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individual cases。
Against these doctrines； the Marquis Beccaria has given forth a
different view。 Moved by the compassionate sentimentality of a
humane feeling； he has asserted that all capital punishment is wrong
in itself and unjust。 He has put forward this view on the ground
that the penalty of death could not be contained in the original civil
contract； for； in that case； every one of the people would have had to
consent to lose his life if be murdered any of his fellow citizens。
But； it is argued； such a consent is impossible； because no one can
thus dispose of his own life。 All this is mere sophistry and
perversion of right。 No one undergoes punishment because he has willed
to be punished； but because he has willed a punishable action； for
it is in fact no punishment when any one experiences what he wills；
and it is impossible for any one to will to be punished。 To say； 〃I
will to be punished； if I murder any one；〃 can mean nothing more than；
〃I submit myself along with all the other citizens to the laws〃； and
if there are any criminals among the people； these laws will include
penal laws。 The individual who； as a co…legislator； enacts penal law
cannot possibly be the same person who； as a subject； is punished
according to the law； for； qua criminal； he cannot possibly be
regarded as having a voice in the legislation； the legislator being
rationally viewed as just and holy。 If any one； then； enact a penal
law against himself as a criminal； it must be the pure juridically
law…giving reason （homo noumenon）； which subjects him as one capable
of crime； and consequently as another person （homo phenomenon）；
along with all the others in the civil union； to this penal law。 In
other words； it is not the people taken distributively； but the
tribunal of public justice； as distinct from the criminal； that
prescribes capital punishment； and it is not to be viewed as if the
social contract contained the promise of all the individuals to
allow themselves to be punished； thus disposing of themselves and
their lives。 For if the right to punish must be grounded upon a
promise of the wrongdoer； whereby he is to be regarded as being
willing to be punished； it ought also to be left to him to find
himself deserving of the punishment； and the criminal would thus be
his own judge。 The chief error （proton pseudos） of this sophistry
consists in regarding the judgement of the criminal himself；
necessarily determined by his reason； that he is under obligation to
undergo the loss of his life； as a judgement that must be grounded
on a resolution of his will to take it away himself； and thus the
execution of the right in question is represented as united in one and
the same person with the adjudication of the right。
There are； however； two crimes worthy of death； in respect of
which it still remains doubtful whether the legislature have the right
to deal with them capitally。 It is the sentiment of honour that
induces their perpetration。 The one originates in a regard for womanly
honour； the other in a regard for military honour； and in both cases
there is a genuine feeling of honour incumbent on the individuals as a
duty。 The former is the crime of maternal infanticide （infanticidium
maternale）； the latter is the crime of killing a fellow…soldier in a
duel （commilitonicidium）。 Now legislation cannot take away the shame
of an illegitimate birth； nor wipe off the stain attaching from a
suspicion of cowardice； to an officer who does not resist an act
that would bring him into contempt； by an effort of his own that is
superior to the fear of death。 Hence it appears that； in such
circumstances； the individuals concerned are remitted to the state
of nature； and their acts in both cases must be called homicide； and
not murder； which involves evil intent （homicidium dolosum）。 In all
instances the acts are undoubtedly punishable； but they cannot be
punished by the supreme power with death。 An illegitimate child
comes into the world outside of the law which properly regulates
marriage； and it is thus born beyond the pale or constitutional
protection of the law。 Such a child is introduced； as it were； like
prohibited goods； into the commonwealth； and as it has no legal
right to existence in this way； its destruction might also be ignored；
nor can the shame of the mother； when her unmarried confinement is
known； be removed by any legal ordinance。 A subordinate officer；
again； on whom an insult is inflicted； sees himself compelled by the
public opinion of his associates to obtain satisfaction； and； as in
the state of nature； the punishment of the offender can only be
effected by a duel； in which his own life is exposed to danger； and
not by means of the law in a court of justice。 The duel is therefore
adopted as the means of demonstrating his courage as that
characteristic upon which the honour of his profession essentially
rests； and this is done even if it should issue in the killing of
his adversary。 But as such a result takes place publicly and under the
consent of both parties； although it may be done unwillingly； it
cannot properly be called murder （homicidium dolosum）。 What then is
the right in both cases as relating to criminal justice？ Penal justice
is here in fact brought into great straits； having apparently either
to declare the notion of honour； which is certainly no mere fancy
here； to 'be nothing in the eye of the law； or to exempt the crime
from its due punishment； and thus it would become either remiss or
cruel。 The knot thus tied is to be resolved in the following way。
The categorical imperative of penal justice； that the killing of any
person contrary to the law must be punished with death； remains in
force； but the legislation itself and the civil constitution
generally； so long as they are still barbarous and incomplete； are
at fault。 And this is the reason why the subjective
motive…principles of honour among the people do not coincide with
the standards which are objectively conformable to another purpose； so
that the public justice issuing from the state becomes injustice
relatively to that which is upheld among the people themselves。
II。 The Right of Pardoning。
The right of pardoning （jus aggratiandi）； viewed in relation to
the criminal； is the right of mitigating or entirely remitting his
punishment。 On the side of the sovereign this is the most delicate
of all rights； as it may be exercised so as to set forth the splendour
of his dignity； and yet so as to do a great wrong by it。 It ought
not to be exercised in application to the crimes of the subjects
against each other； for exemption from punishment （impunitas criminis）
would be the greatest wrong that could be done to them。 It is only
an occasion of some form of treason （crimen laesae majestatis）； as a
lesion against himself； that the sovereign should make use of this
right。 And it should not be exercised even in this connection； if
the safety of the