The System of those Laws which require Public Promulgation.
The Principles of Right in Civil Society.
43. Definition and Division of Public Right.

Public right embraces the whole of the laws that require to be universally promulgated in order to produce 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.
I. Right of the State and Constitutional Law. (Jus Civitatis).
44. Origin Of the Civil union and Public Right.

It is not from any experience prior to the appearance of an external authoritative legislation that we learn of the maxim of natural violence among men and their evil tendency to engage in war with each other. Nor is it assumed here that it is merely some particular historical condition or fact, that makes public legislative constraint necessary; for however well-disposed or favourable to right men may be considered to be of themselves, the rational idea of a state of society not yet regulated by right, must be taken as our starting-point. This idea implies that before a legal state of society can be publicly established, individual men, nations, and states, can never be safe against violence from each other; and this is evident from the consideration that every one of his own will naturally does what seems good and right in his own eyes, entirely independent of the opinion of others. Hence, unless the institution of right is to be renounced, the first thing incumbent on men is to accept the principle that it is necessary to leave the state of nature, in which every one follows his own inclinations, and to form a union of all those who cannot avoid coming into reciprocal communication, and thus subject themselves in common to the external restraint of public compulsory laws. Men thus enter into a civil union, in which every one has it determined by law what shall be recognized as his; and this is secured to him by a competent external power distinct from his own individuality. Such is the primary obligation, on the part of all men, to enter into the relations of a civil state of society.

The natural condition of mankind need not, on this ground, be represented as a state of absolute injustice, as if there could have been no other relation originally among men but what was merely determined by force. But this natural condition must be regarded, if it ever existed, as a state of society that was void of regulation by right (status justitiae vacuus), so that if a matter of right came to be in dispute (jus controversum), no competent judge was found to give an authorized legal decision upon it. It is therefore reasonable that any one should constrain another by force, to pass from such a nonjuridical state of life and enter within the jurisdiction of a civil state of society. For, although on the basis of the ideas of right held by individuals as such, external things may be acquired by occupancy or contract, yet such acquisition is only provisory so long as it has not yet obtained the sanction of a public law. Till this sanction is reached, the condition of possession is not determined by any public distributive justice, nor is it secured by any power exercising public right.

If men were not disposed to recognize any acquisition at all as rightful — even in a provisional way — prior to entering into the civil state, this state of society would itself be impossible. For the laws regarding the mine and thine in the state of nature, contain formally the very same thing as they prescribe in the civil state, when it is viewed merely according to rational conceptions: only that in the forms of the civil state the conditions are laid down under which the formal prescriptions of the state of nature attain realization conformable to distributive justice. Were there, then, not even provisionally, an external meum and tuum in the state of nature, neither would there be any juridical duties in relation to them; and, consequently, there would be no obligation to pass out of that state into another.
45. The Form of the State and its Three Powers.

A state (civitas) is the union of a number of men under juridical laws. These laws, as such, are to be regarded as necessary a priorithat 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 judgement of right, in the particular case under consideration.
46. The Legislative Power and the Members of the State.

The legislative power, viewed in its rational principle, can only belong to the united will of the people. For, as all right ought to proceed from this power, it is necessary that its laws should be unable to do wrong to any one whatever. Now, if any one individual determines anything in the state in contradistinction to another, it is always possible that he may perpetrate a wrong on that other; but this is never possible when all determine and decree what is to be Law to themselves. Volenti non fit injuria. Hence it is only the united and consenting will of all the people — in so far as each of them determines the same thing about all, and all determine the same thing about each — that ought to have the power of enacting law in the state.

The members of a civil society thus united for the purpose of legislation, and thereby constituting a state, are called its citizens; and there are three juridical attributes that inseparably belong to them by right. These are: 1. constitutional freedom, as the right of every citizen to have to obey no other law than that to which he has given his consent or approval; 2. civil equality, as the right of the citizen to recognise no one as a superior among the people in relation to himself, except in so far as such a one is as subject to his moral power to impose obligations, as that other has power to impose obligations upon him; and 3. political independence, as the light to owe his existence and continuance in society not to the arbitrary will of another, but to his own rights and powers as a member of the commonwealth, and, consequently, the possession of a civil personality, which cannot be represented by any other than himself.

The capability of voting by possession of the suffrage properly constitutes the political qualification of a citizen as a member of the state. But this, again, presupposes the independence or self-sufficiency of the individual citizen among the people, as one who is not a mere incidental part of the commonwealth, but a member of it acting of his own will in community with others. The last of the three qualities involved necessarily constitutes the distinction between active and passive citizenship; although the latter conception appears to stand in contradiction to the definition of a citizen as such. The following examples may serve to remove this difficulty. The apprentice of a merchant or tradesman, a servant who is not in the employ of the state, a minor (naturaliter vel civiliter), all women, and, generally, every one who is compelled to maintain himself not according to his own industry, but as it is arranged by others (the state excepted), are without civil personality, and their existence is only, as it were, incidentally included in the state. The woodcutter whom I employ on my estate; the smith in India who carries his hammer, anvil, and bellows into the houses where he is engaged to work in iron, as distinguished from the European carpenter or smith, who can offer the independent products of his labour as wares for public sale; the resident tutor as distinguished from the schoolmaster; the ploughman as distinguished from the farmer and such like, illustrate the distinction in question. In all these cases, the former members of the contrast are distinguished from the latter by being mere subsidiaries of the commonwealth and not active independent members of it, because they are of necessity commanded and protected by others, and consequently possess no political self-sufficiency in themselves. Such dependence on the will of others and the consequent inequality are, however, not inconsistent with the freedom and equality of the individuals as men helping to constitute the people. Much rather is it the case that it is only under such conditions that a people can become a state and enter into a civil constitution. But all are not equally qualified to exercise the right of suffrage under the constitution, and to be full citizens of the state, and not mere passive subjects under its protection. For, although they are entitled to demand to be treated by all the other citizens according to laws of natural freedom and equality, as passive parts of the state, it does not follow that they ought themselves to have the right to deal with the state as active members of it, to reorganize it, or to take action by way of introducing certain laws. All they have a right in their circumstances to claim may be no more than that whatever be the mode in which the positive laws are enacted, these laws must not be contrary to the natural laws that demand the freedom of all the people and the equality that is conformable thereto; and it must therefore be made possible for them to raise themselves from this passive condition in the state to the condition of active citizenship.
47. Dignities in the State and the Original Contract.

All these three powers in the state are dignities; and, as necessarily arising out of the idea of the state and essential generally to the foundation of its constitution, they are to be regarded as political dignities. They imply the relation between a universal sovereign as head of the state — which according to the laws of freedom can be none other than the people itself united into a nation — and the mass of the individuals of the nation as subjects. The former member of the relation is the ruling power, whose function is to govern (imperans); the latter is the ruled constituents of the state, whose function is to obey (subditi).

The act by which a people is represented as constituting itself into a state, is termed the original contract. This is properly only an outward mode of representing the idea by which the rightfulness of the process of organizing the constitution may be made conceivable. According to this representation, all and each of the people give up their external freedom in order to receive it immediately again as members of a commonwealth. The commonwealth is the people viewed as united altogether into a state. And thus it is not to be said that the individual in the state has sacrificed a part of his inborn external freedom for a particular purpose; but he has abandoned his wild lawless freedom wholly, in order to find all his proper freedom again entire and undiminished, but in the form of a regulated order of dependence, that is, in a civil state regulated by laws of right. This relation of dependence thus arises out of his own regulative law giving will.
48. Mutual Relations and Characteristics of the Three Powers.

The three powers in the state, as regards their relations to each other, are, therefore: (1) coordinate 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.
49. Distinct Functions of the Three Powers. Autonomy of the State

1. The executive power belongs to the governor or regent of the state, whether it assumes the form of a moral or individual person, as the king or prince (rex, princeps). This executive authority, as the supreme agent of the state, appoints the magistrates, and prescribes the rules to the people, in accordance with which individuals may acquire anything or maintain what is their own conformably to the law, each case being brought under its application. Regarded as a moral person, this executive authority constitutes the government. The orders issued by the government to the people and the magistrates, as well as to the higher ministerial administrators of the state (gubernatio), are rescripts or decrees, and not laws; for they terminate in the decision of particular cases, and are given forth as unchangeable. A government acting as an executive, and at the same time laying down the law as the legislative power, would be a despotic government, and would have to be contradistinguished from a patriotic government. A patriotic government, again, is to be distinguished from a paternal government (regimen paternale) which is the most despotic government of all, the citizens being dealt with by it as mere children. A patriotic government, however, is one in which the state, while dealing with the subjects as if they were members of a family, still treats them likewise as citizens, and according to laws that recognize 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 judgements 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 representatives elected and deputed by themselves, as in a jury. It would even be beneath the dignity of the sovereign head of the state to play the judge; for this would be to put himself into a position in which it would be possible to do wrong, and thus to subject himself to the demand for an appeal to a still higher power (a rege male informato ad regem melius informandum).

It is by the co-operation of these three powers — the legislative, the executive, and the judicial — that the state realizes its autonomy. This autonomy consists in its organizing, forming, and maintaining itself in accordance with the laws of freedom. In their union the welfare of the state is realized. Salus reipublicae suprema lex.5 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.

5[“The health of the state is the highest law.”]
Constitutional and Juridical Consequences arising from the Nature of the Civil union.
A. Right of the Supreme Power; Treason; Dethronement; Revolution; Reform.

The origin of the supreme power is practically inscrutable by the people who are placed under its authority. In other words, the subject need not reason too curiously in regard to its origin in the practical relation, as if the right of the obedience due to it were to be doubted (jus controversum). For as the people, in order to be able to abjudicate with a title of right regarding the supreme power in the state, must be regarded as already united under one common legislative will, it cannot judge otherwise than as the present supreme head of the state (summus imperans) wills. The question has been raised as to whether an actual contract of subjection (pactum subjectionis civilis) originally preceded the civil government as a fact; or whether the power arose first, and the law only followed afterwards, or may have followed in this order. But such questions, as regards the people already actually living under the civil law, are either entirely aimless, or even fraught with subtle danger to the state. For, should the subject, after having dug down to the ultimate origin of the state, rise in opposition to the present ruling authority, he would expose himself as a citizen, according to the law and with full right, to be punished, destroyed, or outlawed. A law which is so holy and inviolable that it is practically a crime even to cast doubt upon it, or to suspend its operation for a moment, is represented of itself as necessarily derived from some supreme, unblameable lawgiver. And this is the meaning of the maxim, “All authority is from God”, which proposition does not express the historical foundation of the civil constitution, but an ideal principle of the practical reason. It may be otherwise rendered thus: “It is a duty to obey the law of the existing legislative power, be its origin what it may.”

Hence it follows, that the supreme power in the state has only rights, and no (compulsory) duties towards the subject. Further, if the ruler or regent, as the organ of the supreme power, proceeds in violation of the laws, as in imposing taxes, recruiting soldiers, and so on, contrary to the law of equality in the distribution of the political burdens, the subject may oppose complaints and objections (gravamina) to this injustice, but not active resistance.

There cannot even be an Article contained in the political constitution that would make it possible for a power in the state, in case of the transgression of the constitutional laws by the supreme authority, to resist or even to restrict it in so doing. For, whoever would restrict the supreme power of the state must have more, or at least equal, power as compared with the power that is so restricted; and if competent to command the subjects to resist, such a one would also have to be able to protect them, and if he is to be considered capable of judging what is right in every case, he may also publicly order resistance. But such a one, and not the actual authority, would then be the supreme power; which is contradictory. The supreme sovereign power, then, in proceeding by a minister who is at the same time the ruler of the state, consequently becomes despotic; and the expedient of giving the people to imagine — when they have properly only legislative influence — that they act by their deputies by way of limiting the sovereign authority, cannot so mask and disguise the actual despotism of such a government that it will not appear in the measures and means adopted by the minister to carry out his function. The people, while represented by their deputies in parliament, under such conditions, may have in these warrantors of their freedom and rights, persons who are keenly interested on their own account and their families, and who look to such a minister for the benefit of his influence in the army, navy, and public offices. And hence, instead of offering resistance to the undue pretensions of the government — whose public declarations ought to carry a prior accord on the part of the people, which, however, cannot be allowed in peace, they are rather always ready to play into the hands of the government. Hence the so-called limited political constitution, as a constitution of the internal rights of the state, is an unreality; and instead of being consistent with right, it is only a principle of expediency. And its aim is not so much to throw all possible obstacles in the way of a powerful violator of popular rights by his arbitrary influence upon the government, as rather to cloak it over under the illusion of a right of opposition conceded to the people.

Resistance on the part of the people to the supreme legislative power of the state is in no case legitimate; for it is only by submission to the universal legislative will, that a condition of law and order is possible. Hence there is no right of sedition, and still less of rebellion, belonging to the people. And least of all, when the supreme power is embodied in an individual monarch, is there any justification, under the pretext of his abuse of power, for seizing his person or taking away his life (monarchomachismus sub specie tyrannicidii). The slightest attempt of this kind is high treason (proditio eminens); and a traitor of this sort who aims at the overthrow of his country may be punished, as a political parricide, even with death. It is the duty of the people to bear any abuse of the supreme power, even then though it should be considered to be unbearable. And the reason is that any resistance of the highest legislative authority can never but be contrary to the law, and must even be regarded as tending to destroy the whole legal constitution. In order to be entitled to offer such resistance, a public law would be required to permit it. But the supreme legislation would by such a law cease to be supreme, and the people as subjects would be made sovereign over that to which they are subject; which is a contradiction. And the contradiction becomes more apparent when the question is put: “Who is to be the judge in a controversy between the people and the sovereign?” For the people and the sovereign are to be constitutionally or juridically regarded as two different moral persons; but the question shows that the people would then have to be the judge in their own cause.

The dethronement of a monarch may be also conceived as a voluntary abdication of the crown, and a resignation of his power into the hands of the people; or it might be a deliberate surrender of these without any assault on the royal person, in order that the monarch may be relegated into private life. But, however it happen, forcible compulsion of it, on the part of the people, cannot be justified under the pretext of a right of necessity (casus necessitatis); and least of all can the slightest right be shown for punishing the sovereign on the ground of previous maladministration. For all that has been already done in the quality of a sovereign must be regarded as done outwardly by right; and, considered as the source of the laws, the sovereign himself can do no wrong. Of all the abominations in the overthrow of a state by revolution, even the murder or assassination of the monarch is not the worst. For that may be done by the people out of fear, lest, if he is allowed to live, he may again acquire power and inflict punishment upon them; and so it may be done, not as an act of punitive justice, but merely from regard to self-preservation. It is the formal execution of a monarch that horrifies a soul filled with ideas of human right; and this feeling occurs again and again as of as the mind realizes the scenes that terminated the fate of Charles I or Louis XVI. Now how is this feeling to be explained? It is not a mere aesthetic feeling, arising from the working of the imagination, nor from sympathy, produced by fancying ourselves in the place of the sufferer. On the contrary, it is a moral feeling arising from the entire subversion of all our notions of right. Regicide, in short, is regarded as a crime which always remains such and can never be expiated (crimen immortale, inexpiabile); and it appears to resemble that sin which the theologians declare can neither be forgiven in this world nor in the next. The explanation of this phenomenon in the human mind appears to be furnished by the following reflections upon it; and they even shed some light upon the principles of political right.

Every transgression of a law only can and must be explained as arising from a maxim of the transgressor making such wrong-doing his rule of action; for were it not committed by him as a free being, it could not be imputed to him. But it is absolutely impossible to explain how any rational individual forms such a maxim against the clear prohibition of the law-giving reason; for it is only events which happen according to the mechanical laws of nature that are capable of explanation. Now a transgressor or criminal may commit his wrong-doing either according to the maxim of a rule supposed to be valid objectively and universally, or only as an exception from the rule by dispensing with its obligation for the occasion. In the latter case, he only diverges from the law, although intentionally. He may, at the same time, abhor his own transgression, and without formally renouncing his obedience to the law only wish to avoid it. In the former case, however, he rejects the authority of the law itself, the validity of which, however, he cannot repudiate before his own reason, even while he makes it his rule to act against it. His maxim is, therefore, not merely defective as being negatively contrary to the law, but it is even positively illegal, as being diametrically contrary and in hostile opposition to it. So far as we can see into and understand the relation, it would appear as if it were impossible for men to commit wrongs and crimes of a wholly useless form of wickedness, and yet the idea of such extreme perversity cannot be overlooked in a system of moral philosophy.

There is thus a feeling of horror at the thought of the formal execution of a monarch by his people. And the reason it is that, whereas an act of assassination must be considered as only an exception from the rule which has been constituted a maxim, such an execution must be regarded as a complete perversion of the principles that should regulate the relation between a sovereign and his people. For it makes the people, who owe their constitutional existence to the legislation that issued from the sovereign, to be the ruler over him. Hence mere violence is thus elevated with bold brow, and as it were by principle, above the holiest right; and, appearing like an abyss to swallow up everything without recall, it seems like suicide committed by the state upon itself and a crime that is capable of no atonement. There is therefore reason to assume that the consent that is accorded to such executions is not really based upon a supposed principle of right, but only springs from fear of the vengeance that would be taken upon the people were the same power to revive again in the state. And hence it may be held that the formalities accompanying them have only been put forward in order to give these deeds a look of punishment from the accompaniment of a judicial process, such as could not go along with a mere murder or assassination. But such a cloaking of the deed entirely fails of its purpose, because this pretension on the part of the people is even worse than murder itself, as it implies a principle which would necessarily make the restoration of a state, when once overthrown, an impossibility.

An alteration of the still defective constitution of the state may sometimes be quite necessary. But all such changes ought only to proceed from the sovereign power in the way of reform, and are not to be brought about by the people in the way of revolution; and when they take place, they should only effect the executive, and not the legislative, power. A political constitution which is so modified that the people by their representatives in parliament can legally resist the executive power, and its representative minister, is called a limited constitution. Yet even under such a constitution there is no right of active resistance, as by an arbitrary combination of the people to coerce the government into a certain active procedure; for this would be to assume to perform an act of the executive itself. All that can rightly be allowed, is only a negative resistance, amounting to an act of refusal on the part of the people to concede all the demands which the executive may deem it necessary to make in behoof of the political administration. And if this right were never exercised, it would be a sure sign that the people were corrupted, their representatives venal, the supreme head of the government despotic, and his ministers practically betrayers of the people.

Further, when on the success of a revolution a new constitution has been founded, the unlawfulness of its beginning and of its institution cannot release the subjects from the obligation of adapting themselves, as good citizens, to the new order of things; and they are not entitled to refuse honourably to obey the authority that has thus attained the power in the state. A dethroned monarch, who has survived such a revolution, is not to be called to account on the ground of his former administration; and still less may he be punished for it, when with drawing into the private life of a citizen he prefers his own quiet and the peace of the state to the uncertainty of exile, with the intention of maintaining his claims for restoration at all hazards, and pushing these either by secret counter-revolution or by the assistance of other powers. However, if he prefers to follow the latter course, his rights remain, because the rebellion that drove him from his position was inherently unjust. But the question then emerges as to whether other powers have the right to form themselves into an alliance in behalf of such a dethroned monarch merely in order not to leave the crime committed by the people unavenged, or to do away with it as a scandal to all the states; and whether they are therefore justified and called upon to restore by force to another state a formerly existing constitution that has been removed by a revolution. The discussion of this question, however, does not belong to this department of public right, but to the following section, concerning the right of nations.
B. Land Rights. Secular and Church Lands, Rights of Taxation; Finance; Police; Inspection.

Is the sovereign, viewed as embodying the legislative power, to be regarded as the supreme proprietor of the soil, or only as the highest ruler of the people by the laws? As the soil is the supreme condition under which it is alone possible to have external things as one’s own, its possible possession and use constitute the first acquirable basis of external right. Hence it is that all such rights must be derived from the sovereign as overlord and paramount superior of the soil, or, as it may be better put, as the supreme proprietor of the land (dominus territorii). The people, as forming the mass of the subjects, belong to the sovereign as a people; not in the sense of his being their proprietor in the way of real right, but as their supreme commander or chief in the way of personal right. This supreme proprietorship, however, is only an idea of the civil constitution, objectified to represent, in accordance with juridical conceptions, the necessary union of the private property of all the people under a public universal possessor. The relation is so represented in order that it may form a basis for the determination of particular rights in property. It does not proceed, therefore, upon the principle of mere aggregation, which advances empirically from the parts to the whole, but from the necessary formal principle of a division of the soil according to conceptions of right. In accordance with this principle, the supreme universal proprietor cannot have any private property in any part of the soil; for otherwise he would make himself a private person. Private property in the soil belongs only to the people, taken distributively and not collectively; from which condition, however, a nomadic people must be excepted as having no private property at all in the soil. The supreme proprietor accordingly ought not to hold private estates, either for private use or for the support of the court. For, as it would depend upon his own pleasure how far these should extend, the state would be in danger of seeing all property in the land taken into the hands of the government, and all the subjects treated as bondsmen of the soil (glebae adscripti). As possessors only of what was the private property of another, they might thus be deprived of all freedom and regarded as serfs or slaves. Of the supreme proprietor of the land, it may be said that he possesses nothing as his own, except himself; for if he possessed things in the state alongside of others, dispute and litigation would be possible with these others regarding those things, and there would be no independent judge to settle the cause. But it may also be said that he possesses everything; for he has the supreme right of sovereignty over the whole people, to whom all external things severally (divisim) belong; and as such he assigns distributively to every one what is to be his.

Hence there cannot be any corporation in the state, nor any class or order, that as proprietors can transmit the land for a sole exclusive use to the following generations for all time (ad infinitum), according to certain fixed statutes. The state may annul and abrogate all such statutes at any time, only under the condition of indemnifying survivors for their interests. The order of knights, constituting the nobility regarded as a mere rank or class of specially titled individuals, as well as the order of the clergy, called the church, are both subject to this relation. They can never be entitled by any hereditary privileges with which they may be favoured, to acquire an absolute property in the soil transmissible to their successors. They can only acquire the use of such property for the time being. If public opinion has ceased, on account of other arrangements, to impel the state to protect itself from negligence in the national defence by appeal to the military honour of the knightly order, the estates granted on that condition may be recalled. And, in like manner, the church lands or spiritualities may be reclaimed by the state without scruple, if public opinion has ceased to impel the members of the state to maintain masses for the souls of the dead, prayers for the living, and a multitude of clergy, as means to protect themselves from eternal fire. But in both cases, the condition of indemnifying existing interests must be observed. Those who in this connection fall under the movement of reform are not entitled to complain that their property is taken from them; for the foundation of their previous possession lay only in the opinion of the people, and it can be valid only so long as this opinion lasts. As soon as this public opinion in favour of such institutions dies out, or is even extinguished in the judgement of those who have the greatest claim by their acknowledged merit to lead and represent it, the putative proprietorship in question must cease, as if by a public appeal made regarding it to the state (a rege male informato ad regem melius informandum).

On this primarily acquired supreme proprietorship in the land rests the right of the sovereign, as universal proprietor of the country, to assess the private proprietors of the soil, and to demand taxes, excise, and dues, or the performance of service to the state such as may be required in war. But this is to be done so that it is actually the people that assess themselves, this being the only mode of proceeding according to laws of right. This may be effected through the medium of the body of deputies who represent the people. It is also permissible, in circumstances in which the state is in imminent danger, to proceed by a forced loan, as a right vested in the sovereign, although this may be a divergence from the existing law.

Upon this principle is also founded the right of administering the national economy, including the finance and the police. The police has specially to care for the public safety, convenience, and decency. As regards the last of these — the feeling or negative taste for public propriety — it is important that it be not deadened by such influences as begging, disorderly noises, offensive smells, public prostitution (Venus vulgivaga), or other offences against the moral sense, as it greatly facilitates the government in the task of regulating the life of the people by law.

For the preservation of the state there further belongs to it a right of inspection (jus inspectionis), which entitles the public authority to see that no secret society, political or religious, exists among the people that can exert a prejudicial influence upon the public weal. Accordingly, when it is required by the police, no such secret society may refuse to lay open its constitution. But the visitation and search of private houses by the police can only be justified in a case of necessity; and in every particular instance, it must be authorized by a higher authority.
C. Relief of the Poor. Foundling Hospitals. The Church.

The sovereign, as undertaker of the duty of the people, has the right to tax them for purposes essentially connected with their own preservation. Such are, in particular, the relief of the poor, foundling asylums, and ecclesiastical establishments, otherwise designated charitable or pious foundations.

1. The people have in fact united themselves by their common will into a society, which has to be perpetually maintained; and for this purpose they have subjected themselves to the internal power of the state, in order to preserve the members of this society even when they are not able to support themselves. By the fundamental principle of the state, the government is justified and entitled to compel those who are able, to furnish the means necessary to preserve those who are not themselves capable of providing for the most necessary wants of nature. For the existence of persons with property in the state implies their submission under it for protection and the provision by the state of what is necessary for their existence; and accordingly the state founds a right upon an obligation on their part to contribute of their means for the preservation of their fellow citizens. This may be carried out by taxing the property or the commercial industry of the citizens, or by establishing funds and drawing interest from them, not for the wants of the state as such, which is rich, but for those of the people. And this is not to be done merely by voluntary contributions, but by compulsory exactions as state-burdens, for we are here considering only the right of the state in relation to the people. Among the voluntary modes of raising such contributions, lotteries ought not to be allowed, because they increase the number of those who are poor, and involve danger to the public property. It may be asked whether the relief of the poor ought to be administered out of current contributions, so that every age should maintain its own poor; or whether this were better done by means of permanent funds and charitable institutions, such as widows’ homes, hospitals, etc.? And if the former method is the better, it may also be considered whether the means necessary are to be raised by a legal assessment rather than by begging, which is generally nigh akin to robbing. The former method must in reality be regarded as the only one that is conformable to the right of the state, which cannot withdraw its connection from any one who has to live. For a legal current provision does not make the profession of poverty a means of gain for the indolent, as is to be feared is the case with pious foundations when they grow with the number of the poor; nor can it be charged with being an unjust or unrighteous burden imposed by the government on the people.

2. The state has also a right to impose upon the people the duty of preserving children exposed from want or shame, and who would otherwise perish; for it cannot knowingly allow this increase of its power to be destroyed, however unwelcome in some respects it may be. But it is a difficult question to determine how this may most justly be carried out. It might be considered whether it would not be right to exact contributions for this purpose from the unmarried persons of both sexes who are possessed of means, as being in part responsible for the evil; and further, whether the end in view would be best carried out by foundling hospitals, or in what other way consistent with right. But this is a problem of which no solution has yet been offered that does not in some measure offend against right or morality.

3. The church is here regarded as an ecclesiastical establishment merely, and as such it must be carefully distinguished from religion, which as an internal mode of feeling lies wholly beyond the sphere of the action of the civil power. Viewed as an institution for public worship founded for the people — to whose opinion or conviction it owes its origin — the church establishment responds to a real want in the state. This is the need felt by the people to regard themselves as also subjects of a Supreme Invisible Power to which they must pay homage, and which may of be brought into a very undesirable collision with the civil power. The state has therefore a right in this relation; but it is not to be regarded as the right of constitutional legislation in the church, so as to organize it as may seem most advantageous for itself, or to prescribe and command its faith and ritual forms of worship (ritus); for all this must be left entirely to the teachers and rulers which the church has chosen for itself. The function of the state in this connection, only includes the negative right of regulating the influence of these public teachers upon the visible political commonwealth, that it may not be prejudicial to the public peace and tranquility. Consequently the state has to take measures, on occasion of any internal conflict in the church, or on occasion of any collision of the several churches with each other, that civil concord is not endangered; and this right falls within the province of the police. It is beneath the dignity of the supreme power to interpose in determining what particular faith the church shall profess, or to decree that a certain faith shall be unalterably held, and that the church may not reform itself. For in doing so, the supreme power would be mixing itself up in a scholastic wrangle, on a footing of equality with its subjects; the monarch would be making himself a priest; and the churchmen might even reproach the supreme power with understanding nothing about matters of faith. Especially would this hold in respect of any prohibition of internal reform in the church; for what the people as a whole cannot determine upon for themselves cannot be determined for the people by the legislator. But no people can ever rationally determine that they will never advance farther in their insight into matters of faith, or resolve that they will never reform the institutions of the church; because this would be opposed to the humanity in their own persons and to their highest rights. And therefore the supreme power cannot of itself resolve and decree in these matters for the people. As regards the cost of maintaining the ecclesiastical establishment, for similar reasons this must be derived not from the public funds of the state, but from the section of the people who profess the particular faith of the church; and thus only ought it to fall as a burden on the community.
D. The Right of Assigning Offices and Dignities in the State.

The right of the supreme authority in the state also includes:

1. The distribution of offices, as public and paid employments;

2. The conferring of dignities, as unpaid distinctions of rank, founded merely on honour, but establishing a gradation of higher and lower orders in the political scale; the latter, although free in themselves, being under obligation determined by the public law to obey the former so far as they are also entitled to command;

3. Besides these relatively beneficent rights, the supreme power in the state is also invested with the right of administering punishment.

As regards civil offices, the question arises as to whether the sovereign has the right, after bestowing an office on an individual, to take it again away at his mere pleasure, without any crime having been committed by the holder of the office. I say, “No.” For what the united will of the people would never resolve, regarding their civil officers, cannot (constitutionally) be determined by the sovereign regarding them. The people have to bear the cost incurred by the appointment of an official, and undoubtedly it must be their will that any one in office should be completely competent for its duties. But such competency can only be acquired by a long preparation and training, and this process would necessarily occupy the time that would be required for acquiring the means of support by a different occupation. Arbitrary and frequent changes would therefore, as a rule, have the effect of filling offices with functionaries who have not acquired the skill required for their duties, and whose judgements had not attained maturity by practice. All this is contrary to the purpose of the state. And besides it is requisite in the interest of the people that it should be possible for every individual to rise from a lower office to the higher offices, as these latter would otherwise fall into incompetent hands, and that competent officials generally should have some guarantee of life-long provision.

Civil dignities include not only such as are connected with a public office, but also those which make the possessors of them, without any accompanying services to the state, members of a higher class or rank. The latter constitute the nobility, whose members are distinguished from the common citizens who form the mass of the people. The rank of the nobility is inherited by male descendants; and these again communicate it to wives who are not nobly born. Female descendants of noble families, however, do not communicate their rank to husbands who are not of noble birth, but they descend themselves into the common civil status of the people. This being so, the question then emerges as to whether the sovereign has the right to found a hereditary rank and class, intermediate between himself and the other citizens? The import of this question does not turn on whether it is conformable to the prudence of the sovereign, from regard to his own and the people’s interests, to have such an institution; but whether it is in accordance with the right of the people that they should have a class of persons above them, who, while being subjects like themselves, are yet born as their commanders, or at least as privileged superiors? The answer to this question, as in previous instances, is to be derived from the principle that “what the people, as constituting the whole mass of the subjects, could not determine regarding themselves and their associated citizens, cannot be constitutionally determined by the sovereign regarding the people.” Now a hereditary nobility is a rank which takes precedence of merit and is hoped for without any good reason — a thing of the imagination without genuine reality. For if an ancestor had merit, he could not transmit it to his posterity, but they must always acquire it for themselves. Nature has in fact not so arranged that the talent and will which give rise to merit in the state, are hereditary. And because it cannot be supposed of any individual that he will throw away his freedom, it is impossible that the common will of all the people should agree to such a groundless prerogative, and hence the sovereign cannot make it valid. It may happen, however, that such an anomaly as that of subjects who would be more than citizens, in the manner of born officials, or hereditary professors, has slipped into the mechanism of government in olden times, as in the case of the feudal system, which was almost entirely organized with reference to war. Under such circumstances, the state cannot deal otherwise with this error of a wrongly instituted rank in its midst, than by the remedy of a gradual extinction through hereditary positions being left unfilled as they fall vacant. The state has therefore the right provisorily to let a dignity in title continue, until the public opinion matures on the subject. And this will thus pass from the threefold division into sovereign, nobles, and people, to the twofold and only natural division into sovereign and people.

No individual in the state can indeed be entirely without dignity; for he has at least that of being a citizen, except when he has lost his civil status by a crime. As a criminal he is still maintained in life, but he is made the mere instrument of the will of another, whether it be the state or a particular citizen. In the latter position, in which he could only be placed by a juridical judgement, he would practically become a slave, and would belong as property (dominium) to another, who would be not merely his master (herus) but his owner (dominus). Such an owner would be entitled to exchange or alienate him as a thing, to use him at will except for shameful purposes, and to dispose of his powers, but not of his life and members. No one can bind himself to such a condition of dependence, as he would thereby cease to be a person, and it is only as a person that he can make a contract. It may, however, appear that one man may bind himself to another by a contract of hire, to discharge a certain service that is permissible in its kind, but is left entirely undetermined as regards its measure or amount; and that as receiving wages or board or protection in return, he thus becomes only a servant subject to the will of a master (subditus) and not a slave (servus). But this is an illusion. For if masters are entitled to use the powers of such subjects at will, they may exhaust these powers — as has been done in the case of Negroes in the Sugar Islandand they may thus reduce their servants to despair and death. But this would imply that they had actually given themselves away to their masters as property; which, in the case of persons, is impossible. A person can, therefore, only contract to perform work that is defined both in quality and quantity, either as a day-labourer or as a domiciled subject. In the latter case he may enter into a contract of lease for the use of the land of a superior, giving a definite rent or annual return for its utilization by himself, or he may contract for his service as a labourer upon the land. But he does not thereby make himself a slave, or a bondsman, or a serf attached to the soil (glebae adscriptus), as he would thus divest himself of his personality; he can only enter into a temporary or at most a heritable lease. And even if by committing a crime he has personally become subjected to another, this subject-condition does not become hereditary; for he has only brought it upon himself by his own wrongdoing. Neither can one who has been begotten by a slave be claimed as property on the ground of the cost of his rearing, because such rearing is an absolute duty naturally incumbent upon parents; and in case the parents be slaves, it devolves upon their masters or owners, who, in undertaking the possession of such subjects, have also made themselves responsible for the performance of their duties.
E. The Right of Punishing and of Pardoning.
I. The Right of Punishing.

The right of administering punishment is the right of the sovereign as the supreme power to inflict pain upon a subject on account of a crime committed by him. The head of the state cannot therefore be punished; but his supremacy may be withdrawn from him. Any transgression of the public law which makes him who commits it incapable of being a citizen, constitutes a crime, either simply as a private crime (crimen), or also as a public crime (crimen publicum). Private crimes are dealt with by a civil court; public crimes by a criminal court. Embezzlement or speculation of money or goods entrusted in trade, fraud in purchase or sale, if done before the eyes of the party who suffers, are private crimes. On the other hand, coining false money or forging bills of exchange, theft, robbery, etc., are public crimes, because the commonwealth, and not merely some particular individual, is endangered thereby. Such crimes may be divided into those of a base character (indolis abjectae) and those of a violent character (indolis violentiae).

Judicial or juridical punishment (poena forensis) is to be distinguished from natural punishment (poena naturalis), in which crime as vice punishes itself, and does not as such come within the cognizance of the legislator. juridical punishment can never be administered merely as a means for promoting another good either with regard to the criminal himself or to civil society, but must in all cases be imposed only because the individual on whom it is inflicted has committed a crime. For one man ought never to be dealt with merely as a means subservient to the purpose of another, nor be mixed up with the subjects of real right. Against such treatment his inborn personality has a right to protect him, even although he may be condemned to lose his civil personality. He must first be found guilty and punishable, before there can be any thought of dra............