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letter； yet as regards the effect it may always be attained in
practice； by due regard being given to the disposition and sentiment
of the parties in the higher social sphere。 Thus a pecuniary penalty
on account of a verbal injury may have no direct proportion to the
injustice of slander； for one who is wealthy may be able to indulge
himself in this offence for his own gratification。 Yet the attack
committed on the honour of the party aggrieved may have its equivalent
in the pain inflicted upon the pride of the aggressor； especially if
he is condemned by the judgement of the court； not only to retract and
apologize； but to submit to some meaner ordeal； as kissing the hand of
the injured person。 In like manner； if a man of the highest rank has
violently assaulted an innocent citizen of the lower orders； he may be
condemned not only to apologize but to undergo a solitary and
painful imprisonment； whereby； in addition to the discomfort
endured； the vanity of the offender would be painfully affected； and
the very shame of his position would constitute an adequate
retaliation after the principle of 〃like with like。〃 But how then
would we render the statement： 〃If you steal from another； you steal
from yourself？〃 In this way； that whoever steals anything makes the
property of all insecure； he therefore robs himself of all security in
property； according to the right of retaliation。 Such a one has
nothing； and can acquire nothing； but he has the will to live； and
this is only possible by others supporting him。 But as the state
should not do this gratuitously； he must for this purpose yield his
powers to the state to be used in penal labour； and thus he falls
for a time； or it may be for life； into a condition of slavery。 But
whoever has committed murder； must die。 There is； in this case； no
juridical substitute or surrogate； that can be given or taken for
the satisfaction of justice。 There is no likeness or proportion
between life； however painful； and death； and therefore there is no
equality between the crime of murder and the retaliation of it but
what is judicially accomplished by the execution of the criminal。
His death； however； must be kept free from all maltreatment that would
make the humanity suffering in his person loathsome or abominable。
Even if a civil society resolved to dissolve itself with the consent
of all its members… as might be supposed in the case of a people
inhabiting an island resolving to separate and scatter themselves
throughout the whole world… the last murderer lying in the prison
ought to be executed before the resolution was carried out。 This ought
to be done in order that every one may realize the desert of his
deeds； and that blood…guiltiness may not remain upon the people； for
otherwise they might all be regarded as participators in the murder as
a public violation of justice。
The equalization of punishment with crime is therefore only possible
by the cognition of the judge extending even to the penalty of
death； according to the right of retaliation。 This is manifest from
the fact that it is only thus that a sentence can be pronounced over
all criminals proportionate to their internal wickedness； as may be
seen by considering the case when the punishment of death has to be
inflicted； not on account of a murder； but on account of a political
crime that can only be punished capitally。 A hypothetical case；
founded on history； will illustrate this。 In the last Scottish
rebellion there were various participators in it… such as Balmerino
and others… who believed that in taking part in the rebellion they
were only discharging their duty to the house of Stuart； but there
were also others who were animated only by private motives and
interests。 Now； suppose that the judgement of the supreme court
regarding them had been this： that every one should have liberty to
choose between the punishment of death or penal servitude for life。 In
view of such an alternative； I say that the man of honour would choose
death； and the knave would choose servitude。 This would be the
effect of their human nature as it is； for the honourable man values
his honour more highly than even life itself； whereas a knave
regards a life； although covered with shame； as better in his eyes
than not to be。 The former is； without gainsaying； less guilty than
the other； and they can only be proportionately punished by death
being inflicted equally upon them both； yet to the one it is a mild
punishment when his nobler temperament is taken into account；
whereas it is a hard punishment to the other in view of his baser
temperament。 But； on the other hand； were they all equally condemned
to penal servitude for life； the honourable man would be too
severely punished； while the other； on account of his baseness of
nature； would be too mildly punished。 In the judgement to be
pronounced over a number of criminals united in such a conspiracy； the
best equalizer of punishment and crime in the form of public justice
is death。 And besides all this； it has never been heard of that a
criminal condemned to death on account of a murder has complained that
the sentence inflicted on him more than was right and just； and any
one would treat him with scorn if he expressed himself to this
effect against it。 Otherwise it would be necessary to admit that；
although wrong and injustice are not done to the criminal by the
law； yet the legislative power is not entitled to administer this mode
of punishment； and if it did so； it would be in contradiction with
itself。
However many they may be who have committed a murder； or have even
commanded it； or acted as art and part in it； they ought all to suffer
death； for so justice wills it； in accordance with the idea of the
juridical power； as founded on the universal laws of reason。 But the
number of the accomplices （correi） in such a deed might happen to be
so great that the state； in resolving to be without such criminals；
would be in danger of soon also being deprived of subjects。 But it
will not thus dissolve itself； neither must it return to the much
worse condition of nature； in which there would be no external
justice。 Nor； above all； should it deaden the sensibilities of the
people by the spectacle of justice being exhibited in the mere carnage
of a slaughtering bench。 In such circumstances the sovereign must
always be allowed to have it in his power to take the part of the
judge upon himself as a case of necessity… and to deliver a
judgement which； instead of the penalty of death； shall assign some
other punishment to the criminals and thereby preserve a multitude
of the people。 The penalty of deportation is relevant in this
connection。 Such a form of judgement cannot be carried out according
to a public law； but only by an authoritative act of the royal
prerogative； and it may only be applied as an act of grace in
individual cases。
Against these doctrines； the Marquis Beccaria has given forth a
different view。 Moved by the compassionate sentimentality of a
humane feeling； he has asserted that all capital punishment is wrong
in itself and unjust。 He has put forward this view on the ground
that the penalty of death could not be contained in the original civil
contract； for； in that case； every one of the people would have had to
consent to lose his life if be murdered any of his fellow citizens。
But； it is argued； such a consent is impossible； because no one can
thus dispose of his own life。 All this is mere sophistry and
perversion of right。 No one undergoes punishment because he has willed
to be punished； but because he has willed a punishable action； for
it is in fact no punishment when any one experiences what he wills；
and it is impossible for any one to will to be punished。 To say； 〃I
will to be punished； if I murder any one；〃 can mean nothing more than；
〃I submit myself along with all the other citizens to the laws〃； and
if there are any criminals among the people； these laws will include
penal laws。 The individual who； as a co…legislator； enacts penal law
cannot possibly be the same person who； as a subject； is punished
according to the law； for； qua criminal； he cannot possibly be
regarded as having a voice in the legislation； the legislator being
rationally viewed as just and holy。 If any one； then； enact a penal
law against himself as a criminal； it must be the pure juridically
law…giving reason （homo noumenon）； which subjects him as one capable
of crime； and consequently as another person （homo phenomenon）；
along with all the others in the civil union； to this penal law。 In
other words； it is not the people taken distributively； but the
tribunal of public justice； as distinct from the criminal； that
prescribes capital punishment； and it is not to be viewed as if the
social contract contained the promise of all the individuals to
allow themselves to be punished； thus disposing of themselves and
their lives。 For i