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his adversary。 But as such a result takes place publicly and under the
consent of both parties； although it may be done unwillingly； it
cannot properly be called murder （homicidium dolosum）。 What then is
the right in both cases as relating to criminal justice？ Penal justice
is here in fact brought into great straits； having apparently either
to declare the notion of honour； which is certainly no mere fancy
here； to 'be nothing in the eye of the law； or to exempt the crime
from its due punishment； and thus it would become either remiss or
cruel。 The knot thus tied is to be resolved in the following way。
The categorical imperative of penal justice； that the killing of any
person contrary to the law must be punished with death； remains in
force； but the legislation itself and the civil constitution
generally； so long as they are still barbarous and incomplete； are
at fault。 And this is the reason why the subjective
motive…principles of honour among the people do not coincide with
the standards which are objectively conformable to another purpose； so
that the public justice issuing from the state becomes injustice
relatively to that which is upheld among the people themselves。
II。 The Right of Pardoning。
The right of pardoning （jus aggratiandi）； viewed in relation to
the criminal； is the right of mitigating or entirely remitting his
punishment。 On the side of the sovereign this is the most delicate
of all rights； as it may be exercised so as to set forth the splendour
of his dignity； and yet so as to do a great wrong by it。 It ought
not to be exercised in application to the crimes of the subjects
against each other； for exemption from punishment （impunitas criminis）
would be the greatest wrong that could be done to them。 It is only
an occasion of some form of treason （crimen laesae majestatis）； as a
lesion against himself； that the sovereign should make use of this
right。 And it should not be exercised even in this connection； if
the safety of the people would be endangered by remitting such
punishment。 This right is the only one which properly deserves the
name of a 〃right of majesty。〃
50。 Juridical Relations of the Citizen to his Country and
to Other Countries。 Emigration； Immigration； Banishment；
Exile。
The land or territory whose inhabitants… in virtue of its
political constitution and without the necessary intervention of a
special juridical act… are； by birth； fellow…citizens of one and the
same commonwealth； is called their country or fatherland。 A foreign
country is one in which they would not possess this condition； but
would be living abroad。 If a country abroad form part of the territory
under the same government as at home； it constitutes a province；
according to the Roman usage of the term。 It does not constitute an
incorporated portion of the empire （imperii） so as to be the abode
of equal fellow…citizens； but is only a possession of the
government； like a lower house； and it must therefore honour the
domain of the ruling state as the 〃mother country〃 （regio domina）。
1。 A subject； even regarded as a citizen； has the right of
emigration； for the state cannot retain him as if he were its
property。 But he may only carry away with him his moveables as
distinguished from his fixed possessions。 However； he is entitled to
sell his immovable property； and take the value of it in money with
him。
2。 The supreme power； as master of the country； has the right to
favour immigration and the settlement of strangers and colonists。 This
will hold even although the natives of the country may be unfavourably
disposed to it； if their private property in the soil is not
diminished or interfered with。
3。 In the case of a subject who has committed a crime that renders
all society of his fellow…citizens with him prejudicial to the
state； the supreme power has also the right of inflicting banishment
to a country abroad。 By such deportation； he does not acquire any
share in the rights of citizens of the territory to which he is
banished。
4。 The supreme power has also the right of imposing exile
generally （jus exilii）； by which a citizen is sent abroad into the
wide world as the 〃out…land。〃 And because the supreme authority thus
withdraws all legal protection from the citizen； this amounts to
making him an 〃outlaw〃 within the territory of his own country。
51。 The Three Forms of the State： Autocracy；
Aristocracy； Democracy。
The three powers in the state； involved in the conception of a
public government generally （res publica latius dicta）； are only so
many relations of the united will of the people which emanates from
the a priori reason； and viewed as such it is the objective
practical realization of the pure idea of a supreme head of the state。
This supreme head is the sovereign； but conceived only as a
representation of the whole people； the idea still requires physical
embodiment in a person； who may exhibit the supreme power of the state
and bring the idea actively to bear upon the popular will。 The
relation of the supreme power to the people is conceivable in three
different forms： either one in the state rules over all； or some；
united in relation of equality with each other； rule over all the
others； or all together rule over each and all individually； including
themselves。 The form of the state is therefore either autocratic； or
aristocratic； or democratic。 The expression monarchic is not so
suitable as autocratic for the conception here intended； for a monarch
is one who has the highest power； an autocrat is one who has all
power； so that this latter is the sovereign； whereas the former merely
represents the sovereignty。
It is evident that an autocracy is the simplest form of government
in the state； being constituted by the relation of one； as king； to
the people； so that there is one only who is the lawgiver。 An
aristocracy； as a form of government； is； however； compounded of the
union of two relations： that of the nobles in relation to one
another as the lawgivers； thereby constituting the sovereignty； and
that of this sovereign power to the people。 A democracy； again； is the
most complex of all the forms of the state； for it has to begin by
uniting the will of all so as to form a people； and then it has to
appoint a sovereign over this common union； which sovereign is no
other than the united will itself。 The consideration of the ways in
which these forms are adulterated by the intrusion of violent and
illegitimate usurpers of power； as in oligarchy and ochlocracy； as
well as the discussion of the so called mixed constitutions； may be
passed over here as not essential； and as leading into too much
detail。
As regards the administration of right in the state； it may be
said that the simplest mode is also the best； but as regards its
bearing on right itself； it is also the most dangerous for the people；
in view of the despotism to which simplicity of administration so
naturally gives rise。 It is undoubtedly a rational maxim to aim at
simplification in the machinery which is to unite the people under
compulsory laws； and this would be secured were all the people to be
passive and to obey only one person over them； but the method would
not give subjects who were also citizens of the state。 It is sometimes
said that the people should be satisfied with the reflection that
monarchy； regarded as an autocracy； is the best political
constitution； if the monarch is good； that is； if be has the judgement
as well as the will to do right。 But this is a mere evasion and
belongs to the common class of wise tautological phrases。 It only
amounts to saying that 〃the best constitution is that by which the
supreme administrator of the state is made the best ruler〃； that is；
that the best constitution is the best！
52。 Historical Origin and Changes。