第46章

The right of administering punishment is the right of the sovereign as the supreme power to inflict pain upon a subject on account of a crime committed by him.The head of the state cannot therefore be punished; but his supremacy may be withdrawn from him.

Any transgression of the public law which makes him who commits it incapable of being a citizen, constitutes a crime, either simply as a private crime (crimen), or also as a public crime (crimen publicum).

Private crimes are dealt with by a civil court; public crimes by a criminal court.Embezzlement or speculation of money or goods entrusted in trade, fraud in purchase or sale, if done before the eyes of the party who suffers, are private crimes.On the other hand, coining false money or forging bills of exchange, theft, robbery, etc., are public crimes, because the commonwealth, and not merely some particular individual, is endangered thereby.Such crimes may be divided into those of a base character (indolis abjectae) and those of a violent character (indolis violentiae).

Judicial or juridical punishment (poena forensis) is to be distinguished from natural punishment (poena naturalis), in which crime as vice punishes itself, and does not as such come within the cognizance of the legislator.juridical punishment can never be administered merely as a means for promoting another good either with regard to the criminal himself or to civil society, but must in all cases be imposed only because the individual on whom it is inflicted has committed a crime.For one man ought never to be dealt with merely as a means subservient to the purpose of another, nor be mixed up with the subjects of real right.Against such treatment his inborn personality has a right to protect him, even although he may be condemned to lose his civil personality.He must first be found guilty and punishable, before there can be any thought of drawing from his punishment any benefit for himself or his fellow-citizens.The penal law is a categorical imperative; and woe to him who creeps through the serpent-windings of utilitarianism to discover some advantage that may discharge him from the justice of punishment, or even from the due measure of it, according to the Pharisaic maxim: "It is better that one man should die than that the whole people should perish." For if justice and righteousness perish, human life would no longer have any value in the world.What, then, is to be said of such a proposal as to keep a criminal alive who has been condemned to death, on his being given to understand that, if he agreed to certain dangerous experiments being performed upon him, he would be allowed to survive if he came happily through them? It is argued that physicians might thus obtain new information that would be of value to the commonweal.But a court of justice would repudiate with scorn any proposal of this kind if made to it by the medical faculty; for justice would cease to be justice, if it were bartered away for any consideration whatever.