiritualis ) as an available means, in conformity with the superstitious propensity of mankind, for the ascertainment of what is concealed; and therefore holds itself justified in so doing. The Legislative Power, however, is fundamentally wrong in assigning this authority to the Judicial Power, because even in the Civil state any compulsion with regard to the taking of Oaths is contrary to the inalienable Freedom of Man.
The Juridical state is that relation of men to one another which contains the conditions, under which it is alone possible for every one to obtain the Right that is his due. The formal Principle of the possibility of actually participating in such Right, viewed in accordance with the Idea of a universally legislative Will, is Public Justice. Public Justice may be considered in relation either to the Possibility, or Actuality, or Necessity of the Possession of objects — regarded as the matter of the activity of the Will—according to laws. It may thus be divided into Protective Justice ( justitia testatrix ), Commutative Justice ( justitia commutativa ), and Distributive Justice ( justitia distributiva ). In the first mode of Justice, the Law declares merely what Relation is internally right in respect of Form ( lex justi ); in the second, it declares what is likewise externally in accord with a Law in respect of the Object, and what Possession is rightful ( lex juridica ); and in the third, it declares what is right, and what is just, and to what extent, by the Judgment of a Court in any particular case coming under the given Law. In this latter relation, the Public Court is called the Justice of the Country; and the question whether there actually is or is not such an administration of Public Justice, may be regarded as the most important of all juridical interests.
The non-juridical state is that condition of Society in which there is no Distributive Justice. It is commonly called the Natural state ( status naturalis ), or the state of Nature. It is not the ‘ Social State,’ as Achenwall puts it, for this may be in itself an artificial state ( status artificialis ), that is to be contradistinguished from the ‘Natural’ state. The opposite of the state of Nature is the Civil state ( status civilis ) as the condition of a Society standing under a Distributive Justice. In the state of Nature there may even be juridical forms of Society—such as Marriage, Parental Authority, the Household, and such like. For none of these, however, does any Law à priori lay it down as an incumbent obligation, ‘Thou shalt enter into this state.’ But it may be said of the Juridical state that ‘all men who may even involuntarily come into Relations of Right with one another, ought to enter into this state.’
The Natural or non-juridical Social state may be viewed as the sphere of Private Right, and the Civil state may be specially regarded as the sphere of Public Right. The latter state contains no more and no other Duties of men towards each other than what may be conceived in connection with the former state; the Matter of Private Right is, in short, the very same in both. The Laws of the Civil state, therefore, only turn upon the juridical Form of the co-existence of men under a common Constitution; and in this respect these Laws must necessarily be regarded and conceived as Public Laws.
The Civil Union ( Unio civilis ) cannot, in the strict sense, be properly called a Society; for there is no sociality in common between the Ruler ( imperans ) and the Subject ( subditus ) under a Civil Constitution. They are not co-ordinated as Associates in a Society with each other, but the one is subordinated to the other. Those who may be co-ordinated with one another must consider themselves as mutually equal, in so far as they stand under common Laws. The Civil Union may therefore be regarded not so much as being, but rather as making a Society.
From the conditions of Private Right in the Natural state, there arises the Postulate of Public Right. It may be thus expressed: ‘In the relation of unavoidable co-existence with others, thou shalt pass from the state of Nature into a juridical Union constituted under the condition of a Distributive Justice.’ The Principle of this Postulate may be unfolded analytically from the conception of Right in the external relation, contradistinguished from mere Might as Violence.
No one is under obligation to abstain from interfering with the Possession of others, unless they give him a reciprocal guarantee for the observance of a similar abstention from interference with his Possession. Nor does he require to wait for proof by experience of the need of this guarantee, in view of the antagonistic disposition of others. He is therefore under no obligation to wait till he acquires practical prudence at his own cost; for he can perceive in himself evidence of the natural Inclination of men to play the master over others, and to disregard the claims of the Right of others, when they feel themselves their superiors by Might or Fraud. And thus it is not necessary to wait for the melancholy experience of actual hostility; the individual is from the first entitled to exercise a rightful compulsion towards those who already threaten him by their very nature. Quilibet præsumitur malus, donec securitatem dederit oppositi.
So long as the intention to live and continue in this state of externally lawless Freedom prevails, men may be said to do no wrong or injustice at all to one another, even when they wage war against each other. For what seems competent as good for the one, is equally valid for the other, as if it were so by mutual agreement. Uti partes de jure suo disponunt, ita jus est. But generally they must be considered as being in the highest state of Wrong, as being and willing to be in a condition which is not juridical; and in which, therefore, no one can be secured against Violence, in the possession of his own.
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.
(Jus Civitatis.)
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 justitiæ 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.
A State ( Civitas ) is the union of a number of men under juridical Laws. These Laws, as such, are to be regarded as necessary à 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, 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.
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.
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.
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 reipublicæ 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.
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.
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.
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 ( glebæ 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.
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.
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 ( glebæ 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.
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 abjectæ ) and those of a violent character ( indolis violentiæ ).
Judicial or Juridical Punishment ( pæna forensis ) is to be distinguished from Natural Punishment ( pæna 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.