The Science of Rights/Part 2/Book 3

The Science of Rights by Johann Gottlieb Fichte
Book Third
Concerning Municipal Law

§ 1. Civil LawEdit

The first compact of persons entering with each other into a legal relation, and which we have called the property-compact, is the true original basis of that relation, and hence is equally the basis of what: is usually called civil law. To exhaust our present investigation, therefore, all we need to do is to analyze that compact thoroughly.

The conception of original rights we have shown to be that of a continuous reciprocal causality between the person and the sensuous world, which causality is dependent solely upon the will of the person. In the property-compact each person has assigned to him a determined sphere of the sensuous world, as the exclusive sphere of his reciprocal causality; but with these two conditions, to wit, that he will not disturb the freedom of all others in their sphere, and that he will protect them by his contribution against the attacks of any third party.

Firstly: A sphere is assigned to him for his freedom; nothing more. This sphere contains certain objects, determined by the freedom assigned to him. His right of property to these objects extends, therefore, as far as the freedom assigned to him extends, and no further. He receives them only for a special use, and he has only the right to exclude every one else from this special use and from what might be injurious to this special use. The object of the property-compact is a determined activity. (This appears, indeed, already, from what we have said previously. For the fundamental ground of all property is, that I have subjected something to my end. But what end? This question each one has to answer when entering the property-compact, which compact must be throughout determined and determining. It is only this declared and recognized end and purpose in the objects which that compact guarantees; and the property of the object extends no further than to the attainment of this end.)

But these ends may be very different in the use of one and the same object, and hence also in the use of different objects. The question is, whether all possible ends of a citizen may not be subordinated to a single one?

The person, in acting, always presupposes his own future existence; the object of his present acting always lies in the future; and he is a cause in the sensuous world only in so far as he proceeds from the present to the future moment. Freedom and continued existence are essentially united, and he who guarantees the one necessarily guarantees the other. Present activity includes the future.

Nature has destined man, who alone concerns us here, for freedom, that is, activity. Nature attains all her ends, and hence must also have made arrangements to attain this one. What arrangements could she contrive to incite man to activity?

If we presuppose that each man has wishes in the future, then nature could attain that end by making the possibility of a future for him dependent upon his present activity. The wish for a future, on the other hand, would involve the necessity of present activity. The future would be conditioned by present activity; in the present activity the future would necessarily be contained.

But since it is possible that there may be men who have no wishes in the future, and since, moreover, the desire for a future is grounded only in present activity, which present activity is itself again grounded in the desire of a future; and since the contrivance of nature would, therefore, be a faulty circle, it is necessary that she should unite both in a third present moment, and this is Pain. The present pain, threatening continued existence, involves both present activity and the wish for and the possibility of a continued existence. This pain is hunger and thirst; and we thus discover that the need of nourishment is alone the original incentive, as its satisfaction is the final end of the state, and of all man's life and doing; of course, only so long as man remains under the guidance of nature, and does not arise through freedom to a higher existence. This need of nourishment is, therefore, the highest synthesis, which unites all contradictions. The highest and universal end of all free activity is, therefore, that men may live. This end each one has, and the guarantee of freedom involves this guarantee. Unless he attains it, freedom and the continued existence of his person will be impossible.

We thus obtain a more special determination of the exclusive sphere of freedom, guaranteed to each in the property-compact. To be able to live is the absolute, inalienable property of all men. A certain sphere of objects is guaranteed to a person exclusively for a certain use; but the ultimate end of that use is, that he shall be able to live. The spirit of the property-compact is the guarantee of this end, or of life. It is the fundamental principle of every rational form of government, that each person shall be able to live from the results of his labor.

Each individual has made this agreement with all others, and all have made it with each. Hence, all have promised to all that their labor shall be the means to attain this end, and in the state organization provision must be made to realize this purpose.

Again: all right of property is based upon the agreement of all with all: that each will acknowledge the possessions of the other, provided the other will acknowledge his. But as soon as any one can no longer live from the results of his labor, that which belongs to him is no longer his; the agreement with him is, therefore, completely annulled, and he is no longer legally bound to respect the property of any one else. Since this insecurity of property is to be avoided, all must in law and by agreement give him of their possessions sufficient to live from. From the moment that any one suffers distress, that part of the property of each citizen, which is necessary to remove that distress, no longer belongs to them, but in law and justice belongs to the suffering individual. The original compact should make provision for such a repartition of property among the sufferers, and this contribution to the distressed is as much condition of all civil rights as the contribution for common protection. Each one retains possession of his property only in so far, and on the condition that all other citizens can sustain their lives from their property; and if they can no longer sustain their lives therefrom, his becomes their property: of course, in such proportions as the state government may determine. The government is responsible for this as well as for all other branches of state administration; the poor citizen has an absolute claim to support.

The principle established was this: Each one must be able to live from the results of his labor. Labor is, therefore, the condition of being able to live, and when this condition has not been fulfilled the right also does not exist. Since all are responsible for the support of all who can not live from their labor, they necessarily also have the right to watch that each labors sufficiently; and this right of supervision they transfer to the government. No one has a legal claim to the support of the state until he has shown that he has done within his sphere all that was possible for him to do in order to make his living; and that, nevertheless, he was unable to do it. But since, even in the latter case, the state could not permit him to die, and would be, moreover, liable to the reproach that it had not compelled him to work, the state necessarily must be intrusted with the right of supervising the manner in which each citizen administers his property. Precisely as there must be no poor man in a rational state, so also must there be no idler. A legal exception to the latter result will appear hereafter.

The property-compact comprises, therefore, the following acts:

1. All state to all what they intend to live from. This holds good without exceptions. He who can not state this can not be a citizen of the commonwealth, since he can not be forced to respect the rights of property of the others.
2. All permit to each this occupation, exclusively, in a certain respect. Each one must expressly state his occupation; and hence no one becomes a citizen in general, but becomes, at the same time, entitled to a certain occupation. There must be no undeterminedness whatever in a state organization. Each, of course, has possession of objects only so far as the ends of his occupation require it.
3. The end of all this labor is, to be able to live. All guarantee to each that his labor will achieve this end, and guarantee this end with all their means. These means belong to the rights of each, which the state must protect. The agreement in this respect is as follows: Each promises to do all that is in his power to do, in order to make his living from what has been ceded to him as his property and rights; and in consideration of this promise, all others, or the state, promise to cede more to him, if he should not be able to make his living therefrom, guaranteeing this promise by obliging themselves to furnish contributions. Hence, precisely as the original compact provides for the erection of a protective power of government, so must it also provide for a supporting power. In other words, the state government must not only protect the citizens, but must also support the poor.

The arrangement contrived by nature to compel us to free activity is as follows:

Our body is an organized product of nature, and the progress of organization goes on in the body uninterruptedly. Nature proceeds herein in two modes: Either the body takes in organic matter, and nature first organizes that matter in the body; or the body receives matter already organized, and nature merely further organizes it in the body. Moreover, nature may either bring herself the matter to be organized within the sphere of causality of the body, or may arrange the body so as to betake itself by free activity to the materials needed by it. The latter condition occurs in beings that are articulated for free movement; and, since nature would seem to rise to greater perfection in these latter bodies, it seems not unlikely that both conditions should go together; that is, that articulated bodies should be able to supply their organization only from organized matter. Without investigating here why and by virtue of what laws this is so, we content ourselves with stating the simple fact that it is so. The plants are formed from inorganic matter; at least, matter which appears inorganic to us; whilst animals feed from the organized products. What seems to be an exception to this rule is none. When animals swallow earth, stones, or sand, etc., it is not to derive nourishment therefrom, for these materials are not digested, but to expel injurious ingredients from the body.

It may also be possible, that articulated creatures again, on their part, supply their organization from other articulated creatures, or eat meat. It seems, indeed, as if these meat-eating creatures occupied, likewise, a higher stand-point of organization.[1] Man is evidently made to supply his nourishment from both spheres of organized nature.

It is a condition of the continued existence of the state, that a sufficient amount of food should be on hand; for otherwise men would be forced to emigrate.

All organization proceeds according to laws of nature, which man can learn and direct or apply, but which he has not the power to change. Man may place nature in the known conditions of the application of her laws, sure that she will not fail then to apply them; and by doing so, man exercises the power of promoting and increasing organization. It seems likely that nature will need such assistance from man in places where men congregate through freedom, which freedom nature could not have taken into consideration in arranging herself. If this is a fact, then the promotion of organization is the fundamental basis of the state, since it is the exclusive condition on which men can live together.

Man will find it requisite, first of all, to promote the organization of plants, in order to feed himself and the animals. Plants are fixed to the ground so long as their organization lasts. It seems, therefore, probable that many men will devote themselves exclusively to the cultivation of plants; and such a right must be admitted, since the existence of the state depends upon its exercise.

All organization progresses according to certain laws, and must not be interrupted in this its progress. In each cultivated part of the plant kingdom, therefore, every thing must remain precisely as the cultivator has designed it to be; and hence the ground, which he needs for this cultivation, must be exclusively granted to him for that specific purpose.

Property in land.Edit

Land is the common support of mankind in the sensuous world, the condition of man's existence in space, and hence of man's whole sensuous existence. The earth in particular, considered as a mass, is not at all a possible object of property; for it can not, as substance, be submitted to any possible exclusive end of a person; and it is not lawful for any one, according to our above results, to exclude all others from the use of a thing without assigning himself a use for it. Even if some one should say: the earth is useful to build houses upon, he already ceases to speak of it as a substance, modifies it, and uses it as an accidence. Hence, the right of the agriculturist to a fixed piece of ground is solely the right, exclusively to raise products upon it and to exclude all others from doing the same, or from using it for any purpose which would conflict with that use.

The agriculturist, therefore, has not the right to prevent another use of his property, provided it does not conflict with his own. He has not the right, for instance, to prevent others from using his lands after harvest for pasturage, unless he has obtained also the right of cattle-raising; nor to prevent the state from mining on his lands, unless, indeed, his lands should thereby receive damages, in which case the state must reimburse him.

The lands of the commonwealth are chosen by the individuals, and guaranteed by the state to each. Their limits are designated by fences or other marks, so that they may always be known. To wantonly remove such marks is a crime, because it leads to endless law disputes.

Each agriculturist, who is nothing but agriculturist, must be able to live from the cultivation of his lands. If he can not do so, an additional piece of land must be given to him, since he is only agriculturist. Whether he has worked sufficiently in the cultivation of his lands, the state decides.

As citizen of the state, the agriculturist must contribute toward the needs of the state. So far as we can see now, he will have to make these contributions from the products of his field. Until he makes this contribution, he has no property, because he has not fulfilled the agreement which makes it his property. Whatsoever remains after this contribution is his own; the state has, so far as appears now, no claim on it, and must protect him in the possession of it against all attacks. Only the products of his lands are, therefore, the absolute property of the agriculturist. They belong to him, substance and all; whereas, of the lands, he owns only an accidence.

Whatsoever grows wild on cultivated lands must be assumed to have been subjected by the proprietor to his ends; hence it rightfully belongs to him. Moreover, if a stranger should interfere with such wild products, he would interfere with the proprietor's right to dispose of his lands as may seem best to him.

Uncultivated lands are property of the whole commonwealth, for they were assigned to no one when the lands were distributed. Of course, the state distinguishes between the substance, the ground itself, and its accidences, that which grows upon it. These accidences will most properly be taken by the state for public purposes, (forests.) But if they shall be so taken by the state, then the state must expressly declare them to be state property; and what is not so declared thereby becomes the property of the first one who chooses to appropriate it, (wild fruits, berries, etc.)

Whenever a citizen wishes to cultivate any of these uncultivated lands, they must be divided. Whoever obtains such lands as his property must cultivate them. The state will thus be indemnified for the loss of the accidences on these lands by receiving contributions (taxes) from their new cultivators.

Mineral lands.Edit

Minerals are the transition of nature from inorganic matter to organic products. The laws by which nature produces them are either not at all discoverable, or, at least, are not yet discovered. Metals can, therefore, not be arbitrarily reproduced by art and cultivation like fruits. They are found as nature made them.

It seems as if each one ought to have the right to say: I intend to hunt for minerals; just as each has the right to say: I intend to cultivate fruits; and hence as if the interior of the earth could be divided among the miners precisely as the upper crust is divided among the farmers. The metals found would thus belong to the miner, as the fruits cultivated belong to the farmer. Nevertheless, there is a difference; partly because mining is risky, and can not be surely known to support the miners, and partly because the land once investigated by the miner can not be reinvestigated. Mining must, therefore, be assigned to a permanent corporation, which can afford to wait for success; and no corporation is better adapted to do this than the state, which, moreover, has still another reason for obtaining possession of the metals, as we shall soon show. Hence, the interior of the earth remains the common property of the commonwealth, and the miners become the regularly employed laborers of the state, receiving their wages whether they find any metals or not.

The same principle applies to all similar products of nature; precious stones, quarries, sand, etc. The state has the right to make these objects its own declared property, and to prohibit all others from appropriating or using them. If it does so, it must, of course, guarantee to furnish these products in sufficient quantities to all who may desire to use them. If the state does not choose so to do, it may extend the privilege of working them for certain districts to such individuals as may apply for the privilege; or may tacitly agree to let any one take possession of them who chooses to do so. The principle which rules is always that unless the state expressly declares these objects to be its property, they may be taken possession of by the first comer.

Property in animals.Edit

There are also animals upon the earth who may be useful to men in their accidences, or whose substances may be useful to men; their meat to eat, their skin for various purposes, etc. If any citizen intends to subject only the accidences of such animal to his ends, he must first make the animal subservient to him. Moreover, since the animals are fed and kept alive only by organized matter, and since it is not to be expected that nature will take care of them after they have once been made art products, he must replace nature in becoming their nourisher. This, again, is conditioned by the exclusive possession of the animal; only I must feed and attend the animal always, and only I, therefore, must be allowed to enjoy the advantages it may confer.

There is no reason why each one should not have the same right to take possession of an animal Hence, exclusive property in animals can be obtained only through the original property-compact in a state.

There is, however, this difference between property in land and property in animals, that the land can always be designated by the place in space which it occupies, whereas the animal has free motion and can not be so specified. How then is it to be made known what particular animal belongs to a certain person and to no one else?

If it should, firstly, be the case that only certain lands of animals are ever made exclusive property of persons, it would be, above all, necessary to specify to what kinds of animals the right of property can extend. This would enable every one to know at once whether an animal, coming within his reach, is the property of any body or not. For instance, if I have a right to hunt, I may shoot the deer, because it is a deer; but I may not shoot the horse, although I do not know who owns it. Why not? Simply because I know that horses have been declared property by the state, and that, hence, some one is surely the owner of the horse, although I do not know who. If some one should tame a deer, it doubtless becomes his property. But if the deer runs away and I shoot it, am I, therefore, responsible for it as for the horse? Clearly not, since the state has not declared that the right of property extends to deers. The right of the original owner of an animal remains, although the animal may run away from him, because in the original compact it has been agreed upon in what kinds of animals the right of property may rest. Such animals are called tame animals. The ground why precisely these kinds of animals have been declared property in a state and none others, lies in their fitness for serving the needs of men in their accidences, in the possibility of taming them, and in the necessity of taking care of them.

But let no one believe that this taming and feeding of the animals is the true legal ground of the right of property in them. That legal ground is to be found only in the property-compact Hence, if any one should introduce a new kind of tamed animals, for instance, buffaloes or kangaroos, the state would first have to declare them animals to which the right of property should extend, since otherwise they would be properly treated like wild animals. If they were kept locked up in such a one's house or yard, they would, of course, thereby become part of his house property. It is also clear, from the foregoing, that the state has a perfect right to prohibit the keeping of certain animals, for instance, of lions, bears, monkeys, and unnecessary dogs.

But the next question is: To whom does this or that animal which in its kind has been declared property, belong? These animals may either remain under the immediate supervision of their proprietor, so that he can at any moment prove them to be his—unless, indeed, they be unlawfully in his possession—or they may be feeding in a common pasture with the animals of other proprietors. How, in the latter case, can ownership be proved? Happily, animal instinct has supplied the neglect of the lawgiver. Tame animals accustom themselves to their stables, and the judge decides according to the instinct of the animal as to who is its owner. Yet, would it not be proper to have all tame animals marked in some way, the marks to be as inviolable as those which designate the several pieces of landed property, and thus to place them under the direct protection of the law? (In the armies the horses are, indeed, so marked.) Each bill of sale of an animal ought to be accompanied by a specification of the mark upon the animal, so as to guarantee perfect safety to the purchaser.

In reference to some animals, the right of property is determined by the space they occupy, to wit, when they are of a kind which can be confined to a certain locality, and must be so confined to serve their end. In such cases the owner is proprietor of the animals, because he is proprietor of the locality wherein they exist, (fish-lakes, birdhouses, etc.) When the fish is out of the lake, or the bird out of the cage, they have no owner.

The right of property is always granted with reference to the end to be accomplished by it; so, likewise, the right of property in animals. Now, most animals are useful, not only in their accidences, (as milk, eggs, and their labor,) but also in their substance; we eat their meat, make use of their skins, etc. etc.

It may, perhaps, be deemed expedient to limit this right of property in the substance of the animals, and to specify this limit in the original property-compact. Such a limitation would not invalidate the right of property in the animals, so far as it has reference to their accidences, but it would restrict the right to do with the substance of the animals as might please the owner. The state, for instance, might provide that a certain number of cattle shall always be kept in the state, and that, therefore, only a limited number may be slaughtered. If such a law is passed in a state, another law must be passed, of course, providing that, at all times, a certain amount of food for cattle shall be raised and set aside, since otherwise the former legislation would cancel itself.

Animals propagate themselves, and their young ones are their accidences. The ownership of the old animals involves the ownership of their whole future breed, precisely as the ownership of a grain of wheat involves that of all the future wheat which may grow out of it. It may be lawful, however, to limit the number of cattle which shall be kept in a commonwealth.

The animals have free movement and feed from the products of the field. Hence, when an animal trespasses upon the fields of a farmer, there arises this dispute between the agriculturist and the cattle-raiser:

The former says: "I have the right to cultivate land in this state, and the products of the field are mine." The latter replies: "I have the right to raise cattle in the same state, and the state knows well enough that animals are determined by their nature to hunt food."

This dispute the state has to settle by establishing laws, based on the original property-compact, whereby either the one party alone is compelled to keep his cattle in a closed pasture, or, which is more fair, the other party is also compelled to fence in his fields. Whosoever neglects to do his duty in this respect, must not only repay damages, but also makes himself liable to an additional fine. If accidents happen in spite of all precautions, they are to be considered as misfortunes for which neither party is liable, and which the state has to repair.

Wild animals are animals the accidences whereof can not be subjected to the use of men. Their substance, however, may be useful, and since they can not be tamed, it becomes useful only through the death of such animals. In so far they belong to the whole state, or are undivided property. They become the property of individuals only by being caught or killed.

There is, however, one great distinction between these animals. Some of them are inclosed in an element which is not subject to men, at least in so far as these animals live in and of it, namely, the fishes in rivers and seas. Hence, they do no harm to men. It is the same with some other animals, which, though they live in and of the same element as men, the earth, yet do so little damage to it, that they are not materially injurious; namely, the birds. The harm which they do to the crops, etc., is amply repaid by their killing off injurious insects.

It is quite different with another class of wild animals, which are injurious to men and destroy man's labors. All kinds of game belong to this class. Now, since the state guarantees to each person his property, it must protect that of the agriculturist against the devastation of these animals. Everywhere wilderness must give way to culture, and the irregular modes of living, which can not be surely known to suffice for man's subsistence, must give way to regular pursuits.

Hence, the state must make fishing a lawful pursuit, which is best accomplished—with a view to make it an orderly business—by assigning specific districts of rivers and lakes to fishermen, who thus become the proprietors of these districts in the manner of agriculturists, of course only in regard to the use of these districts. They would not have the right, for instance, to prevent navigation within their districts, since that would not interfere with their pursuits in the same localities.

But all wild animals of the second class must be regarded by the state as absolutely injurious; not as a source of emolument, but as a class of enemies. The first object of hunting is not, therefore, to possess the game, but to protect the farmer; and the state must undertake this protection precisely as it undertakes to protect property against thieves and incendiaries, namely, by appointing men especially intrusted with this duty. Of course, the agriculturist retains the right to shoot any piece of game or wild animal which may stray within his fence, and does not need to wait for the official gamekeeper's arrival, precisely as each citizen retains the right to quench the flames, if his house should be put on fire, without waiting for the arrival of the official firemen.

Now, since the chase affords considerable profits, it is not to be assumed that the people ought to pay taxes for sustaining it; rather, it ought to pay itself. For this reason it will be most advantageous to grant to a certain class of persons, game-keepers, the right of chase in specified districts—as in the case of the fishermen—which right thus becomes their property. Let it be well understood, that the right of property is not vested in the animals, as such, but only in the killing of this class of animals within the specified district. Nevertheless, since it is the chief object of the chase to protect the agriculturist, the game-keeper can receive this right only on the express condition that the game is truly kept harmless by him, and that he holds himself responsible for all the damages farmers may receive by reason of such game.

No one but the gamekeeper can possibly have the intention to take care of or protect the game, and this end is granted to him only in so far as the game is not injurious to the purposes of culture; or in so far as the game remains in the forest. Whoever kills them there, trespasses upon the property of the gamekeeper; whereas, he who kills them upon his fields is perfectly justified. For the life of the game is not guaranteed by the state; indeed, the game has no end for the state; on the contrary, their death is the end which the state has in view. The killed game belongs to the gamekeeper of the district; the damage they have inflicted whilst at large must be paid by him, whether the animals be worth much or nothing at all.

The first end of the chase is to protect culture; all other ends are accidental. Hence, it is properly made the duty of the gamekeeper to exterminate, likewise, wild animals, from which he himself derives no benefit, and which may not be immediately injurious to himself; as, for instance, eagles, hawks, sparrows, nay, even caterpillars and other injurious insects. Other animals, which are immediately injurious to himself, because they destroy his game, such as foxes, wolves, etc., he will exterminate of his own accord.

If the chase were a burden without profit, government would have to undertake it. But since it is combined with considerable advantages, which generally increase in value the less attention the gamekeeper pays to his proper business—and herein lies the root of the chief difficulty—and since, therefore, complaints will often be preferred against the gamekeepers, it is expedient to keep them under the close supervision of the government. The right of keeping game, being combined with emoluments, can not remain, therefore, in the hands of the government. Government would always be an interested party as the possessor of the game, and the agriculturist would have no impartial judge.

Property in products of industry and art.Edit

All rights of property, heretofore considered, are vested in products of nature, as such, whether nature has been assisted in producing them, as is the case in agriculture and cattle-raising, or whether her products are merely hunted up, as is the case in mining, hunting, fishing, and cutting down of timber. We will call all the citizens, who have rights of this kind, Producers.

Now, it is very probable that these raw products of nature need a particular preparation through art to render them useful for the purposes of men, and in our present wholly empirical investigation we will assume, without further a priori deduction, that such is the case. It is, therefore, to be expected that another class of citizens will devote themselves wholly to this art-preparation of the raw material. I shall call this class of citizens Artists, in the widest significance of the word.

The distinction is sharply defined, and the designation in itself perfectly correct. For the former class of citizens leave nature to herself, do not prescribe to nature, but merely place her under the conditions of the application of her power. Those of that class who merely hunt up products do not even so much. As soon as nature has achieved her work, the labor of the producers is finished; the product is ripe, or the raw product has been found.

But the second class of persons who now enter on the scene, do not calculate at all upon the assistance of nature, since the organizing power of the product has already been deadened by its ripeness, or else must be deadened by them to become useful for their purposes.

They compose these parts according to their own conception altogether; the moving power lies in them, not in nature. Every thing composed in this manner is called a product of art. Each thread of the spinner is a work of art. It is true, the word Artist has been applied to particular classes of these laborers; but this use of language need not interfere with ours, which is based on a correct a priori division, and which we do not desire at all to make universal.

A number of persons must have the exclusive right to thus artistically prepare certain objects in a certain manner. If they have no exclusive right, they have no property; for in that case they have recognized the labor-vocations of all others, whereas their own has not been recognized by these others in return. Their property-compact, in that case, is one-sided, merely obligatory, not granting rights, and hence is null and void.

A class of citizens exclusively entitled to prepare certain objects in a certain manner is called a profession. To leave all professions open at all times to all citizens, renders a property-compact impossible.

The artist must be able to live from his work. Two classes of artists are to be distinguished; such as merely furnish their labor and do not own the materials of it, and such as own the material. To enable them to make their living, the state must guarantee to the former class labor, and to the second class sale of their wares.

The substance of the agreement which all others make with the artists is as follows: You promise us to furnish this sort of work in sufficient quantity and of excellent quality; we, on the other hand, agree to purchase it only from you. If the professions do not furnish excellent work, they lose the exclusive right granted to them in the compact. Hence, the examination of candidates for a profession is a matter of common interest. The government, or each profession in the name of the government, must calculate how many persons can live from each profession, and how many are necessary in each to satisfy the needs of the public.

If all can not make their living, government has made a miscalculation, and must bear the consequences. Those who can not sustain themselves from the profession must be assigned to other branches of business.

But the artist can not live from his works. He must have the products of the other class. It is, therefore, necessary that there should be in the state at all times products enough to supply both the needs of the producers themselves and of the artists. These products the producers supply to the artists, and receive in return the works of the artists; and vice versa. Thus an exchange takes place, which government should regulate in the following manner: Each piece of work must be exchanged for as many products as the artist needed during the time of making that work; and vice versa. Each product of the producers must be exchanged for works of the artist in the same ratio. In short, there must be a complete equilibrium between raw products and manufactured wares.

There must not be any more artists in a country than can be supplied by its products. An unfruitful soil does not admit of luxury. The people must retrench their needs. Of course, this principle is limited by the results of external commerce, which we do not consider here, since we speak of each state as a whole in itself. But since such external commerce renders states dependent, each state should try to arrange itself so as to be able to do without it.

Every person must have his requirements supplied as soon as possible. To facilitate this exchange, therefore, it is well that a class of men should devote themselves entirely to it—merchants. The right to be a merchant is conferred exclusively upon a certain number of citizens, which number the government must determine by calculation, as their property in the state. Of course, they also must be able to live from its results.

All contracts of exchange, whether concluded between the producers and artists directly or by means of the merchants, are guaranteed by the government, and government must look to see that they are fulfilled, since without them a legal relation between persons is impossible. But since the state can not guarantee that whereof it has no cognizance, it must establish by law what contracts are to be valid and what contracts not. A contract concluded in violation of the laws of the state has no validity; if concluded without legal form, it has no legal validity, and becomes a matter of private honor and morality. The validity of all contracts is derived, immediately or mediately by means of positive law, from the supreme principle of law, according to the rule: that, without which a legal relation between persons would be impossible, is absolutely valid in law.

In this exchange of products for manufactured wares and labor, the advantage is, of course, decidedly in favor of the producer. He can get along, at least to a great extent, without the works of the artist; but the artist can not live without the products of the producer. But it has been agreed in the property-compact that the artist shall be able to live from the results of his labor, that is, that he shall always be able to obtain the proper amounts of products for his works, according to the standard already established. The producer is, therefore, bound by the property-compact to sell. But these products are, as we have seen, his absolute property, and hence he ought to be at liberty to sell them at as high a price as possible. It now appears that this liberty can not be extended to him. It will, therefore, be necessary to fix a highest price for all articles of food and for the most necessary articles for manufacture. If the producer is not willing to sell at this price, and if the state has not the power to force him to sell, the state may, at least, induce him to sell. This it can best accomplish by storing away all the articles which it receives from the producers as their contribution toward the support of the government, and selling them at the highest price at which the producer declines to sell. The artist is never in a position to oppress the producer to any extent; for he is always in need of articles of food (I speak here, of course, of a state organization such as has been described, and not of the existing state, in which the farmer has to pay his taxes in money, and may, therefore, be compelled to sell by those who hold the money.)

A distinction must be established, however, between those manufactured wares which are indispensable to the producer and those which are not so. The former class comprises all tools of agriculture, clothes, houses, etc. Of these articles, likewise, the highest price must be established, so that if the artists should refuse to work or sell their wares at that price, the state may do it. Hence, government will also have to store away such tools, clothes, etc.; and will also have to engage masons and carpenters, who may build houses on its account if necessary. The needs of luxury are not guaranteed by the state, and hence need not be kept on hand. The state ought to take care, likewise, that those articles which are dispensable—particularly those which can only be imported from other countries, and the import whereof may, therefore, become interrupted—shall not become indispensable. This can best be attained by levying high taxes on such articles. The object of these taxes must not be to make the income from the tax large, but to stop it altogether; and the tax should be increased until the importation stops. This, however, must be done at the very commencement, and not after the state has encouraged the enjoyment of such articles by its neglect, and has thus tacitly guaranteed their enjoyment.


It seems that we have involved ourselves in a contradiction.

Thesis.—The state guarantees to each citizen, who contributes toward the protection of the state and to the support of the poor, the absolute and unlimited property of the remainder of his possession. Each must have the right to waste, destroy, or throw away what belongs to him, provided he thereby inflicts no injury upon other citizens.

Antithesis.—The state continually takes possession of all the remainder—of the products of the producers, and of the wares and labor of the artist—in order thereby to make possible the necessary exchange, without which each can not be sure that he can sustain himself from the results of his labor.

To solve this contradiction we must discover its ground.

The state takes possession of the remainder, not in respect to its form, as remainder and as property, but in respect to its substance, as something which is necessary to sustain life.

In order to solve the contradiction thoroughly, form and substance must, therefore, be separated. The state must have the power of taking the substance without touching the form.

Without exhibiting here unnecessary profundity, I shall solve the problem at once. We must discover a mere form of property, a mere sign of it, which is a sign of whatever is useful in the state, without having in itself the least use; for if it were useful in itself, the state would possess the right to claim it, like the other products, for public purposes. Such a mere form of property is called money. The use of money must be introduced in a state necessarily; and this solves our problem. The producer has not the right to keep his products; he must sell them. Nevertheless, they are his absolute property, guaranteed to him by the state. True, he is not to give them away for nothing, but in exchange for wares. But he needs no wares at present, at least not those which are offered to him. Hence, he receives money. The same applies to the artist.

The state is obliged to furnish to the producer wares for his products, and to the artist products for his wares. They have received money for their respective property, not wishing to exchange for wares or products at present. Hence, as soon as they desire to make this exchange, they must be able to effect it by means of that money, which they hold as the sign of the value of those articles. In other words: by the issuing of money the state guarantees that it will furnish to the holder of money at any time, for his money, those articles whereof the state has guaranteed the enjoyment to every one; for each piece of money in the hands of a private person is a sign of an indebtedness on the part of the state.

The amount of money current in a state represents all that is purchasable on the surface of the state. If the quantity of purchasable articles increases while the quantity of money remains the same, the value of the money increases in the same ratio; if the quantity of money increases while the quantity of purchasable articles remains the same, the value of money decreases in the same ratio. Hence, if a state is considered as isolated, it is all the same whether there is much or little money in it; the increase or decrease is merely seeming, since in either case the existing quantity of money always represents the total of all purchasable articles in the state, and since, therefore, any part of it can always purchase a corresponding part of that total.

The conception of money involves, as we have seen, that its material must have no utility for men; its value must depend altogether upon agreement and common opinion. Each must merely know that every other one will recognize it as the equivalent of a particular part of all purchasable articles in a state. Gold is, therefore, excellent money; for its true value, its utility, is as nothing in comparison with its imaginary value as a sign. Silver is not so good for money, for it is intrinsically very useful in itself. These two substances have become money for all the world, both by reason of their rarity, and because states can not arbitrarily increase them.

Paper or leather money is the best money for an isolated state, if counterfeiting can be prevented, because its intrinsic value is as nothing compared with its artificial value as money. The objection, that a state may easily over-issue it, is of no force, since it is all the same whether the amount of the circulation is large or small; its value rising and falling, as we have shown, in proportion to its amount.

But since all civilized states of the present age carry on foreign commerce, and since foreigners are not generally inclined to receive a currency which can be contracted or expanded ad libitum, these paper issues must be at a considerable discount against gold and silver. The discount will be the greater the more such a state imports from abroad, and the less it has to export in return.

Coining money is the privilege of the state alone; for the state alone can guarantee its value to all citizens. Hence, mines are a necessary property of government.

Citizens pay their taxes with their products or manufactures; if they choose, however, they may also pay in money, since that is the state's authorized representative of all things. But the citizens must have the privilege of paying in those articles; and the amount of taxes must also be calculated by products and manufactures, for the reason that the value of money is constantly fluctuating.

Whatsoever remains to the citizens after they have paid their taxes, is their property; but since the state has the power to compel the exchange of such articles for others, each citizen receives money for that remainder. This money is absolutely pure property, over which the state has no longer any control.

Each piece of money which I possess is, at the same time, a sign that I have fulfilled all my civil obligations. The state has no supervision over it. Taxation on money is absurd.

Whatsoever citizens have bought with money for their private use—not for trade, which is under the supervision of the state—all furniture, clothing, jewelry, etc., etc., is, for the same reason, absolute property.

The house.Edit

The state is obliged to protect all absolute property, as specified above, and to guarantee to each citizen its secure possession. But all these things, and particularly money, can not in any way be designated as belonging to such and no other persons. In the case of land, corner-stones or wooden posts designate property, which can, therefore, be described on the record-books of the governments as belonging to such or such an individual; but all dollar-pieces look alike, and must look alike, since they are intended to change owners; how then can property in them be specified?

Again, the state can not take notice at all of how much money each citizen possesses; and even if it were possible for the state to do so, the citizen need not suffer it. But how can the state protect that whereof it does not know, and which, in its nature, is wholly undeterminable? If the state is bound to afford this protection to the undetermined, that undeterminable property must be inseparably connected with something else which is determined and which is expressly posited as the symbol of all absolute property, thereby being removed altogether from the supervision of the state. This determined something must be visible, known and determinable through the person of the owner.

This determined something, with which the undeterminable property is to be connected, may be of two natures, as will appear immediately. The state has guaranteed to each citizen who has paid his contributions the full use of all his manufactured, built, or bought possessions. By this guaranteed use the state has characterized or determined property. It is, therefore, to be presupposed, until the contrary is proved, that that which a person immediately uses is his; for in a well-administered state it is not to be assumed that a person should be making use of any thing against the will of the law. Immediate use, however, connects articles with the body. Hence, whatsoever a person carries in his hands or on or upon his body, belongs to such a person. Money, which I carry in my hands or in my clothes, is mine, as the clothes are mine to which the money is attached. (The Lazzaroni always carry all their absolute property on their body.)

Not only that which I use immediately, however, but also that which I intend for future use, is my absolute property. Now it is not to be assumed, nor can it be required, that I shall always carry it all on my body. Hence, there must be a surrogate of the body, whereby that which is connected with this surrogate may be designated as my property absolutely by reason of thus being connected with it. Such a surrogate we call the house, using the word in its widest significance as designating equally the room which a person has rented, the trunk of the servant, etc. My house is immediately under the protection and guarantee of the state, and through its means all that it contains. The state guarantees me against all violent entrance into my house. But the state knows not and has no right to know what is in the house. Hence, the single objects in it, as such, are under my own protection and under my own absolute control. In like manner all my actions in the house are under my own absolute control, provided their effect does not extend beyond the house. The supervision of the state extends to the lock upon the door, and there begins mine own. The lock is the boundary line between the power of the government and my own private power. It is the intention of locks to make possible self-protection. In my own house my person is sacred and inviolable even to the government. In civil cases government has no right to attack me in my house, but must wait till I am upon public ground. In our investigation of Criminal Law, we shall see how this sacred house-right may be lost.

The house designates and determines my absolute property. Something is my absolute property, because it has got into the house—of course with the knowledge and consent of the government. The fact of my having a house and something in it is the best proof, in a state such as we are describing, that I have completed my obligations toward the state, for the state first appropriates what I owe to it.

If I am absolute master and protector in my house, using the word as described above, then every thing that enters my house stands under my authority and my protection.

No one has the right to enter my house against my will. Even the state can not compel me to extend this permission, since even the state can not enter against my will. In the house we are no longer under the supervision and guarantee of the government, but under our own supervision and protection, and hence we enter each other's houses, so far as our personal security is concerned, on trust and faith in each other. Whatsoever occurs in the house is a private affair, and may be forgiven by the injured party; but whatsoever occurs publicly is a public crime, and can not be so forgiven. In the house a tacit agreement of mutual personal security is presupposed. Whosoever violates this agreement becomes infamous, that is, untrustworthy for all future time.

(Thus, indeed, has a deep-rooted moral sentiment decided long ago among all nations. Everywhere it is considered infamous, if a landlord insults his guest, or a guest his landlord in his own house. Everywhere secret theft has been held to be infamous to a degree which never was attached to open and bold robbery. Perhaps the latter is quite as dangerous as the former; and hence this general opinion is not inspired by egotism. But robbery is bold, and opposes, confessedly, force to another force, which is not deceived; whereas theft is cowardly, using the confidence of the other with a view to violating it.)

Whatever is in the house—cash, furniture, victuals, etc., (except the goods of the merchant)—is beyond the supervision of the state, and hence the right of property to such articles is not immediately guaranteed by the government. If I lend my money to the other on his word, and he denies the loan, I have no redress from the state, since our contract was not concluded under the guarantee of the state, and since I can not, therefore, legally prove the debt. But if I take his note—the state having announced such a note to be a legal proof of the debt—then the state owes me protection and redress against him. Contracts concluded upon mere trust and faith admit of no legal redress; their violation is punished solely by loss of character.

Good name.Edit

The honor or character of a citizen is constituted by the opinion of his fellow-citizens, that he is faithful and trustworthy in all cases which are beyond the reach of the state; for where the state extends its power of compulsion, trust and faith are not taken at all into consideration.

The government has neither the right nor the power to command that the citizens shall trust each other; for the state is the very result of distrust; nay, it is even the object of distrust, as shown in the constitution.

But neither has the government the right to prohibit trust and confidence. True, it has a perfect right to decree that none of its own affairs shall be transacted on the basis of trust and confidence, and to annul the legal results of all enactments thus made. For instance: the state has a perfect right to pass a law, that land or houses shall not be sold otherwise than in the prescribed legal form; for the government must always know the legal owner thereof. But since the state has no supervision over the whole region of absolute property, nay, has not the right to take any notice of it whatever, it follows that each citizen must be permitted to do with his absolute property whatever he pleases to do with it. He may throw it away or destroy it, and hence he may also loan it upon trust. Money, or any articles of personal, absolute property, may, therefore, be loaned without the authority of the law.

Nevertheless, the state must protect the absolute property of each citizen. How, then, can it protect him against infamous characters? Simply by warning all citizens against all men known to be infamous.

The property-compact involves both the right and duty to do this; for the state must protect against all dangers, and infamy is a great danger. Hence, the state ought to make that danger impossible as much as it may. This it can do by inflicting upon the acts hereinbefore specified the punishment of infamy.

No one has the right to demand that other citizens should trust him, or that the state should compel them to trust him. Confidence is required and given voluntarily. But each one has the right to demand that he shall not be proclaimed infamous without legal conviction. The confidence of his fellow-citizens is worth a great deal to him, and perhaps he may require it hereafter. Hence, no one has a right to deprive him of this possibility by falsely charging him with infamy.

The right to a good name is, therefore, simply the right not to be falsely proclaimed infamous. It is a mere negative right. The state has guaranteed it by agreeing not to interfere with public opinion, and the natural order of things in this respect.

The right of personal security.Edit

The freedom and absolute inviolability of the body of each citizen is not expressly guaranteed in the municipal compact, but is rather constantly presupposed together with the personality of each citizen. The very possibility of the compact, and of all its contents, is grounded upon it. No one may beat, push, or hold a citizen without infringing upon the use of his freedom, and diminishing his activity and well-being. Blows or wounds inflict pain; and each one has the right to be as well as nature permits him to be; and another free being has not the right to infringe upon it. An attack upon the body of a citizen is an attack upon all the rights which a citizen has in a state, and is, therefore, indeed, a crime in the state.

Hence, whenever I am on public dominion, that is, outside of my house, I am always under the protection and guarantee of the state. Each attack on my person in such places is a public crime, which the state is obliged to investigate and punish, and which the parties interested must not be allowed to settle among themselves. But whilst I am in my house, I am not under the protection nor under the jurisdiction of the state, although the house itself stands under that jurisdiction. Hence, a forcible entrance, whether by day or by night, is a public crime, and must be punished as such. But persons who enter quietly, without having broken open the lock—and for this reason the custom of knocking at a door has been introduced, and should always be upheld; the "Come in!" giving the necessary legal authority to enter—have entered with my consent, and stay with me as a matter of mutual faith and trust in each other. I have not presupposed that they will attack me or my property, or else I should not have admitted them.

But supposing that, nevertheless, they should attack me, my body or my property, or both, if I defend my property with my body, is the state in 'such a case bound to protect me or not?

The state does not know what happens in my house, has not the right publicly to know it, nor to act as if it knew it. If the state is to take cognizance of it, it must be because I myself have legally made it known to the state, that is, by having preferred complaint.

The rule, where there is no plaintiff there is no judge, applies only to the cases which happen within private dominion; but on no account to occurrences upon public dominion. Bar-rooms, coffee-houses, in short, all places which one may enter who proposes to spend money, are under public jurisdiction; and all violations of law happening in such places must be investigated and punished by the state, whether complaint has been preferred or not.

But is the state really obliged to take cognizance of my complaint concerning occurrences in my own house, and if so, why? The reason is this: the state is obliged to protect me and all my property in my house; not immediately, however, but only mediately. The immediate protection of the state would violate my right because its condition, the taking cognizance of it by the state, would violate my right. If I resign this right by voluntarily giving the state notice of the facts, I submit immediately to the state what previously was only mediately under the state's jurisdiction. Of course, this must be specified in the penal law, so that every citizen may act accordingly.

But by this arrangement we get into a great difficulty. For if a citizen is killed in his own house, he can not prefer complaint. Perhaps he also has no relatives, who may do it for him; or his relatives may have been implicated in his murder. Since the state has no jurisdiction over the house, it would seem that there is no legal protection against such murder; nay, more, that the law expressly invites thieves and robbers to add murder to their crimes, so that no complaint can be preferred against them.

This can not be the case. There must be some rational solution of this difficulty. Let us look for it.

If the murdered man were alive, he might prefer complaint or might pardon. He has been unjustly killed; he ought still to live, and the state does not know of him yet except as living, since he has been killed beyond the jurisdiction of the state. The state has still the right to ask him what he has resolved to do concerning that occurrence, and hence his will is to be assumed, with perfect external right, as still continuing to exist for the state. The murdered man has not determined this will of his; but it is determined, declared, and guaranteed by the general will of all the citizens of the state, regarded as separate individuals; not by the common will of the state as a body, for the state judges, decides, and grants, but does not demand and sue in the present case. (We shall speak of this general will of the individuals of a state again, when we come to speak of Wills; for this general will is manifested always when it is the interest of all the individuals of a state that a deceased citizen should' have had a will, and that his will should be still valid; because they all wish that, in a like case, the same should be assumed of them.) How, then, is the will of the murdered man determined by the general will of all citizens? They all say, his will would have been to prefer complaint. Hence, there should be a representative of the general will in regard to this last will of the deceased—a sort of public prosecutor; for the state can not prefer the complaint, since the state does not and can not know of the murder; and each private citizen has the right to see that this public prosecutor does his duty. Each one has the right to notify him of such occurrences, and to prefer complaint against him if he neglects to prefer complaint against the murderer.

Each private citizen must not only have the right, but must be obliged to give public notice of what he knows of such occurrences, and must become liable to punishment if he neglects to do so. Nay, even the government takes, to some extent, notice of the occurrence, since it must take notice of the death and the manner of death of all citizens—for to die is a public act. All doctors must be under the supervision of the government. Hence, it is rather in the interest of the offender to spare the life of the attacked party; for so long as that party lives, he may forgive; but when he dies, his cause devolves upon the people and the public prosecutor; and the people can not pardon, for the sake of their own security.

The right of self-defense.[2]Edit

No one has the right to defend with his own body property which is marked by the state, and thus to jeopardize his own life and the life of his opponent; for so far as such property is concerned, title can always be proved, even if it should be taken possession of by the other party, and the true owner can be reinstated and have his aggressor punished by the state.

But property which is not thus marked, the title to which can only be proved by its actual possession, either upon one's body or in one's house, each person has the right to defend even at the risk of the life of the assailant. The question, What is money worth compared to life? can not be properly asked in such cases. For that question rests upon moral, not legal, considerations. Each person has the absolute right to prevent any one from taking things away from him by force, and to prevent it at all hazards. A violent attack upon my property, if I protect it by my own person, thus becomes an attack upon my body, and I have the same right of self-defense. The ground of this right is, that the assistance of the state is not immediately on hand, and that the defense—since the property to be defended can not be replaced—must be immediate.

We have thus obtained, at the same time, the limit of the right of self-defense. I have this right only in so far as the state can not defend me; hence, it must not be my fault that the state can not do so, and I am legally bound to do my best to make it possible for the state to do so. I am bound to call upon the state for help, and this is done by calling for help. It is absolutely necessary to do this, and it is the exclusive condition of the right of self-defense. The code of laws should specify it, and citizens should be taught it from their earliest youth, so that they may accustom themselves to it. For how, if I murder some one, and say: He assailed me, and I could save my life only by taking his? The murdered man can not expose my lie. But if I call for help, I can prove that I was the attacked party; or, at least, if the contrary can not be proved against me, the presumption remains in favor of my innocence.

(The laws of the twelve tables justified the killing of a thief who defended himself, and very correctly, if he had stolen unmarked property; for no one can be required to let things be taken from him to which he can not afterward prove his right of property. He was justified in reclaiming the articles by force. If the thief defended himself, the attack upon the property became an attack upon the person of the injured party, and hence he was justified in defending himself at the risk of killing the thief. But the law required him, as a condition of that right of defense, to cry out for help; and again very correctly, for only by thus crying out for help did he place himself in a position to get the public to witness his innocence, or to obtain assistance which might secure the thief and obviate the necessity of killing him.)

Such an attack upon unmarked property may occur either upon public territory or in my house. In the first case, the application of the above principles is clear enough. In the latter case, no private person, not even government, has the right to enter my house. It is only by crying out for help that I justify government and every private person to enter my house. My crying out for help is a complaint preferred, and hence a voluntary abandoning of my house-right.

Each person who hears another one cry for help is lawfully bound by the state-compact to hasten to his assistance. For all individuals have promised to all individuals to protect them; and the cry for help is the announcement that a danger exists, which the representative of the protecting power, the government, can not immediately remove. Hence, the cry for help confers upon each individual again not only the right but also the obligation to render immediate protection. If it can be proved that a citizen heard the cry for help and did not hurry to assistance, he is liable to punishment; for he has violated the original municipal compact, and the law should provide punishment for such cases. Such assistance in need is not only moral and religious duty, but is the absolute duty of citizenship.

Those who hasten to render help have no further duty than to part the combatants, but on no account have they a right to decide their dispute. For the grounded extends no further than the ground. The immediate right of protection is grounded upon the present danger; and that danger has been removed by the interference of the others. The judicial decision and investigation on the part of the state can now be safely awaited for. It is, for instance, an unlawful barbarism which should be severely punished, when mobs punish criminals after they have been caught. As soon as the immediate danger has been removed, by the capture of such criminals, government again becomes sole protector and judge.

There is still another case of self-defense, based upon a pretended right of necessity, the theory whereof we shall also consider in this connection. This right is said to come into play when two free beings are brought by mere natural casualty—and on no account by any action of their own—into a position wherein the one person can save himself only by the death of the other, wherein both must die unless one of them is sacrificed. This category of supposed cases includes that wonderful problem of the law colleges, which assumes a board, to which two shipwrecked persons cling, the board being only large enough for one; and which problem has recently been changed for the more accommodating illustration of a boat of the same qualities as the board. But having clearly determined this whole class of cases, we may well refrain from examples.

Much pains have been taken to solve this law problem, and various solutions have been proposed, simply because the legal principle involved has not been clearly thought.

The problem of the Science of Rights is, How may many free beings, as such, exist together? In thus inquiring after the manner of such a coexistence, the possibility of such coexistence is evidently presupposed; and hence, when this possibility does not exist, the inquiry after the manner of its existence is clearly inadmissible. Such is the case in the assumed instance. Hence, there exists no positive right to sacrifice another individual to the preservation of my existence; but neither is it against the conception of rights, that is, it is not in conflict with any positive right of the other to sacrifice his life to the preservation of my own. In short, the question of right and not right does not enter here at all. Nature has canceled her permission for both of us to live; and the decision is a matter which physical strength or free will may settle. It may be, however, that this free will, which is not determined by the conception of rights in the present instance, stands under a higher legislation—the moral law. Such, indeed, is the case. Morality tells each of the two: Do nothing at all, but leave the matter to God, who can certainly save you, if it is his will, and to whom you must surrender your life if it is his will. This consideration, however, does not properly belong to a Science of Rights.

When the right of self-defense has been exercised, whether upon provocation or by accident, the person who has exercised it is obliged to surrender himself to the government for justification, and to prove that he went beyond the pale of the laws of the state only because a case had arisen in which those laws could not be applied. The person who does not voluntarily thus give notice of the fact, renders himself liable to suspicion.

The last will of the person killed is, presumptively, that the deed shall be investigated. It is, therefore, the duty of the public prosecutor to prefer the complaint. The defendant is not obliged to furnish the positive proof that he did act in self-defense; for in the fewest cases, however just the provocation, could such a proof be procured. Provided it can not be proved against him that he acted without sufficient cause, judicial proceedings against him must be suspended. A complete exoneration can not be pronounced unless he can furnish positive proof. Concerning this mere suspension of judicial proceedings, we shall have more to say hereafter, when speaking of Criminal Law.

The property and honor of citizens is thus clearly defined and secured as perfectly as their life; nor does it appear likely that greater security is obtainable.

Acquisition and dereliction of property.Edit

We speak here of acquisition of property only in the strictest meaning of the word, as signifying really the acquisition of a new kind of property, and not as signifying a mere exchange or trade of similar property.

All property is of a double nature; it is either absolute, and hence not under the jurisdiction of the state, as money and valuables, etc., or relative, and immediately under the jurisdiction of the state., as real estate, houses, licenses, etc.

When both kinds of property are exchanged, that is, when a sale takes place, each party acquires a new kind of property, and hence the supposed acquisition takes place. It is clear enough that the deed of sale must be concluded under the supervision of the state, that is, according to the forms of law, and must be guaranteed by the state. For the state has all this property under its jurisdiction, protects it and assigns it to the proper person; the state must, therefore, know the owner. No one is the legal owner of such a piece of property, except through the recognition of the state. The only question can, therefore, be, whether the state is obliged to give its consent to all such sales or contracts between private persons; or whether the state may interfere, and to what extent.

The legal end of the state in all the property conveyed to citizens is, that this property shall be properly used for the necessities of the state. Hence, the purchaser must agree to use it, and must be in a position to be able to use it; for instance, if he purchases lands, he must be able to farm; if a profession, he must understand it.

Whether houses may be purchased for the purpose of pulling them down depends upon the special provisions of the law, which always shapes itself according to circumstances.

Again: since the seller retires from the jurisdiction of the state, so far as the money he receives in consideration is concerned, which is absolute property, and since, nevertheless, the state guarantees him a living, the sale must be of such a character that the sustenance of the seller is perfectly secured, and may never devolve upon the state. This can be done either when the seller retains a claim upon his property in the shape of a mortgage, etc., or when he loans out the purchase-money under the supervision of the state. He is not absolute proprietor of his money so long as it is his only sustenance, he being responsible to the state for his ability to make his living.

A second mode of acquiring and ceding property is, where the party who deeds it away receives no equivalent for it—bequests and last wills.

Property thus bequeathed may be either absolute or relative. Absolute property may, of course, be given away without form of law, the state having no jurisdiction over it. Relative property, however, can be bequeathed only in the form prescribed by law. The same condition applies here which applies to sales: the bequeather must retain sufficient to sustain his life. A bequest conveys full title, and can not be repealed.

A will conveys property after the death of the grantor. The important question is here: How can the will of a dead person be obligatory upon the living? The conception of rights applies only to persons who stand, or may stand in reciprocal influence with each other in the sensuous world. Dead persons have, therefore, at first view, no rights, and their property reverts to the state, which is the first claimant, since no individual can take possession without the state's permission. But it is very possible that a man may cherish in his life wishes for others after his death; and the firm belief that those wishes will be carried out after such death as well, is frequently a real present advantage—for instance: better attendance, care, and love of those who are the presumptive heirs, are an actual benefit of life. In short, the conviction that wills are valid is an enjoyment of life, to which it may well be possible to acquire a right. This is the only proper point of view from which to consider this matter. The question is not one concerning the rights of the dead—the dead have no rights—but of the living.

Whenever the necessity of such a conviction arises among men, provisions will be made for it in the property-compact; that is, all will guarantee that conviction to all.

But it should be constantly kept in mind that this agreement is arbitrary; that is to say, a legal relation among men is possible without such an arrangement. It is not necessary that a law dispute should arise about the possessions of the dead, since the state is ready to claim them. I call this agreement regarding the validity of wills arbitrary, therefore, merely because it is not necessary for the realization of the conception of rights.

The conviction that wills will be considered valid after death can be realized only by establishing a law that all wills, without exception, shall be thus considered. Each one, then, guarantees for his own sake to all others the validity of their will, and in doing so guarantees his own will. The right of the dying is thus made to connect with the rights of all surviving citizens. It is not the dying person's own will which the state respects, but the will of all surviving individuals.

It is the business of the public administrator, as the representative of the will of all individuals of a state, to watch over the wills, and see that they are properly executed. He must not be a member of the government, since the government is an interested party in the matter, but simply a representative of the people, as individuals, precisely like the public prosecutor.

Hence, likewise, every private person must have the right to prefer complaint against him.

Wills should be executed in presence of this administrator and of witnesses who represent the public.

Since the legal validity of wills is arbitrarily established, it follows that the law may also provide how far the right shall extend to inherit at all. It is the duty of the legislator, with due regard to the peculiar circumstances and conditions of his state, to establish such provisions. There is only one a priori limitation to this right of willing away property, namely, that the heirs of the deceased must be provided for sufficiently, that is, that they may not become a burden to the state.

§ 2. Penal LawEdit

Thesis.—Whosoever violates the municipal compact in any manner, whether from neglect or intentionally, loses, strictly speaking, all his rights as a citizen and as a man, and becomes an outlaw.

Proof.—A person has rights only on condition that he proves himself fit for a community of free beings, that is, that he makes the fundamental principle of law his constant rule of action; and is also able to actually determine his free acts by the representation of that principle. He who willingly violates the law has not made that principle his rule of action; and he who violates it through carelessness is not able to determine his acts by that principle. In either case, therefore, the condition of a person's having rights does not exist, and hence with the condition the conditioned also vanishes. In either case the person has no rights, and is an outlaw.

Antithesis.—The only object of the erection of a state government is to secure to each the full possession of his rights; and the state has only to discover and apply the means which will secure this object. Hence, if that object can be attained without the absolute outlawing of transgressors, the state is not necessarily obliged to affix this punishment to violations of the law. It may do so or not as it pleases. If, moreover, it should appear that the interest of the state requires the preservation of its citizens, and that each citizen is likewise interested in not having each little offense of the laws punished by outlawing the transgressor, a compact of the following character would become necessary: All citizens promise to all citizens that they shall not be outlawed and expelled from the state by reason of their offenses, provided such be compatible with public security. Let us call this compact the compact of expiation.

Such a compact is equally useful for all (for the whole state) and for each single person. For the whole state has thus the prospect of retaining citizens whose usefulness far exceeds the injury they may do, and obliges itself merely to accept the expiation. The single individual, on the other hand, has thus the perfect right to ask that his expiation shall be received in place of the greater punishment which he has deserved. It is a very useful and important right, this right of citizens to expiate offenses.

This compact becoming a law, the government is bound to act according to it.

Of course, the right of expiation extends no further than is compatible with public security. If it is made to extend further, it is irrational; and a state in which it extends beyond this limit, is not a legal state at all; that is, does not sufficiently guarantee public security, and has no claim to toleration.

Punishment is not an absolute end. In fact, the proposition that punishment is an end for itself, as is, for instance, involved in the expression, "He who has killed must die," is positively meaningless. Punishment is merely a means for the end of the state "to maintain public security;" and the only intention in providing punishment is to prevent by threats transgressions of the law. The end of all penal laws is, that they may not be applied. The threatened punishment is intended to suppress all evil purposes and to promote a good disposition, so that the punishment may never be applied. Hence, in order to attain this end, each citizen must know that the threat of the law will invariably become reality if he should commit any offense.

It is, therefore, to some extent true, that punishment serves as an example, namely, to convince all of the infallible execution of the law. But the original intention of punishment was solely to deter the criminal from the crime. Now, since this end could not be attained, he having committed a crime, his punishment has another aim in view, namely, to deter other citizens from committing the same offense. The execution of the penal law is, therefore, a public act. Each citizen who has heard of an offense, must also learn that it has been punished. It would be an evident injustice toward all those who might, in future, be tempted to violate the same law, if the actual punishment of previous violations of that law had been concealed from them; for such concealment would lead them to hope for escape from punishment.

The material principle of positive punishments in a state has already been suggested. Each individual must stake precisely that portion of his rights and privileges (his property, in the widest significance of the word) which he is tempted to violate in the others, whether wilfully or through neglect. In other words, the punishment must be equal to the crime: poena talionis. Each one must know, that the injury he may intend to do to the other will be done to himself.

The essence of this principle is, as we have also seen, that a sufficient counterpoise must be established for the evil intention or the neglect.

Whenever this principle becomes applicable, the compact of expiation can become valid; and hence the legal extent of the validity of that compact depends upon the answer to the question: How far is such a counterpoise possible?

This counterpoise becomes possible or impossible, first, either from the nature of the case, or, second, from the peculiar position of the subject for whom the punishment is intended.

Punishment by fines.Edit

I. a. Such a sufficient counterpoise, or a punishment which may be perfectly equal to the crime committed, is practicable from the nature of the case where a wrong has been committed through carelessness, and where the will of the criminal was a materialiter evil will, having selfish ends in view, and longing for the possession of another man's property. There is, however, this distinction: In the case of carelessness, a fine equal to the amount of damage done is equal to the injury committed; but in the case of a crime, the criminal must not only restore what is taken, but must, moreover, pay an equal amount from his own property, in order to have the punishment made equal to the offense. For if you take away from him merely that which he has taken, he will always be tempted to commit the same crime, having nothing to lose and every thing to gain. By establishing the theory of a sufficient counterpoise, however, and hence by making him pay precisely the same amount which he has stolen, there is no inducement for him to steal. In case of discovery, he will lose precisely the amount he would gain if not discovered. Hence, the only incentive to rob would be the consideration that the chances of discovery were in his favor. But such a probability is not likely to happen in a well-regulated state.

b. The principle of a counterpoise is not applicable from the nature of the case when the will of the transgressor is formaliter evil; that is, when the violation of the law is done, not for the sake of getting possession of another person's goods, but merely for the sake of injuring the other. For such a formaliter evil will is not deterred by the punishment of an equal loss; nay, an envious, malicious person may gladly submit to such loss, provided his enemy is also injured. Unless we find some other means of protecting citizens against such a formaliter evil will, the only punishment adequate to it must be outlawing, or exclusion from the state. Let us consider this subject.

Firstly, it is to be remarked that we have here a case where the sentiments and intentions which inspired the crime must be taken notice of. Nevertheless, it should not be held that this is a case wherein the morality of the act is considered. No man can and no man should be the judge of another's morality. The only object of civil punishment, and the only measure of its degree is the possibility of public security. Violations of the law, prompted by malicious intentions, are to be punished more severely than violations inspired by selfish motives; not because they are more immoral[3]—morality, indeed, has no degrees; and there is only one morality—but because the fear of a milder punishment, a punishment simply of equal loss, would not afford adequate security.

Hence, the question arises: How can it be known and proved for external law what motives inspired the crime; and what punishment shall be applied to crimes prompted by malicious motives?

He who can prove that he stood in need of what he has appropriated from the other, and for what purposes he needed it, etc., is to be considered as having appropriated it for the sake of selfish gain. He who can not prove this, who, perhaps, did not even take or intend to take the property of the other, but merely destroyed it, has made himself liable to another doubt: Did he injure it intentionally and maliciously, or inadvertently?

We have two criterions for malicious motives; one external and one internal criterion. We have an external criterion when previous free acts of the same person can be proved, which can be interpreted only as means for the final end to effect a malicious injury.

On the other hand, the person who pretends that he has injured the other's property unintentionally, must be able to furnish positive proof that those other acts which are connected with the injury had quite a different end in view. Unless he can furnish this proof, he is to be held as convicted of a malicious act.

And yet remarkable connections of circumstances are possible which will give to an accidental crime all the appearance of premeditated maliciousness, without any true ground. Hence, regard must also be paid to the internal criterion of maliciousness, namely, whether the two persons have previously been enemies, and whether the accused has exhibited signs of malicious intent in his previous life.

But how if all this circumstantial evidence neither proves the suspicion nor removes it completely, as is very possible? A great number of jurists recommend in such cases a mild sentence; but such mildness exhibited toward a guilty person is a great injury to the commonwealth. By thinking the case clearly, the solution of this problem will show itself. The investigation is not yet closed, and can not be closed by the proofs furnished as yet; hence, the accused is not pronounced either guilty or not guilty. He has, however, been convicted, at least, of carelessness, and this punishment he has to suffer for the present. As far as his malicious intent is concerned, the state says nothing, but allows him to show, by his future life, proofs for or against it. Moreover, additional circumstances may be discovered in the future concerning the motives of the crime, and those additional circumstances, together with his behavior, will determine within a specified time whether he ought to be convicted or completely cleared. This suspension of judicial proceedings we have already had occasion to recommend in cases wherein the right of self-defense is exercised, and is, indeed, to be recommended in all cases of unproved suspicion. In a well-regulated state, no one should be punished innocently; but neither should any offense pass unpunished.

As a matter of course, the state will have to provide by law more severe punishment for offenses committed with malicious intent than for those committed for selfish motives of gain. For each one must know beforehand by what law he will be punished; otherwise, the punishment would involve an injustice; and the intent of the law, to deter men from committing offenses, can be achieved only by publishing the law. It is also clear, that the state must expressly provide by law what shall be held to constitute criminal neglect, and hence must specify the care which each citizen is required to observe in particular cases. Whosoever observes the care thus required by law, is to be released; and if any damage happens in spite of such care, it is to be considered as a misfortune, which must be borne by the sufferer; or it must be paid for by the state, if it was occasioned by a want of proper law or of proper police regulations.

The plea of anger or of drunkenness—as having placed the criminal for the moment beyond the control of his reason—relieves him from the charge of premeditated and malicious intent; but a rational legislation will rather provide more severe than milder punishment for such cases, particularly if such a state of mind is habitual with the accused; for a single unlawful act may well constitute an exception from an otherwise blameless life. But a person who pleads, "I habitually get so angry or so drunk as not to be any longer master of my senses!" confesses thereby that he changes himself into a beast on a fixed principle, and that he is, therefore, not fit to live among rational beings. He must either be content to lose his freedom until his recovery is sure, or else be excluded from the state forever. Our laws treat far too leniently pleas of drunkenness. True, if a nation or a class of men in a nation can not renounce this vice, the laws can not prevent them from shutting themselves up in their houses with any one who chooses to keep them company, and there to drown their reason, provided they remain so shut up until they again become rational; but the state may well lock up every person found intoxicated on public territory.

II. a. The counterpoise becomes impossible of application from the peculiar position of the subject for whom the punishment is intended, when that subject has nothing to lose but his body. Let no one complain of injustice in this respect, because the wealthier man, who has no need to rob, and in robbing only risks his property, is allowed to expiate his offense; whereas, the poor man, who needed what he took for his absolute requirements, can not expiate it, and hence must be completely outlawed, simply because he has nothing. For such an objection would falsely assume that the state is the moral judge of men, and must make the punishment equal to the moral depravity. But the state has no such moral end in view. The state merely wishes to secure property. Now the threat, "What you steal from another citizen I shall take from your possession," has little terror for a person who owns nothing. Hence, the state must use another threat for such persons. Whether this threat must necessarily be exclusion from the state, or whether another punishment can be contrived for the poor, we shall see hereafter.

b. It is impossible to contrive a punishment as a counterpoise against the will, to arise in immediate hostility to the law and its power. The utmost that can be done and must be done, is that the law be made to maintain its authority; and hence the law can not, as an equal punishment for the attempt to overthrow it, provide double severity for all its subjects. This would be to punish all citizens for the crime of one individual. The punishment of an equal loss is, therefore, not allowable here; and there is no manner of expiating the original punishment for all crimes—to outlaw the criminal.

Two modes of committing this crime against the state are possible; it may be committed mediately against the state in the person of its citizens, namely, by violating in them the compact to which the state, as such, is one party; or it may be committed directly against the state, in which case the offense is rebellion or high treason.

1. We shall first explain the former. The original municipal compact contains two distinct compacts. Firstly, a compact of each citizen, as an individual, with all others, as individuals, concerning their property. This property-compact the individuals conclude, (not the state, as such, that is, not as the organized whole of all individuals, for the state only guarantees this compact.) In other words, the government is not a party to the original property-compact, but is merely a created organization to guarantee it.

But the original municipal compact contains, secondly, this very agreement of all citizens, as individuals, with themselves, as an organized whole, or as a state, in which agreement the state promises each citizen, when he has fulfilled all the duties of a citizen, to protect his absolute property, his body, and his life. The state has, of itself, renounced all claim to the absolute property; it has no right upon it, only duties concerning it. The state is, therefore, party of the citizen, to whom it has guaranteed protection of this property against all violation. Hence, if some individual should break this compact of the state by robbery or by violent assaults upon a citizen's life or body, he would become guilty of an immediate attack upon the state; for he would have broken the compact of the state, and have done his best to make the state faithless, and thus to destroy the compact existing between the state and the citizen. For the state having guaranteed the protection of that property, life, or body, the criminal directly offends against the state, and for this attack upon the state he should be declared outlawed according to the above.

2. To attack the state immediately is to be guilty either of rebellion or high treason. Rebellion is to attempt to raise, or actually to raise, a power in hostility to the power of the state, and to resist therewith that power of the state. Treason is to use a power which has been conferred by the state, to destroy or annihilate the ends of the state; or not to execute the ends of the state; hence, to take advantage of the confidence of the nation to render nugatory its purposes. Not to exercise the power of government is often as injurious to public security as to abuse it; and hence should be equally punished. It is all the same to the citizens whether government officials abuse their power for positive aggressions of their own, or whether, by neglecting to exercise it, they permit the aggressions of others. In either case, the citizens are oppressed. After an individual has signified his willingness to accept an office, the nation properly calculates that the duties of that office will be executed, and hence takes no other precautions to have them executed. If he had no intention to execute the duties of his office, he should have refused to accept it.

Only private persons can be rebels; only government officials can become guilty of high treason.

Punishment by confinement.Edit

All these classes of offenses condition outlawing or complete exclusion from the state, because the only mode of expiation whereof we know as yet, that of fines equal to the loss inflicted, is not admissible in these cases. The question remains, however, whether there is not another mode of expiation which may be applicable to these offenses?

a. Let us first consider the case of the poor man who appropriates something from selfish motives, and who has not wherewith to expiate the loss. Why should the harsh punishment of exclusion from the state be applied in his case? There is, indeed, a way of settling the difficulty, whereby he also can participate in the benefits of the law of expiation. He has a property in the strength of his body, and hence he can expiate the fine by labor. This labor must, of course, be assigned to him immediately; for every offense, strictly speaking, annuls the citizenship of the offender. Only after the punishment of the offense has been expiated does the offender become a citizen again. It is also necessary that this labor must be carried on under the supervision of the state. Hence, the offender loses his freedom until he has expiated his offense. This is the punishment of the workhouse, as distinguished from that of the penitentiary and house of correction, whereof we shall speak hereafter. This punishment both satisfies the principle of an equal loss, and establishes a threat, which will be likely to deter all persons from committing crimes in any well-regulated state where the criminal is sure of detection.

We now proceed to consider the other cases.

b. A formaliter evil will, or an immediate attack upon the state, presupposes such sentiments, that the criminal who is guilty of either crime can not be tolerated in society; he must be outlawed, or expelled from the state. But since it is not necessary that the criminal should continue to harbor such sentiments, it may be possible to establish a second mode of expiation in the form of the following agreement: All citizens promise to all citizens that they will extend to them an opportunity of again becoming fit to live in the society of rational beings, should they ever have been convicted of unfitness therefore, and that after such reform they shall be again received as members of the commonwealth. Such an agreement is arbitrary and beneficial; but it benefits all; and hence, the criminal is invested by it with a right to an opportunity to reform.

The punishment which is established by such an agreement is an expiation of utter exclusion from the state; hence, it is a benefit extended by the law to the criminals. Each person has the privilege to reject his rights, and hence the criminal may reject this benefit granted him by the law; but by rejecting it he clearly proves himself an incorrigible scoundrel, and must be expelled without further delay. Let no one imagine, that by giving a criminal this privilege of accepting or rejecting the punishment of expulsion, the criminal obtains a means to escape punishment altogether. If a state is arranged rationally, and its neighboring states are also arranged rationally, there is no punishment so terrible as expulsion from the state; and it is not to be expected that any one will choose it in preference over the established expiation, or that the prospect of having the privilege to choose it, if discovered, will quiet him when about to commit a crime.

(This same privilege of accepting the expiation established by law, or of submitting to the exclusion from the state, must, of course, be allowed also; where the punishment is one of fines; although it is not to be supposed that any one would ever prefer to be expelled from the state, and thus to lose all his property, rather than pay the fine.)

By means of this compact, a reform is to be made possible in the criminal. Not a moral reform, not a reform of inner sentiments; for no man is a judge of another's morals; but merely a political reform, a reform of obedience to the law and of rules of action. Moral sentiment is a love of duty for the sake of duty; but political sentiment is love of one's self for the sake of one's self and care for the protection of one's own body and one's own property. This all-transcending love of one's self becomes the very means in the hands of the penal legislator by which to force each citizen not to violate the rights of the other; for in the Penal Law it is established that every evil act you do unto another you do unto yourself. It is this care for one's own security which originally impelled man to build up a state, and he who has no such care has no reason to remain citizen of a state. It is this care alone by means of which each citizen gives to the state a sufficient guarantee, and is controlled by the state. The law has no hold upon a man who has not this self-love. There are two ways of escaping from it. Firstly, by pure morality, when each one forgets his empirical self in the ultimate end of all reason; in which case the Penal Law does not determine his acts, since duty itself causes him to obey the laws; and, secondly, by barbarism, when a man does not care for his own welfare; in which case he becomes unfit to live with other free beings, since the Penal Law can not apply to him. Political reform is a return to a care for one's own security and welfare.

He who has inflicted injury for the sake of the injury, has exhibited not only internal malice, which the state does not judge, but also barbarous manners and an unusual carelessness for his own welfare. If those barbarous manners are replaced by milder traits, and if the criminal learns to care for his own security, he may again be tolerated in society. Long confinement and its many evils are very apt to teach him this. The same holds good in regard to those who have attacked the body or property of other citizens. They are wild and untamed natures, and in the latter case, moreover, lusting after another's possessions. Let them first learn to live and take care of their own. It is only the reckless squanderer of money who is a thief or robber. Rebels may often be good-natured, but erring visionaries. Let them have their conceptions corrected, and learn to esteem the benefits of a civil government, particularly of that in their own state, and they may grow to be excellent citizens. It is only the traitor who has acted both faithless and infamous; hence, he can never again be trusted with a public office. Used to power and to command, he will, however, not find it easy to stay content with modest retirement and a small private business. The only question is, whether he can not be tamed down? It may be a difficult matter, but who would assert the absolute impossibility of it? (Dionysius became schoolmaster in Corinth.) The chief rule is, that we should not despair of their reform, nor make them despair of themselves; and secondly, that they should always be made to retain some degree of satisfaction with their condition, and some hope of a future better fate. To some extent this is accomplished by allowing them the privilege of choosing between expulsion and expiation. They will trust themselves when they perceive that the state trusts them.

The institutions of correction for these offenders must be practically arranged. They must be removed from society, and the state must be made heavily responsible for any injury which may be inflicted upon society by persons who have been sentenced to these institutions. Hence, the freedom of such persons must be completely taken away from them. But he who is to reform his manners must be free; and he must be free, moreover, in order to render possible a judgment as to his reform. Hence, it is a chief maxim, that these men must be free within necessary restrictions, and must live socially together.

Nothing for them without labor. It would be the greatest mistake if these institutions were so arranged that the prisoners received their food whether they worked or not, or if laziness were punished by the most degrading treatment—blows—instead of by its natural sequence—lack of food. Again: All the production of their labor, after deduction of their board, must remain their own. In the same manner, their property in the state must be kept for them under the supervision of the government. The object of their confinement is, to awaken in them love of order, of labor, and of property. But how could this love arise, if order and labor were to them of no advantage, and if they could not acquire property? They must be under the supervision of the state, and yet they must also be free; in other words, so long as they act properly they must seem to be perfectly free; but when they act wrongly, punishment must follow immediately.

It will be well to use remote countries, uninhabited islands and deserts for such institutions. To urge the expense would be criminal. For what are the revenues of the state for, unless for such purposes? The expense, moreover, will not be very great, if such colonies are properly arranged, and if each person is employed in the occupation with which he is familiar.

The object and condition of allowing criminals to expiate their offences is their reform. Unless, therefore, they really do reform, the conditioned, that is, the patience of the state, ceases. It would be very practicable if each criminal could be required to prescribe a fixed term for his own reform, which term he might, perhaps, be allowed to extend a little if it should be considered advisable. But a certain general term must be peremptorily fixed for all. We have already said, that the object intended is not moral, but political reform; and acts alone can decide whether it has taken place or not. Hence, if the discipline of government is relaxed as each prisoner gives evidence of improvement, it will not be difficult to determine soon whether a reform is taking place. It will be necessary to appoint sensible and conscientious men for these offices, who will make themselves responsible for the future good conduct of all persons whom they pronounce reformed.

The reformed criminals return into the commonwealth and are reinstated in their previous condition. They have been completely reconciled with society by their punishment and subsequent reform. Nor will there be entertained any more distrust—but rather confidence—in these reformed criminals, when men have once resolved to consider such institutions as really means of reform, and not merely as means of punishment; and when only those are allowed to return into society who have reformed, but not, as is done at present, all who have been detained for a fixed term, and who have only been made worse by irrational treatment.

All prisoners who have not reformed within the prescribed term, are excluded from the state as incorrigible.

These institutions are to be not only places of conversion, but also of punishment; and hence they must be of a nature to deter citizens from committing crimes. Loss of freedom, exclusion from society, and strict discipline all this is terrible enough for men accustomed to freedom; but there is no reason why the fate of the prisoner should not be generally considered to be still more severe than it really is, or why distinctions should not be made in their treatment which terrify others without being in themselves an evil; as, for instance, a peculiar dress, or a chain which does not pain much. The prisoner gets used to it, and on the outsider it makes the proper impression.


The only crime which does not allow of an attempt to reform the criminal, and which must, therefore, be punished immediately by absolute exclusion from the state, is intentional and premeditated murder. (Not a murder which is merely the accidental result of another violence.) The ground is this: Of him who has committed murder, it is to be apprehended that he may murder again; and since the state has no right to compel any one to expose his life, no one can be compelled to undertake the supervision over the murderer, who must be allowed some degree of freedom, if he is to reform; nor can the other criminals be compelled to tolerate a murderer in their midst. True, if any one is willing voluntarily to risk his life in behalf of the murderer, he may do so. Hence, societies might be permitted to establish institutions for the purpose of attempting the reform of such criminals; but such societies must guarantee to the state the safe-keeping of the murderer.

The punishment of outlawing.Edit

But what shall be done with those who are absolutely excluded from the state, either without preliminary attempts to reform them, or because they did not reform within the prescribed term, or because they refused to expiate? This is by far the most important investigation in the theory of punishments. We hope by its means to put an end to a number of confused notions; and we shall not merely, as is usual, assert, prove.

1. The declaration that a citizen is an outlaw is the highest punishment which the state can inflict upon any rational being. For the state exists for the individual as state only through the compact. The utmost the state can do, therefore, is to declare this compact annulled. Both the state and the individual do not now exist for each other any more. The compact, the legal relation between them, and indeed all relation between them, has been utterly canceled. The state has now no right upon the individual by virtue of the compact; and since there is no other positive, determined, and determinable right than through the compact, the state has no right whatever upon the individual thus outlawed.

2. But what, then, are the results of this declaration? The perfectly arbitrary treatment of the outlawed. Not as if you had a right to treat him thus; but there is neither a right against it. The outlawed person is, therefore, declared to be a thing—an animal. For, in regard to animals and their relation to us, the question is never one of right, but of physical force. I can not say, I have a right to kill this animal; but neither can I say, I have not a right to kill it. It is so with the outlaw. No reason can be shown—from positive law—why the first citizen who meets him should not kill or torture him; but neither Can any reason be shown why he should do so.

3. Supposing some citizens should thus treat the outlaw, what would follow? No proceeding against them on the part of the state, for the outlaw has no rights; but certainly the contempt of all men, or infamy. He who tortures an animal for mere pleasure, without having any positive advantage in view, is justly held in abhorrence as an inhuman barbarian; how much more he who would torture or kill, for mere pleasure, a being which at the worst has, at least, a human countenance! It will not be done, therefore; not because that outlaw has any rights, but from motives of self-respect and of the esteem of other men. (The moral view of the act we do not take into consideration here; but merely its civil aspects.)

4. How, then, is the state situated in regard to this outlaw? We have already shown, that by the breaking of the compact the state ceases to exist as a state for the outlaw. Hence, if the state should kill him, it does not kill him as state, but as the stronger physical force, as a mere natural force. But the state has the same reasons for not killing or torturing him which we discovered to influence the private individual, namely, respect for itself, for its citizens, and for other states.

Nevertheless, there is a possible ground why the state should kill the outlaw, to wit: Because it is the only manner in which the state can protect itself against him. Since there is no reason why it should not kill him, this consideration is, therefore, decisive in such a case. The outlaw is considered simply as a wild beast, which must be shot; or as an overflowing river, which must be stopped; in short, as a force of nature, which the state must render harmless by an opposing force of nature. The death of the outlaw is not a means of punishment, but merely of security; and this consideration gives us the whole theory of capital punishment.

The punishment of death.Edit

The death of the outlaw is not decreed by the state as a judge. The state, as judge, has merely pronounced the sentence of exclusion from the state, and this is the only public act of the state If, after such sentence, the state, nevertheless, kills him, it does not kill him through the judicial power, but through the police power. The condemned has been placed beyond the pale of the judiciary; he belongs to the police. The killing is not done by virtue of a positive right, but from sheer necessity. Such matters, however, are not honorable, and hence, like all that is dishonorable and yet necessary, must be done secretly and shamefully. Let the criminal be throttled or beheaded in prison. His civil death has been pronounced publicly by the sentence of expulsion, and that sentence has killed him in the memory of all citizens. The citizens do not care what is done with the physical man after that sentence.

(What a disgrace to reason that so much pomp should accompany executions; or that the dead bodies of the criminals should be hung up for public show, tied to the wheel, etc., just as the Indians hang up the scalps of their enemies around the walls of their wigwams!)

The death of the criminal is something accidental, and hence can not be officially announced; but the exclusion from the state must be officially announced.

To increase the death-penalty by torture is barbarous. It changes the state into a wild, malicious, revengeful enemy, who loves to torture his enemy and to make him feel death.

It is often necessary to strengthen the proofs of reason by facts of experience. Here is one well known: In the Roman Republic, those who were condemned to death were allowed the choice of exile. It was only when danger was to be apprehended of them, as in the case of Catilina's conspirators, that the Romans permitted their death. But they killed them secretly, in prison; not publicly. The consul Cicero was sent into exile, and very justly, in so far, not because of that execution itself, but because the trial of those conspirators had been decided in the senate, and not before the people, as the law required.

One other circumstance is to be considered in the execution of criminals, which we can not well pass by here, although it is not of a legal nature. For the moral law explicitly prohibits in each case the intentional killing of another. Each man must be regarded as a means to promote the object of reason; and no one can renounce the belief that the other, however corrupt he may now be, may reform his moral character, without renouncing his own end, as necessarily established for him through reason. The strict proof of this assertion is to be furnished in a Science of Morality. Hence, a private person has never a right to kill, but rather than kill should endanger his own life. It is different in the case of the state, which, as police power, is not a moral, but simply a legal body. Government officials may be often morally obliged to expose their own lives to danger rather than kill the life of another; but they have not the right to expose the life of others, still less the life of the state—that is, the life, security, and legal relation of all—by allowing a dangerous outlaw to remain alive.

Hence, the execution of incorrigible rascals always remains an evil, though a necessary one, and it is the problem of the state to render it unnecessary. But what is to be done with them, if they must not be killed? Imprisonment for life is a burden for the state; and how, indeed, could the state require its citizens to pay taxes for something which will realize none of the ends of the state, since there is no hope for reform? The only remaining punishment is banishment for life; not deportation, for deportation is, as we have shown, a means of conversion, and is carried on under the superintendence of the state. If there is any fear that the criminal may return, let him be branded[4] in a manner as little painful as possible, for the state must not appear as a torturer. The branding, also, is not punishment, but a means of public safety, and devolves upon the police.

What shall be done with the criminals who have thus been branded and expelled from the state? This is a question put, not by the citizens, but by men. Let the branded criminal go into the wilderness and live among animals. This has accidentally happened to many who were not criminals; and the criminals, branded under laws as we have described, are incorrigible.

Against the theory of punishments as established here by us, there is usually opposed another theory, which establishes an absolute right of punishment, and looks upon judicial punishment not as a means, but as an end in itself. Since this latter theory claims to rest upon an unprovable assertion, and hence manages very cleverly to escape furnishing proof, it is easy for its advocates to sneer at all those who think differently, to charge them with sentimentality, affected humanity, etc., and to call them sophists and legal quibblers; quite in violation of the much-praised and justly-to-be-demanded equality (of reasons) and freedom (of opinions, supported by reasons) on the field of philosophy. The only prominent side of this system, by which it exposes itself to attacks, seems to me to be this: It has often been remarked, that no person condemned to death for murder has ever been known to complain that he was being punished too severely or unjustly; and if any one should so complain, all sensible men would laugh in his face. Now, apart from the laughing in his face, this is so very true that a murderer could not say he were suffering too much or unjustly, even though he should have been sentenced to the gallows by a government which was entirely ignorant of his crime of murder, and which was hanging him altogether unjustly. There is nothing more true than that we are forced to confess: In a moral world, governed by an all-knowing judge, and according to moral laws, no one who is treated according to the same law which he himself established suffers unjustly; and this confession, which forces itself upon all men, is based upon a categorical imperative. Hence, the question is not at all whether the murderer suffers unjustly, when he also loses his life in a violent manner; but the question is: Whence does any other mortal derive the right to personify this moral rule of the world, and to punish the criminal according to his deserts? A system which asserts the supreme ruler of a state to have this right is undoubtedly compelled to say that the title to it is beyond demonstration, and hence to call it a right given by God. Such a system is, therefore, bound to consider the monarch as the visible representative of God in this world, and to consider all government as a theocracy. In the Jewish theocracy, the doctrine was, therefore, eye for eye, tooth for tooth, and very properly.

Pillory, damages, etc.Edit

He who maliciously defames another citizen, naturally defames himself, for he renders himself unfit for the confidence of others. But since the state owes retribution to the one who has been innocently slandered, it must make public the defamation of the slanderer.

Pillories are a means to call the attention of the public to this defamation, and to symbolize infamy. They must be as little painful as possible, and are a punishment in themselves; hence they must not be connected with other punishments, unless, indeed, when a crime has been committed which involves the infamy of the criminal, as, for instance, burglary. For the common criminal does not become infamous when there are hopes of his reform; and if there are none, if he is an outlaw, it would be no punishment to put him on a pillory.

The one who has been injured must receive damages in all cases. He holds the state directly responsible for his damages, since the state guaranteed him protection against all injuries; and the state holds the criminal responsible. It is clear that the injured party must not be made to pay the costs of the proceedings. What does he pay his taxes for? The state must hold the criminal responsible. When the criminal is outlawed, all his property is, of course, confiscated by the state.

There are two distinct kinds of punishment, as we have seen, such as are based upon a compact, and such as are based upon the absolute nullity of the compact. It is clear that the citizen is obliged to submit to the first class without compulsion, since they are in a certain other respect also his rights, and that he may very properly be compelled to submit to them voluntarily, since there are worse punishments possible, and since the remainder of his property is still to the state a guarantee of his submission to the law. He must, therefore, voluntarily appear at the investigation of his crime, and can be punished if he does not appear. Hence, there is no reason why his body should be taken possession of by law.[5]

But the guilty person can give no proper guarantee when his crime involves punishments of the second class; that is to say, when it involves either exclusion from society or deportation to institutions of reform. The reason is, that in the first case he has lost all his rights categorically, and in the second case problematically, that is, unless he reforms. Hence, the state must take possession of the bodies of such offenders. The right of compulsion which the state has commences with the relative property of citizens; if that is not sufficient, the state takes hold of their absolute property; and if the guilty person refuses to pay, the state enters his house by force; and, in the extreme case, the state takes possession of their persons.

§ 3. Police LawEdit

What is the Police? This we can best answer by a deduction of the conception of the police power of the state. The state, as such, has entered into a common compact with its citizens by which each party assumes certain duties and receives certain rights. We have shown the means of connection between the state and the citizens in all cases in which the citizen can and undoubtedly will prefer complaint. But we have also shown up a number of matters regarding which no complaint will be preferred, because the state is officially obliged to watch over them. Hence, there must be a peculiar means of connection for these cases between the citizens and the government; and this means of connection is the police power of the government. By its means the reciprocal influence between government and citizens first becomes possible. Hence, it is one of the necessary requirements of a state.

The state has a twofold relation to its subjects: it has duties to perform, namely, to protect their rights; and it has rights, namely, to require their obedience to the laws and the fulfillment of their duties as citizens. In either case the police power is the mediator between state and citizens. As the judicial power is related to positive law in its application to the citizen, so the police power is related to positive law in its application to the government. The police furnishes the case of the application of the law.

It is, as we have said, the duty of the state to protect the rights of its citizens, and the police power is the executive power of this protection. Some persons might object that citizens are very apt to remind the state themselves when the protection stipulated in the constitution is required. But very often a damage received can not be made good; and it is far more the object of the state to prevent attacks upon the rights of its citizens, than to punish attacks after they have been committed. Hence, the arrangements necessary for protecting and securing the rights of citizens are the first branch of the police power.

Each citizen must be able to travel throughout the whole state free and safe from all accidents, whether he does so by virtue of his right to cultivate the ground, or to purchase products, or to carry on trade, or to enjoy his capital. The greater the number of men is who are gathered at one place, the more effective must be the arrangements for protecting them. Hence, armed police-squads are necessary in the streets, and on the roads where roads are unsafe. These subordinate officials have no judicial power, but simply the power to temporarily arrest suspicious persons. They are to be held heavily responsible for all crimes committed within their precinct.

This protection of the safety of life and property involves also a superintendence of roads. Each citizen has the right to demand good roads or streets, for the state has guaranteed to him the speediest and most comfortable mode of carrying on business, or most agreeably enjoying his justly acquired gains. Hence, signs must be put up at all unsafe places. Persons who are injured at places which have no such signs are entitled to redress from the state, for the state has guaranteed to them security in all acts not prohibited by law. Persons who are injured where such signs have been put up have no redress; but neither must they become liable to a fine, for each person is master of his own body.

This protective power of the police involves, likewise, superintendence of doctors and apothecaries. The examination of physicians is best left to the medical colleges, who in this examination are, therefore, considered as government officials. Quackery, etc., must be prohibited, that is, for those who carry it on; but not for those who make use of it; for each person is master of his own life.

The police must also afford protection against robbery, against fire, and against the overflowing of rivers, etc., etc. All this is the absolute duty of the state, and is not merely to be regarded as a benefit conferred.

But besides this direct protection by means of the police, the state has also the right, for the same purpose of protecting the rights of its citizens, to pass certain laws tending to facilitate the police superintendence, the discovery of guilty persons, and the general security of citizens. These laws are called Police Laws, to distinguish them from the real Civil Laws. For, whereas the latter laws prohibit merely the actual violation of the fundamental compact, the police laws are made to prevent the possibility of such violation. Thus, the civil laws prohibit acts which directly interfere with the rights of others, as, for instance, theft, robbery, assault, etc., and hence these laws are not likely to be considered unjust by any one. The police laws, however, prohibit acts which may appear perfectly indifferent, and which in themselves harm no one, but which are calculated to facilitate the wronging of others, and to render difficult the protection of the rights of citizens by the state. Hence, these laws, the violation whereof is not injurious in itself, are often considered unfair by people who do not comprehend their peculiar nature, and the right of a state to pass them has often been doubted. But the right and the duty of the state to pass such laws appear clearly from the police power of the state. Let me illustrate the matter by an example: If a citizen carries arms, he thereby does not directly violate the rights of any other citizen; for what can it matter to the other citizen what I choose to carry about my person? But my carrying arms facilitates the injuring of other citizens; and hence the state has, in my opinion, a perfect right to prohibit the carrying of arms. Nay, it would have the right to prohibit the harboring of arms in my house, if the state could only be sure that I would never require to use them in self-defence. (In the Roman Republic it was prohibited to appear armed in the city; and the general who awaited the honor of his triumph was required to remain outside of the city until the day of his solemn entrance, or, if he chose to enter before, the law required him to lay aside his arms and renounce the expected honor.) At any rate, the state has the undoubted right to prohibit the possession of certain weapons, such as air-guns, which seem especially made for assassination, and are not necessary for self-defence.

Another instance: It would be a very proper police law to prohibit citizens from walking the streets at night without a light. The object of this law is that each citizen may be easily recognized by the policeman. True, by walking without a light, the rights of no citizen are injured; but in the darkness it is much easier to injure a citizen, and this possibility is to be removed by the police law.

He who violates a police law must suffer all the disagreeable consequences which may result to him, and is, moreover, liable to a fine.

The chief principle of a well-regulated police is this: That each citizen shall be at all times and places, when it may be necessary, recognised as this or that particular person. No one must remain unknown to the police. This can be attained with certainty only in the following manner: Each one must always carry a pass with him, signed by his immediate government official, in which his person is accurately described. There must be no exception to this rule. In the case of important persons, who can afford to pay for it, it may be well to use their portrait (photograph) in the place of word-descriptions, which are always more or less insufficient. No person should be received at any place who can not thus make known by his pass his last place of residence and his name. But in order not to interfere with the innocent enjoyment which may arise from temporary incognito, policemen should be strictly prohibited from ever demanding the exhibition of such passes from mere curiosity. It is only to be required when necessary to identify the person.

The state does not know what passes in the house, but it does take cognizance of what happens in the streets, which, after all, we must pass in order to get into the house. Hence, the citizens can not assemble in a house without the knowledge of the police; and the police have thus not only the power, but also the right to prevent such assemblages—since the streets are under their superintendence—if they excite suspicion. If enough men gather together to possibly endanger public safety, which is always the case when the number is large enough to resist effectually the armed power of the government at such a place, the police has the right to ask of them their intentions, and to watch that these intentions alone are carried out The house-right ceases in such cases; or, if the owner of a house does not wish to give up that right, he can assemble the masses in a public house, where house-right does not exist. Gatherings of the people in the streets, market-places, etc., belong to the same class, and may likewise be prevented by the police, or at least watched. The state may properly arrange this matter by providing that, when a certain number of people gather together, they must notify the police of their intention, so that the police may act understandingly.

In regard to the security of absolute property, two more questions are to be answered: firstly, how is the counterfeiting of drafts to be prevented? and secondly, how the counterfeiting of gold and silver? I am the more inclined to reply to these questions, since I can thus illustrate how that which is deemed impossible is easy enough for a well-regulated police.

Firstly, concerning forged drafts. I refer here only to those which are transferable by indorsements. In large cities, such drafts often change owners many times in a day. Perhaps the persons through whose hands the draft passes know each other not at all or only slightly. Now, it is very true that merchants do not usually take a draft unless they know the maker or makers, and his or their signature to the draft. But signatures can be forged; and the simple fact is, that forged drafts are passed, and that hence it must be possible to cheat by means of them. The forgery is finally discovered. But how is it now possible to find out the man who is guilty of the forgery, and to get hold of him? There is no difficulty about the matter under such police laws as we have described.

The names of those through whose hands the draft has passed are written on its back. Under present circumstances, however, people can easily adopt false names, and it is impossible, therefore, to trace them. According to our proposition, each person who indorses the draft must show by his pass that he is this particular person, and where he resides. The one who receives the draft makes a note of this by writing on the back of the draft over the name, "Pass from —," naming the government official who has issued the pass. These few additional words are all that is necessary to make known the true name and residence of the indorser.

But how can the indorser be found again, if the draft, after the lapse of some time, should turn out to have been forged by him? Under our police laws, no one can leave one place without announcing his next place of residence, which must be marked on the pass and recorded in the books. No other place receives him except the one mentioned in his pass, and when he leaves that place again the same rule holds good.

But how if he is a foreigner or travels abroad? All police-states, particularly those who are also commercial, must come to an agreement about this matter, so that the forger may be arrested in any country. The pass of a state which has not entered into this agreement must not be recognized, and hence people who present passes from such a state can not have their drafts cashed. Such an understanding would force all commercial states to adopt this agreement.

But how if some one should also forge such a pass? The forging of passes ought to be made impossible; to accomplish which there are doubtless ample means. For instance, by a paper or parchment prepared exclusively for this purpose, as was used for the French assignats, the secret of making which must be known only to the government. But can not this paper be forged, as was done in that same case of the French assignats? It was done in that case, because a great interest, as well of pecuniary gain as of political animosity, was to be satisfied; and because the forged paper could be used hundred-fold. But when only one pass is to be forged, will any one go to all that trouble? Not likely, unless a forged draft of a very large amount is to be passed. But the dangers which would accompany such an undertaking would in all probability deter from the costs and trouble of it.

As regards the second point, the counterfeiting of money, there is this to be considered: The state guarantees the value of the money, and whoever accepts a piece of money accepts it on the faith of the state, the seal whereof is stamped upon it. Hence, the state must guarantee to each citizen the genuineness of the money, and whoever is cheated, without any fault of his own, by counterfeited money, should be justly indemnified by the state, and have his false money exchanged for genuine money.

But when is a citizen cheated without any fault of his own? Under what conditions is it to be believed that he could not distinguish the false money from the genuine? It is a part of the education of each citizen to learn to know money, and it should be held as a rule that counterfeit money can not be readily recognized as such when many citizens are cheated by it.

It is, therefore, in the immediate interest of the state, and a part of its police laws, to discover counterfeiters and to prevent the counterfeiting of money. How is this to be done? It can not be accomplished by means of passes; for no one can say from whom he has received certain pieces of money, unless he has received them in very large quantities. Hence, it must be accomplished by keeping a strict watch over the materials which may be used in counterfeiting coin, and which chemistry can designate, and by providing that such materials shall not be issued except to such as present their pass and give notice of the use they intend to make of them. This is all the easier for the state, since the state is exclusive possessor of all mines, as has been shown above.

Besides these duties, the government has the right to see that the laws—civil laws as well as police laws—are properly executed. The state has to indemnify for each offense which is committed within its limits, and to bring the offender to justice. It is clear, however, that no particular or additional arrangements are necessary for this guardianship over the laws; for, in each case of such violation of the laws, there is some one who must be protected, and hence all the arrangements made for protection cover these cases.

The exclusive condition of the efficiency of legislation, and hence of the whole state organization, is this, that each citizen shall know beforehand that, if he commits a crime, he will be surely discovered and punished in the manner prescribed by law. For, if the criminal can entertain hopes of escaping detection, what is to deter him from committing a crime? In such a case, we merely continue to live, no matter how wise the laws we have, in our previous condition of nature, wherein each depends upon the good intention of the other; and it is injustice to punish the detected criminal according to the strict letter of the law, since we allowed him to hope that he would escape unpunished, like all the other criminals whom he knows to have escaped unpunished. How could a law deter him which he could not but consider null and void? The sarcasm which the common people love to levy against our laws and government—namely, that they do not punish men for having committed crimes, but for having been foolish enough to allow themselves to be detected—is just and appropriate. It is an indispensable requirement addressed to the police, as the servant of the government, that each guilty person, without exception, should be brought to trial.

I have heard many objections raised to the possibility of satisfying this requirement. If such objections were grounded, I should not hesitate to draw the conclusion: In that case government and law are equally impossible among men; all so-called states are nothing else and never will be any thing else but the oppression of the weak by the powerful under the pretense of law; and the science of law is nothing but the science of how the stronger may be unjust without injury to themselves, as Montesquieu ironically describes it. But is there really any valid reason for this assertion of the impossibility of satisfying that requirement? Whence does that assertion arise? It arises from this, that the conception of a state as here established, that is, as an organic whole, is not firmly entertained, but is constantly darkened by the image of our modern states. In our modern states, as they are constituted now, it would, of course, be impossible to bring to trial the author of every offense; or if it could be done, that is to say, if some one state should make use of some of the police regulations suggested by us, it would involve an injustice which no people would be content to suffer. For a state wherein disorder and injustice rule, the government can maintain itself only by also allowing the people a good deal of disorder, provided that disorder does not injure the government itself.

The source of all evils in our present states, as they are constituted, is disorder, and the impossibility to produce order. The fact that it is so very difficult to discover a criminal arises solely from the fact that there are so many persons in a state who have no fixed position, and about whom the state does not concern itself. In a state such as we have described, each citizen has his fixed position; and the police know pretty well where each citizen is, and what he does at every hour of the day. Each one must work, and each one who does work has enough to live. Loafers (chevaliers d'Industrie) are not tolerated in any part of the state. By means of his pass, each citizen can be identified at a moment. Crime is something very unusual in such a state; and is preceded by a certain unusual emotion, which the police, quickly observing, proceed to watch. I, for my part, can not see how, in such a state, an offense and the offender can remain undiscovered.

It is also to be considered, that, with such a police establishment, detectives or spies are not needed. Secrecy is always petty, low, and immoral. Each one should have the face to do before the whole world whatever he dares to do at all. Moreover, to whom could the state intrust such a dishonorable occupation? Shall the state itself encourage infamy and immorality? If the state authorizes secrecy in the conduct of some men, who will guarantee that these men may not make use of that secrecy for their own purposes and for the commission of crimes by themselves?

Again: Why should a government secretly place a watch over its citizens? In order that they may not believe themselves watched. But why should they not believe themselves watched? That they may discover their thoughts respecting the government and its plans, and may thus become their own betrayers; or may betray whatever they know of other secret and illegal acts. The former is necessary only where government and citizens live in perpetual war with each other; where the citizens are unjustly oppressed, and seek to regain their freedom again by employing all the means and tricks of war: the latter is necessary only where the police are not watchful enough.

The Paris chief of police, who proposed to clothe his detectives in uniform, became the laughing-stock of a corrupt people, and saved his life thereby. But in my opinion he evinced healthy common sense. In a state organization such as we have described, the police official can be uniformed. They are quite as much the venerable witnesses of innocence as the accusers of crime. Why should honesty hate the eye of watchfulness?


  1. Quite the contrary doctrine to that of the vegetarians, yet undoubtedly more plausible. Such improper generalizations are, however, all faulty. Since all matter is organic, all creatures are meat-eating; and whether we eat only small animals, in vegetable food, or big ones, in animal food, is all the same.—Translator's remark.
  2. The limitations of this right, as here exposed, deserve particular notice in our republic, where no right is more shamefully abused.—Translator.
  3. Moreover, who would assert that the man whose malicious act evinces, at least, courage and energy, is more dead to morality than the man who is prompted only by egotism?
  4. The custom in Nebraska, Kansas, and all border states of civilization.—Translator's remark.
  5. In other words: for all such crimes each citizen has an absolute right of bail.—Translator's remark.