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view of such an alternative； I say that the man of honour would choose
death； and the knave would choose servitude。 This would be the
effect of their human nature as it is； for the honourable man values
his honour more highly than even life itself； whereas a knave
regards a life； although covered with shame； as better in his eyes
than not to be。 The former is； without gainsaying； less guilty than
the other； and they can only be proportionately punished by death
being inflicted equally upon them both； yet to the one it is a mild
punishment when his nobler temperament is taken into account；
whereas it is a hard punishment to the other in view of his baser
temperament。 But； on the other hand； were they all equally condemned
to penal servitude for life； the honourable man would be too
severely punished； while the other； on account of his baseness of
nature； would be too mildly punished。 In the judgement to be
pronounced over a number of criminals united in such a conspiracy； the
best equalizer of punishment and crime in the form of public justice
is death。 And besides all this； it has never been heard of that a
criminal condemned to death on account of a murder has complained that
the sentence inflicted on him more than was right and just； and any
one would treat him with scorn if he expressed himself to this
effect against it。 Otherwise it would be necessary to admit that；
although wrong and injustice are not done to the criminal by the
law； yet the legislative power is not entitled to administer this mode
of punishment； and if it did so； it would be in contradiction with
itself。
However many they may be who have committed a murder； or have even
commanded it； or acted as art and part in it； they ought all to suffer
death； for so justice wills it； in accordance with the idea of the
juridical power； as founded on the universal laws of reason。 But the
number of the accomplices （correi） in such a deed might happen to be
so great that the state； in resolving to be without such criminals；
would be in danger of soon also being deprived of subjects。 But it
will not thus dissolve itself； neither must it return to the much
worse condition of nature； in which there would be no external
justice。 Nor； above all； should it deaden the sensibilities of the
people by the spectacle of justice being exhibited in the mere carnage
of a slaughtering bench。 In such circumstances the sovereign must
always be allowed to have it in his power to take the part of the
judge upon himself as a case of necessity… and to deliver a
judgement which； instead of the penalty of death； shall assign some
other punishment to the criminals and thereby preserve a multitude
of the people。 The penalty of deportation is relevant in this
connection。 Such a form of judgement cannot be carried out according
to a public law； but only by an authoritative act of the royal
prerogative； and it may only be applied as an act of grace in
individual cases。
Against these doctrines； the Marquis Beccaria has given forth a
different view。 Moved by the compassionate sentimentality of a
humane feeling； he has asserted that all capital punishment is wrong
in itself and unjust。 He has put forward this view on the ground
that the penalty of death could not be contained in the original civil
contract； for； in that case； every one of the people would have had to
consent to lose his life if be murdered any of his fellow citizens。
But； it is argued； such a consent is impossible； because no one can
thus dispose of his own life。 All this is mere sophistry and
perversion of right。 No one undergoes punishment because he has willed
to be punished； but because he has willed a punishable action； for
it is in fact no punishment when any one experiences what he wills；
and it is impossible for any one to will to be punished。 To say； 〃I
will to be punished； if I murder any one；〃 can mean nothing more than；
〃I submit myself along with all the other citizens to the laws〃； and
if there are any criminals among the people； these laws will include
penal laws。 The individual who； as a co…legislator； enacts penal law
cannot possibly be the same person who； as a subject； is punished
according to the law； for； qua criminal； he cannot possibly be
regarded as having a voice in the legislation； the legislator being
rationally viewed as just and holy。 If any one； then； enact a penal
law against himself as a criminal； it must be the pure juridically
law…giving reason （homo noumenon）； which subjects him as one capable
of crime； and consequently as another person （homo phenomenon）；
along with all the others in the civil union； to this penal law。 In
other words； it is not the people taken distributively； but the
tribunal of public justice； as distinct from the criminal； that
prescribes capital punishment； and it is not to be viewed as if the
social contract contained the promise of all the individuals to
allow themselves to be punished； thus disposing of themselves and
their lives。 For if the right to punish must be grounded upon a
promise of the wrongdoer； whereby he is to be regarded as being
willing to be punished； it ought also to be left to him to find
himself deserving of the punishment； and the criminal would thus be
his own judge。 The chief error （proton pseudos） of this sophistry
consists in regarding the judgement of the criminal himself；
necessarily determined by his reason； that he is under obligation to
undergo the loss of his life； as a judgement that must be grounded
on a resolution of his will to take it away himself； and thus the
execution of the right in question is represented as united in one and
the same person with the adjudication of the right。
There are； however； two crimes worthy of death； in respect of
which it still remains doubtful whether the legislature have the right
to deal with them capitally。 It is the sentiment of honour that
induces their perpetration。 The one originates in a regard for womanly
honour； the other in a regard for military honour； and in both cases
there is a genuine feeling of honour incumbent on the individuals as a
duty。 The former is the crime of maternal infanticide （infanticidium
maternale）； the latter is the crime of killing a fellow…soldier in a
duel （commilitonicidium）。 Now legislation cannot take away the shame
of an illegitimate birth； nor wipe off the stain attaching from a
suspicion of cowardice； to an officer who does not resist an act
that would bring him into contempt； by an effort of his own that is
superior to the fear of death。 Hence it appears that； in such
circumstances； the individuals concerned are remitted to the state
of nature； and their acts in both cases must be called homicide； and
not murder； which involves evil intent （homicidium dolosum）。 In all
instances the acts are undoubtedly punishable； but they cannot be
punished by the supreme power with death。 An illegitimate child
comes into the world outside of the law which properly regulates
marriage； and it is thus born beyond the pale or constitutional
protection of the law。 Such a child is introduced； as it were； like
prohibited goods； into the commonwealth； and as it has no legal
right to existence in this way； its destruction might also be ignored；
nor can the shame of the mother； when her unmarried confinement is
known； be removed by any legal ordinance。 A subordinate officer；
again； on whom an insult is inflicted； sees himself compelled by the
public opinion of his associates to obtain satisfaction； and； as in
the state of nature； the punishment of the offender can only be
effected by a duel； in which his own life is exposed to danger； and
not by means of the law in a court of justice。 The duel is therefore
adopted as the means of demonstrating his courage as that
characteristic upon which the honour of his profession essentially
rests； and this is done even if it should issue in the killing of
his adversary。 But as such a result takes place