1790                              THE SCIENCE OF RIGHT                                by Immanual Kant                            translated by W. HastieINTRODUCTION            INTRODUCTION TO THE SCIENCE OF RIGHT.             GENERAL DEFINITIONS, AND DIVISIONS.              A. What the Science of Right is.  The Science of Right has for its object the principles of all thelaws which it is possible to promulgate by external legislation. Wherethere is such a legislation, it becomes, in actual application toit, a system of positive right and law; and he who is versed in theknowledge of this system is called a jurist or jurisconsult(jurisconsultus). A practical jurisconsult (jurisperitus), or aprofessional lawyer, is one who is skilled in the knowledge ofpositive external laws, and who can apply them to cases that may occurin experience. Such practical knowledge of positive right, and law,may be regarded as belonging to jurisprudence (jurisprudentia) inthe original sense of the term. But the theoretical knowledge of rightand law in principle, as distinguished from positive laws andempirical cases, belongs to the pure science of right (jurisscientia).The science of right thus designates the philosophical andsystematic knowledge of the principles of natural right. And it isfrom this science that the immutable principles of all positivelegislation must be derived by practical jurists and lawgivers.                    B. What is Right?  This question may be said to be about as embarrassing to thejurist as the well-known question, "What is truth?" is to thelogician. It is all the more so, if, on reflection, he strives toavoid tautology in his reply and recognise the fact that a referenceto what holds true merely of the laws of some one country at aparticular time is not a solution of the general problem thusproposed. It is quite easy to state what may be right in particularcases (quid sit juris), as being what the laws of a certain placeand of a certain time say or may have said; but it is much moredifficult to determine whether what they have enacted is right initself, and to lay down a universal criterion by which right and wrongin general, and what is just and unjust, may be recognised. All thismay remain entirely hidden even from the practical jurist until heabandon his empirical principles for a time and search in the purereason for the sources of such judgements, in order to lay a realfoundation for actual positive legislation. In this search, hisempirical laws may, indeed, furnish him with excellent guidance; but amerely empirical system that is void of rational principles is, likethe wooden head in the fable of Phaedrus, fine enough in appearance,but unfortunately it wants brain.  1. The conception of right- as referring to a correspondingobligation which is the moral aspect of it- in the first place, hasregard only to the external and practical relation of one person toanother, in so far as they can have influence upon each other,immediately or mediately, by their actions as facts. 2. In thesecond place, the conception of right does not indicate the relationof the action of an individual to the wish or the mere desire ofanother, as in acts of benevolence or of unkindness, but only therelation of his free action to the freedom of action of the other.3. And, in the third place, in this reciprocal relation of voluntaryactions, the conception of right does not take into considerationthe matter of the matter of the act of will in so far as the end whichany one may have in view in willing it is concerned. In other words,it is not asked in a question of right whether any one on buying goodsfor his own business realizes a profit by the transaction or not;but only the form of the transaction is taken into account, inconsidering the relation of the mutual acts of will. Acts of will orvoluntary choice are thus regarded only in so far as they are free,and as to whether the action of one can harmonize with the freedomof another, according to a universal law.  Right, therefore, comprehends the whole of the conditions underwhich the voluntary actions of any one person can be harmonized inreality with the voluntary actions of every other person, according toa universal law of freedom.               C. Universal Principle of Right.  "Every action is right which in itself, or in the maxim on whichit proceeds, is such that it can coexist along with the freedom of thewill of each and all in action, according to a universal law."  If, then, my action or my condition generally can coexist with thefreedom of every other, according to a universal law, any one doesme a wrong who hinders me in the performance of this action, or in themaintenance of this condition. For such a hindrance or obstructioncannot coexist with freedom according to universal laws.  It follows also that it cannot be demanded as a matter of right,that this universal principle of all maxims shall itself be adopted asmy maxim, that is, that I shall make it the maxim of my actions. Forany one may be free, although his freedom is entirely indifferent tome, or even if I wished in my heart to infringe it, so long as I donot actually violate that freedom by my external action. Ethics,however, as distinguished from jurisprudence, imposes upon me theobligation to make the fulfillment of right a maxim of my conduct.  The universal law of right may then be expressed thus: "Actexternally in such a manner that the free exercise of thy will maybe able to coexist with the freedom of all others, according to auniversal law." This is undoubtedly a law which imposes obligationupon me; but it does not at all imply and still less command that Iought, merely on account of this obligation, to limit my freedom tothese very conditions. Reason in this connection says only that itis restricted thus far by its idea, and may be likewise thus limitedin fact by others; and it lays this down as a postulate which is notcapable of further proof. As the object in view is not to teachvirtue, but to explain what right is, thus far the law of right, asthus laid down, may not and should not be represented as amotive-principle of action.    D. Right is Conjoined with the Title or Authority to Compel.  The resistance which is opposed to any hindrance of an effect isin reality a furtherance of this effect and is in accordance withits accomplishment. Now, everything that is wrong is a hindrance offreedom, according to universal laws; and compulsion or constraintof any kind is a hindrance or resistance made to freedom.Consequently, if a certain exercise of freedom is itself a hindranceof the freedom that is according to universal laws, it is wrong; andthe compulsion of constraint which is opposed to it is right, as beinga hindering of a hindrance of freedom, and as being in accord with thefreedom which exists in accordance with universal laws. Hence,according to the logical principle of contradiction, all right isaccompanied with an implied title or warrant to bring compulsion tobear on any one who may violate it in fact.    E. Strict Right may be also Represented as the Possibility       of a Universal Reciprocal Compulsion in harmony with          the Freedom of All according to Universal Laws.  This proposition means the right is not to be regarded as composedof two different elements- obligation according to a law, and atitle on the part of one who has bound another by his own freechoice to compel him to perform. But it imports that the conception ofright may be viewed as consisting immediately in the possibility ofa universal reciprocal compulsion, in harmony with the freedom of all.As right in general has for its object only what is external inactions, strict right, as that with which nothing ethical isintermingled, requires no other motives of action than those thatare merely external; for it is then pure right and is unmixed with anyprescriptions of virtue. A strict right, then, in the exact sense ofthe term, is that which alone can be called wholly external. Nowsuch right is founded, no doubt, upon the consciousness of theobligation of every individual according to the law; but if it is tobe pure as such, it neither may nor should refer to this consciousnessas a motive by which to determine the free act of the will. For thispurpose, however, it founds upon the principle of the possibility ofan external compulsion, such as may coexist with the freedom ofevery one according to universal laws. Accordingly, then, where itis said that a creditor has a right to demand from a debtor thepayment of his debt, this does not mean merely that he can bring himto feel in his mind that reason obliges him to do this; but it meansthat he can apply an external compulsion to force any such one so topay, and that this compulsion is quite consistent with the freedomof all, including the parties in question, according to a universallaw. Right and the title to compel, thus indicate the same thing.  The law of right, as thus enunciated, is represented as a reciprocalcompulsion necessarily in accordance with the freedom of every one,under the principle of a universal freedom. It is thus, as it were,a representative construction of the conception of right, byexhibiting it in a pure intuitive perception a priori, after theanalogy of the possibility of the free motions of bodies under thephysical law of the equality of action and reaction. Now, as in puremathematics, we cannot deduce the properties of its objectsimmediately from a mere abstract conception, but can only discoverthem by figurative construction or representation of itsconceptions; so it is in like manner with the principle of right. Itis not so much the mere formal conception of right, but rather that ofa universal and equal reciprocal compulsion as harmonizing with it,and reduced under general laws, that makes representation of thatconception possible. But just as those conceptions presented indynamics are founded upon a merely formal representation of puremathematics as presented in geometry, reason has taken care also toprovide the understanding as far as possible with intuitivepresentations a priori in behoof of a construction of the conceptionof right. The right in geometrical lines (rectum) is opposed, as thestraight, to that which is curved and to that which is oblique. In thefirst opposition, there is involved an inner quality of the lines ofsuch a nature that there is only one straight or right line possiblebetween two given points. In the second case, again, the positionsof two intersecting or meeting lines are of such a nature that therecan likewise be only one line called the perpendicular, which is notmore inclined to the one side than the other, and it divides spaceon either side into two equal parts. After the manner of this analogy,the science of right aims at determining what every one shall haveas his own with mathematical exactness; but this is not to be expectedin the ethical science of virtue, as it cannot but allow a certainlatitude for exceptions. But, without passing into the sphere ofethics, there are two cases- known as the equivocal right of equityand necessity- which claim a juridical decision, yet for which noone can be found to give such a decision, and which, as regardstheir relation to rights, belong, as it were, to the "Intermundia"of Epicurus. These we must at the outset take apart from the specialexposition of the science of right, to which we are now about toadvance; and we may consider them now by way of supplement to theseintroductory explanations, in order that their uncertain conditionsmay not exert a disturbing influence on the fixed principles of theproper doctrine of right.          F. Supplementary Remarks on Equivocal Right.                       (Jus Aequivocum).  With every right, in the strict acceptation (jus strictum), there isconjoined a right to compel. But it is possible to think of otherrights of a wider kind (jus latum) in which the title to compel cannotbe determined by any law. Now there are two real or supposed rights ofthis kind- equity and the right of necessity. The first alleges aright that is without compulsion; the second adopts a compulsionthat is without right. This equivocalness, however, can be easilyshown to rest on the peculiar fact that there are cases of doubtfulright, for the decision of which no judge can be appointed.                          I. Equity.  Equity (aequitas), regarded objectively, does not properlyconstitute a claim upon the moral duty of benevolence or beneficenceon the part of others; but whoever insists upon anything on the groundof equity, founds upon his right to the same. In this case, however,the conditions are awanting that are requisite for the function of ajudge in order that be might determine what or what kind ofsatisfaction can be done to this claim. When one of the partners ofa mercantile company, formed under the condition of equal profits,has, however, done more than the other members, and in consequence hasalso lost more, it is in accordance with equity that he shoulddemand from the company more than merely an equal share of advantagewith the rest. But, in relation to strict right- if we think of ajudge considering his case- he can furnish no definite data toestablish how much more belongs to him by the contract; and in case ofan action at law, such a demand would be rejected. A domestic servant,again, who might be paid his wages due to the end of his year ofservice in a coinage that became depreciated within that period, sothat it would not be of the same value to him as it was when heentered on his engagement, cannot claim by right to be kept fromloss on account of the unequal value of the money if he receives thedue amount of it. He can only make an appeal on the ground of equity,-a dumb goddess who cannot claim a bearing of right,- because there wasnothing bearing on this point in the contract of service, and ajudge cannot give a decree on the basis of vague or indefiniteconditions.  Hence it follows, that a court of equity, for the decision ofdisputed questions of right, would involve a contradiction. It is onlywhere his own proper rights are concerned, and in matters in whichhe can decide, that a judge may or ought to give a hearing toequity. Thus, if the Crown is supplicated to give an indemnity tocertain persons for loss or injury sustained in its service, it mayundertake the burden of doing so, although, according to strict right,the claim might be rejected on the ground of the pretext that theparties in question undertook the performance of the serviceoccasioning the loss, at their own risk.  The dictum of equity may be put thus: "The strictest right is thegreatest wrong" (summum jus summa injuria). But this evil cannot beobviated by the forms of right, although it relates to a matter ofright; for the grievance that it gives rise to can only be putbefore a "court of conscience" (forum poli), whereas every question ofright must be taken before a civil court (forum soli).                II. The Right of Necessity.  The so-called right of necessity (jus necessitatis) is thesupposed right or title, in case of the danger of losing my ownlife, to take away the life of another who has, in fact, done me noharm. It is evident that, viewed as a doctrine of right, this mustinvolve a contradiction, For this is not the case of a wrongfulaggressor making an unjust assault upon my life, and whom I anticipateby depriving him of his own (jus inculpatae tutelae); nor consequentlyis it a question merely of the recommendation of moderation whichbelongs to ethics as the doctrine of virtue, and not tojurisprudence as the doctrine of right. It is a question of theallowableness of using violence against one who has used noneagainst me.  It is clear that the assertion of such a right is not to beunderstood objectively as being in accordance with what a law wouldprescribe, but merely subjectively, as proceeding on the assumption ofhow a sentence would be pronounced by a court in the case. Therecan, in fact, be no criminal law assigning the penalty of death to aman who, when shipwrecked and struggling in extreme danger for hislife, and in order to save it, may thrust another from a plank onwhich he had saved himself. For the punishment threatened by the lawcould not possibly have greater power than the fear of the loss oflife in the case in question. Such a penal law would thus failaltogether to exercise its intended effect; for the threat of anevil which is still uncertain- such as death by a judicial sentence-could not overcome the fear of an evil which is certain, as drowningis in such circumstances. An act of violent self-preservation, then,ought not to be considered as altogether beyond condemnation(inculpabile); it is only to be adjudged as exempt from punishment(impunibile). Yet this subjective condition of impunity, by astrange confusion of ideas, has been regarded by jurists as equivalentto objective lawfulness.  The dictum of the right of necessity is put in these terms:"Necessity has no law" (Necessitas non habet legem). And yet therecannot be a necessity that could make what is wrong lawful.  It is apparent, then, that in. judgements relating both to"equity" and "the right of necessity," the equivocations involvedarise from an interchange of the objective and subjective grounds thatenter into the application of the principles of right, when viewedrespectively by reason or by a judicial tribunal. What one may havegood grounds for recognising as right, in itself, may not findconfirmation in a court of justice; and what he must consider to bewrong, in itself, may obtain recognition in such a court. And thereason of this is that the conception of right is not taken in the twocases in one and the same sense.DIVISION              DIVISION OF THE SCIENCE OF RIGHT.         A. General Division of the Duties of Right.                    (Juridical Duties).  In this division we may very conveniently follow Ulpian, if histhree formulae are taken in a general sense, which may not have beenquite clearly in his mind, but which they are capable of beingdeveloped into or of receiving. They are the following:  1. Honeste vive. "Live rightly." juridical rectitude, or honour(honestas juridica), consists in maintaining one's own worth as aman in relation to others. This duty may be rendered by theproposition: "Do not make thyself a mere means for the use ofothers, but be to them likewise an end." This duty will be explainedin the next formula as an obligation arising out of the right ofhumanity in our own person (lex justi).  2. Neminem laede. "Do wrong to no one." This formula may be renderedso as to mean: "Do no wrong to any one, even if thou shouldst be underthe necessity, in observing this duty, to cease from all connectionwith others and to avoid all society" (lex juridica).  3. Suum cuique tribue. "Assign to every one what is his own." Thismay be rendered, "Enter, if wrong cannot be avoided, into a societywith others in which every one may have secured to him what is hisown." If this formula were to be simply translated, "Give every onehis own," it would express an absurdity, for we cannot give any onewhat he already has. If it is to have a definite meaning, it musttherefore run thus: "Enter into a state in which every one can havewhat is his own secured against the action of every other" (lexjustitiae).  These three classical formulae, at the same time, representprinciples which suggest a division of the system of juridicalduties into internal duties, external duties, and those connectingduties which contain the latter as deduced from the principle of theformer by subsumption.              B. Universal Division of Rights.  I. Natural Right and Positive Right. The system of rights, viewed asa scientific system of doctrines, is divided into natural right andpositive right. Natural right rests upon pure rational principles apriori; positive or statutory right is what proceeds from the willof a legislator.  II. Innate Right and Acquired Right. The system of rights mayagain be regarded in reference to the implied powers of dealingmorally with others as bound by obligations, that is, as furnishinga legal title of action in relation to them. Thus viewed, the systemis divided into innate right and acquired right. Innate right isthat right which belongs to every one by nature, independent of alljuridical acts of experience. Acquired right is that right which isfounded upon such juridical acts.  Innate right may also be called the "internal mine and thine"(meum vel tuum internum) for external right must always be acquired.    There is only one Innate Right, the Birthright of Freedom.  Freedom is independence of the compulsory will of another; and in sofar as it can coexist with the freedom of all according to a universallaw, it is the one sole original, inborn right belonging to everyman in virtue of his humanity. There is, indeed, an innate equalitybelonging to every man which consists in his right to be independentof being bound by others to anything more than that to which he mayalso reciprocally bind them. It is, consequently, the inborn qualityof every man in virtue of which he ought to be his own master by right(sui juris). There is, also, the natural quality of justnessattributable to a man as naturally of unimpeachable right (justi),because be has done no wrong to any one prior to his own juridicalactions. And, further, there is also the innate right of common actionon the part of every man, so that he may do towards others what doesnot infringe their rights or take away anything that is theirsunless they are willing to appropriate it; such merely tocommunicate thought, to narrate anything, or to promise somethingwhether truly and honestly, or untruly and dishonestly (veriloquim autfalsiloquim), for it rests entirely upon these others whether theywill believe or trust in it or not.*  But all these rights or titlesare already included in the principle of innate freedom, and are notreally distinguished from it, even as dividing members under ahigher species of right.  *It is customary to designate every untruth that is spokenintentionally as such, although it may be in a frivolous manner a lie,or falsehood (mendacium), because it may do harm, at least in so faras any one who repeats it in good faith may be made a laughing-stockof to others on account of his easy credulity. But in the juridicalsense, only that untruth is called a lie which immediately infringesthe right of another, such as a false allegation of a contracthaving been concluded, when the allegation is put forward in orderto deprive some one of what is his (falsiloquim dolosum). Thisdistinction of conceptions so closely allied is not withoutfoundation; because on the occasion of a simple statement of one'sthoughts, it is always free for another to take them as he may; andyet the resulting repute, that such a one is a man whose word cannotbe trusted, comes so close to the opprobrium of directly calling him aliar, that the boundary-line separating what, in such a case,belongs to jurisprudence, and what is special to ethics, can hardly beotherwise drawn.  The reason why such a division into separate rights has beenintroduced into the system of natural right, viewed as including allthat is innate, was not without a purpose. Its object was to enableproof to be more readily put forward in case of any controversyarising about an acquired right, and questions emerging either withreference to a fact that might be in doubt, or, if that wereestablished, in reference to a right under dispute. For the partyrepudiating an obligation, and on whom the burden of proof (onusprobandi) might be incumbent, could thus methodically refer to hisinnate right of freedom as specified under various relations indetail, and could therefore found upon them equally as differenttitles of right.  In the relation of innate right, and consequently of the internalmine and thine, there is therefore not rights, but only one right.And, accordingly, this highest division of rights into innate andacquired, which evidently consists of two members extremely unequal intheir contents is properly placed in the introduction; and thesubdivisions of the science of right may be referred in detail tothe external mine and thine.         C. Methodical Division of the Science of Right.  The highest division of the system of natural right should not be-as it is frequently put- into "natural right" and "social right,"but into natural right and civil right. The first constitutesprivate right; the second, public right. For it is not the "socialstate" but the "civil state" that is opposed to the "state of nature";for in the "state of nature" there may well be society of some kind,but there is no "civil" society, as an institution securing the mineand thine by public laws. It is thus that right, viewed underreference to the state of nature, is specially called private right.The whole of the principles of right will therefore fall to beexpounded under the two subdivisions of private right and publicright.CH1                  FIRST PART. PRIVATE RIGHT.  The System of those Laws Which Require No External Promulgation.  CHAPTER I. Of the Mode of Having Anything External as One's Own.              1. The Meaning of "Mine" in Right                       (Meum Juris).  Anything is "Mine" by right, or is rightfully mine, when I am soconnected with it, that if any other person should make use of itwithout my consent, he would do me a lesion or injury. Thesubjective condition of the use of anything is possession of it.  An external thing, however as such could only be mine, if I mayassume it to be possible that I can be wronged by the use whichanother might make of it when it is not actually in my possession.Hence it would be a contradiction to have anything external as one'sown, were not the conception of possession capable of two differentmeanings, as sensible possession that is perceivable by the senses,and rational possession that is perceivable only by the intellect.By the former is to be understood a physical possession, and by thelatter, a purely juridical possession of the same object.  The description of an object as "external to me" may signifyeither that it is merely "different and distinct from me as asubject," or that it is also "a thing placed outside of me, and tobe found elsewhere in space or time." Taken in the first sense, theterm possession signifies rational possession; and, in the secondsense, it must mean empirical possession. A rational or intelligiblepossession, if such be possible, is possession viewed apart fromphysical holding or detention (detentio).         2. Juridical Postulate of the Practical Reason.  It is possible to have any external object of my will as mine. Inother words, a maxim to this effect- were it to become law- that anyobject on which the will can be exerted must remain objectively initself without an owner, as res nullius, is contrary to theprinciple of right.  For an object of any act of my will, is something that it would bephysically within my power to use. Now, suppose there were things thatby right should absolutely not be in our power, or, in other words,that it would be wrong or inconsistent with the freedom of all,according to universal law, to make use of them. On thissupposition, freedom would so far be depriving itself of the use ofits voluntary activity, in thus putting useable objects out of allpossibility of use. In practical relations, this would be toannihilate them, by making them res nullius, notwithstanding thefact act acts of will in relation to such things would formallyharmonize, in the actual use of them, with the external freedom of allaccording to universal laws. Now the pure practical reason lays downonly formal laws as principles to regulate the exercise of the will;and therefore abstracts from the matter of the act of will, as regardsthe other qualities of the object, which is considered only in sofar as it is an object of the activity of the will. Hence thepractical reason cannot contain, in reference to such an object, anabsolute prohibition of its use, because this would involve acontradiction of external freedom with itself. An object of my freewill, however, is one which I have the physical capability of makingsome use of at will, since its use stands in my power (in potentia).This is to be distinguished from having the object brought under mydisposal (in postestatem meam reductum), which supposes not acapability merely, but also a particular act of the free-will. Butin order to consider something merely as an object of my will as such,it is sufficient to be conscious that I have it in my power. It istherefore an assumption a priori of the practical reason to regard andtreat every object within the range of my free exercise of will asobjectively a possible mine or thine.  This postulate may be called "a permissive law" of the practicalreason, as giving us a special title which we could not evolve outof the mere conceptions of right generally. And this title constitutesthe right to impose upon all others an obligation, not otherwiselaid upon them, to abstain from the use of certain objects of our freechoice, because we have already taken them into our possession. Reasonwills that this shall be recognised as a valid principle, and itdoes so as practical reason; and it is enabled by means of thispostulate a priori to enlarge its range of activity in practice.                3. Possession and Ownership.  Any one who would assert the right to a thing as his must be inpossession of it as an object. Were he not its actual possessor orowner, he could not be wronged or injured by the use which anothermight make of it without his consent. For, should anything external tohim, and in no way connected with him by right, affect this object, itcould not affect himself as a subject, nor do him any wrong, unless hestood in a relation of ownership to it.           4. Exposition of the Conception of the.                  External Mine and Thine.  There can only be three external objects of my will in theactivity of choice:  (1) A corporeal thing external to me;  (2) The free-will of another in the performance of a particularact (praestatio);  (3) The state of another in relation to myself.  These correspond to the categories of substance, causality, andreciprocity; and they form the practical relations between me andexternal objects, according to the laws of freedom.  A. I can only call a corporeal thing or an object in space "mine,"when, even although not in physical possession of it, I am able toassert that I am in possession of it in another real nonphysicalsense. Thus, I am not entitled to call an apple mine merely becauseI hold it in my hand or possess it physically; but only when I amentitled to say, "I possess it, although I have laid it out of myhand, and wherever it may lie." In like manner, I am not entitled tosay of the ground, on which I may have laid myself down, thattherefore it is mine; but only when I can rightly assert that it stillremains in my possession, although I may have left the spot. For anyone who, in the former appearances of empirical possession, mightwrench the apple out of my hand, or drag me away from myresting-place, would, indeed, injure me in respect of the inner "mine"of freedom, but not in respect of the external "mine," unless Icould assert that I was in the possession of the object, even when notactually holding it physically. And if I could not do this, neithercould I call the apple or the spot mine.  B. I cannot call the performance of something by the action of thewill of another "mine," if I can only say "it has come into mypossession at the same time with a promise" (pactum re initum); butonly if I am able to assert "I am in possession of the will of theother, so as to determine him to the performance of a particularact, although the time for the performance of it has not yet come." Inthe latter case, the promise belongs to the nature of thingsactually held as possessed, and as an active obligation I can reckonit mine; and this holds good not only if I have the thing promised- asin the first case- already in my possession, but even although I donot yet possess it in fact. Hence, I must be able to regard myselfin thought as independent of that empirical form of possession that islimited by the condition of time and as being, nevertheless, inpossession of the object.  C. I cannot call a wife, a child, a domestic, or, generally, anyother person "mine" merely because I command them at present asbelonging to my household, or because I have them under control, andin my power and possession. But I can call them mine, if, althoughthey may have withdrawn themselves from my control and I do nottherefore possess them empirically, I can still say "I possess them bymy mere will, provided they exist anywhere in space or time; and,consequently, my possession of them is purely juridical." They belong,in fact, to my possessions, only when and so far as I can assertthis as a matter of right.              5. Definition of the Conception of the                     External Mine and Thine.  Definitions are nominal or real. A nominal definition issufficient merely to distinguish the object defined from all otherobjects, and it springs out of a complete and definite exposition ofits conception. A real definition further suffices for a deductionof the conception defined, so as to furnish a knowledge of the realityof the object. The nominal definition of the external "mine" wouldthus be: "The external mine is anything outside of myself, such thatany hindrance of my use of it at will would be doing me an injury orwrong as an infringement of that freedom of mine which may coexistwith the freedom of all others according to a universal law." The realdefinition of this conception may be put thus: "The external mine isanything outside of myself, such that any prevention of my use of itwould be a wrong, although I may not be in possession of it so as tobe actually holding it as an object." I must be in some kind ofpossession of an external object, if the object is to be regarded asmine; for, otherwise, anyone interfering with this object would not,in doing so, affect me; nor, consequently, would he thereby do meany wrong. Hence, according to SS 4, a rational possession(possessio noumenon) must be assumed as possible, if there is to berightly an external mine and thine. Empirical possession is thusonly phenomenal possession or holding (detention) of the object in thesphere of sensible appearance (possessio phenomenon), although theobject which I possess is not regarded in this practical relation asitself a phenomenon- according to the exposition of the TranscendentalAnalytic in the Critique of Pure Reason- but as a thing in itself. Forin the Critique of Pure Reason the interest of reason turns upon thetheoretical knowledge of the nature of things and how far reason cango in such knowledge. But here reason has to deal with the practicaldetermination of the action of the will according to laws offreedom, whether the object is perceivable through the senses ormerely thinkable by the pure understanding. And right, as underconsideration, is a pure practical conception of the reason inrelation to the exercise of the will under laws of freedom.  And, hence, it is not quite correct to speak of "possessing" a rightto this or that object, but it should rather be said that an object ispossessed in a purely juridical way; for a right is itself therational possession of an object, and to "possess a possession," wouldbe an expression without meaning.      6. Deduction of the Conception of a Purely Juridical      Possession of an External Object (Possessio Noumenon).  The question, "How is an external mine and thine possible?" resolvesitself into this other question: "How is a merely juridical orrational possession possible?" And this second question resolvesitself again into a third: "How is a synthetic proposition in rightpossible a priori?"  All propositions of right- as juridical propositions- arepropositions a priori, for they are practical laws of reason(dictamina rationis). But the juridical proposition a priorirespecting empirical possession is analytical; for it says nothingmore than what follows by the principle of contradiction, from theconception of such possession; namely, that if I am the holder of athing in the way of being physically connected with it, any oneinterfering with it without my consent- as, for instance, in wrenchingan apple out of my hand- affects and detracts from my freedom asthat which is internally mine; and consequently the maxim of hisaction is in direct contradiction to the axiom of right. Theproposition expressing the principle of an empirical rightfulpossession does not therefore go beyond the right of a person inreference to himself.  On the other hand, the proposition expressing the possibility of thepossession of a thing external to me, after abstraction of all theconditions of empirical possession in space and time- consequentlypresenting the assumption of the possibility of a possessionoumenon- goes beyond these limiting conditions; and because thisproposition asserts a possession even without physical holding, asnecessary to the conception of the external mine and thine, it issynthetical. And thus it becomes a problem for reason to show how sucha proposition, extending its range beyond the conception ofempirical possession, is possible a priori.  In this manner, for instance, the act of taking possession of aparticular portion of the soil is a mode exercising the privatefree-will without being an act of usurpation. The possessor foundsupon the innate right of common possession of the surface of theearth, and upon the universal will corresponding a priori to it, whichallows a private possession of the soil; because what are merethings would be otherwise made in themselves and by a law intounappropriable objects. Thus a first appropriator acquiresoriginally by primary possession a particular portion of the ground;and by right (jure) he resists every other person who would hinder himin the private use of it, although, while the "state of nature"continues, this cannot be done by juridical means (de jure), because apublic law does not yet exist.  And although a piece of ground should be regarded as free, ordeclared to be such, so as to be for the public use of all withoutdistinction, yet it cannot be said that it is thus free by natureand originally so, prior to any juridical act. For there would be areal relation already incorporated in such a piece of ground by thevery fact that the possession of it was denied to any particularindividual; and as this public freedom of the ground would be aprohibition of it to every particular individual, this presupposes acommon possession of it which cannot take effect without a contract. Apiece of ground, however, which can only become publicly free bycontract, must actually be in the possession of all those associatedtogether, who mutually interdict or suspend each other, from anyparticular or private use of it.  This original community of the soil and of the things upon it(communio fundi originaria), is an idea which has objective andpractical juridical reality and is entirely different from the idea ofa primitive community of things, which is a fiction. For the latterwould have had to be founded as a form of society, and must have takenits rise from a contract by which all renounced the right of privatepossession, so that by uniting the property owned by each into awhole, it was thus transformed into a common possession. But hadsuch an event taken place, history must have presented some evidenceof it. To regard such a procedure as the original mode of takingpossession, and to hold that the particular possessions of everyindividual may and ought to be grounded upon it, is evidently acontradiction.  Possession (possessio) is to be distinguished from habitation asmere residence (sedes); and the act of taking possession of the soilin the intention of acquiring it once for all, is also to bedistinguished from settlement or domicile (incolatus), which is acontinuous private possession of a place that is dependent on thepresence of the individual upon it. We have not here to deal withthe question of domiciliary settlement, as that is a secondaryjuridical act which may follow upon possession, or may not occur atall; for as such it could not involve an original possession, but onlya secondary possession derived from the consent of others.  Simple physical possession, or holding of the soil, involves alreadycertain relations of right to the thing, although it is certainlynot sufficient to enable me to regard it as mine. Relative toothers, so far as they know, it appears as a first possession inharmony with the law of external freedom; and, at the same time, it isembraced in the universal original possession which contains apriori the fundamental principle of the possibility of a privatepossession. Hence to disturb the first occupier or holder of a portionof the soil in his use of it is a lesion or wrong done to him. Thefirst taking of possession has therefore a title of right (tituluspossessionis) in its favour, which is simply the principle of theoriginal common possession; and the saying that "It is well forthose who are in possession" (beati possidentes), when one is notbound to authenticate his possession, is a principle of naturalright that establishes the juridical act of taking possession, as aground of acquisition upon which every first possessor may found.  It has been shown in the Critique of Pure Reason that in theoreticalprinciples a priori, an intuitional perception a priori must besupplied in connection with any given conception; and, consequently,were it a question of a purely theoretical principle, somethingwould have to be added to the conception of the possession of anobject to make it real. But in respect of the practical principleunder consideration, the procedure is just the converse of thetheoretical process; so that all the conditions of perception whichform the foundation of empirical possession must be abstracted ortaken away in order to extend the range of the juridical conceptionbeyond the empirical sphere, and in order to be able to apply thepostulate, that every external object of the free activity of my will,so far as I have it in my power, although not in the possession of it,may be reckoned as juridically mine.  The possibility of such a possession, with consequent deduction ofthe conception of a nonempirical possession, is founded upon thejuridical postulate of the practical reason, that "It is a juridicalduty so to act towards others that what is external and useable maycome into the possession or become the property of some one." And thispostulate is conjoined with the exposition of the conception that whatis externally one's own is founded upon a possession, that is notphysical. The possibility of such a possession, thus conceived,cannot, however, be proved or comprehended in itself, because it isa rational conception for which no empirical perception can befurnished; but it follows as an immediate consequence from thepostulate that has been enunciated. For, if it is necessary to actaccording to that juridical principle, the rational or intelligiblecondition of a purely juridical possession must also be possible. Itneed astonish no one, then, that the theoretical aspect of theprinciples of the external mine and thine is lost from view in therational sphere of pure intelligence and presents no extension ofknowledge; for the conception of freedom upon which they rest does notadmit of any theoretical deduction of its possibility, and it can onlybe inferred from the practical law of reason, called the categoricalimperative, viewed as a fact.     7. Application of the Principle of the Possibility of     an External Mine and Thine to Objects of Experience.  The conception of a purely juridical possession is not anempirical conception dependent on conditions of space and time, andyet it has practical reality. As such it must be applicable to objectsof experience, the knowledge of which is independent of the conditionsof space and time. The rational process by which the conception ofright is brought into relation to such objects so as to constitute apossible external mine and thine, is as follows. The conception ofright, being contained merely in reason, cannot be immediately appliedto objects of experience, so as to give the conception of an empiricalpossession, but must be applied directly to the mediatingconception, in the understanding, of possession in general; so that,instead of physical holding (detentio) as an empiricalrepresentation of possession, the formal conception or thought ofhaving, abstracted from all conditions of space and time, is conceivedby the mind, and only as implying that an object is in my power and atmy disposal (in potestate mea positum esse). In this relation, theterm external does not signify existence in another place than where Iam, nor my resolution and acceptance at another time than the momentin which I have the offer of a thing: it signifies only an objectdifferent from or other than myself. Now the practical reason by itslaw of right wills, that I shall think the mine and thine inapplication to objects, not according to sensible conditions, butapart from these and from the possession they indicate; because theyrefer to determinations of the activity of the will that are inaccordance with the laws of freedom. For it is only a conception ofthe understanding that can be brought under the rational conception ofright. I may therefore say that I possess a field, although it is inquite a different place from that on which I actually find myself. Forthe question here is not concerning an intellectual relation to theobject, but I have the thing practically in my power and at mydisposal, which is a conception of possession realized by theunderstanding and independent of relations of space; and it is mine,because my will, in determining itself to any particular use of it, isnot in conflict with the law of external freedom. Now it is just inabstraction from physical possession of the object of my free-willin the sphere of sense, that the practical reason wills that arational possession of it shall be thought, according tointellectual conceptions which are not empirical, but contain a priorithe conditions of rational possession. Hence it is in this fact,that we found the ground of the validity of such a rational conceptionof possession possessio noumenon) as a principle of a universallyvalid legislation. For such a legislation is implied and containedin the expression, "This external object is mine," because anobligation is thereby imposed upon all others in respect of it, whowould otherwise not have been obliged to abstain from the use ofthis object.  The mode, then, of having something external to myself as mine,consists in a specially juridical connection of the will of thesubject with that object, independently of the empirical relationsto it in space and in time, and in accordance with the conception of arational possession. A particular spot on the earth is notexternally mine because I occupy it with my body; for the questionhere discussed refers only to my external freedom, and consequently itaffects only the possession of myself, which is not a thing externalto me, and therefore only involves an internal right. But if Icontinue to be in possession of the spot, although I have taken myselfaway from it and gone to another place, only under that condition ismy external right concerned in connection with it. And to make thecontinuous possession of this spot by my person a condition ofhaving it as mine, must either be to assert that it is not possible atall to have anything external as one's own, which is contrary to thepostulate in SS 2, or to require, in order that this externalpossession may be possible, that I shall be in two places at thesame time. But this amounts to saying that I must be in a place andalso not in it, which is contradictory and absurd.  This position may be applied to the case in which I have accepteda promise; for my having and possession in respect of what has beenpromised become established on the ground of external right. Thisright is not to be annulled by the fact that the promiser havingsaid at one time, "This thing shall be yours," again at a subsequenttime says, "My will now is that the thing shall not be yours." In suchrelations of rational right, the conditions hold just the same as ifthe promiser had, without any interval of time between them, madethe two declarations of his will, "This shall be yours," and also"This shall not be yours"; which manifestly contradicts itself.  The same thing holds, in like manner, of the conception of thejuridical possession of a person as belonging to the Having of asubject, whether it be a wife, a child, or a servant. The relations ofright involved in a household, and the reciprocal possession of allits members, are not annulled by the capability of separating fromeach other in space; because it is by juridical relations that theyare connected, and the external mine and thine, as in the formercases, rests entirely upon the assumption of the possibility of apurely rational possession, without the accompaniment of physicaldetention or holding of the object.  Reason is forced to a critique of its juridically practical functionin special reference to the conception of the external mine and thine,by the antinomy of the propositions enunciated regarding thepossibility of such a form of possession. For these give rise to aninevitable dialectic, in which a thesis and an antithesis set up equalclaims to the validity of two conflicting conditions. Reason is thuscompelled, in its practical function in relation to right- as it wasin its theoretical function- to make a distinction betweenpossession as a phenomenal appearance presented to the senses, andthat possession which is rational and thinkable only by theunderstanding.  Thesis.- The thesis, in this case, is: "It is possible to havesomething external as mine, although I am not in possession of it."  Antithesis.- The antithesis is: "It is not possible to have anythingexternal as mine, if I am not in possession of it."  Solution.- The solution is: "Both Propositions are true"; the formerwhen I mean empirical possession (possessio phaenomenon), the latterwhen I understand by the same term, a purely rational possession(possessio noumenon).  But the possibility of a rational possession, and consequently of anexternal mine and thine, cannot be comprehended by direct insight, butmust be deduced from the practical reason. And in this relation itis specially noteworthy that the practical reason withoutintuitional perceptions, and even without requiring such an elementa priori, can extend its range by the mere elimination of empiricalconditions, as justified by the law of freedom, and can thus establishsynthetical propositions a priori. The proof of this in thepractical connection, as will be shown afterwards, can be adduced inan analytical manner.     8. To Have Anything External as One's Own is only Possible         in a Juridical or Civil State of Society under the            Regulation of a Public Legislative Power.  If, by word or deed, I declare my will that some external thingshall be mine, I make a declaration that every other person is obligedto abstain from the use of this object of my exercise of will; andthis imposes an obligation which no one would be under, without such ajuridical act on my part. But the assumption of this act at the sametime involves the admission that I am obliged reciprocally toobserve a similar abstention towards every other in respect of what isexternally theirs; for the obligation in question arises from auniversal rule regulating the external juridical relations. Hence I amnot obliged to let alone what another person declares to be externallyhis, unless every other person likewise secures me by a guarantee thathe will act in relation to what is mine, upon the same principle. Thisguarantee of reciprocal and mutual abstention from what belongs toothers does not require a special juridical act for its establishment,but is already involved in the conception of an external obligation ofright, on account of the universality and consequently the reciprocityof the obligatoriness arising from a universal Rule. Now a singlewill, in relation to an external and consequently contingentpossession, cannot serve as a compulsory law for all, because thatwould be to do violence to the freedom which is in accordance withuniversal laws. Therefore it is only a will that binds every one,and as such a common, collective, and authoritative will, that canfurnish a guarantee of security to all. But the state of men under auniversal, external, and public legislation, conjoined withauthority and power, is called the civil state. There can therefore bean external mine and thine only in the civil state of society.  Consequence.- It follows, as a corollary, that, if it is juridicallypossible to have an external object as one's own, the individualsubject of possession must be allowed to compel or constrain everyperson with whom a dispute as to the mine or thine of such apossession may arise, to enter along with himself into the relationsof a civil constitution.    9. There May, However, Be an External Mine and Thine Found as      a Fact in the State of Nature, but it is only Provisory.  Natural right in the state of a civil constitution means the formsof right which may be deduced from principles a priori as theconditions of such a constitution. It is therefore not to be infringedby the statutory laws of such a constitution; and accordingly thejuridical principle remains in force, that, "Whoever proceeds upon amaxim by which it becomes impossible for me to have an object of theexercise of my will as mine, does me a lesion or injury." For acivil constitution is only the juridical condition under which everyone has what is his own merely secured to him, as distinguished fromits being specially assigned and determined to him. All guarantee,therefore, assumes that everyone to whom a thing is secured is alreadyin possession of it as his own. Hence, prior to the civilconstitution- or apart from it- an external mine and thine must beassumed as possible, and along with it a right to compel everyone withwhom we could come into any kind of intercourse to enter with usinto a constitution in which what is mine or thine can be secured.There may thus be a possession in expectation or in preparation forsuch a state of security, as can only be established on the law of thecommon will; and as it is therefore in accordance with the possibilityof such a state, it constitutes a provisory or temporary juridicalpossession; whereas that possession which is found in reality in thecivil state of society will be a peremptory or guaranteedpossession. Prior to entering into this state, for which he isnaturally prepared, the individual rightfully resists those who willnot adapt themselves to it, and who would disturb him in his provisorypossession; because, if the will of all except himself were imposingupon him an obligation to withdraw from a certain possession, it wouldstill be only a one-sided or unilateral will, and consequently itwould have just as little legal title- which can be properly basedonly on the universalized will- to contest a claim of right as hewould have to assert it. Yet be has the advantage on his side, ofbeing in accord with the conditions requisite to the introductionand institution of a civil form of society. In a word, the mode inwhich anything external may be held as one's own in the state ofnature, is just physical possession with a presumption of right thusfar in its favour, that by union of the wills of all in a publiclegislation it will be made juridical; and in this expectation itholds comparatively, as a kind of potential juridical possession.  This prerogative of right, as arising from the fact of empiricalpossession, is in accordance with the formula: "It is well for thosewho are in possession" (Beati possidentes). It does not consist in thefact that, because the possessor has the presumption of being arightful man, it is unnecessary for him to bring forward proof that hepossesses a certain thing rightfully, for this position applies onlyto a case of disputed right. But it is because it accords with thepostulate of the practical reason, that everyone is invested withthe faculty of having as his own any external object upon which he hasexerted his will; and, consequently, all actual possession is astate whose rightfulness is established upon that postulate by ananterior act of will. And such an act, if there be no prior possessionof the same object by another opposed to it, does, therefore,provisionally justify and entitle me, according to the law of externalfreedom, to restrain anyone who refuses to enter with me into astate of public legal freedom from all pretension to the use of suchan object. For such a procedure is requisite, in conformity with thepostulate of reason, in order to subject to my proper use a thingwhich would otherwise be practically annihilated, as regards allproper use of it.CH2                  FIRST PART. PRIVATE RIGHT.  The System of those Laws Which Require No External Promulgation.      CHAPTER II. The Mode of Acquiring Anything External.       10. The General Principle of External Acquisition.  I acquire a thing when I act (efficio) so that it becomes mine. Anexternal thing is originally mine when it is mine even without theintervention of a juridical act. An acquisition is original andprimary when it is not derived from what another had already madehis own.  There is nothing external that is as such originally mine; butanything external may be originally acquired when it is an object thatno other person has yet made his. A state in which the mine andthine are in common cannot be conceived as having been at any timeoriginal. Such a state of things would have to be acquired by anexternal juridical act, although there may be an original and commonpossession of an external object. Even if we think hypothetically of astate in which the mine and thine would be originally in common as acommunio mei et tui originaria, it would still have to bedistinguished from a primeval communion (communio primaeva) withthings in common, sometimes supposed to be founded in the first periodof the relations of right among men, and which could not be regardedas based upon principles like the former, but only upon history.Even under that condition the historic communio, as a supposedprimeval community, would always have to be viewed as acquired andderivative (communio derivativa).  The principle of external acquisition, then, may be expressedthus: "Whatever I bring under my power according to the law ofexternal freedom, of which as an object of my free activity of willI have the capability of making use according to the postulate ofthe practical reason, and which I will to become mine in conformitywith the idea of a possible united common will, is mine."  The practical elements (momenta attendenda) constitutive of theprocess of original acquisition are:  1. Prehension or seizure of an object which belongs to no one;for, if it belonged already to some one, the act would conflict withthe freedom of others, that is, according to universal laws. This isthe taking possession of an object of my free activity of will inspace and time; the possession, therefore, into which I thus putmyself is sensible or physical possession (possessio phenomenon);  2. Declaration of the possession of this object by formaldesignation and the act of my freewill in interdicting every otherperson from using it as his;  3. Appropriation, as the act, in idea, of an externallylegislative common will, by which all and each are obliged torespect and act in conformity with my act of will.  The validity of the last element in the process of acquisition, asthat on which the conclusion that "the external object is mine" rests,is what makes the possession valid as a purely rational andjuridical possession (possessio noumenon). It is founded upon the factthat, as all these acts are juridical, they consequently proceedfrom the practical reason, and therefore, in the question as to whatis right, abstraction may be made of the empirical conditionsinvolved, and the conclusion, "the external object is mine," thusbecomes a correct inference from the external fact of sensiblepossession to the internal right of rational possession.  The original primary acquisition of an external object of the actionof the will, is called occupancy. It can only take place inreference to substances or corporeal things. Now when thisoccupation of an external object does take place, the act presupposes,as a condition of such empirical possession, its priority in timebefore the act of any other who may also be willing to enter uponoccupation of it. Hence the legal maxim: "qui prior tempore, potiorjure." Such occupation as original or primary is, further, theeffect only of a single or unilateral will; for were a bilateral ortwofold will requisite for it, it would be derived from a contractof two or more persons with each other, and consequently it would bebased upon what another or others had already made their own. It isnot easy to see how such an act of free-will as this would be couldreally form a foundation for every one having his own. However, thefirst acquisition of a thing is on that account not quite exactlythe same as the original acquisition of it. For the acquisition of apublic juridical state by union of the wills of all in a universallegislation would be such an original acquisition, seeing that noother of the kind could precede it, and yet it would be derived fromthe particular wills of all the individuals, and consequently becomeall-sided or omnilateral; for a properly primary acquisition canonly proceed from an individual or unilateral or unilateral will.    DIVISION OF THE SUBJECT OF THE ACQUISITION OF THE EXTERNAL                        MINE AND THINE.  I. In respect of the matter of object of acquisition, I acquireeither a corporeal thing (substance), or the performance ofsomething by another (causality), or this other as a person in respectof his state, so far as I have a right to dispose of the same (in arelation of reciprocity with him).  II. In respect of the form or mode of acquisition, it is either areal right (jus reale), or a personal right (jus personale), or areal-personal right (jus realiter personale), to the possessionalthough not to the use, of another person as if he were a thing.  III. In respect of the ground of right or the title (titulus) ofacquisition- which, properly, is not a particular member of thedivision of rights, but rather a constituent element of the mode ofexercising them- anything external is acquired by a certain freeexercise of will that is either unilateral, as the act of a singlewill (facto), or bilateral, as the act of two wills (pacto), oromnilateral, as the act of all the wills of a community together(lege).           SECTION I. Principles of Real Right.                   11. What is a Real Right?  The usual definition of real right, or "right in a thing" (jusreale, jus in re), is that "it is a right as against every possessorof it." This is a correct nominal definition. But what is it thatentitles me to claim an external object from any one who may appear asits possessor, and to compel him, per vindicationem, to put meagain, in place of himself, into possession of it? Is this externaljuridical relation of my will a kind of immediate relation to anexternal thing? If so, whoever might think of his right as referringnot immediately to persons but to things would have to represent it,although only in an obscure way, somewhat thus. A right on one sidehas always a duty corresponding to it on the other, so that anexternal thing, although away from the hands of its first possessor,continues to be still connected with him by a continuing obligation;and thus it refuses to fall under the claim of any other possessor,because it is already bound to another. In this way my right, viewedas a kind of good genius accompanying a thing and preserving it fromall external attack, would refer an alien possessor always to me! Itis, however, absurd to think of an obligation of persons towardsthings, and conversely; although it may be allowed in any particularcase to represent the juridical relation by a sensible image of thiskind, and to express it in this way.  The real definition would run thus: "Right in a thing is a rightto the private use of a thing, of which I am in possession- originalor derivative- in common with all others." For this is the onecondition under which it is alone possible that I can exclude everyothers possessor from the private use of the thing (jus contraquemlibet hujus rei possessorem). For, except by presupposing such acommon collective possession, it cannot be conceived how, when I amnot in actual possession of a thing, I could be injured or wrongedby others who are in possession of it and use it. By an individual actof my own will I cannot oblige any other person to abstain from theuse of a thing in respect of which he would otherwise be under noobligation; and, accordingly, such an obligation can only arise fromthe collective will of all united in a relation of commonpossession. Otherwise, I would have to think of a right in a thing, asif the thing has an obligation towards me, and as if the right asagainst every possessor of it had to be derived from this obligationin the thing, which is an absurd way of representing the subject.  Further, by the term real right (jus reale) is meant not only theright in a thing (jus in re), but also the constitutive principle ofall the laws which relate to the real mine and thine. It is,however, evident that a man entirely alone upon the earth couldproperly neither have nor acquire any external thing as his own;because, between him as a person and all external things as materialobjects, there could be no relations of obligation. There istherefore, literally, no direct right in a thing, but only thatright is to be properly called "real" which belongs to any one asconstituted against a person, who is in common possession of thingswith all others in the civil state of society.        12. The First Acquisition of a Thing can only                  be that of the Soil.  By the soil is understood all habitable Land. In relation toeverything that is moveable upon it, it is to be regarded as asubstance, and the mode of the existence of the moveables is viewed asan inherence in it. And just as, in the theoretical acceptance,accidents cannot exist apart from their substances, so, in thepractical relation, moveables upon the soil cannot be regarded asbelonging to any one unless he is supposed to have been previouslyin juridical possession of the soil, so that it is thus consideredto be his.  For, let it be supposed that the soil belongs to no one. Then Iwould be entitled to remove every moveable thing found upon it fromits place, even to total loss of it, in order to occupy that place,without infringing thereby on the freedom of any other; there being,by the hypothesis, no possessor of it at all. But everything thatcan be destroyed, such as a tree, a house, and such like- as regardsits matter at least- is moveable; and if we call a thing whichcannot be moved without destruction of its form an immoveable, themine and thine in it is not understood as applying to its substance,but to that which is adherent to it and which does not essentiallyconstitute the thing itself.     13. Every Part of the Soil may be Originally Acquired; and        the Principle of the Possibility of such Acquisition         is the Original Community of the Soil Generally.  The first clause of this proposition is founded upon the postulateof the practical reason (SS 2); the second is established by thefollowing proof.  All men are originally and before any juridical act of will inrightful possession of the soil; that is, they have a right to bewherever nature or chance has placed them without their will.Possession (possessio), which is to be distinguished fromresidential settlement (sedes) as a voluntary, acquired, and permanentpossession, becomes common possession, on account of the connectionwith each other of all the places on the surface of the earth as aglobe. For, had the surface of the earth been an infinite plain, mencould have been so dispersed upon it that they might not have comeinto any necessary communion with each other, and a state of socialcommunity would not have been a necessary consequence of theirexistence upon the earth. Now that possession proper to all men uponthe earth, which is prior to all their particular juridical acts,constitutes an original possession in common (communio possessionisoriginaria). The conception of such an original, common possessionof things is not derived from experience, nor is it dependent onconditions of time, as is the case with the imaginary andindemonstrable fiction of a primaeval community of possession inactual history. Hence it is a practical conception of reason,involving in itself the only principle according to which men mayuse the place they happen to occupy on the surface of the earth, inaccordance with laws of right.           14. The Juridical Act of this Original                   Acquisition is Occupancy.  The act of taking possession (apprehensio), being at its beginningthe physical appropriation of a corporeal thing in space (possessionisphysicae), can accord with the law of the external freedom of all,under no other condition than that of its priority in respect of time.In this relation it must have the characteristic of a first act in theway of taking possession, as a free exercise of will. The activityof will, however, as determining that the thing- in this case adefinite separate place on the surface of the earth- shall be mine,being an act of appropriation, cannot be otherwise in the case oforiginal acquisition than individual or unilateral (voluntasunilateralis s. propria). Now, occupancy is the acquisition of anexternal object by an individual act of will. The original acquisitionof such an object as a limited portion of the soil can thereforeonly be accomplished by an act of occupation.  The possibility of this mode of acquisition cannot be intuitivelyapprehended by pure reason in any way, nor established by itsprinciples, but is an immediate consequence from the postulate ofthe practical reason. The will as practical reason, however, cannotjustify external acquisition otherwise than only in so far as it isitself included in an absolutely authoritative will, with which itis united by implication; or, in other words, only in so far as itis contained within a union of the wills of all who come intopractical relation with each other. For an individual, unilateralwill- and the same applies to a dual or other particular will-cannot impose on all an obligation which is contingent in itself. Thisrequires an omnilateral or universal will, which is not contingent,but a priori, and which is therefore necessarily united andlegislative. Only in accordance with such a principle can there beagreement of the active free-will of each individual with thefreedom of all, and consequently rights in general, or even thepossibility of an external mine and thine.     15. It is Only within a Civil Constitution that Anything can         be Acquired Peremptorily, whereas in the State of Nature                 Acquisition can only be Provisory.  A civil constitution is objectively necessary as a duty, althoughsubjectively its reality is contingent. Hence, there is connected withit a real natural law of right, to which all external acquisition issubjected.  The empirical title of acquisition has been shown to beconstituted by the taking physical possession (apprehensio physica) asfounded upon an original community of right in all to the soil. Andbecause a possession in the phenomenal sphere of sense can only besubordinated to that possession which is in accordance with rationalconceptions of right, there must correspond to this physical act ofpossession a rational mode of taking possession by elimination ofall the empirical conditions in space and time. This rational formof possession establishes the proposition that "whatever I bring undermy power in accordance with laws of external freedom, and will that itshall be mine, becomes mine."  The rational title of acquisition can therefore only lieoriginally in the idea of the will of all united implicitly, ornecessarily to be united, which is here tacitly assumed as anindispensable condition (conditio sine qua non). For by a singlewill there cannot be imposed upon others an obligation by which theywould not have been otherwise bound. But the fact formed by willsactually and universally united in a legislation constitutes the civilstate of society. Hence, it is only in conformity with the idea of acivil state of society, or in reference to it and its realization,that anything external can be acquired. Before such a state isrealized, and in anticipation of it, acquisition, which wouldotherwise be derived, is consequently only provisory. Theacquisition which is peremptory finds place only in the civil state.  Nevertheless, such provisory acquisition is real acquisition. For,according to the postulate of the juridically practical reason, thepossibility of acquisition in whatever state men may happen to beliving beside one another, and therefore in the state of nature aswell, is a principle of private right. And in accordance with thisprinciple, every one is justified or entitled to exercise thatcompulsion by which it alone becomes possible to pass out of the stateof nature and to enter into that state of civil society which alonecan make all acquisition peremptory.  It is a question as to how far the right of taking possession of thesoil extends. The answer is, So far as the capability of having itunder one's power extends; that is, just as far as he who wills toappropriate it can defend it, as if the soil were to say: "If youcannot protect me, neither can you command me." In this way thecontroversy about what constitutes a free or closed sea must bedecided. Thus, within the range of a cannon-shot no one has a right tointrude on the coast of a country that already belongs to a certainstate, in order to fish or gather amber on the shore, or such like.Further, the question is put, "Is cultivation of the soil, bybuilding, agriculture, drainage, etc., necessary in order to itsacquisition?" No. For, as these processes as forms of specificationare only accidents, they do not constitute objects of immediatepossession and can only belong to the subject in so far as thesubstance of them has been already recognized as his. When it is aquestion of the first acquisition of a thing, the cultivation ormodification of it by labour forms nothing more than an externalsign of the fact that it has been taken into possession, and thiscan be indicated by many other signs that cost less trouble. Again:"May any one be hindered in the act of taking possession, so thatneither one nor other of two competitors shall acquire the right ofpriority, and the soil in consequence may remain for all time freeas belonging to no one?" Not at all. Such a hindrance cannot beallowed to take place, because the second of the two, in order to beenabled to do this, would himself have to be upon some neighbouringsoil, where he also, in this manner, could be hindered from being, andsuch absolute hindering would involve a contradiction. It would,however, be quite consistent with the right of occupation, in the caseof a certain intervening piece of the soil, to let it lie unused asa neutral ground for the separation of two neighbouring states; butunder such a condition, that ground would actually belong to them bothin common, and would not be without an owner (res nullius), justbecause it would be used by both in order to form a separation betweenthem. Again: "May one have a thing as his, on a soil of which no onehas appropriated any part as his own?" Yes. In Mongolia, forexample, any one may let lie whatever baggage he has, or bring backthe horse that has run away from him into his possession as his own,because the whole soil belongs to the people generally, and the use ofit accordingly belongs to every individual. But that any one canhave a moveable thing on the soil of another as his own is onlypossible by contract. Finally, there is the question: "May one oftwo neighbouring nations or tribes resist another when attempting toimpose upon them a certain mode of using a particular soil; as, forinstance, a tribe of hunters making such an attempt in relation to apastoral people, or the latter to agriculturists and such like?"Certainly. For the mode in which such peoples or tribes may settlethemselves upon the surface of the earth, provided they keep withintheir own boundaries, is a matter of mere pleasure and choice on theirown part (res merae facultatis).  As a further question, it may be asked whether, when neithernature nor chance, but merely our own will, brings us into theneighbourhood of a people that gives no promise of a prospect ofentering into civil union with us, we are to be considered entitled inany case to proceed with force in the intention of founding such aunion, and bringing into a juridical state such men as the savageAmerican Indians, the Hottentots,and the New Hollanders; or- and thecase is not much better- whether we may establish colonies bydeceptive purchase, and so become owners of their soil, and, ingeneral, without regard to their first possession, make use at will ofour superiority in relation to them? Further, may it not be heldthat Nature herself, as abhorring a vacuum, seems to demand such aprocedure, and that large regions in other continents, that are nowmagnificently peopled, would otherwise have remained unpossessed bycivilized inhabitants and might have for ever remained thus, so thatthe end of creation would have so far been frustrated? It is almostunnecessary to answer; for it is easy to see through all this flimsyveil of injustice, which just amounts to the Jesuitism of making agood end justify any means. This mode of acquiring the soil is,therefore, to be repudiated.  The indefiniteness of external acquirable objects in respect oftheir quantity, as well as their quality, makes the problem of thesole primary external acquisition of them one of the most difficult tosolve. There must, however, be some one first acquisition of anexternal object; for every Acquisition cannot be derivative. Hence,the problem is not to be given up as insoluble or in itself asimpossible. If it is solved by reference to the original contract,unless this contract is extended so as to include the whole humanrace, acquisition under it would still remain but provisional.         16. Exposition of the Conception of a Primary                  Acquisition of the Soil.  All men are originally in a common collective possession of the soilof the whole earth (communio fundi originaria), and they havenaturally each a will to use it (lex justi). But on account of theopposition of the free will of one to that of the other in thesphere of action, which is inevitable by nature, all use of the soilwould be prevented did not every will contain at the same time a lawfor the regulation of the relation of all wills in action, accordingto which a particular possession can be determined to every one uponthe common soil. This is the juridical law (lex juridica). But thedistributive law of the mine and thine, as applicable to eachindividual on the soil, according to the axiom of external freedom,cannot proceed otherwise than from a primarily united will a priori-which does not presuppose any juridical act as requisite for thisunion. This Law can only take form in the civil state (lex justitiaedistributivae); as it is in this state alone that the united commonwill determines what is right, what is rightful, and what is theconstitution of Right. In reference to this state, however- andprior to its establishment and in view of it- it is provisorily a dutyfor every one to proceed according to the law of external acquisition;and accordingly it is a juridical procedure on the part of the will tolay every one under obligation to recognise the act of possessingand appropriating, although it be only unilaterally. Hence a provisoryacquisition of the soil, with all its juridical consequences, ispossible in the state of nature.  Such an acquisition, however, requires and also obtains the favourof a permissive law (lex permissiva), in respect of thedetermination of the limits of juridically possible possession. For itprecedes the juridical state, and as merely introductory to it isnot yet peremptory; and this favour does not extend farther than thedate of the consent of the other co-operators in the establishmentof the civil state. But if they are opposed to entering into the civilstate, as long as this opposition lasts it carries all the effect of aguaranteed juridical acquisition with it, because the advance from thestate of nature to the civil state is founded upon a duty.           17. Deduction of the Conception of the Original                      Primary Acquisition.  We have found the title of acquisition in a universal originalcommunity of the soil, under the conditions of an external acquisitionin space; and the mode of acquisition is contained in the empiricalfact of taking possession (apprehensio), conjoined with the will tohave an external object as one's own. It is further necessary tounfold, from the principles of the pure juridically practical reasoninvolved in the conception, the juridical acquisition proper of anobject- that is, the external mine and thine that follows from the twoprevious conditions, as rational possession (possessio noumenon).  The juridical conception of the external mine and thine, so far asit involves the category of substance, cannot by "that which isexternal to me" mean merely "in a place other than that in which Iam"; for it is a rational conception. As under the conceptions ofthe reason only intellectual conceptions can be embraced, theexpression in question can only signify "something that is differentand distinct from me" according to the idea of a non-empiricalpossession through, as it were, a continuous activity in takingpossession of an external object; and it involves only the notion ofhaving something in my power, which indicates the connection of anobject with myself, as a subjective condition of the possibility ofmaking use of it. This forms a purely intellectual conception of theunderstanding. Now we can leave out or abstract from the sensibleconditions of possession, as relations of a person to objects whichhave no obligation. This process of elimination just gives therational relation of a person to persons; and it is such that he canbind them all by an obligation in reference to the use of thingsthrough his act of will, so far as it is conformable to the axiom offreedom, the postulate of right, and the universal legislation ofthe common will, conceived as united a priori. This is therefore therational intelligible possession of things as by pure right,although they are objects of sense.  It is evident that the first modification, limitation, ortransformation generally, of a portion of the soil cannot of itselffurnish a title to its acquisition, since possession of an accidentdoes not form a ground for legal possession of the substance.Rather, conversely, the inference as to the mine and thine must bedrawn from ownership of the substance according to the rule:Accessarium sequitur suum principale. Hence one who has spent labouron a piece of ground that was not already his own, has lost his effortand work to the former owner. This position is so evident of itselfthat the old opinion to the opposite effect, that is still spreadfar and wide, can hardly be ascribed to any other than theprevailing illusion which unconsciously leads to the personificationof things; and, then, as if they could be bound under an obligation bythe labour bestowed upon them to be at the service of the person whodoes the labour, to regard them as his by immediate right. Otherwiseit is probable that the natural question- already discussed- would nothave been passed over with so light a tread, namely: "How is a rightin a thing possible?" For, right as against every possible possessorof a thing means only the claim of a particular will to the use ofan object so far as it may be included in the all-comprehendinguniversal will, and can be thought as in harmony with its law.  As regards bodies situated upon a piece of ground which is alreadymine, if they otherwise belong to no other person, they belong to mewithout my requiring any particular juridical act for the purpose ofthis acquisition; they are mine not facto, but lege. For they may beregarded as accidents inhering in the substance of the soil, andthey are thus mine jure rei meae. To this category also belongseverything which is so connected with anything of mine that itcannot be separated from what is mine without altering itsubstantially. Examples of this are gilding on an object, mixture of amaterial belonging to me with other things, alluvial deposit, oreven alteration of the adjoining bed of a stream or river in my favourso as to produce an increase of my land, etc. By the sameprinciples, the question must also be decided as to whether theacquirable soil may extend farther than the existing land, so aseven to include part of the bed of the sea, with the right to fishon my own shores, to gather amber and such like. So far as I havethe mechanical capability from my own site, as the place I occupy,to secure my soil from the attack of others- and, therefore, as far ascannon can carry from the shore- all is included in my possession, andthe sea is thus far closed (mare clausum). But as there is no site foroccupation upon the wide sea itself, possible possession cannot beextended so far, and the open sea is free (mare liberum). But in thecase of men, or things that belong to them, becoming stranded on theshore, since the fact is not voluntary, it cannot be regarded by theowner of the shore as giving him a right of acquisition. For shipwreckis not an act of will, nor is its result a lesion to him; and thingswhich may have come thus upon his soil, as still belonging to someone, are not to be treated as being without an owner or res nullius.On the other hand, a river, so far as possession of the bankreaches, may be originally acquired, like any other piece of ground,under the above restrictions, by one who is in possession of bothits banks.                        PROPERTY.  An external object, which in respect of its substance can be claimedby some one as his own, is called the property (dominium) of thatperson to whom all the rights in it as a thing belong- like theaccidents inhering in a substance- and which, therefore, he as theproprietor (dominus) can dispose of at will (jus disponendi de resua). But from this it follows at once that such an object can only bea corporeal thing towards which there is no direct personalobligation. Hence a man may be his own master (sui juris) but notthe proprietor of himself (sui dominus), so as to be able to disposeof himself at will, to say nothing of the possibility of such arelation to other men; because he is responsible to humanity in hisown person. This point, however, as belonging to the right of humanityas such, rather than to that of individual men, would not be discussedat its proper place here, but is only mentioned incidentally for thebetter elucidation of what has just been said. It may be furtherobserved that there may be two full proprietors of one and the samething, without there being a mine and thine in common, but only inso far as they are common possessors of what belongs only to one ofthem as his own. In such a case the whole possession, without theuse of the thing, belongs to one only of the co-proprietors(condomini); while to the others belongs all the use of the thingalong with its possession. The former as the direct proprietor(dominus directus), therefore, restricts the latter as theproprietor in use (dominus utilis) to the condition of a certaincontinuous performance, with reference to the thing itself, withoutlimiting him in the use of it.          SECTION II. Principles of Personal Right.        18. Nature and Acquisition of Personal Right.  The possession of the active free-will of another person, as thepower to determine it by my will to a certain action, according tolaws of freedom, is a form of right relating to the external mineand thine, as affected by the causality of another. It is possibleto have several such rights in reference to the same person or todifferent persons. The principle of the system of laws, according towhich I can be in such possession, is that of personal right, andthere is only one such principle.  The acquisition of a personal right can never be primary orarbitrary; for such a mode of acquiring it would not be inaccordance with the principle of the harmony of the freedom of my willwith the freedom of every other, and it would therefore be wrong.Nor can such a right be acquired by means of any unjust act of another(facto injusti alterius), as being itself contrary to right; for ifsuch a wrong as it implies were perpetrated on me, and I coulddemand satisfaction from the other, in accordance with right, yet insuch a case I would only be entitled to maintain undiminished what wasmine, and not to acquire anything more than what I formerly had.  Acquisition by means of the action of another, to which Idetermine his will according to laws of right, is therefore alwaysderived from what that other has as his own. This derivation, as ajuridical act, cannot be effected by a mere negative relinquishment orrenunciation of what is his (per derelictionem aut renunciationem);because such a negative act would only amount to a cessation of hisright, and not to the acquirement of a right on the part of another.It is therefore only by positive transference (translatio), orconveyance, that a personal right can be acquired; and this is onlypossible by means of a common will, through which objects come intothe power of one or other, so that as one renounces a particular thingwhich he holds under the common right, the same object when acceptedby another, in consequence of a positive act of will, becomes his.Such transference of the property of one to another is termed itsalienation. The act of the united wills of two persons, by whichwhat belonged to one passes to the other, constitutes contract.               19. Acquisition by Contract.  In every contract there are four juridical acts of will involved;two of them being preparatory acts, and two of them constitutive acts.The two preparatory acts, as forms of treating in the transaction, areoffer (oblatio) and approval (approbatio); the two constitutiveacts, as the forms of concluding the transaction, are promise(promissum) and acceptance (acceptatio). For an offer cannotconstitute a promise before it can be judged that the thing offered(oblatum) is something that is agreeable to the party to whom it isoffered, and this much is shown by the first two declarations; butby them alone there is nothing as yet acquired.  Further, it is neither by the particular will of the promiser northat of the acceptor that the property of the former passes over tothe latter. This is effected only by the combined or united wills ofboth, and consequently so far only as the will of both is declaredat the same time or simultaneously. Now, such simultaneousness isimpossible by empirical acts of declaration, which can only followeach other in time and are never actually simultaneous. For if Ihave promised, and another person is now merely willing to accept,during the interval before actual acceptance, however short it may be,I may retract my offer, because I am thus far still free; and, onthe other side, the acceptor, for the same reason, may likewise holdhimself not to be bound, up till the moment of acceptance, by hiscounter-declaration following upon the promise. The externalformalities or solemnities (solemnia) on the conclusion of a contract-such as shaking hands or breaking a straw (stipula) laid hold of bytwo persons- and all the various modes of confirming thedeclarations on either side, prove in fact the embarrassment of thecontracting parties as to how and in what way they may representdeclarations, which are always successive, as existingsimultaneously at the same moment; and these forms fail to do this.They are, by their very nature, acts necessarily following eachother in time, so that when the one act is, the other either is notyet or is no longer.  It is only the philosophical transcendental deduction of theconception of acquisition by contract that can remove all thesedifficulties. In a juridical external relation, my taking possessionof the free-will of another, as the cause that determined it to acertain act, is conceived at first empirically by means of thedeclaration and counter-declaration of the free-will of each of usin time, as the sensible conditions of taking possession; and thetwo juridical acts must necessarily be regarded as following oneanother in time. But because this relation, viewed as juridical, ispurely rational in itself, the will as a law-giving faculty ofreason represents this possession as intelligible or rational(possessio noumenon), in accordance with conceptions of freedom andunder abstraction of those empirical conditions. And now, the two actsof promise and acceptance are not regarded as following one another intime, but, in the manner of a pactum re initum, as proceeding from acommon will, which is expressed by the term "at the same time," or"simultaneous," and the object promised (promissum) is represented,under elimination of empirical conditions, as acquired according tothe law of the pure practical reason.  That this is the true and only possible deduction of the idea ofacquisition by contract is sufficiently attested by the laboriousyet always futile striving of writers on jurisprudence such as MosesMendelssohn in his Jerusalem- to adduce a proof of its rationalpossibility. The question is put thus: "Why ought I to keep myPromise?" For it is assumed as understood by all that I ought to doso. It is, however, absolutely impossible to give any further proof ofthe categorical imperative implied; just as it is impossible for thegeometrician to prove by rational syllogisms that in order toconstruct a triangle I must take three lines- so far an analyticalproposition- of which three lines any two together must be greaterthan the third- a synthetical proposition, and like the former apriori. It is a postulate of the pure reason that we ought to abstractfrom all the sensible conditions of space and time in reference to theconception of right; and the theory of the possibility of suchabstraction from these conditions, without taking away the realityof the possession, just constitutes the transcendental deduction ofthe conception of acquisition by contract. It is quite akin to whatwas presented under the last title, as the theory of acquisition byoccupation of the external object.              20. What is Acquired by Contract.  But what is that, designated as external, which I acquire bycontract? As it is only the causality of the active will of another,in respect of the performance of something promised to me, I do notimmediately acquire thereby an external thing, but an act of thewill in question, whereby a thing is brought under my power so thatI make it mine. By the contract, therefore, I acquire the promise ofanother, as distinguished from the thing promised; and yet somethingis thereby added to my having and possession. I have become the richerin possession (locupletior) by the acquisition of an active obligationthat I can bring to bear upon the freedom and capability of another.This my right, however, is only a personal right, valid only to theeffect of acting upon a particular physical person and speciallyupon the causality of his will, so that he shall perform something forme. It is not a real right upon that moral person, which is identifiedwith the idea of the united will of all viewed a priori, and throughwhich alone I can acquire a right valid against every possessor of thething. For, it is in this that all right in a thing consists.  The transfer or transmission of what is mine to another by contract,takes place according to the law of continuity (lex continui).Possession of the object is not interrupted for a moment during thisact; for, otherwise, I would acquire an object in this state as athing that had no possessor, and it would thus be acquired originally,which is contrary to the idea of a contract. This continuity, however,implies that it is not the particular will of either the promiser orthe acceptor, but their united will in common, that transfers whatis mine to another. And hence it is not accomplished in such amanner that the promiser first relinquishes (derelinquit) hispossession for the benefit of another, or renounces his right(renunciat), and thereupon the other at the same time enters uponit; or conversely. The transfer (translatio) is therefore an act inwhich the object belongs for a moment at the same time to both, justas in the parabolic path of a projectile the object on reaching itshighest point may be regarded for a moment as at the same time bothrising and falling, and as thus passing in fact from the ascendingto the falling motion.               21. Acceptance and Delivery.  A thing is not acquired in a case of contract by the acceptance(acceptatio) of the promise, but only by the delivery (traditio) ofthe object promised. For all promise is relative to performance; andif what was promised is a thing, the performance cannot be executedotherwise than by an act whereby the acceptor is put by the promiserinto possession of the thing; and this is delivery. Before thedelivery and the reception of the thing, the performance of the actrequired has not yet taken place; the thing has not yet passed fromthe one person to the other and, consequently, has not been acquiredby that other. Hence the right arising from a contract is only apersonal right; and it only becomes a real right by delivery.  A contract upon which delivery immediately follows (pactum reinitum) excludes any interval of time between its conclusion and itsexecution; and as such it requires no further particular act in thefuture by which one person may transfer to another what is his. But ifthere is a time- definite or indefinite- agreed upon between themfor the delivery, the question then arises whether the thing hasalready before that time become the acceptor's by the contract, sothat his right is a right in the thing; or whether a further specialcontract regarding the delivery alone must be entered upon, so thatthe right that is acquired by mere acceptance is only a personalright, and thus it does not become a right in the thing untildelivery? That the relation must be determined according to the latteralternative will be clear from what follows.  Suppose I conclude a contract about a thing that I wish toacquire- such as a horse- and that I take it immediately into mystable, or otherwise into my possession; then it is mine (vi pactire initi), and my right is a right in the thing. But if I leave itin the hands of the seller without arranging with him specially inwhose physical possession or holding (detentio) this thing shall bebefore my taking possession of it (apprehensio), and consequently,before the actual change of possession, the horse is not yet mine; andthe right which I acquire is only a right against a particular person-namely, the seller of the horse- to be put into possession of theobject (poscendi traditionem) as the subjective condition of any useof it at my will. My right is thus only a personal right to demandfrom the seller the performance of his promise (praestatio) to putme into possession of the thing. Now, if the contract does not containthe condition of delivery at the same time- as a pactum re initum- andconsequently an interval of time intervenes between the conclusionof the contract and the taking possession of the object ofacquisition, I cannot obtain possession of it during this intervalotherwise than by exercising the particular juridical activitycalled a possessory act (actum possessorium), which constitutes aspecial contract. This act consists in my saying, "I will send tofetch the horse," to which the seller has to agree. For it is notself-evident or universally reasonable that any one will take athing destined for the use of another into his charge at his own risk.On the contrary, a special contract is necessary for this arrangement,according to which the alienator of a thing continues to be itsowner during a certain definite time, and must bear the risk ofwhatever may happen to it; while the acquirer can only be regardedby the seller as the owner when he has delayed to enter intopossession beyond the date at which he agreed to take delivery.Prior to the possessory act, therefore, all that is acquired by thecontract is only a personal right; and the acceptor can acquire anexternal thing only by delivery.      SECTION III. Principles of Personal Right that is Real              in Kind. (Jus Realiter Personale).          22. Nature of Personal Right of a Real Kind.  Personal right of a real kind is the right to the possession of anexternal object as a thing, and to the use of it as a person. The mineand thine embraced under this right relate specially to the family andhousehold; and the relations involved are those of free beings inreciprocal real interaction with each other. Through their relationsand influence as persons upon one another, in accordance with theprinciple of external freedom as the cause of it, they form asociety composed as a whole of members standing in community with eachother as persons; and this constitutes the household. The mode inwhich this social status is acquired by individuals, and the functionswhich prevail within it, proceed neither by arbitrary individualaction (facto), nor by mere contract (pacto), but by law (lege). Andthis law as being not only a right, but also as constitutingpossession in reference to a person, is a right rising above allmere real and personal right. It must, in fact, form the right ofhumanity in our own person; and, as such, it has as its consequencea natural permissive law, by the favour of which such acquisitionbecomes possible to us.            23. What is acquired in the household.  The acquisition that is founded upon this law is, as regards itsobjects, threefold. The man acquires a wife; the husband and wifeacquire children, constituting a family; and the family acquiredomestics. All these objects, while acquirable, are inalienable; andthe right of possession in these objects is the most strictly personalof all rights.        The Rights of the Family as a Domestic Society         Title I. Conjugal Right. (Husband and Wife)              24. The Natural Basis of Marriage.  The domestic relations are founded on marriage, and marriage isfounded upon the natural reciprocity or intercommunity (commercium) ofthe sexes.* This natural union of the sexes proceeds according tothe mere animal nature (vaga libido, venus vulgivaga, fornicatio),or according to the law. The latter is marriage (matrimonium), whichis the union of two persons of different sex for life-longreciprocal possession of their sexual faculties. The end ofproducing and educating children may be regarded as always the endof nature in implanting mutual desire and inclination in the sexes;but it is not necessary for the rightfulness of marriage that thosewho marry should set this before themselves as the end of their union,otherwise the marriage would be dissolved of itself when theproduction of children ceased.  *Commercium sexuale est usus membrorum et facultatum sexualiumalterius. This "usus" is either natural, by which human beings mayreproduce their own kind, or unnatural, which, again, refers either toa person of the same sex or to an animal of another species thanman. These transgressions of all law, as crimina carnis contranaturam, are even "not to be named"; and, as wrongs against allhumanity in the person, they cannot be saved, by any limitation orexception whatever, from entire reprobation.  And even assuming that enjoyment in the reciprocal use of the sexualendowments is an end of marriage, yet the contract of marriage isnot on that account a matter of arbitrary will, but is a contractnecessary in its nature by the law of humanity. In other words, if aman and a woman have the will to enter on reciprocal enjoyment inaccordance with their sexual nature, they must necessarily marryeach other; and this necessity is in accordance with the juridicallaws of pure reason.             25. The Rational Right of Marriage.  For, this natural commercium- as a usus membrorum sexualiumalterius- is an enjoyment for which the one person is given up tothe other. In this relation the human individual makes himself ares, which is contrary to the right of humanity in his own person.This, however, is only possible under the one condition, that as theone person is acquired by the other as a res, that same person alsoequally acquires the other reciprocally, and thus regains andreestablishes the rational personality. The acquisition of a part ofthe human organism being, on account of its unity, at the same timethe acquisition of the whole person, it follows that the surrender andacceptation of, or by, one sex in relation to the other, is not onlypermissible under the condition of marriage, but is further onlyreally possible under that condition. But the personal right thusacquired is, at the same time, real in kind; and this characteristicof it is established by the fact that if one of the married personsrun away or enter into the possession of another, the other isentitled, at any time, and incontestably, to bring such a one backto the former relation, as if that person were a thing.            26. Monogamy and Equality in Marriage.  For the same reasons, the relation of the married persons to eachother is a relation of equality as regards the mutual possession oftheir persons, as well as of their goods. Consequently marriage isonly truly realized in monogamy; for in the relation of polygamy theperson who is given away on the one side, gains only a part of the oneto whom that person is given up, and therefore becomes a mere res. Butin respect of their goods, they have severally the right to renouncethe use of any part of them, although only by a special contract.  From the principle thus stated, it also follows that concubinageis as little capable of being brought under a contract of right as thehiring of a person on any one occasion, in the way of a pactumfornicationis. For, as regards such a contract as this latter relationwould imply, it must be admitted by all that any one who might enterinto it could not be legally held to the fulfillment of theirpromise if they wished to resile from it. And as regards the former, acontract of concubinage would also fall as a pactum turpe; becauseas a contract of the hire (locatio, conductio), of a part for theuse of another, on account of the inseparable unity of the membersof a person, any one entering into such a contract would be actuallysurrendering as a res to the arbitrary will of another. Hence anyparty may annul a contract like this if entered into with any other,at any time and at pleasure; and that other would have no ground, inthe circumstances, to complain of a lesion of his right. The sameholds likewise of a morganatic or "left-hand" marriage, contractedin order to turn the inequality in the social status of the twoparties to advantage in the way of establishing the social supremacyof the one over the other; for, in fact, such a relation is not reallydifferent from concubinage, according to the principles of naturalright, and therefore does not constitute a real marriage. Hence thequestion may be raised as to whether it is not contrary to theequality of married persons when the law says in any way of thehusband in relation to the wife, "he shall be thy master," so thathe is represented as the one who commands, and she is the one whoobeys. This, however, cannot be regarded as contrary to the naturalequality of a human pair, if such legal supremacy is based only uponthe natural superiority of the faculties of the husband comparedwith the wife, in the effectuation of the common interest of thehousehold, and if the right to command is based merely upon this fact.For this right may thus be deduced from the very duty of unity andequality in relation to the end involved.        27. Fulfillment of the Contract of Marriage.  The contract of marriage is completed only by conjugal cohabitation.A contract of two persons of different sex, with the secretunderstanding either to abstain from conjugal cohabitation or with theconsciousness on either side of incapacity for it, is a simulatedcontract; it does not constitute a marriage, and it may be dissolvedby either of the parties at will. But if the incapacity only arisesafter marriage, the right of the contract is not annulled ordiminished by a contingency that cannot be legally blamed.  The acquisition of a spouse, either as a husband or as a wife, istherefore not constituted facto- that is, by cohabitation- without apreceding contract; nor even pacto- by a mere contract of marriage,without subsequent cohabitation; but only lege, that is, as ajuridical consequence of the obligation that is formed by twopersons entering into a sexual union solely on the basis of areciprocal possession of each other, which possession at the same timeis only effected in reality by the reciprocal usus facultatumsexualium alterius.          Title II. Parental Right. (Parent and Child).              28. The Relation of Parent and Child.  From the duty of man towards himself- that is, towards thehumanity in his own person there thus arises a personal right on thepart of the members of the opposite sexes, as persons, to acquireone another really and reciprocally by marriage. In like manner,from the fact of procreation in the union thus constituted, therefollows the duty of preserving and rearing children as the products ofthis union. Accordingly, children, as persons, have, at the same time,an original congenital right- distinguished from mere hereditaryright- to be reared by the care of their parents till they are capableof maintaining themselves; and this provision becomes immediatelytheirs by law, without any particular juridical act being requiredto determine it.  For what is thus produced is a person, and it is impossible to thinkof a being endowed with personal freedom as produced merely by aphysical process. And hence, in the practical relation, it is quitea correct and even a necessary idea to regard the act of generation asa process by which a person is brought without his consent into theworld and placed in it by the responsible free will of others. Thisact, therefore, attaches an obligation to the parents to make theirchildren- as far as their power goes- contented with the conditionthus acquired. Hence parents cannot regard their child as, in amanner, a thing of their own making; for a being endowed withfreedom cannot be so regarded. Nor, consequently, have they a right todestroy it as if it were their own property, or even to leave it tochance; because they have brought a being into the world who becomesin fact a citizen of the world, and they have placed that being in astate which they cannot be left to treat with indifference, evenaccording to the natural conceptions of right.  We cannot even conceive how it is possible that God can createfree beings; for it appears as if all their future actions, beingpredetermined by that first act, would be contained in the chain ofnatural necessity, and that, therefore, they could not be free. But asmen we are free in fact, as is proved by the categorical imperative inthe moral and practical relation as an authoritative decision ofreason; yet reason cannot make the possibility of such a relation ofcause to effect conceivable from the theoretical point of view,because they are both suprasensible. All that can be demanded ofreason under these conditions would merely be to prove that there isno contradiction involved in the conception of a creation of freebeings; and this may be done by showing that contradiction only ariseswhen, along with the category of causality, the condition of time istransferred to the relation of suprasensible things. This condition,as implying that the cause of an effect must precede the effect as itsreason, is inevitable in thinking the relation of objects of senseto one another; and if this conception of causality were to haveobjective reality given to it in the theoretical bearing, it wouldalso have to be referred to the suprasensible sphere. But thecontradiction vanishes when the pure category, apart from any sensibleconditions, is applied from the moral and practical point of view, andconsequently as in a non-sensible relation to the conception ofcreation.  The philosophical jurist will not regard this investigation, whenthus carried back even to the ultimate principles of thetranscendental philosophy, as an unnecessary subtlety in ametaphysic of morals, or as losing itself in aimless obscurity, whenhe takes into consideration the difficulty of doing justice in thisinquiry to the ultimate relations of the principles of right.                29. The Rights of the Parent.  From the duty thus indicated, there further necessarily arises theright of the parents to the management and training of the child, solong as it is itself incapable of making proper use of its body asan organism, and of its mind as an understanding. This involves itsnourishment and the care of its education. This includes, ingeneral, the function of forming and developing it practically, thatit may be able in the future to maintain and advance itself, andalso its moral culture and development, the guilt of neglecting itfalling upon the parents. All this training is to be continued tillthe child reaches the period of emancipation (emancipatio), as the ageof practicable self-support. The parents then virtually renounce theparental right to command, as well as all claim to repayment for theirprevious care and trouble; for which care and trouble, after theprocess of education is complete, they can only appeal to thechildren, by way of any claim, on the ground of the obligation ofgratitude as a duty of virtue.  From the fact of personality in the children, it further followsthat they can never be regarded as the property of the parents, butonly as belonging to them by way of being in their possession, likeother things that are held apart from the possession of all others andthat can be brought back even against the will of the subjects.Hence the right of the parents is not a purely real right, and it isnot alienable (jus personalissimum). But neither is it a merelypersonal right; it is a personal right of a real kind, that is, apersonal right that is constituted and exercised after the manner of areal right.  It is therefore evident that the title of a personal right of a realkind must necessarily be added, in the science of right, to the titlesof real right and personal right, the division of rights into thesetwo being not complete. For, if the right of the parents to thechildren were treated as if it were merely a real right to a part ofwhat belongs to their house, they could not found only upon the dutyof the children to return to them in claiming them when they run away,but they would be then entitled to seize them and impound them likethings or runaway cattle.         TITLE III. Household Right. (Master and Servant)       30. Relation and Right of the Master of a Household.  The children of the house, who, along with the parents, constitute afamily, attain majority, and become masters of themselves (majorennes,sui juris), even without a contract of release from their previousstate of dependence, by their actually attaining to the capabilityof self-maintenance. This attainment arises, on the one hand, as astate of natural majority, with the advance of years in the generalcourse of nature; and, on the other hand, it takes form, as a state inaccordance with their own natural condition. They thus acquire theright of being their own masters, without the interposition of anyspecial juridical act, and therefore merely by law (lege); and theyowe their parents nothing by way of legal debt for their education,just as the parents, on their side, are now released from theirobligations to the children in the same way. Parents and children thusgain or regain their natural freedom; and the domestic society,which was necessary according to the law of right, is thus naturallydissolved.  Both parties, however, may resolve to continue the household, butunder another mode of obligation. It may assume the form of a relationbetween the bead of the house, as its master, and the other members asdomestic servants, male or female; and the connection between themin this new regulated domestic economy (societas herilis) may bedetermined by contract. The master of the house, actually orvirtually, enters into contract with the children, now become majorand masters of themselves; or, if there be no children in thefamily, with other free persons constituting the membership of thehousehold; and thus there is established domestic relationship notfounded on social equality, but such that one commands as master,and another obeys as servant (imperantis et subjecti domestici).  The domestics or servants may then be regarded by the master ofthe household as thus far his. As regards the form or mode of hispossession of them, they belong to him as if by a real right; for ifany of them run away, he is entitled to bring them again under hispower by a unilateral act of his will. But as regards the matter ofhis right, or the use he is entitled to make of such persons as hisdomestics, he is not entitled to conduct himself towards them as if hewas their proprietor or owner (dominus servi); because they are onlysubjected to his power by contract, and by a contract under certaindefinite restrictions. For a contract by which the one party renouncedhis whole freedom for the advantage of the other, ceasing thereby tobe a person and consequently having no duty even to observe acontract, is self contradictory, and is therefore of itself null andvoid. The question as to the right of property in relation to onewho has lost his legal personality by a crime does not concern ushere.  This contract, then, of the master of a household with hisdomestics, cannot be of such a nature that the use of them couldever rightly become an abuse of them; and the judgement as to whatconstitutes use or abuse in such circumstances the is not leftmerely to the master, but is also competent to the servants, who oughtnever to be held in bondage or bodily servitude as slaves or serfs.Such a contract cannot, therefore, be concluded for life, but in allcases only for a definite period, within which one party mayintimate to the other a termination of their connection. Children,however, including even the children of one who has become enslavedowing to a crime, are always free. For every man is born free, becausehe has at birth as yet broken no law; and even the cost of hiseducation till his maturity cannot be reckoned as a debt which he isbound to pay. Even a slave, if it were in his power, would be bound toeducate his children without being entitled to count and reckon withthem for the cost; and in view of his own incapacity for dischargingthis function, the possessor of a slave, therefore, enters upon theobligation which he has rendered the slave himself unable to fulfil.  Here, again, as under the first two titles, it is clear that thereis a personal right of a real kind, in the relation of the master of ahouse to his domestics. For he can legally demand them as belonging towhat is externally his, from any other possessor of them; and he isentitled to fetch them back to his house, even before the reasons thatmay have led them to run away, and their particular right in thecircumstances, have been juridically investigated.         SYSTEMATIC DIVISION OF ALL THE RIGHTS CAPABLE OF                  BEING ACQUIRED BY CONTRACT.         31. Division of Contracts Juridical Conceptions                      of Money and a Book.  It is reasonable to demand that a metaphysical science of rightshall completely and definitely determine the members of a logicaldivision of its conceptions a priori, and thus establish them in agenuine system. All empirical division, on the other hand, is merelyfragmentary partition, and it leaves us in uncertainty as to whetherthere may not be more members still required to complete the wholesphere of the divided conception. A division that is made according toa principle a priori may be called, in contrast to all empiricalpartitions, a dogmatic division.  Every contract, regarded in itself objectively, consists of twojuridical acts: the promise and its acceptance. Acquisition by thelatter, unless it be a pactum re initum which requires delivery, isnot a part, but the juridically necessary consequence of the contract.Considered again subjectively, or as to whether the acquisition, whichought to happen as a necessary consequence according to reason, willalso follow, in fact, as a physical consequence, it is evident thatI have no security or guarantee that this will happen by the mereacceptance of a promise. There is, therefore, something externallyrequired connected with the mode of the contract, in reference tothe certainty of acquisition by it; and this can only be someelement completing and determining the means necessary to theattainment of acquisition as realizing the purpose of the contract.And in his connection and behoof, three persons are required tointervene- the promiser, the acceptor, and the cautioner or surety.The importance of the cautioner is evident; but by his interventionand his special contract with the promiser, the acceptor gains nothingin respect of the object but the means of compulsion that enable himto obtain what is his own.  According to these rational principles of logical division, thereare properly only three pure and simple modes of contract. Thereare, however, innumerable mixed and empirical modes, addingstatutory and conventional forms to the principles of mine and thinethat are in accordance with rational laws. But they lie outside of thecircle of the metaphysical science of right, whose rational modes ofcontract can alone be indicated here.  All contracts are founded upon a purpose of acquisition, and areeither:  A. Gratuitous contracts, with unilateral acquisition; or  B. Onerous contracts, with reciprocal acquisition; or  C. Cautionary contracts, with no acquisition, but only guaranteeof what has been already acquired. These contracts may be gratuitouson the one side, and yet, at the same time, onerous on the other.  A. The gratuitous contracts (pacta gratuita) are:    1. Depositation (depositum), involving the preservation of somevaluable deposited in trust;    2. Commodate (commodatum) a loan of the use of a thing;    3. Donation (donatio), a free gift.  B. The onerous contracts are contracts either of permutation or ofhiring.  I. Contracts of permutation or reciprocal exchange (permutatiolate sic dicta):    1. Barter, or strictly real exchange (permutatio stricte sicdicta). Goods exchanged for goods.    2. Purchase and sale (emptio venditio). Goods exchanged for money.    3. Loan (mutuum). Loan of a fungible under condition of itsbeing returned in kind: corn for corn, or money for money.  II. Contracts of letting and hiring (locatio conductio):    1. Letting of a thing on hire to another person who is to make useof it (locatio rei). If the thing can only be restored in specie, itmay be the subject of an onerous contract combining theconsideration of interest with it (pactum usurarium).    2. Letting of work on hire (locatio operae). Consent to the use ofmy powers by another for a certain price (merces). The worker underthis contract is a hired servant (mercenarius).    3. Mandate (mandatum). The contract of mandate is an engagement toperform or execute a certain business in place and in name ofanother person. If the action is merely done in the place ofanother, but not, at the same time, in his name, it is performancewithout commission (gestio negotii); but if it is rightfully performedin name of the other, it constitutes mandate, which as a contract ofprocuration is an onerous contract (mandatum onerosum).  C. The cautionary contracts (cautiones) are:    1. Pledge (pignus). Caution by a moveable deposited as security.    2. Suretyship (fidejussio). Caution for the fulfillment of thepromise of another.    3. Personal security (praestatio obsidis).  Guarantee of personal performance.  This list of all modes in which the property of one person may betransferred or conveyed to another includes conceptions of certainobjects or instruments required for such transference (translatio).These appear to be entirely empirical, and it may therefore seemquestionable whether they are entitled to a place in a metaphysicalscience of right. For, in such a science, the divisions must be madeaccording to principles a priori; and hence the matter of thejuridical relation, which may be conventional, ought to be left out ofaccount, and only its form should be taken into consideration.  Such conceptions may be illustrated by taking the instance of money,in contradistinction from all other exchangeable things as wares andmerchandise; or by the case of a book. And considering these asillustrative examples in this connection, it will be shown that theconception of money as the greatest and most useable of all themeans of human intercommunication through things, in the way ofpurchase and sale in commerce, as well as that of books as thegreatest means of carrying on the interchange of thought, resolvethemselves into relations that are purely intellectual and rational.And hence it will be made evident that such conceptions do notreally detract from the purity of the given scheme of pure rationalcontracts, by empirical admixture.            Illustration of Relations of Contract by the                  Conceptions of Money and a Book                         I. What is Money?  Money is a thing which can only be made use of, by being alienatedor exchanged. This is a good nominal definition, as given byAchenwall; and it is sufficient to distinguish objects of the willof this kind from all other objects. But it gives us no informationregarding the rational possibility of such a thing as money is. Yet wesee thus much by the definition: (1) that the alienation in thismode of human intercommunication and exchange is not viewed as a gift,but is intended as a mode of reciprocal acquisition by an onerouscontract; and (2) that it is regarded as a mere means of carrying oncommerce, universally adopted by the people, but having no value assuch of itself, in contrast to other things as mercantile goods orwares which have a particular value in relation to special wantsexisting among the people. It therefore represents all exchangeablethings.  A bushel of corn has the greatest direct value as a means ofsatisfying human wants. Cattle may be fed by it; and these again aresubservient to our nourishment and locomotion, and they even labour inour stead. Thus, by means of corn, men are multiplied and supported,who not only act again in reproducing such natural products, butalso by other artificial products they can come to the relief of allour proper wants. Thus are men enabled to build dwellings, toprepare clothing, and to supply all the ingenious comforts andenjoyments which make up the products of industry. On the otherhand, the value of money is only indirect. It cannot be itselfenjoyed, nor be used directly for enjoyment; it is, however, a meanstowards this, and of all outward things it is of the highest utility.  We may found a real definition of money provisionally upon theseconsiderations. It may thus be defined as the universal means ofcarrying on the industry of men in exchanging intercommunications witheach other. Hence national wealth, in so far as it can be acquiredby means of money, is properly only the sum of the industry or appliedlabour with which men pay each other, and which is represented bythe money in circulation among the people.  The thing which is to be called money must, therefore, have costas much industry to produce it, or even to put it into the hands ofothers, as may be equivalent to the industry or labour required forthe acquisition of the goods or wares or merchandise, as natural orartificial products, for which it is exchanged. For if it wereeasier to procure the material which is called money than the goodsthat are required, there would be more money in the market thangoods to be sold; and because the seller would then have to expendmore labour upon his goods than the buyer on the equivalent, the moneycoming in to him more rapidly, the labour applied to the preparationof goods and industry generally, with the industrial productivitywhich is the source of the public wealth, would at the same timedwindle and be cut down. Hence bank notes and assignations are notto be regarded as money, although they may take its place by way ofrepresenting it for a time; because it costs almost no labour toprepare them, and their value is based merely upon the opinionprevailing as to the further continuance of the previous possibilityof changing them into ready money. But on its being in any way foundout that there is not ready money in sufficient quantity for easyand safe conversion of such notes or assignations, the opinion givesway, and a fall in their value becomes inevitable. Thus the industriallabour of those who work the gold and silver mines in Peru and Mexico-especially on account of the frequent failures in the application offruitless efforts to discover new veins of these precious metals- isprobably even greater than what is expended in the manufacture ofgoods in Europe. Hence such mining labour, as unrewarded in thecircumstances, would be abandoned of itself, and the countriesmentioned would in consequence soon sink into poverty, did not theindustry of Europe, stimulated in turn by these very metals,proportionally expand at the same time so as constantly to keep up thezeal of the miners in their work by the articles of luxury therebyoffered to them. It is thus that the concurrence of industry withindustry, and of labour with labour, is always maintained.  But how is it possible that what at the beginning constituted onlygoods or wares, at length became money? This has happened wherever asovereign as great and powerful consumer of a particular substance,which he at first used merely for the adornment and decoration ofhis servants and court, has enforced the tribute of his subjects inthis kind of material. Thus it may have been gold, or silver, orcopper, or a species of beautiful shells called cowries, or even asort of mat called makutes, as in Congo; or ingots of iron, as inSenegal; or Negro slaves, as on the Guinea Coast. When the ruler ofthe country demanded such things as imposts, those whose labour had tobe put in motion to procure them were also paid by means of them,according to certain regulations of commerce then established, as in amarket or exchange. As it appears to me, it is only thus that aparticular species of goods came to be made a legal means ofcarrying on the industrial labour of the subjects in their commercewith each other, and thereby forming the medium of the nationalwealth. And thus it practically became money.  The rational conception of money, under which the empiricalconception is embraced, is therefore that of a thing which, in thecourse of the public permutation or exchange of possessions(permutatio publica), determines the price of all the other thingsthat form products or goods- under which term even the sciences areincluded, in so far as they are not taught gratis to others. Thequantity of it among a people constitutes their wealth (opulentia).For price (pretium) is the public judgement about the value of athing, in relation to the proportionate abundance of what forms theuniversal representative means in circulation for carrying on thereciprocal interchange of the products of industry or labour.* Theprecious metals, when they are not merely weighed but also stampedor provided with a sign indicating how much they are worth, form legalmoney, and are called coin.  *Hence where commerce is extensive neither gold nor copper isspecially used as money, but only as constituting wares; because thereis too little of the first and too much of the second for them to beeasily brought into circulation, so as at once to have the former insuch small pieces as are necessary in payment for particular goods andnot to have the latter in great quantity in case of the smallestacquisitions. Hence silver- more or less alloyed with copper- is takenas the proper material of money and the measure of the calculationof all prices in the great commercial intercommunications of theworld; and the other metals- and still more non-metalic substances-can only take its place in the case of a people of limited commerce.  According to Adam Smith: "Money has become, in all civilizednations, the universal instrument of commerce, by the interventionof which goods of all kinds are bought and sold or exchanged for oneanother." This definition expands the empirical conception of money tothe rational idea of it, by taking regard only to the implied formof the reciprocal performances in the onerous contracts, and thusabstracting from their matter. It is thus conformable to theconception of right in the permutation and exchange of the mine andthine generally (commutatio late sic dicta). The definition,therefore, accords with the representation in the above synopsis ofa dogmatic division of contracts a priori, and consequently with themetaphysical principle of right in general.                   II. What is a Book?  A book is a writing which contains a discourse addressed by some oneto the public, through visible signs of speech. It is a matter ofindifference to the present considerations whether it is written bya pen or imprinted by types, and on few or many pages. He who speaksto the public in his own name is the author. He who addresses thewriting to the public in the name of the author is the publisher. Whena publisher does this with the permission or authority of theauthor, the act is in accordance with right, and he is the rightfulpublisher; but if this is done without such permission or authority,the act is contrary to right, and the publisher is a counterfeiteror unlawful publisher. The whole of a set of copies of the originaldocument is called an edition.      The Unauthorized Publishing of Books is Contrary to the         Principles of Right, and is Rightly Prohibited.  A writing is not an immediate direct presentation of a conception,as is the case, for instance, with an engraving that exhibits aportrait, or a bust or cast by a sculptor. It is a discourse addressedin a particular form to the public; and the author may be said tospeak publicly by means of his publisher. The publisher, again, speaksby the aid of the printer as his workman (operarius), yet not in hisown name, for otherwise he would be the author, but in the name of theauthor; and he is only entitled to do so in virtue of a mandategiven him to that effect by the author. Now the unauthorized printerand publisher speaks by an assumed authority in his publication; inthe name indeed of the author, but without a mandate to that effect(gerit se mandatarium absque mandato). Consequently such anunauthorized publication is a wrong committed upon the authorizedand only lawful publisher, as it amounts to a pilfering of the profitswhich the latter was entitled and able to draw from the use of hisproper right (furtum usus). Unauthorized printing and publication ofbooks is, therefore, forbidden- as an act of counterfeit and piracy-on the ground of right.  There seems, however, to be an impression that there is a sort ofcommon right to print and publish books; but the slightestreflection must convince any one that this would be a great injustice.The reason of it is found simply in the fact that a book, regardedfrom one point of view, is an external product of mechanical art (opusmechanicum), that can be imitated by any one who may be in rightfulpossession of a copy; and it is therefore his by a real right.  But, from another point of view, a book is not merely an externalthing, but is a discourse of the publisher to the public, and he isonly entitled to do this publicly under the mandate of the author(praestatio operae); and this constitutes a personal right. Theerror underlying the impression referred to, therefore, arises from aninterchange and confusion of these two kinds of right in relation tobooks.          Confusion of Personal Right and Real Right.  The confusion of personal right with real right may be likewiseshown by reference to a difference of view in connection withanother contract, falling under the head of contracts of hiring (B II.I), namely, the contract of lease (jus incolatus). The question israised as to whether a proprietor when he has sold a house or apiece of ground held on lease, before the expiry of the period oflease, was bound to add the condition of the continuance of thelease to the contract of purchase; or whether it should be held that"purchase breaks hire," of course under reservation of a period ofwarning determined by the nature of the subject in use. In theformer view, a house or farm would be regarded as having a burdenlying upon it, constituting a real right acquired in it by the lessee;and this might well enough be carried out by a clause merely indorsingor ingrossing the contract of lease in the deed of sale. But as itwould no longer then be a simple lease; another contract wouldproperly be required to be conjoined, a matter which few lessors wouldbe disposed to grant. The proposition, then, that "Purchase breakshire" holds in principle; for the full right in a thing as aproperty overbears all personal right, which is inconsistent withit. But there remains a right of action to the lessee, on the groundof a personal right for indemnification on account of any loss arisingfrom breaking of the contract.     EPISODICAL SECTION. The Ideal Acquisition of External                   Objects of the Will.         32. The Nature and Modes of Ideal Acquisition.  I call that mode of acquisition ideal which involves no causality intime, and which is founded upon a mere idea of pure reason. It isnevertheless actual, and not merely imaginary acquisition: and it isnot called real only because the act of acquisition is notempirical. This character of the act arises from the peculiaritythat the person acquiring acquires from another who either is not yet,and who can only be regarded as a possible being, or who is justceasing to be, or who no longer is. Hence such a mode of attainingto possession is to be regarded as a mere practical idea of reason.  There are three modes of ideal acquisition:    I. Acquisition by usucapion;    II. Acquisition by inheritance or succession;    III. Acquisition by undying merit (meritum immortale), or theclaim by right to a good name at death.  These three modes of acquisition can, as a matter of fact, only haveeffect in a public juridical state of existence, but they are notfounded merely upon the civil constitution or upon arbitrary statutes;they are already contained a priori in the conception of the stateof nature, and are thus necessarily conceivable prior to theirempirical manifestation. The laws regarding them in the civilconstitution ought to be regulated by that rational conception.               33. I. Acquisition by Usucapion.                   (Acquisitio per Usucapionem).  I may acquire the property of another merely by long possessionand use of it (usucapio). Such property is not acquired, because I maylegitimately presume that his consent is given to this effect (perconsensum praesumptum); nor because I can assume that, as he doesnot oppose my acquisition of it, he has relinquished or abandoned itas his (rem derelictam). But I acquire it thus because, even ifthere were any one actually raising a claim to this property as itstrue owner, I may exclude him on the ground of my long possession ofit, ignore his previous existence, and proceed as if he existed duringthe time of my possession as a mere abstraction, although I may havebeen subsequently apprized of his reality as well as of his claim.This mode of acquisition is not quite correctly designated acquisitionby prescription (per praescriptionem); for the exclusion of allother claimants is to be regarded as only the consequence of theusucapion; and the process of acquisition must have gone before theright of exclusion. The rational possibility of such a mode ofacquisition has now to be proved.  Any one who does not exercise a continuous possessory activity(actus possessorius) in relation to a thing as his is regarded withgood right as one who does not at all exist as its possessor. For hecannot complain of lesion so long as he does not qualify himselfwith a title as its possessor. And even if he should afterwards layclaim to the thing when another has already taken possession of it, heonly says he was once on a time owner of it, but not that he is sostill, or that his possession has continued without interruption asa juridical fact. It can, therefore, only be a juridical process ofpossession, that has been maintained without interruption and isproveable by documentary fact, that any one can secure for himselfwhat is his own after ceasing for a long time to make use of it.  For, suppose that the neglect to exercise this possessory activityhad not the effect of enabling another to found upon his hithertolawful, undisputed and bona fide possession, and irrefragable right tocontinue in its possession so that he may regard the thing that isthus in his possession as acquired by him. Then no acquisition wouldever become peremptory and secured, but all acquisition would onlybe provisory and temporary. This is evident on the ground that thereare no historical records available to carry the investigation of atitle back to the first possessor and his act of acquisition. Thepresumption upon which acquisition by usucapion is founded is,therefore, not merely its conformity to right as allowed and just, butalso the presumption of its being right (praesumtio juris et de jure),and its being assumed to be in accordance with compulsory laws(suppositio legalis). Anyone who has neglected to embody hispossessory act in a documentary title has lost his claim to theright of being possessor for the time; and the length of the period ofhis neglecting to do so- which need not necessarily be particularlydefined- can be referred to only as establishing the certainty of thisneglect. And it would contradict the postulate of the juridicallypractical reason to maintain that one hitherto unknown as a possessor,and whose possessory activity has at least been interrupted, whetherby or without fault of his own, could always at any time re-acquirea property; for this would be to make all ownership uncertain (dominiarerum incerta facere).  But if he is a member of the commonwealth or civil union, thestate may maintain his possession for him vicariously, although it maybe interrupted as private possession; and in that case the actualpossessor will not be able to prove a title of acquisition even from afirst occupation, nor to found upon a title of usucapion. But, inthe state of nature, usucapion is universally a rightful ground ofholding, not properly as a juridical mode of requiring a thing, but asa ground for maintaining oneself in possession of it where there areno juridical acts. A release from juridical claims is commonly alsocalled acquisition. The prescriptive title of the older possessor,therefore, belongs to the sphere of natural right (est juris naturae).               34. II. Acquisition by Inheritance.                   (Acquisitio haereditatis).  Inheritance is constituted by the transfer (translatio) of theproperty or goods of one who is dying to a survivor, through theconsent of the will of both. The acquisition of the heir who takes theestate (haeredis instituti) and the relinquishment of the testator wholeaves it, being the acts that constitute the exchange of the mine andthine, take place in the same moment of time- in articulo mortis-and just when the testator ceases to be. There is therefore no specialact of transfer (translatio) in the empirical sense; for that wouldinvolve two successive acts, by which the one would first divesthimself of his possession, and the other would thereupon enter intoit. Inheritance as constituted by a simultaneous double act is,therefore, an ideal mode of acquisition. Inheritance isinconceivable in the state of nature without a testamentarydisposition (dispositio ultimae voluntatis); and the question arisesas to whether this mode of acquisition is to be regarded as a contractof succession, or a unilateral act instituting an heir by a will(testamentum). The determination of this question depends on thefurther question, whether and how, in the very same moment in whichone individual ceases to be, there can be a transition of his propertyto another person. Hence the problem, as to how a mode ofacquisition by inheritance is possible, must be investigatedindependently of the various possible forms in which it is practicallycarried out, and which can have place only in a commonwealth.  "It is possible to acquire by being instituted or appointed heirin a testamentary disposition." For the testator Caius promises anddeclares in his last will to Titius, who knows nothing of thispromise, to transfer to him his estate in case of death, but thuscontinuing as long as he lives sole owner of it. Now by a mereunilateral act of will, nothing can in fact be transmitted toanother person, as in addition to the promise of the one party thereis required acceptance (acceptatio) on the part of the other, and asimultaneous bilateral act of will (voluntas simultanea) which,however, is here awanting. So long as Caius lives, Titius cannotexpressly accept in order to enter on acquisition, because Caius hasonly promised in case of death; otherwise the property would be fora moment at least in common possession, which is not the will of thetestator. However, Titius acquires tacitly a special right to theinheritance as a real right. This is constituted by the sole andexclusive right to accept the estate (jus in re jacente), which istherefore called at that point of time a haereditas jacens. Now asevery man- because he must always gain and never lose by it-necessarily, although tacitly, accepts such a right, and as Titiusafter the death of Caius is in this position, he may acquire thesuccession as heir by acceptance of the promise. And the estate is notin the meantime entirely without an owner (res nullius), but is onlyin abeyance or vacant (vacua); because he has exclusively the right ofchoice as to whether he will actually make the estate bequeathed tohim his own or not.  Hence testaments are valid according to mere natural right (suntjuris naturae). This assertion however, is to be understood in thesense that they are capable and worthy of being introduced andsanctioned in the civil state, whenever it is instituted. For it isonly the common will in the civil state that maintains thepossession of the inheritance or succession, while it hangs betweenacceptance or rejection and specially belongs to no particularindividual.        35. III. The Continuing Right of a Good Name            after Death. (Bona fama Defuncti).  It would be absurd to think that a dead person could possessanything after his death, when he no longer exists in the eye of thelaw, if the matter in question were a mere thing. But a good name is acongenital and external, although merely ideal, possession, whichattaches inseparably to the individual as a person. Now we can andmust abstract here from all consideration as to whether the personscease to be after death or still continue as such to exist; because,in considering their juridical relation to others, we regard personsmerely according to their humanity and as rational beings (homonoumenon). Hence any attempt to bring the reputation or good name of aperson into evil and false repute after death, is always questionable,even although a well-founded charge may be allowed- for to that extentthe brocard "De mortuis nil nisi bene"* is wrong. Yet to spreadcharges against one who is absent and cannot defend himself, showsat least a want of magnanimity.  *[Let nothing be said of the dead but what is favourable.]  By a blameless life and a death that worthily ends it, nothingends it, it is admitted that a man may acquire a (negatively) goodreputation constituting something that is his own, even when he nolonger exists in the world of sense as a visible person (homophaenomenon). It is further held that his survivors and successors-whether relatives or strangers- are entitled to defend his good nameas a matter of right, on the ground that unproved accusationssubject them all to the danger of similar treatment after death. Nowthat a man when dead can yet acquire such a right is a peculiar and,nevertheless, an undeniable manifestation in fact, of the a priorilaw-giving reason thus extending its law of command or prohibitionbeyond the limits of the present life. If some one then spreads acharge regarding a dead person that would have dishonoured him whenliving, or even made him despicable, any one who can adduce a proofthat this accusation is intentionally false and untrue may publiclydeclare him who thus brings the dead person into ill repute to be acalumniator, and affix dishonour to him in turn. This would not beallowable unless it were legitimate to assume that the dead person wasinjured by the accusation, although he is dead, and that a certainjust satisfaction was done to him by an apology, although he no longersensibly exists. A title to act the part the vindicator of the deadperson does not require to be established; for every one necessarilyclaims this of himself, not merely as a duty of virtue regardedethically, but as a right belonging to him in virtue of hishumanity. Nor does the vindicator require to show any special personaldamage, accruing to him as a friend or relative, from a stain on thecharacter of the deceased, to justify him in proceeding to censure it.That such a form of ideal acquisition, and even a right in anindividual after death against survivors, is thus actually founded,cannot, therefore, be disputed, although the possibility of such aright is not capable of logical deduction.  There is no ground for drawing visionary inferences from what hasjust been stated, to the presentiment of a future life and invisiblerelations to departed souls. For the considerations connected withthis right turn on nothing more than the purely moral and juridicalrelation which subsists among men, even in the present life, asrational beings. Abstraction is, however, made from all that belongsphysically to their existence in space and time; that is, men areconsidered logically apart from these physical concomitants of theirnature, not as to their state when actually deprived of them, but onlyin so far as being spirits they are in a condition that mightrealize the injury done them by calumniators. Any one who mayfalsely say something against me a hundred years hence injures me evennow. For in the pure juridical relation, which is entirely rationaland surprasensible, abstraction is made from the physical conditionsof time, and the calumniator is as culpable as if he had committed theoffence in my lifetime; only this will not be tried by a criminalprocess, but he will only be punished with that loss of honour hewould have caused to another, and this is inflicted upon him by publicopinion according to the lex talionis. Even a plagiarism from a deadauthor, although it does not tarnish the honour of the deceased, butonly deprives him of a part of his property, is yet properlyregarded as a lesion of his human right.CH3                  FIRST PART. PRIVATE RIGHT.  The System of those Laws Which Require No External Promulgation.      CHAPTER III. Acquisition Conditioned by the Sentence of                    a Public Judicatory.     36. How and What Acquisition is Subjectively Conditioned            by the Principle of a Public Court.  Natural right, understood simply as that right which is notstatutory, and which is knowable purely a priori, by every man'sreason, will include distributive justice as well as commutativejustice. It is manifest that the latter, as constituting the justicethat is valid between persons in their reciprocal relations ofintercourse with one another, must belong to natural right. But thisholds also of distributive justice, in so far as it can be known apriori; and decisions or sentences regarding it must be regulated bythe law of natural right.  The moral person who presides in the sphere of justice andadministers it is called the Court of justice, and, as engaged inthe process of official duty, the judicatory; the sentence deliveredin a case, is the judgement (judicium). All this is to be hereviewed a priori, according to the rational conditions of right,without taking into consideration how such a constitution is to beactually established or organized, for which particular statutes,and consequently empirical principles, are requisite.  The question, then, in this connection, is not merely "What is rightin itself?" in the sense in which every man must determine it by thejudgement of reason; but "What is right as applied to this case?" thatis, "What is right and just as viewed by a court?" The rational andthe judicial points of view are therefore to be distinguished; andthere are four cases in which the two forms of judgement have adifferent and opposite issue. And yet they may co-exist with eachother, because they are delivered from two different, yet respectivelytrue, points of view: the one from regard to private right, theother from the idea of public right. They are: I. The contract ofdonation (pactum donationis); II. The contract of loan (commodatum);III. The action of real revindication (vindicatio); and IV.Guarantee by oath (juramentum).  It is a common error on the part of the jurist to fall here into thefallacy of begging the question by a tacit assumption (vitiumsubreptionis). This is done by assuming as objective and absolutethe juridical principle which a public court of justice is entitledand even bound to adopt in its own behoof, and only from thesubjective purpose of qualifying itself to decide and judge upon allthe rights pertaining to individuals. It is therefore of no smallimportance to make this specific difference intelligible, and todraw attention to it.             37. I. The Contract of Donation.                  (Pactum Donationis).  The contract of donation signifies the gratuitous alienation(gratis) of a thing or right that is mine. It involves a relationbetween me as the donor (donans), and another person as the donatory(donatarius), in accordance with the principle of private right, bywhich what is mine is transferred to the latter, on his acceptanceof it, as a gift (donum). However, it is not to be presumed that Ihave voluntarily bound myself thereby so as to be compelled to keep mypromise, and that I have thus given away my freedom gratuitously, and,as it were, to that extent thrown myself away. Nemo suum jactarepraesumitur. But this is what would happen, under suchcircumstances, according to the principle of right in the civil state;for in this sphere the donatory can compel me, under certainconditions, to perform my promise. If, then, the case comes before acourt, according to the conditions of public right, it must eitherbe presumed that the donor has consented to such compulsion, or thecourt would give no regard, in the sentence, to the consideration asto whether he intended to reserve the right to resile from his promiseor not; but would only refer to what is certain, namely, the conditionof the promise and the acceptance of the donatory. Although thepromiser, therefore, thought- as may easily be supposed- that he couldnot be bound by his promise in any case, if he "rued" it before it wasactually carried out, yet the court assumes that he ought expressly tohave reserved this condition if such was his mind; and if he did notmake such an express reservation, it will be held that he can becompelled to implement his promise. And this principle is assumed bythe court, because the administration of justice would otherwise beendlessly impeded, or even made entirely impossible.           38. II. The Contract of Loan. (Commodatum).  In the contract of commodate-loan (commodatum) I give some one thegratuitous use of something that is mine. If it is a thing that isgiven on loan, the contracting parties agree that the borrower willrestore the very same thing to the power of the lender, But thereceiver of the loan (commodatarius) cannot, at the same time,assume that the owner of the thing lent (commodans) will take uponhimself all risk (casus) of any possible loss of it, or of itsuseful quality, that may arise from having given it into thepossession of the receiver. For it is not to be understood of itselfthat the owner, besides the use of the thing, which he has grantedto the receiver, and the detriment that is inseparable from suchuse, also gives a guarantee or warrandice against all damage thatmay arise from such use. On the contrary, a special accessory contractwould have to be entered into for this purpose. The only question,then, that can be raised is this: "Is it incumbent on the lender orthe borrower to add expressly the condition of undertaking the riskthat may accrue to the thing lent; or, if this is not done, which ofthe parties is to be presumed to have consented and agreed toguarantee the property of the lender, up to restoration of the verysame thing or its equivalent?" Certainly not the lender; because itcannot be presumed that he has gratuitously agreed to give more thanthe mere use of the thing, so that he cannot be supposed to havealso undertaken the risk of loss of his property. But this may beassumed on the side of the borrower; because he thereby undertakes andperforms nothing more than what is implied in the contract.  For example, I enter a house, when overtaken by a shower of rain,and ask the loan of a cloak. But through accidental contact withcolouring matter, it becomes entirely spoiled while in mypossession; or on entering another house, I lay it aside and it isstolen. Under such circumstances, everybody would think it absurdfor me to assert that I had no further concern with the cloak but toreturn it as it was, or, in the latter case, only to mention thefact of the theft; and that, in any case, anything more required wouldbe but an act of courtesy in expressing sympathy with the owner onaccount of his loss, seeing he can claim nothing on the ground ofright. It would be otherwise, however, if, on asking the use of anarticle, I discharged myself beforehand from all responsibility, incase of its coming to grief while in my hands, on the ground of mybeing poor and unable to compensate any incidental loss. No onecould find such a condition superfluous or ludicrous, unless theborrower were, in fact, known to be a well-to-do and well-disposedman; because in such a case it would almost be an insult not to act onthe presumption of generous compensation for any loss sustained.  Now by the very nature of this contract, the possible damage (casus)which the thing lent may undergo cannot be exactly determined in anyagreement. Commodate is therefore an uncertain contract (pactumincertum), because the consent can only be so far presumed. Thejudgement, in any case, deciding upon whom the incidence of any lossmust fall, cannot therefore be determined from the conditions of thecontract in itself, but only by the principle of the court beforewhich it comes, and which can only consider what is certain in thecontract; and the only thing certain is always the fact as to thepossession of the thing as property. Hence the judgement passed in thestate of nature will be different from that given by a court ofjustice in the civil state. The judgement from the standpoint ofnatural right will be determined by regard to the inner rationalquality of the thing, and will run thus: "Loss arising from damageaccruing to a thing lent falls upon the borrower" (casum sentitcommodatarius); whereas the sentence of a court of justice in thecivil state will run thus: "The loss falls upon the lender" (casumsentit dominus). The latter judgement turns out differently from theformer as the sentence of the mere sound reason, because a publicjudge cannot found upon presumptions as to what either party mayhave thought; and thus the one who has not obtained release from allloss in the thing, by a special accessory contract, must bear theloss. Hence the difference between the judgement as the court mustdeliver it and the form in which each individual is entitled to holdit for himself, by his private reason, is a matter of importance,and is not to be overlooked in the consideration of juridicaljudgements.       39. III. The Revindication of what has been Lost.                         (Vindicatio).   It is clear from what has been already said that a thing of minewhich continues to exist remains mine, although I may not be incontinuous occupation of it; and that it does not cease to be minewithout a juridical act of dereliction or alienation. Further, it isevident that a right in this thing (jus reale) belongs inconsequence to me (jus personale), against every holder of it, and notmerely against some particular person. But the question now arisesas to whether this right must be regarded by every other person as acontinuous right of property per se, if I have not in any wayrenounced it, although the thing is in the possession of another.  A thing may be lost (res amissa) and thus come into other hands inan honourable bona fide way as a supposed "find"; or it may come to meby formal transfer on the part of one who is in possession of it,and who professes to be its owner, although he is not so. Taking thelatter case, the question arises whether, since I cannot acquire athing from one who is not its owner (a non domino), I am excluded bythe fact from all right in the thing itself, and have merely apersonal right against a wrongful possessor? This is manifestly so, ifthe acquisition is judged purely according to its inner justifyinggrounds and viewed according to the state of nature, and not accordingto the convenience of a court of justice.  For everything alienable must be capable of being acquired byanyone. The rightfulness of acquisition, however, rests entirelyupon the form in accordance with which what is in possession ofanother, is transferred to me and accepted by me. In other words,rightful acquisition depends upon the formality of the juridical actof commutation or interchange between the possessor of the thing andthe acquirer of it, without its being required to ask how the formercame by it; because this would itself be an injury, on the groundthat: Quilibet praesumitur bonus. Now suppose it turned out that thesaid possessor was not the real owner, I cannot admit that the realowner is entitled to hold me directly responsible, or so entitled withregard to any one who might be holding the thing. For I have myselftaken nothing away from him, when, for example, I bought his horseaccording to the law (titulo empti venditi) when it was offered forsale in the public market. The title of acquisition is thereforeunimpeachable on my side; and as buyer I am not bound, nor even have Ithe right, to investigate the title of the seller; for this process ofinvestigation would have to go on in an ascending series ad infinitum.Hence on such grounds I ought to be regarded, in virtue of a regularand formal purchase, as not merely the putative, but the real owner ofthe horse.  But against this position, there immediately start up thefollowing juridical principles. Any acquisition derived from one whois not the owner of the thing in question is null and void. I cannotderive from another anything more than what he himself rightfully has;and although as regards the form of the acquisition the modusacquirendi- I may proceed in accordance with all the conditions ofright when I deal in a stolen horse exposed for sale in the market,yet a real title warranting the acquisition was awanting; for thehorse was not really the property of the seller in question. However Imay be a bona fide possessor of a thing under such conditions, I amstill only a putative owner, and the real owner has the right ofvindication against me (rem suam vindicandi).  Now, it may be again asked, what is right and just in itselfregarding the acquisition of external things among men in theirintercourse with one another- viewed in the state of natureaccording to the principles of commutative justice? And it must beadmitted in this connection that whoever has a purpose of acquiringanything must regard it as absolutely necessary to investigate whetherthe thing which he wishes to acquire does not already belong toanother person. For although he may carefully observe the formalconditions required for appropriating what may belong to theproperty of another, as in buying a horse according to the usual termsin a market, yet he can, at the most, acquire only a personal right inrelation to a thing (jus ad rem) so long as it is still unknown to himwhether another than the seller may not be the real owner. Hence, ifsome other person were to come forward and prove by documentaryevidence a prior right of property in the thing, nothing wouldremain for the putative new owner but the advantage which he has drawnas a bona fide possessor of it up to that moment. Now it is frequentlyimpossible to discover the absolutely first original owner of athing in the series of putative owners, who derive their right fromone another. Hence no mere exchange of external things, however wellit may agree with the formal conditions of commutative justice, canever guarantee an absolutely certain acquisition.  Here, however, the juridically law-giving reason comes in again withthe principle of distributive justice; and it adopts as a criterion ofthe rightfulness of possession, not what is in itself in referenceto the private will of each individual in the state of nature, butonly the consideration of how it would be adjudged by a court ofjustice in a civil state, constituted by the united will of all. Inthis connection, fulfillment of the formal conditions ofacquisition, that in themselves only establish a personal right, ispostulated as sufficient; and they stand as an equivalent for thematerial conditions which properly establish the derivation ofproperty from a prior putative owner, to the extent of making whatis in itself only a personal right, valid before a court, as a realright. Thus the horse which I bought when exposed for sale in thepublic market, under conditions regulated by the municipal law,becomes my property if all the conditions of purchase and sale havebeen exactly observed in the transaction; but always under thereservation that the real owner continues to have the right of a claimagainst the seller, on the ground of his prior unalienated possession.My otherwise personal right is thus transmuted into a real right,according to which I may take and vindicate the object as minewherever I may find it, without being responsible for the way in whichthe Seller had come into possession of it.  It is therefore only in behoof of the requirements of juridicaldecision in a court (in favorem justitae distributivae) that the rightin respect of a thing is regarded, not as personal, which it is initself, but as real, because it can thus be most easily andcertainly adjudged; and it is thus accepted and dealt with accordingto a pure principle a priori. Upon this principle, various statutorylaws come to be founded which specially aim at laying down theconditions under which alone a mode of acquisition shall belegitimate, so that the judge may be able to assign every one hisown as easily and certainly as possible. Thus, in the brocard,"Purchase breaks hire," what by the nature of the subject is a realright- namely the hire- is taken to hold as a merely personal right;and, conversely, as in the case referred to above, what is in itselfmerely a personal right is held to be valid as a real right. Andthis is done only when the question arises as to the principles bywhich a court of justice in the civil state is to be guided, inorder to proceed with all possible safety in delivering judgement onthe rights of individuals.      40. IV. Acquisition of Security by the Taking of an Oath.                        (Cautio Juratoria).  Only one ground can be assigned on which it could be held that menare bound in the juridical relation to believe and to confess thatthere are gods, or that there is a God. It is that they may be able toswear an oath; and that thus by the fear of an all-seeing SupremePower, whose revenge they must solemnly invoke upon themselves in casetheir utterance should be false, they may be constrained to betruthful in statement and faithful in promising. It is not moralitybut merely blind superstition that is reckoned upon in this process;for it is evident it implies that no certainty is to be expectedfrom a mere solemn declaration in matters of right before a court,although the duty of truthfulness must have always appearedself-evident to all, in a matter which concerns the holiest that canbe among men- namely, the right of man. Hence recourse has been had toa motive founded on mere myths and fables as imaginary guarantees.Thus among the Rejangs, a heathen people in Sumatra, it is the custom-according to the testimony of Marsden- to swear by the bones oftheir dead relatives, although they have no belief in a life afterdeath. In like manner the negroes of Guinea swear by their fetish, abird's feather, which they imprecate under the belief that it willbreak their neck. And so in other cases. The belief underlying theseoaths is that an invisible power- whether it has understanding or not-by its very nature possesses magical power that can be put into actionby such invocations. Such a belief- which is commonly called religion,but which ought to be called superstition- is, however,indispensable for the administration of justice; because, withoutreferring to it, a court of justice would not have adequate means toascertain facts otherwise kept secret, and to determine rights. Alaw making an oath obligatory is therefore only given in behoof of thejudicial authority.  But then the question arises as to what the obligation could befounded upon that would bind any one in a court of justice to acceptthe oath of another person as a right and valid proof of the truthof his statements which are to put an end to all dispute. In otherwords, what obliges me juridically to believe that another person whentaking an oath has any religion at all, so that I should subordinateor entrust my right to his oath? And, on like grounds, conversely, canI be bound at all to take an oath? It is evident that both thesequestions point to what is in itself morally wrong.  But in relation to a court of justice- and generally in the civilstate- if it be assumed there are no other means of getting to thetruth in certain cases than by an oath, it must be adopted. Inregard to religion, under the supposition that every one has it, itmay be utilized as a necessary means (in causu necessitatis), inbehoof of the legitimate procedure of a court of justice. The courtuses this form of spiritual compulsion (tortura spiritualis) as anavailable means, in conformity with the superstitious propensity ofmankind, for the ascertainment of what is concealed; and thereforeholds itself justified in so doing. The legislative power, however, isfundamentally wrong in assigning this authority to the judicial power,because even in the civil state any compulsion with regard to thetaking of oaths is contrary to the inalienable freedom of man.  Official oaths, which are usually promissory, being taken onentering upon an office, to the effect that the individual has sincereintention to administer his functions dutifully, might well be changedinto assertory oaths, to be taken at the end of a year or more ofactual administration, the official swearing to the faithfulness ofhis discharge of duty during that time. This would bring theconscience more into action than the promissory oath, which alwaysgives room for the internal pretext that, with the best intention, thedifficulties that arose during the administration of the officialfunction were not foreseen. And, further, violations of duty, underthe prospect of their being summed up by future censors, would giverise to more anxiety as to censure than when they are merelyrepresented, one after the other, and forgotten.  As regards an oath taken concerning a matter of belief (decredulitate), it is evident that no such oath can be demanded by acourt. 1. For, first, it contains in itself a contradiction. Suchbelief, as intermediate between opinion and knowledge, is a thing onwhich one might venture to lay a wager but not to swear an oath. 2.And, second, the judge who imposes an oath of belief, in order toascertain anything pertinent to his own purpose or even to thecommon good, commits a great offence against the conscientiousnessof the party taking such an oath. This he does in regard both to thelevity of mind, which he thereby helps to engender, and to thestings of conscience which a man must feel who to-day regards asubject from a certain point of view, but who will very probablyto-morrow find it quite improbable from another point of view. Anyone, therefore, who is compelled to take such an oath, is subjected toan injury.        Transition from the Mine and Thine in the State           of Nature to the Mine and Thine in the                 Juridical State Generally.         41. Public Justice as Related to the Natural                    and the Civil State.  The juridical state is that relation of men to one another whichcontains the conditions under which it is alone possible for every oneto obtain the right that is his due. The formal principle of thepossibility of actually participating in such right, viewed inaccordance with the idea of a universally legislative will, ispublic justice. Public justice may be considered in relation either tothe possibility, or actuality, or necessity of the possession ofobjects- regarded as the matter of the activity of the will- accordingto laws. It may thus be divided into protective justice (justitiatestatrix), commutative justice (justitia commutativa), anddistributive justice (justitia distributiva), in the first mode ofjustice, the law declares merely what relation is internally rightin respect of form (lex justi); in the second, it declares what islikewise externally in accord with a law in respect of the object, andwhat possession is rightful (lex juridica); and in the third, itdeclares what is right, and what is just, and to what extent, by thejudgement of a court in any particular case coming under the givenlaw. In this latter relation, the public court is called the justiceof the country; and the question whether there actually is or is notsuch an administration of public justice may be regarded as the mostimportant of all juridical interests.  The non-juridical state is that condition of society in whichthere is no distributive justice. It is commonly called the naturalstate (status naturalis), or the state of nature. It is not the socialstate, as Achenwall puts it, for this may be in itself an artificialstate (status artificialis), that is to be contradistinguished fromthe "natural" state. The opposite of the state of nature is thecivil state (status civilis) as the condition of a society standingunder a distributive justice. In the state of nature, there may evenbe juridical forms of society such as marriage, parental authority,the household, and such like. For none of these, however, does any lawa priori lay it down as an incumbent obligation: "Thou shalt enterinto this state." But it may be said of the juridical state that: "Allmen who may even involuntarily come into relations of right with oneanother ought to enter into this state."  The natural or non-juridical social state may be viewed as thesphere of private right, and the civil state may be specially regardedas the sphere of public right. The latter state contains no more andno other duties of men towards each other than what may be conceivedin connection with the former state; the matter of private right is,in short, the very same in both. The laws of the civil state,therefore, only turn upon the juridical form of the coexistence of menunder a common constitution; and, in this respect, these laws mustnecessarily be regarded and conceived as public laws.  The civil union (unio civilis) cannot, in the strict sense, beproperly called a society; for there is no sociality in common betweenthe ruler (imperans) and the subject (subditus) under a civilconstitution. They are not co-ordinated as associates in a societywith each other, but the one is subordinated to the other. Those whomay be co-ordinated with one another must consider themselves asmutually equal, in so far as they stand under common laws. The civilunion may therefore be regarded not so much as being, but rather asmaking a society.             42. The Postulate of Public Right.  From the conditions of private right in the natural state, therearises the postulate of public right. It may be thus expressed: "Inthe relation of unavoidable coexistence with others, thou shalt passfrom the state of nature into a juridical union constituted underthe condition of a distributive justice." The principle of thispostulate may be unfolded analytically from the conception of right inthe external relation, contradistinguished from mere might asviolence.  No one is under obligation to abstain from interfering with thepossession of others, unless they give him a reciprocal guaranteefor the observance of a similar abstention from interference withhis possession. Nor does he require to wait for proof by experience ofthe need of this guarantee, in view of the antagonistic disposition ofothers. He is therefore under no obligation to wait till he acquirespractical prudence at his own cost; for he can perceive in himselfevidence of the natural inclination of men to play the master overothers, and to disregard the claims of the right of others, whenthey feel themselves their superiors by might or fraud. And thus it isnot necessary to wait for the melancholy experience of actualhostility; the individual is from the first entitled to exercise arightful compulsion towards those who already threaten him by theirvery nature. Quilibet praesumitur malus, donec securitatem dederitoppositi.  So long as the intention to live and continue in this state ofexternally lawless freedom prevails, men may be said to do no wrong orinjustice at all to one another, even when they wage war againsteach other. For what seems competent as good for the one is equallyvalid for the other, as if it were so by mutual agreement. Utipartes de jure suo disponunt, ita jus est. But generally they mustbe considered as being in the highest state of wrong, as being andwilling to be in a condition which is not juridical, and in which,therefore, no one can be secured against violence, in the possessionof his own.  The distinction between what is only formally and what is alsomaterially wrong, and unjust, finds frequent application in thescience of right. An enemy who, on occupying a besieged fortress,instead of honourably fulfilling the conditions of a capitulation,maltreats the garrison on marching out, or otherwise violates theagreement, cannot complain of injury or wrong if on another occasionthe same treatment is inflicted upon themselves. But, in fact, allsuch actions fundamentally involve the commission of wrong andinjustice, in the highest degree; because they take all validityaway from the conception of right, and give up everything, as itwere by law itself, to savage violence, and thus overthrow therights of men generally.                    SECOND PART. PUBLIC RIGHT.     THE SYSTEM OF THOSE LAWS WHICH REQUIRE PUBLIC PROMULGATION.            THE PRINCIPLES OF RIGHT IN CIVIL SOCIETY.         43. Definition and Division of Public Right.  Public right embraces the whole of the laws that require to beuniversally promulgated in order to produce juridical state ofsociety. It is therefore a system of those laws that are requisite fora people as a multitude of men forming a nation, or for a number ofnations, in their relations to each other. Men and nations, on accountof their mutual influence on one another, require a juridicalconstitution uniting them under one will, in order that they mayparticipate in what is right. This relation of the individuals of anation to each other constitutes the civil union in the socialstate; and, viewed as a whole in relation to its constituentmembers, it forms the political state (civitas).  1. The state, as constituted by the common interest of all to livein a juridical union, is called, in view of its form, the commonwealthor the republic in the wider sense of the term (res publica latius sicdicta). The principles of right in this sphere thus constitute thefirst department of public right as the right of the state (juscivitatis) or national right. 2. The state, again, viewed inrelation to other peoples, is called a power (potentia), whence arisesthe idea of potentates. Viewed in relation to the supposedhereditary unity of the people composing it, the state constitutes anation (gens). Under the general conception of public right, inaddition to the right of the individual state, there thus arisesanother department of right, constituting the right of nations (jusgentium) or international right. 3. Further, as the surface of theearth is not unlimited in extent, but is circumscribed into a unity,national right and international right necessarily culminate in theidea of a universal right of mankind, which may be calledCosmopolitical Right (jus cosmopoliticum). And national,international, and cosmopolitical right are so interconnected, that,if any one of these three possible forms of the juridical relationfails to embody the essential principles that ought to regulateexternal freedom by law, the structure of legislation reared by theothers will also be undermined, and the whole system would at lastfall to pieces.          I. Right of the State and Constitutional Law.                       (Jus Civitatis).         44. Origin Of the Civil Union and Public Right.  It is not from any experience prior to the appearance of an externalauthoritative legislation that we learn of the maxim of naturalviolence among men and their evil tendency to engage in war witheach other. Nor is it assumed here that it is merely some particularhistorical condition or fact, that makes public legislative constraintnecessary; for however well-disposed or favourable to right men may beconsidered to be of themselves, the rational idea of a state ofsociety not yet regulated by right, must be taken as ourstarting-point. This idea implies that before a legal state of societycan be publicly established, individual men, nations, and states,can never be safe against violence from each other; and this isevident from the consideration that every one of his own willnaturally does what seems good and right in his own eyes, entirelyindependent of the opinion of others. Hence, unless the institution ofright is to be renounced, the first thing incumbent on men is toaccept the principle that it is necessary to leave the state ofnature, in which every one follows his own inclinations, and to form aunion of all those who cannot avoid coming into reciprocalcommunication, and thus subject themselves in common to the externalrestraint of public compulsory laws. Men thus enter into a civilunion, in which every one has it determined by law what shall berecognized as his; and this is secured to him by a competentexternal power distinct from his own individuality. Such is theprimary obligation, on the part of all men, to enter into therelations of a civil state of society.  The natural condition of mankind need not, on this ground, berepresented as a state of absolute injustice, as if there could havebeen no other relation originally among men but what was merelydetermined by force. But this natural condition must be regarded, ifit ever existed, as a state of society that was void of regulationby right (status justitiae vacuus), so that if a matter of rightcame to be in dispute (jus controversum), no competent judge was foundto give an authorized legal decision upon it. It is thereforereasonable that any one should constrain another by force, to passfrom such a nonjuridical state of life and enter within thejurisdiction of a civil state of society. For, although on the basisof the ideas of right held by individuals as such, external things maybe acquired by occupancy or contract, yet such acquisition is onlyprovisory so long as it has not yet obtained the sanction of apublic law. Till this sanction is reached, the condition of possessionis not determined by any public distributive justice, nor is itsecured by any power exercising public right.  If men were not disposed to recognize any acquisition at all asrightful- even in a provisional way- prior to entering into thecivil state, this state of society would itself be impossible. For thelaws regarding the mine and thine in the state of nature, containformally the very same thing as they prescribe in the civil state,when it is viewed merely according to rational conceptions: onlythat in the forms of the civil state the conditions are laid downunder which the formal prescriptions of the state of nature attainrealization conformable to distributive justice. Were there, then, noteven provisionally, an external meum and tuum in the state ofnature, neither would there be any juridical duties in relation tothem; and, consequently, there would be no obligation to pass out ofthat state into another.       45. The Form of the State and its Three Powers.  A state (civitas) is the union of a number of men under juridicallaws. These laws, as such, are to be regarded as necessary a priori-that is, as following of themselves from the conceptions of externalright generally- and not as merely established by statute. The form ofthe state is thus involved in the idea of the state, viewed as itought to be according to pure principles of right; and this ideal formfurnishes the normal criterion of every real union that constitutesa commonwealth.  Every state contains in itself three powers, the universal unitedwill of the people being thus personified in a political triad.These are the legislative power, the executive power, and thejudiciary power. 1. The legislative power of the sovereignty in thestate is embodied in the person of the lawgiver; 2. the executivepower is embodied in the person of the ruler who administers theLaw; and 3. the judiciary power, embodied in the person of thejudge, is the function of assigning every one what is his own,according to the law (potestas legislatoria, rectoria, et judiciaria).These three powers may be compared to the three propositions in apractical syllogism: the major as the sumption laying down theuniversal law of a will, the minor presenting the command applicableto an action according to the law as the principle of the subsumption,and the conclusion containing the sentence, or judgement of right,in the particular case under consideration.     46. The Legislative Power and the Members of the State.  The legislative power, viewed in its rational principle, can onlybelong to the united will of the people. For, as all right ought toproceed from this power, it is necessary that its laws should beunable to do wrong to any one whatever. Now, if any one individualdetermines anything in the state in contradistinction to another, itis always possible that he may perpetrate a wrong on that other; butthis is never possible when all determine and decree what is to be Lawto themselves. Volenti non fit injuria. Hence it is only the unitedand consenting will of all the people- in so far as each of themdetermines the same thing about all, and all determine the samething about each- that ought to have the power of enacting law inthe state.  The members of a civil society thus united for the purpose oflegislation, and thereby constituting a state, are called itscitizens; and there are three juridical attributes that inseparablybelong to them by right. These are: 1. constitutional freedom, asthe right of every citizen to have to obey no other law than that towhich he has given his consent or approval; 2. civil equality, asthe right of the citizen to recognise no one as a superior among thepeople in relation to himself, except in so far as such a one is assubject to his moral power to impose obligations, as that other haspower to impose obligations upon him; and 3. political independence,as the light to owe his existence and continuance in society not tothe arbitrary will of another, but to his own rights and powers as amember of the commonwealth, and, consequently, the possession of acivil personality, which cannot be represented by any other thanhimself.  The capability of voting by possession of the suffrage properlyconstitutes the political qualification of a citizen as a member ofthe state. But this, again, presupposes the independence orself-sufficiency of the individual citizen among the people, as onewho is not a mere incidental part of the commonwealth, but a member ofit acting of his own will in community with others. The last of thethree qualities involved necessarily constitutes the distinctionbetween active and passive citizenship; although the latter conceptionappears to stand in contradiction to the definition of a citizen assuch. The following examples may serve to remove this difficulty.The apprentice of a merchant or tradesman, a servant who is not in theemploy of the state, a minor (naturaliter vel civiliter), all women,and, generally, every one who is compelled to maintain himself notaccording to his own industry, but as it is arranged by others (thestate excepted), are without civil personality, and their existence isonly, as it were, incidentally included in the state. The woodcutterwhom I employ on my estate; the smith in India who carries his hammer,anvil, and bellows into the houses where he is engaged to work iniron, as distinguished from the European carpenter or smith, who canoffer the independent products of his labour as wares for public sale;the resident tutor as distinguished from the schoolmaster; theploughman as distinguished from the farmer and such like, illustratethe distinction in question. In all these cases, the former members ofthe contrast are distinguished from the latter by being meresubsidiaries of the commonwealth and not active independent members ofit, because they are of necessity commanded and protected by others,and consequently possess no political self-sufficiency inthemselves. Such dependence on the will of others and the consequentinequality are, however, not inconsistent with the freedom andequality of the individuals as men helping to constitute the people.Much rather is it the case that it is only under such conditionsthat a people can become a state and enter into a civilconstitution. But all are not equally qualified to exercise theright of suffrage under the constitution, and to be full citizens ofthe state, and not mere passive subjects under its protection. For,although they are entitled to demand to be treated by all the othercitizens according to laws of natural freedom and equality, as passiveparts of the state, it does not follow that they ought themselves tohave the right to deal with the state as active members of it, toreorganize it, or to take action by way of introducing certain laws.All they have a right in their circumstances to claim may be no morethan that whatever be the mode in which the positive laws are enacted,these laws must not be contrary to the natural laws that demand thefreedom of all the people and the equality that is conformablethereto; and it must therefore be made possible for them to raisethemselves from this passive condition in the state to the conditionof active citizenship.     47. Dignities in the State and the Original Contract.  All these three powers in the state are dignities; and, asnecessarily arising out of the idea of the state and essentialgenerally to the foundation of its constitution, they are to beregarded as political dignities. They imply the relation between auniversal sovereign as head of the state- which according to thelaws of freedom can be none other than the people itself united into anation- and the mass of the individuals of the nation as subjects. Theformer member of the relation is the ruling power, whose function isto govern (imperans); the latter is the ruled constituents of thestate, whose function is to obey (subditi).  The act by which a people is represented as constituting itself intoa state, is termed the original contract. This is properly only anoutward mode of representing the idea by which the rightfulness of theprocess of organizing the constitution may be made conceivable.According to this representation, all and each of the people give uptheir external freedom in order to receive it immediately again asmembers of a commonwealth. The commonwealth is the people viewed asunited altogether into a state. And thus it is not to be said that theindividual in the state has sacrificed a part of his inborn externalfreedom for a particular purpose; but he has abandoned his wildlawless freedom wholly, in order to find all his proper freedomagain entire and undiminished, but in the form of a regulated order ofdependence, that is, in a civil state regulated by laws of right. Thisrelation of dependence thus arises out of his own regulative lawgiving will.        48. Mutual Relations and Characteristics of the                        Three Powers.  The three powers in the state, as regards their relations to eachother, are, therefore: (1) coordinate with one another as so manymoral persons, and the one is thus the complement of the other inthe way of completing the constitution of the state; (2) they arelikewise subordinate to one another, so that the one cannot at thesame time usurp the function of the other by whose side it moves, eachhaving its own principle and maintaining its authority in a particularperson, but under the condition of the will of a superior; andfurther, (3) by the union of both these relations, they assigndistributively to every subject in the state his own rights.  Considered as to their respective dignity, the three powers may bethus described. The will of the sovereign legislator, in respect ofwhat constitutes the external mine and thine, is to be regarded asirreprehensible; the executive function of the supreme ruler is tobe regarded as irresistible; and the judicial sentence of thesupreme judge is to be regarded as irreversible, being beyond appeal.         49. Distinct Functions of the Three Powers.                   Autonomy of the State  1. The executive power belongs to the governor or regent of thestate, whether it assumes the form of a moral or individual person, asthe king or prince (rex, princeps). This executive authority, as thesupreme agent of the state, appoints the magistrates, and prescribesthe rules to the people, in accordance with which individuals mayacquire anything or maintain what is their own conformably to the law,each case being brought under its application. Regarded as a moralperson, this executive authority constitutes the government. Theorders issued by the government to the people and the magistrates,as well as to the higher ministerial administrators of the state(gubernatio), are rescripts or decrees, and not laws; for theyterminate in the decision of particular cases, and are given forthas unchangeable. A government acting as an executive, and at thesame time laying down the law as the legislative power, would be adespotic government, and would have to be contradistinguished from apatriotic government. A patriotic government, again, is to bedistinguished from a paternal government (regimen paternale) whichis the most despotic government of all, the citizens being dealtwith by it as mere children. A patriotic government, however, is onein which the state, while dealing with the subjects as if they weremembers of a family, still treats them likewise as citizens, andaccording to laws that recognize their independence, each individualpossessing himself and not being dependent on the absolute will ofanother beside him or above him.  2. The legislative authority ought not at the same time to be theexecutive or governor; for the governor, as administrator, shouldstand under the authority of the law, and is bound by it under thesupreme control of the legislator. The legislative authority maytherefore deprive the governor of his power, depose him, or reform hisadministration, but not punish him. This is the proper and onlymeaning of the common saying in England, "The King- as the supremeexecutive power- can do no wrong." For any such application ofpunishment would necessarily be an act of that very executive power towhich the supreme right to compel according to law pertains, and whichwould itself be thus subjected to coercion; which isself-contradictory.  3. Further, neither the legislative power nor the executive powerought to exercise the judicial function, but only appoint judges asmagistrates. It is the people who ought to judge themselves, throughthose of the citizens who are elected by free choice as theirrepresentatives for this purpose, and even specially for every processor cause. For the judicial sentence is a special act of publicdistributive justice performed by a judge or court as a constitutionaladministrator of the law, to a subject as one of the people. Such anact is not invested inherently with the power to determine andassign to any one what is his. Every individual among the people beingmerely passive in this relation to the supreme power, either theexecutive or the legislative authority might do him wrong in theirdeterminations in cases of dispute regarding the property ofindividuals. It would not be the people themselves who thusdetermined, or who pronounced the judgements of "guilty" or "notguilty" regarding their fellow-citizens. For it is to thedetermination of this issue in a cause that the court has to apply thelaw; and it is by means of the executive authority, that the judgeholds power to assign to every one his own. Hence it is only thepeople that properly can judge in a cause- although indirectlyrepresentatives elected and deputed by themselves, as in a jury. Itwould even be beneath the dignity of the sovereign head of the stateto play the judge; for this would be to put himself into a position inwhich it would be possible to do wrong, and thus to subject himself tothe demand for an appeal to a still higher power (a rege maleinformato ad regem melius informandum).  It is by the co-operation of these three powers- the legislative,the executive, and the judicial- that the state realizes its autonomy.This autonomy consists in its organizing, forming, and maintainingitself in accordance with the laws of freedom. In their union thewelfare of the state is realized. Salus reipublicae suprema lex.* Bythis is not to be understood merely the individual well-being andhappiness of the citizens of the state; for- as Rousseau asserts- thisend may perhaps be more agreeably and more desirably attained in thestate of nature, or even under a despotic government. But thewelfare of the state, as its own highest good, signifies thatcondition in which the greatest harmony is attained between itsconstitution and the principles of right- a condition of the statewhich reason by a categorical imperative makes it obligatory upon usto strive after.  *["The health of the state is the highest law."]      Constitutional and Juridical Consequences arising from                 the Nature of the Civil Union.       A. Right of the Supreme Power; Treason; Dethronement;                      Revolution; Reform.  The origin of the supreme power is practically inscrutable by thepeople who are placed under its authority. In other words, the subjectneed not reason too curiously in regard to its origin in the practicalrelation, as if the right of the obedience due to it were to bedoubted (jus controversum). For as the people, in order to be ableto abjudicate with a title of right regarding the supreme power in thestate, must be regarded as already united under one common legislativewill, it cannot judge otherwise than as the present supreme head ofthe state (summus imperans) wills. The question has been raised asto whether an actual contract of subjection (pactum subjectioniscivilis) originally preceded the civil government as a fact; orwhether the power arose first, and the law only followed afterwards,or may have followed in this order. But such questions, as regards thepeople already actually living under the civil law, are eitherentirely aimless, or even fraught with subtle danger to the state.For, should the subject, after having dug down to the ultimateorigin of the state, rise in opposition to the present rulingauthority, he would expose himself as a citizen, according to thelaw and with full right, to be punished, destroyed, or outlawed. A lawwhich is so holy and inviolable that it is practically a crime even tocast doubt upon it, or to suspend its operation for a moment, isrepresented of itself as necessarily derived from some supreme,unblameable lawgiver. And this is the meaning of the maxim, "Allauthority is from God", which proposition does not express thehistorical foundation of the civil constitution, but an idealprinciple of the practical reason. It may be otherwise renderedthus: "It is a duty to obey the law of the existing legislative power,be its origin what it may."  Hence it follows, that the supreme power in the state has onlyrights, and no (compulsory) duties towards the subject. Further, ifthe ruler or regent, as the organ of the supreme power, proceeds inviolation of the laws, as in imposing taxes, recruiting soldiers,and so on, contrary to the law of equality in the distribution ofthe political burdens, the subject may oppose complaints andobjections (gravamina) to this injustice, but not active resistance.  There cannot even be an Article contained in the politicalconstitution that would make it possible for a power in the state,in case of the transgression of the constitutional laws by the supremeauthority, to resist or even to restrict it in so doing. For,whoever would restrict the supreme power of the state must havemore, or at least equal, power as compared with the power that is sorestricted; and if competent to command the subjects to resist, such aone would also have to be able to protect them, and if he is to beconsidered capable of judging what is right in every case, he may alsopublicly order resistance. But such a one, and not the actualauthority, would then be the supreme power; which is contradictory.The supreme sovereign power, then, in proceeding by a minister whois at the same time the ruler of the state, consequently becomesdespotic; and the expedient of giving the people to imagine- when theyhave properly only legislative influence- that they act by theirdeputies by way of limiting the sovereign authority, cannot so maskand disguise the actual despotism of such a government that it willnot appear in the measures and means adopted by the minister tocarry out his function. The people, while represented by theirdeputies in parliament, under such conditions, may have in thesewarrantors of their freedom and rights, persons who are keenlyinterested on their own account and their families, and who look tosuch a minister for the benefit of his influence in the army, navy,and public offices. And hence, instead of offering resistance to theundue pretensions of the government- whose public declarations oughtto carry a prior accord on the part of the people, which, however,cannot be allowed in peace, they are rather always ready to playinto the hands of the government. Hence the so-called limitedpolitical constitution, as a constitution of the internal rights ofthe state, is an unreality; and instead of being consistent withright, it is only a principle of expediency. And its aim is not somuch to throw all possible obstacles in the way of a powerful violatorof popular rights by his arbitrary influence upon the government, asrather to cloak it over under the illusion of a right of oppositionconceded to the people.  Resistance on the part of the people to the supreme legislativepower of the state is in no case legitimate; for it is only bysubmission to the universal legislative will, that a condition oflaw and order is possible. Hence there is no right of sedition, andstill less of rebellion, belonging to the people. And least of all,when the supreme power is embodied in an individual monarch, isthere any justification, under the pretext of his abuse of power,for seizing his person or taking away his life (monarchomachismussub specie tyrannicidii). The slightest attempt of this kind is hightreason (proditio eminens); and a traitor of this sort who aims at theoverthrow of his country may be punished, as a political parricide,even with death. It is the duty of the people to bear any abuse of thesupreme power, even then though it should be considered to beunbearable. And the reason is that any resistance of the highestlegislative authority can never but be contrary to the law, and musteven be regarded as tending to destroy the whole legal constitution.In order to be entitled to offer such resistance, a public law wouldbe required to permit it. But the supreme legislation would by sucha law cease to be supreme, and the people as subjects would be madesovereign over that to which they are subject; which is acontradiction. And the contradiction becomes more apparent when thequestion is put: "Who is to be the judge in a controversy betweenthe people and the sovereign?" For the people and the sovereign are tobe constitutionally or juridically regarded as two different moralpersons; but the question shows that the people would then have tobe the judge in their own cause.  The dethronement of a monarch may be also conceived as a voluntaryabdication of the crown, and a resignation of his power into the handsof the people; or it might be a deliberate surrender of thesewithout any assault on the royal person, in order that the monarch maybe relegated into private life. But, however it happen, forciblecompulsion of it, on the part of the people, cannot be justified underthe pretext of a right of necessity (casus necessitatis); and least ofall can the slightest right be shown for punishing the sovereign onthe ground of previous maladministration. For all that has beenalready done in the quality of a sovereign must be regarded as doneoutwardly by right; and, considered as the source of the laws, thesovereign himself can do no wrong. Of all the abominations in theoverthrow of a state by revolution, even the murder or assassinationof the monarch is not the worst. For that may be done by the peopleout of fear, lest, if he is allowed to live, he may again acquirepower and inflict punishment upon them; and so it may be done, notas an act of punitive justice, but merely from regard toself-preservation. It is the formal execution of a monarch thathorrifies a soul filled with ideas of human right; and this feelingoccurs again and again as of as the mind realizes the scenes thatterminated the fate of Charles I or Louis XVI. Now how is this feelingto be explained? It is not a mere aesthetic feeling, arising fromthe working of the imagination, nor from sympathy, produced byfancying ourselves in the place of the sufferer. On the contrary, itis a moral feeling arising from the entire subversion of all ournotions of right. Regicide, in short, is regarded as a crime whichalways remains such and can never be expiated (crimen immortale,inexpiabile); and it appears to resemble that sin which thetheologians declare can neither be forgiven in this world nor in thenext. The explanation of this phenomenon in the human mind appearsto be furnished by the following reflections upon it; and they evenshed some light upon the principles of political right.  Every transgression of a law only can and must be explained asarising from a maxim of the transgressor making such wrong-doing hisrule of action; for were it not committed by him as a free being, itcould not be imputed to him. But it is absolutely impossible toexplain how any rational individual forms such a maxim against theclear prohibition of the law-giving reason; for it is only eventswhich happen according to the mechanical laws of nature that arecapable of explanation. Now a transgressor or criminal may commithis wrong-doing either according to the maxim of a rule supposed to bevalid objectively and universally, or only as an exception from therule by dispensing with its obligation for the occasion. In the lattercase, he only diverges from the law, although intentionally. He may,at the same time, abhor his own transgression, and without formallyrenouncing his obedience to the law only wish to avoid it. In theformer case, however, he rejects the authority of the law itself,the validity of which, however, he cannot repudiate before his ownreason, even while he makes it his rule to act against it. His maximis, therefore, not merely defective as being negatively contrary tothe law, but it is even positively illegal, as being diametricallycontrary and in hostile opposition to it. So far as we can see intoand understand the relation, it would appear as if it wereimpossible for men to commit wrongs and crimes of a wholly uselessform of wickedness, and yet the idea of such extreme perversity cannotbe overlooked in a system of moral philosophy.  There is thus a feeling of horror at the thought of the formalexecution of a monarch by his people. And the reason it is that,whereas an act of assassination must be considered as only anexception from the rule which has been constituted a maxim, such anexecution must be regarded as a complete perversion of theprinciples that should regulate the relation between a sovereign andhis people. For it makes the people, who owe their constitutionalexistence to the legislation that issued from the sovereign, to be theruler over him. Hence mere violence is thus elevated with bold brow,and as it were by principle, above the holiest right; and, appearinglike an abyss to swallow up everything without recall, it seems likesuicide committed by the state upon itself and a crime that is capableof no atonement. There is therefore reason to assume that theconsent that is accorded to such executions is not really based upon asupposed principle of right, but only springs from fear of thevengeance that would be taken upon the people were the same power torevive again in the state. And hence it may be held that theformalities accompanying them have only been put forward in order togive these deeds a look of punishment from the accompaniment of ajudicial process, such as could not go along with a mere murder orassassination. But such a cloaking of the deed entirely fails of itspurpose, because this pretension on the part of the people is evenworse than murder itself, as it implies a principle which wouldnecessarily make the restoration of a state, when once overthrown,an impossibility.  An alteration of the still defective constitution of the state maysometimes be quite necessary. But all such changes ought only toproceed from the sovereign power in the way of reform, and are notto be brought about by the people in the way of revolution; and whenthey take place, they should only effect the executive, and not thelegislative, power. A political constitution which is so modified thatthe people by their representatives in parliament can legally resistthe executive power, and its representative minister, is called alimited constitution. Yet even under such a constitution there is noright of active resistance, as by an arbitrary combination of thepeople to coerce the government into a certain active procedure; forthis would be to assume to perform an act of the executive itself. Allthat can rightly be allowed, is only a negative resistance,amounting to an act of refusal on the part of the people to concedeall the demands which the executive may deem it necessary to make inbehoof of the political administration. And if this right were neverexercised, it would be a sure sign that the people were corrupted,their representatives venal, the supreme head of the governmentdespotic, and his ministers practically betrayers of the people.  Further, when on the success of a revolution a new constitutionhas been founded, the unlawfulness of its beginning and of itsinstitution cannot release the subjects from the obligation ofadapting themselves, as good citizens, to the new order of things; andthey are not entitled to refuse honourably to obey the authoritythat has thus attained the power in the state. A dethroned monarch,who has survived such a revolution, is not to be called to accounton the ground of his former administration; and still less may he bepunished for it, when with drawing into the private life of acitizen he prefers his own quiet and the peace of the state to theuncertainty of exile, with the intention of maintaining his claims forrestoration at all hazards, and pushing these either by secretcounter-revolution or by the assistance of other powers. However, ifhe prefers to follow the latter course, his rights remain, because therebellion that drove him from his position was inherently unjust.But the question then emerges as to whether other powers have theright to form themselves into an alliance in behalf of such adethroned monarch merely in order not to leave the crime committedby the people unavenged, or to do away with it as a scandal to all thestates; and whether they are therefore justified and called upon torestore by force to another state a formerly existing constitutionthat has been removed by a revolution. The discussion of thisquestion, however, does not belong to this department of public right,but to the following section, concerning the right of nations.     B. Land Rights. Secular and Church Lands, Rights of Taxation;                    Finance; Police; Inspection.  Is the sovereign, viewed as embodying the legislative power, to beregarded as the supreme proprietor of the soil, or only as the highestruler of the people by the laws? As the soil is the supremecondition under which it is alone possible to have external thingsas one's own, its possible possession and use constitute the firstacquirable basis of external right. Hence it is that all such rightsmust be derived from the sovereign as overlord and paramountsuperior of the soil, or, as it may be better put, as the supremeproprietor of the land (dominus territorii). The people, as formingthe mass of the subjects, belong to the sovereign as a people; notin the sense of his being their proprietor in the way of real right,but as their supreme commander or chief in the way of personalright. This supreme proprietorship, however, is only an idea of thecivil constitution, objectified to represent, in accordance withjuridical conceptions, the necessary union of the private propertyof all the people under a public universal possessor. The relationis so represented in order that it may form a basis for thedetermination of particular rights in property. It does not proceed,therefore, upon the principle of mere aggregation, which advancesempirically from the parts to the whole, but from the necessary formalprinciple of a division of the soil according to conceptions of right.In accordance with this principle, the supreme universal proprietorcannot have any private property in any part of the soil; forotherwise he would make himself a private person. Private propertyin the soil belongs only to the people, taken distributively and notcollectively; from which condition, however, a nomadic people mustbe excepted as having no private property at all in the soil. Thesupreme proprietor accordingly ought not to hold private estates,either for private use or for the support of the court. For, as itwould depend upon his own pleasure how far these should extend, thestate would be in danger of seeing all property in the land taken intothe hands of the government, and all the subjects treated asbondsmen of the soil (glebae adscripti). As possessors only of whatwas the private property of another, they might thus be deprived ofall freedom and regarded as serfs or slaves. Of the supreme proprietorof the land, it may be said that he possesses nothing as his own,except himself; for if he possessed things in the state alongside ofothers, dispute and litigation would be possible with these othersregarding those things, and there would be no independent judge tosettle the cause. But it may also be said that he possesseseverything; for he has the supreme right of sovereignty over the wholepeople, to whom all external things severally (divisim) belong; and assuch he assigns distributively to every one what is to be his.  Hence there cannot be any corporation in the state, nor any class ororder, that as proprietors can transmit the land for a soleexclusive use to the following generations for all time (adinfinitum), according to certain fixed statutes. The state may annuland abrogate all such statutes at any time, only under the conditionof indemnifying survivors for their interests. The order of knights,constituting the nobility regarded as a mere rank or class ofspecially titled individuals, as well as the order of the clergy,called the church, are both subject to this relation. They can neverbe entitled by any hereditary privileges with which they may befavoured, to acquire an absolute property in the soil transmissible totheir successors. They can only acquire the use of such property forthe time being. If public opinion has ceased, on account of otherarrangements, to impel the state to protect itself from negligencein the national defence by appeal to the military honour of theknightly order, the estates granted on that condition may be recalled.And, in like manner, the church lands or spiritualities may bereclaimed by the state without scruple, if public opinion has ceasedto impel the members of the state to maintain masses for the soulsof the dead, prayers for the living, and a multitude of clergy, asmeans to protect themselves from eternal fire. But in both cases,the condition of indemnifying existing interests must be observed.Those who in this connection fall under the movement of reform are notentitled to complain that their property is taken from them; for thefoundation of their previous possession lay only in the opinion of thepeople, and it can be valid only so long as this opinion lasts. Assoon as this public opinion in favour of such institutions dies out,or is even extinguished in the judgement of those who have thegreatest claim by their acknowledged merit to lead and represent it,the putative proprietorship in question must cease, as if by apublic appeal made regarding it to the state (a rege male informato adregem melius informandum).  On this primarily acquired supreme proprietorship in the landrests the right of the sovereign, as universal proprietor of thecountry, to assess the private proprietors of the soil, and todemand taxes, excise, and dues, or the performance of service to thestate such as may be required in war. But this is to be done so thatit is actually the people that assess themselves, this being theonly mode of proceeding according to laws of right. This may beeffected through the medium of the body of deputies who representthe people. It is also permissible, in circumstances in which thestate is in imminent danger, to proceed by a forced loan, as a rightvested in the sovereign, although this may be a divergence from theexisting law.  Upon this principle is also founded the right of administering thenational economy, including the finance and the police. The police hasspecially to care for the public safety, convenience, and decency.As regards the last of these- the feeling or negative taste for publicpropriety- it is important that it be not deadened by suchinfluences as begging, disorderly noises, offensive smells, publicprostitution (Venus vulgivaga), or other offences against the moralsense, as it greatly facilitates the government in the task ofregulating the life of the people by law.  For the preservation of the state there further belongs to it aright of inspection (jus inspectionis), which entitles the publicauthority to see that no secret society, political or religious,exists among the people that can exert a prejudicial influence uponthe public weal. Accordingly, when it is required by the police, nosuch secret society may refuse to lay open its constitution. But thevisitation and search of private houses by the police can only bejustified in a case of necessity; and in every particular instance, itmust be authorized by a higher authority.    C. Relief of the Poor. Foundling Hospitals. The Church.  The sovereign, as undertaker of the duty of the people, has theright to tax them for purposes essentially connected with their ownpreservation. Such are, in particular, the relief of the poor,foundling asylums, and ecclesiastical establishments, otherwisedesignated charitable or pious foundations.  1. The people have in fact united themselves by their common willinto a society, which has to be perpetually maintained; and for thispurpose they have subjected themselves to the internal power of thestate, in order to preserve the members of this society even when theyare not able to support themselves. By the fundamental principle ofthe state, the government is justified and entitled to compel thosewho are able, to furnish the means necessary to preserve those who arenot themselves capable of providing for the most necessary wants ofnature. For the existence of persons with property in the stateimplies their submission under it for protection and the provisionby the state of what is necessary for their existence; and accordinglythe state founds a right upon an obligation on their part tocontribute of their means for the preservation of their fellowcitizens. This may be carried out by taxing the property or thecommercial industry of the citizens, or by establishing funds anddrawing interest from them, not for the wants of the state as such,which is rich, but for those of the people. And this is not to be donemerely by voluntary contributions, but by compulsory exactions asstate-burdens, for we are here considering only the right of the statein relation to the people. Among the voluntary modes of raising suchcontributions, lotteries ought not to be allowed, because theyincrease the number of those who are poor, and involve danger to thepublic property. It may be asked whether the relief of the poorought to be administered out of current contributions, so that everyage should maintain its own poor; or whether this were better doneby means of permanent funds and charitable institutions, such aswidows' homes, hospitals, etc.? And if the former method is thebetter, it may also be considered whether the means necessary are tobe raised by a legal assessment rather than by begging, which isgenerally nigh akin to robbing. The former method must in reality beregarded as the only one that is conformable to the right of thestate, which cannot withdraw its connection from any one who has tolive. For a legal current provision does not make the profession ofpoverty a means of gain for the indolent, as is to be feared is thecase with pious foundations when they grow with the number of thepoor; nor can it be charged with being an unjust or unrighteous burdenimposed by the government on the people.  2. The state has also a right to impose upon the people the dutyof preserving children exposed from want or shame, and who wouldotherwise perish; for it cannot knowingly allow this increase of itspower to be destroyed, however unwelcome in some respects it may be.But it is a difficult question to determine how this may most justlybe carried out. It might be considered whether it would not be rightto exact contributions for this purpose from the unmarried personsof both sexes who are possessed of means, as being in part responsiblefor the evil; and further, whether the end in view would be bestcarried out by foundling hospitals, or in what other way consistentwith right. But this is a problem of which no solution has yet beenoffered that does not in some measure offend against right ormorality.  3. The church is here regarded as an ecclesiastical establishmentmerely, and as such it must be carefully distinguished fromreligion, which as an internal mode of feeling lies wholly beyondthe sphere of the action of the civil power. Viewed as aninstitution for public worship founded for the people- to whoseopinion or conviction it owes its origin- the church establishmentresponds to a real want in the state. This is the need felt by thepeople to regard themselves as also subjects of a Supreme InvisiblePower to which they must pay homage, and which may of be broughtinto a very undesirable collision with the civil power. The statehas therefore a right in this relation; but it is not to be regardedas the right of constitutional legislation in the church, so as toorganize it as may seem most advantageous for itself, or toprescribe and command its faith and ritual forms of worship (ritus);for all this must be left entirely to the teachers and rulers whichthe church has chosen for itself. The function of the state in thisconnection, only includes the negative right of regulating theinfluence of these public teachers upon the visible politicalcommonwealth, that it may not be prejudicial to the public peace andtranquility. Consequently the state has to take measures, onoccasion of any internal conflict in the church, or on occasion of anycollision of the several churches with each other, that civilconcord is not endangered; and this right falls within the province ofthe police. It is beneath the dignity of the supreme power tointerpose in determining what particular faith the church shallprofess, or to decree that a certain faith shall be unalterablyheld, and that the church may not reform itself. For in doing so,the supreme power would be mixing itself up in a scholastic wrangle,on a footing of equality with its subjects; the monarch would bemaking himself a priest; and the churchmen might even reproach thesupreme power with understanding nothing about matters of faith.Especially would this hold in respect of any prohibition of internalreform in the church; for what the people as a whole cannotdetermine upon for themselves cannot be determined for the people bythe legislator. But no people can ever rationally determine thatthey will never advance farther in their insight into matters offaith, or resolve that they will never reform the institutions ofthe church; because this would be opposed to the humanity in their ownpersons and to their highest rights. And therefore the supreme powercannot of itself resolve and decree in these matters for the people.As regards the cost of maintaining the ecclesiastical establishment,for similar reasons this must be derived not from the public fundsof the state, but from the section of the people who profess theparticular faith of the church; and thus only ought it to fall as aburden on the community.  D. The Right of Assigning Offices and Dignities in the State.  The right of the supreme authority in the state also includes:  1. The distribution of offices, as public and paid employments;  2. The conferring of dignities, as unpaid distinctions of rank,founded merely on honour, but establishing a gradation of higher andlower orders in the political scale; the latter, although free inthemselves, being under obligation determined by the public law toobey the former so far as they are also entitled to command;  3. Besides these relatively beneficent rights, the supreme powerin the state is also invested with the right of administeringpunishment.  As regards civil offices, the question arises as to whether thesovereign has the right, after bestowing an office on an individual,to take it again away at his mere pleasure, without any crime havingbeen committed by the holder of the office. I say, "No." For whatthe united will of the people would never resolve, regarding theircivil officers, cannot (constitutionally) be determined by thesovereign regarding them. The people have to bear the cost incurred bythe appointment of an official, and undoubtedly it must be theirwill that any one in office should be completely competent for itsduties. But such competency can only be acquired by a long preparationand training, and this process would necessarily occupy the timethat would be required for acquiring the means of support by adifferent occupation. Arbitrary and frequent changes wouldtherefore, as a rule, have the effect of filling offices withfunctionaries who have not acquired the skill required for theirduties, and whose judgements had not attained maturity by practice.All this is contrary to the purpose of the state. And besides it isrequisite in the interest of the people that it should be possible forevery individual to rise from a lower office to the higher offices, asthese latter would otherwise fall into incompetent hands, and thatcompetent officials generally should have some guarantee oflife-long provision.  Civil dignities include not only such as are connected with a publicoffice, but also those which make the possessors of them, withoutany accompanying services to the state, members of a higher class orrank. The latter constitute the nobility, whose members aredistinguished from the common citizens who form the mass of thepeople. The rank of the nobility is inherited by male descendants; andthese again communicate it to wives who are not nobly born. Femaledescendants of noble families, however, do not communicate theirrank to husbands who are not of noble birth, but they descendthemselves into the common civil status of the people. This beingso, the question then emerges as to whether the sovereign has theright to found a hereditary rank and class, intermediate betweenhimself and the other citizens? The import of this question does notturn on whether it is conformable to the prudence of the sovereign,from regard to his own and the people's interests, to have such aninstitution; but whether it is in accordance with the right of thepeople that they should have a class of persons above them, who, whilebeing subjects like themselves, are yet born as their commanders, orat least as privileged superiors? The answer to this question, as inprevious instances, is to be derived from the principle that "what thepeople, as constituting the whole mass of the subjects, could notdetermine regarding themselves and their associated citizens, cannotbe constitutionally determined by the sovereign regarding the people."Now a hereditary nobility is a rank which takes precedence of meritand is hoped for without any good reason- a thing of the imaginationwithout genuine reality. For if an ancestor had merit, he could nottransmit it to his posterity, but they must always acquire it forthemselves. Nature has in fact not so arranged that the talent andwill which give rise to merit in the state, are hereditary. Andbecause it cannot be supposed of any individual that he will throwaway his freedom, it is impossible that the common will of all thepeople should agree to such a groundless prerogative, and hence thesovereign cannot make it valid. It may happen, however, that such ananomaly as that of subjects who would be more than citizens, in themanner of born officials, or hereditary professors, has slipped intothe mechanism of government in olden times, as in the case of thefeudal system, which was almost entirely organized with reference towar. Under such circumstances, the state cannot deal otherwise withthis error of a wrongly instituted rank in its midst, than by theremedy of a gradual extinction through hereditary positions being leftunfilled as they fall vacant. The state has therefore the rightprovisorily to let a dignity in title continue, until the publicopinion matures on the subject. And this will thus pass from thethreefold division into sovereign, nobles, and people, to thetwofold and only natural division into sovereign and people.  No individual in the state can indeed be entirely without dignity;for he has at least that of being a citizen, except when he has losthis civil status by a crime. As a criminal he is still maintained inlife, but he is made the mere instrument of the will of another,whether it be the state or a particular citizen. In the latterposition, in which he could only be placed by a juridical judgement,he would practically become a slave, and would belong as property(dominium) to another, who would be not merely his master (herus)but his owner (dominus). Such an owner would be entitled to exchangeor alienate him as a thing, to use him at will except for shamefulpurposes, and to dispose of his powers, but not of his life andmembers. No one can bind himself to such a condition of dependence, ashe would thereby cease to be a person, and it is only as a person thathe can make a contract. It may, however, appear that one man maybind himself to another by a contract of hire, to discharge acertain service that is permissible in its kind, but is leftentirely undetermined as regards its measure or amount; and that asreceiving wages or board or protection in return, he thus becomes onlya servant subject to the will of a master (subditus) and not a slave(servus). But this is an illusion. For if masters are entitled touse the powers of such subjects at will, they may exhaust thesepowers- as has been done in the case of Negroes in the Sugar Island-and they may thus reduce their servants to despair and death. But thiswould imply that they had actually given themselves away to theirmasters as property; which, in the case of persons, is impossible. Aperson can, therefore, only contract to perform work that is definedboth in quality and quantity, either as a day-labourer or as adomiciled subject. In the latter case he may enter into a contractof lease for the use of the land of a superior, giving a definite rentor annual return for its utilization by himself, or he may contractfor his service as a labourer upon the land. But he does not therebymake himself a slave, or a bondsman, or a serf attached to the soil(glebae adscriptus), as he would thus divest himself of hispersonality; he can only enter into a temporary or at most a heritablelease. And even if by committing a crime he has personally becomesubjected to another, this subject-condition does not becomehereditary; for he has only brought it upon himself by his ownwrongdoing. Neither can one who has been begotten by a slave beclaimed as property on the ground of the cost of his rearing,because such rearing is an absolute duty naturally incumbent uponparents; and in case the parents be slaves, it devolves upon theirmasters or owners, who, in undertaking the possession of suchsubjects, have also made themselves responsible for the performance oftheir duties.            E. The Right of Punishing and of Pardoning.                   I. The Right of Punishing.  The right of administering punishment is the right of thesovereign as the supreme power to inflict pain upon a subject onaccount of a crime committed by him. The head of the state cannottherefore be punished; but his supremacy may be withdrawn from him.Any transgression of the public law which makes him who commits itincapable of being a citizen, constitutes a crime, either simply asa private crime (crimen), or also as a public crime (crimen publicum).Private crimes are dealt with by a civil court; public crimes by acriminal court. Embezzlement or speculation of money or goodsentrusted in trade, fraud in purchase or sale, if done before the eyesof the party who suffers, are private crimes. On the other hand,coining false money or forging bills of exchange, theft, robbery,etc., are public crimes, because the commonwealth, and not merely someparticular individual, is endangered thereby. Such crimes may bedivided into those of a base character (indolis abjectae) and those ofa violent character (indolis violentiae).  Judicial or juridical punishment (poena forensis) is to bedistinguished from natural punishment (poena naturalis), in whichcrime as vice punishes itself, and does not as such come within thecognizance of the legislator. juridical punishment can never beadministered merely as a means for promoting another good eitherwith regard to the criminal himself or to civil society, but must inall cases be imposed only because the individual on whom it isinflicted has committed a crime. For one man ought never to be dealtwith merely as a means subservient to the purpose of another, nor bemixed up with the subjects of real right. Against such treatment hisinborn personality has a right to protect him, even although he may becondemned to lose his civil personality. He must first be found guiltyand punishable, before there can be any thought of drawing from hispunishment any benefit for himself or his fellow-citizens. The penallaw is a categorical imperative; and woe to him who creeps through theserpent-windings of utilitarianism to discover some advantage that maydischarge him from the justice of punishment, or even from the duemeasure of it, according to the Pharisaic maxim: "It is better thatone man should die than that the whole people should perish." For ifjustice and righteousness perish, human life would no longer haveany value in the world. What, then, is to be said of such a proposalas to keep a criminal alive who has been condemned to death, on hisbeing given to understand that, if he agreed to certain dangerousexperiments being performed upon him, he would be allowed to surviveif he came happily through them? It is argued that physicians mightthus obtain new information that would be of value to thecommonweal. But a court of justice would repudiate with scorn anyproposal of this kind if made to it by the medical faculty; forjustice would cease to be justice, if it were bartered away for anyconsideration whatever.  But what is the mode and measure of punishment which publicjustice takes as its principle and standard? It is just theprinciple of equality, by which the pointer of the scale of justice ismade to incline no more to the one side than the other. It may berendered by saying that the undeserved evil which any one commits onanother is to be regarded as perpetrated on himself. Hence it may besaid: "If you slander another, you slander yourself; if you steal fromanother, you steal from yourself; if you strike another, you strikeyourself; if you kill another, you kill yourself." This is the rightof retaliation (jus talionis); and, properly understood, it is theonly principle which in regulating a public court, as distinguishedfrom mere private judgement, can definitely assign both the qualityand the quantity of a just penalty. All other standards are waveringand uncertain; and on account of other considerations involved inthem, they contain no principle conformable to the sentence of pureand strict justice. It may appear, however, that difference ofsocial status would not admit the application of the principle ofretaliation, which is that of "like with like." But although theapplication may not in all cases be possible according to theletter, yet as regards the effect it may always be attained inpractice, by due regard being given to the disposition and sentimentof the parties in the higher social sphere. Thus a pecuniary penaltyon account of a verbal injury may have no direct proportion to theinjustice of slander; for one who is wealthy may be able to indulgehimself in this offence for his own gratification. Yet the attackcommitted on the honour of the party aggrieved may have its equivalentin the pain inflicted upon the pride of the aggressor, especially ifhe is condemned by the judgement of the court, not only to retract andapologize, but to submit to some meaner ordeal, as kissing the hand ofthe injured person. In like manner, if a man of the highest rank hasviolently assaulted an innocent citizen of the lower orders, he may becondemned not only to apologize but to undergo a solitary andpainful imprisonment, whereby, in addition to the discomfortendured, the vanity of the offender would be painfully affected, andthe very shame of his position would constitute an adequateretaliation after the principle of "like with like." But how thenwould we render the statement: "If you steal from another, you stealfrom yourself?" In this way, that whoever steals anything makes theproperty of all insecure; he therefore robs himself of all security inproperty, according to the right of retaliation. Such a one hasnothing, and can acquire nothing, but he has the will to live; andthis is only possible by others supporting him. But as the stateshould not do this gratuitously, he must for this purpose yield hispowers to the state to be used in penal labour; and thus he fallsfor a time, or it may be for life, into a condition of slavery. Butwhoever has committed murder, must die. There is, in this case, nojuridical substitute or surrogate, that can be given or taken forthe satisfaction of justice. There is no likeness or proportionbetween life, however painful, and death; and therefore there is noequality between the crime of murder and the retaliation of it butwhat is judicially accomplished by the execution of the criminal.His death, however, must be kept free from all maltreatment that wouldmake the humanity suffering in his person loathsome or abominable.Even if a civil society resolved to dissolve itself with the consentof all its members- as might be supposed in the case of a peopleinhabiting an island resolving to separate and scatter themselvesthroughout the whole world- the last murderer lying in the prisonought to be executed before the resolution was carried out. This oughtto be done in order that every one may realize the desert of hisdeeds, and that blood-guiltiness may not remain upon the people; forotherwise they might all be regarded as participators in the murder asa public violation of justice.  The equalization of punishment with crime is therefore only possibleby the cognition of the judge extending even to the penalty ofdeath, according to the right of retaliation. This is manifest fromthe fact that it is only thus that a sentence can be pronounced overall criminals proportionate to their internal wickedness; as may beseen by considering the case when the punishment of death has to beinflicted, not on account of a murder, but on account of a politicalcrime that can only be punished capitally. A hypothetical case,founded on history, will illustrate this. In the last Scottishrebellion there were various participators in it- such as Balmerinoand others- who believed that in taking part in the rebellion theywere only discharging their duty to the house of Stuart; but therewere also others who were animated only by private motives andinterests. Now, suppose that the judgement of the supreme courtregarding them had been this: that every one should have liberty tochoose between the punishment of death or penal servitude for life. Inview of such an alternative, I say that the man of honour would choosedeath, and the knave would choose servitude. This would be theeffect of their human nature as it is; for the honourable man valueshis honour more highly than even life itself, whereas a knaveregards a life, although covered with shame, as better in his eyesthan not to be. The former is, without gainsaying, less guilty thanthe other; and they can only be proportionately punished by deathbeing inflicted equally upon them both; yet to the one it is a mildpunishment when his nobler temperament is taken into account,whereas it is a hard punishment to the other in view of his basertemperament. But, on the other hand, were they all equally condemnedto penal servitude for life, the honourable man would be tooseverely punished, while the other, on account of his baseness ofnature, would be too mildly punished. In the judgement to bepronounced over a number of criminals united in such a conspiracy, thebest equalizer of punishment and crime in the form of public justiceis death. And besides all this, it has never been heard of that acriminal condemned to death on account of a murder has complained thatthe sentence inflicted on him more than was right and just; and anyone would treat him with scorn if he expressed himself to thiseffect against it. Otherwise it would be necessary to admit that,although wrong and injustice are not done to the criminal by thelaw, yet the legislative power is not entitled to administer this modeof punishment; and if it did so, it would be in contradiction withitself.  However many they may be who have committed a murder, or have evencommanded it, or acted as art and part in it, they ought all to sufferdeath; for so justice wills it, in accordance with the idea of thejuridical power, as founded on the universal laws of reason. But thenumber of the accomplices (correi) in such a deed might happen to beso great that the state, in resolving to be without such criminals,would be in danger of soon also being deprived of subjects. But itwill not thus dissolve itself, neither must it return to the muchworse condition of nature, in which there would be no externaljustice. Nor, above all, should it deaden the sensibilities of thepeople by the spectacle of justice being exhibited in the mere carnageof a slaughtering bench. In such circumstances the sovereign mustalways be allowed to have it in his power to take the part of thejudge upon himself as a case of necessity- and to deliver ajudgement which, instead of the penalty of death, shall assign someother punishment to the criminals and thereby preserve a multitudeof the people. The penalty of deportation is relevant in thisconnection. Such a form of judgement cannot be carried out accordingto a public law, but only by an authoritative act of the royalprerogative, and it may only be applied as an act of grace inindividual cases.  Against these doctrines, the Marquis Beccaria has given forth adifferent view. Moved by the compassionate sentimentality of ahumane feeling, he has asserted that all capital punishment is wrongin itself and unjust. He has put forward this view on the groundthat the penalty of death could not be contained in the original civilcontract; for, in that case, every one of the people would have had toconsent to lose his life if be murdered any of his fellow citizens.But, it is argued, such a consent is impossible, because no one canthus dispose of his own life. All this is mere sophistry andperversion of right. No one undergoes punishment because he has willedto be punished, but because he has willed a punishable action; forit 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, "Iwill 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"; andif there are any criminals among the people, these laws will includepenal laws. The individual who, as a co-legislator, enacts penal lawcannot possibly be the same person who, as a subject, is punishedaccording to the law; for, qua criminal, he cannot possibly beregarded as having a voice in the legislation, the legislator beingrationally viewed as just and holy. If any one, then, enact a penallaw against himself as a criminal, it must be the pure juridicallylaw-giving reason (homo noumenon), which subjects him as one capableof crime, and consequently as another person (homo phenomenon),along with all the others in the civil union, to this penal law. Inother words, it is not the people taken distributively, but thetribunal of public justice, as distinct from the criminal, thatprescribes capital punishment; and it is not to be viewed as if thesocial contract contained the promise of all the individuals toallow themselves to be punished, thus disposing of themselves andtheir lives. For if the right to punish must be grounded upon apromise of the wrongdoer, whereby he is to be regarded as beingwilling to be punished, it ought also to be left to him to findhimself deserving of the punishment; and the criminal would thus behis own judge. The chief error (proton pseudos) of this sophistryconsists in regarding the judgement of the criminal himself,necessarily determined by his reason, that he is under obligation toundergo the loss of his life, as a judgement that must be groundedon a resolution of his will to take it away himself; and thus theexecution of the right in question is represented as united in one andthe same person with the adjudication of the right.  There are, however, two crimes worthy of death, in respect ofwhich it still remains doubtful whether the legislature have the rightto deal with them capitally. It is the sentiment of honour thatinduces their perpetration. The one originates in a regard for womanlyhonour, the other in a regard for military honour; and in both casesthere is a genuine feeling of honour incumbent on the individuals as aduty. The former is the crime of maternal infanticide (infanticidiummaternale); the latter is the crime of killing a fellow-soldier in aduel (commilitonicidium). Now legislation cannot take away the shameof an illegitimate birth, nor wipe off the stain attaching from asuspicion of cowardice, to an officer who does not resist an actthat would bring him into contempt, by an effort of his own that issuperior to the fear of death. Hence it appears that, in suchcircumstances, the individuals concerned are remitted to the stateof nature; and their acts in both cases must be called homicide, andnot murder, which involves evil intent (homicidium dolosum). In allinstances the acts are undoubtedly punishable; but they cannot bepunished by the supreme power with death. An illegitimate childcomes into the world outside of the law which properly regulatesmarriage, and it is thus born beyond the pale or constitutionalprotection of the law. Such a child is introduced, as it were, likeprohibited goods, into the commonwealth, and as it has no legalright to existence in this way, its destruction might also be ignored;nor can the shame of the mother, when her unmarried confinement isknown, be removed by any legal ordinance. A subordinate officer,again, on whom an insult is inflicted, sees himself compelled by thepublic opinion of his associates to obtain satisfaction; and, as inthe state of nature, the punishment of the offender can only beeffected by a duel, in which his own life is exposed to danger, andnot by means of the law in a court of justice. The duel is thereforeadopted as the means of demonstrating his courage as thatcharacteristic upon which the honour of his profession essentiallyrests; and this is done even if it should issue in the killing ofhis adversary. But as such a result takes place publicly and under theconsent of both parties, although it may be done unwillingly, itcannot properly be called murder (homicidium dolosum). What then isthe right in both cases as relating to criminal justice? Penal justiceis here in fact brought into great straits, having apparently eitherto declare the notion of honour, which is certainly no mere fancyhere, to 'be nothing in the eye of the law, or to exempt the crimefrom its due punishment; and thus it would become either remiss orcruel. The knot thus tied is to be resolved in the following way.The categorical imperative of penal justice, that the killing of anyperson contrary to the law must be punished with death, remains inforce; but the legislation itself and the civil constitutiongenerally, so long as they are still barbarous and incomplete, areat fault. And this is the reason why the subjectivemotive-principles of honour among the people do not coincide withthe standards which are objectively conformable to another purpose; sothat the public justice issuing from the state becomes injusticerelatively to that which is upheld among the people themselves.                II. The Right of Pardoning.  The right of pardoning (jus aggratiandi), viewed in relation tothe criminal, is the right of mitigating or entirely remitting hispunishment. On the side of the sovereign this is the most delicateof all rights, as it may be exercised so as to set forth the splendourof his dignity, and yet so as to do a great wrong by it. It oughtnot to be exercised in application to the crimes of the subjectsagainst each other; for exemption from punishment (impunitas criminis)would be the greatest wrong that could be done to them. It is onlyan occasion of some form of treason (crimen laesae majestatis), as alesion against himself, that the sovereign should make use of thisright. And it should not be exercised even in this connection, ifthe safety of the people would be endangered by remitting suchpunishment. This right is the only one which properly deserves thename of a "right of majesty."    50. Juridical Relations of the Citizen to his Country and        to Other Countries. Emigration; Immigration; Banishment;                            Exile.  The land or territory whose inhabitants- in virtue of itspolitical constitution and without the necessary intervention of aspecial juridical act- are, by birth, fellow-citizens of one and thesame commonwealth, is called their country or fatherland. A foreigncountry is one in which they would not possess this condition, butwould be living abroad. If a country abroad form part of the territoryunder the same government as at home, it constitutes a province,according to the Roman usage of the term. It does not constitute anincorporated portion of the empire (imperii) so as to be the abodeof equal fellow-citizens, but is only a possession of thegovernment, like a lower house; and it must therefore honour thedomain of the ruling state as the "mother country" (regio domina).  1. A subject, even regarded as a citizen, has the right ofemigration; for the state cannot retain him as if he were itsproperty. But he may only carry away with him his moveables asdistinguished from his fixed possessions. However, he is entitled tosell his immovable property, and take the value of it in money withhim.  2. The supreme power, as master of the country, has the right tofavour immigration and the settlement of strangers and colonists. Thiswill hold even although the natives of the country may be unfavourablydisposed to it, if their private property in the soil is notdiminished or interfered with.  3. In the case of a subject who has committed a crime that rendersall society of his fellow-citizens with him prejudicial to thestate, the supreme power has also the right of inflicting banishmentto a country abroad. By such deportation, he does not acquire anyshare in the rights of citizens of the territory to which he isbanished.  4. The supreme power has also the right of imposing exilegenerally (jus exilii), by which a citizen is sent abroad into thewide world as the "out-land." And because the supreme authority thuswithdraws all legal protection from the citizen, this amounts tomaking him an "outlaw" within the territory of his own country.         51. The Three Forms of the State: Autocracy;                  Aristocracy; Democracy.  The three powers in the state, involved in the conception of apublic government generally (res publica latius dicta), are only somany relations of the united will of the people which emanates fromthe a priori reason; and viewed as such it is the objectivepractical realization of the pure idea of a supreme head of the state.This supreme head is the sovereign; but conceived only as arepresentation of the whole people, the idea still requires physicalembodiment in a person, who may exhibit the supreme power of the stateand bring the idea actively to bear upon the popular will. Therelation of the supreme power to the people is conceivable in threedifferent forms: either one in the state rules over all; or some,united in relation of equality with each other, rule over all theothers; or all together rule over each and all individually, includingthemselves. The form of the state is therefore either autocratic, oraristocratic, or democratic. The expression monarchic is not sosuitable as autocratic for the conception here intended; for a monarchis one who has the highest power, an autocrat is one who has allpower, so that this latter is the sovereign, whereas the former merelyrepresents the sovereignty.  It is evident that an autocracy is the simplest form of governmentin the state, being constituted by the relation of one, as king, tothe people, so that there is one only who is the lawgiver. Anaristocracy, as a form of government, is, however, compounded of theunion of two relations: that of the nobles in relation to oneanother as the lawgivers, thereby constituting the sovereignty, andthat of this sovereign power to the people. A democracy, again, is themost complex of all the forms of the state, for it has to begin byuniting the will of all so as to form a people; and then it has toappoint a sovereign over this common union, which sovereign is noother than the united will itself. The consideration of the ways inwhich these forms are adulterated by the intrusion of violent andillegitimate usurpers of power, as in oligarchy and ochlocracy, aswell as the discussion of the so called mixed constitutions, may bepassed over here as not essential, and as leading into too muchdetail.  As regards the administration of right in the state, it may besaid that the simplest mode is also the best; but as regards itsbearing on right itself, it is also the most dangerous for the people,in view of the despotism to which simplicity of administration sonaturally gives rise. It is undoubtedly a rational maxim to aim atsimplification in the machinery which is to unite the people undercompulsory laws, and this would be secured were all the people to bepassive and to obey only one person over them; but the method wouldnot give subjects who were also citizens of the state. It is sometimessaid that the people should be satisfied with the reflection thatmonarchy, regarded as an autocracy, is the best politicalconstitution, if the monarch is good, that is, if be has the judgementas well as the will to do right. But this is a mere evasion andbelongs to the common class of wise tautological phrases. It onlyamounts to saying that "the best constitution is that by which thesupreme administrator of the state is made the best ruler"; that is,that the best constitution is the best!              52. Historical Origin and Changes.         A Pure Republic. Representative Government.  It is vain to inquire into the historical origin of the politicalmechanism; for it is no longer possible to discover historically thepoint of time at which civil society took its beginning. Savages donot draw up a documentary record of their having submittedthemselves to law; and it may be inferred from the nature ofuncivilized men that they must have set out from a state ofviolence. To prosecute such an inquiry in the intention of finding apretext for altering the existing constitution by violence is noless than penal. For such a mode of alteration would amount torevolution, that could only be carried out by an insurrection of thepeople, andnot by constitutional modes of legislation. But insurrection againstan already existing constitution, is an overthrow of all civil andjuridical relations, and of right generally; and hence it is not amere alteration of the civil constitution, but a dissolution of it. Itwould thus form a mode of transition to a better constitution bypalingenesis and not by mere metamorphosis; and it would require a newsocial contract, upon which the former original contract, as thenannulled, would have no influence.  It must, however, be possible for the sovereign to change theexisting constitution, if it is not actually consistent with theidea of the original contract. In doing so it is essential to giveexistence to that form of government which will properly constitutethe people into a state. Such a change cannot be made by the statedeliberately altering its constitution from one of the three formsto one of the other two. For example, political changes should notbe carried out by the aristocrats combining to subject themselves toan autocracy, or resolving to fuse all into a democracy, orconversely; as if it depended on the arbitrary choice and liking ofthe sovereign what constitution he may impose on the people. For, evenif as sovereign he resolved to alter the constitution into ademocracy, he might be doing wrong to the people, because they mighthold such a constitution in abhorrence, and regard either of the othertwo as more suitable to them in the circumstances.  The forms of the state are only the letter (littera) of the originalconstitution in the civil union; and they may therefore remain so longas they are considered, from ancient and long habit (and thereforeonly subjectively), to be necessary to the machinery of thepolitical constitution. But the spirit of that original contract(anima pacti originarii) contains and imposes the obligation on theconstituting power to make the mode of the government conformable toits idea; and, if this cannot be effected at once, to change itgradually and continuously till it harmonize in its working with theonly rightful constitution, which is that of a pure republic. Thus theold empirical and statutory forms, which serve only to effect thepolitical subjection of the people, will be resolved into the originaland rational forms which alone take freedom as their principle, andeven as the condition of all compulsion and constraint. Compulsionis in fact requisite for the realization of a juridicalconstitution, according to the proper idea of the state; and it willlead at last to the realization of that idea, even according to theletter. This is the only enduring political constitution, as in it thelaw is itself sovereign, and is no longer attached to a particularperson. This is the ultimate end of all public right, and the state inwhich every citizen can have what is his own peremptorily assignedto him. But so long as the form of the state has to be represented,according to the letter, by many different moral persons invested withthe supreme power, there can only be a provisory internal right, andnot an absolutely juridical state of civil society.  Every true republic is and can only be constituted by arepresentative system of the people. Such a representative system isinstituted in name of the people, and is constituted by all thecitizens being united together, in order, by means of theirdeputies, to protect and secure their rights. But as soon as a supremehead of the state in person- be it as king, or nobility, or thewhole body of the people in a democratic union- becomes alsorepresentative, the united people then does not merely represent thesovereignty; but they are themselves sovereign. It is in the peoplethat the supreme power originally resides, and it is accordinglyfrom this power that all the rights of individual citizens as meresubjects, and especially as officials of the state, must be derived.When the sovereignty of the people themselves is thus realized, therepublic is established; and it is no longer necessary to give upthe reins of government into the hands of those by whom they have beenhitherto held, especially as they might again destroy all the newinstitutions by their arbitrary and absolute will.  It was therefore a great error in judgement on the part of apowerful ruler in our time, when he tried to extricate himself fromthe embarrassment arising from great public debts, by transferringthis burden to the people, and leaving them to undertake anddistribute them among themselves as they might best think fit. It thusbecame natural that the legislative power, not only in respect ofthe taxation of the subjects, but in respect of the government, shouldcome into the hands of the people. It was requisite that they shouldbe able to prevent the incurring of new debts by extravagance orwar; and in consequence, the supreme power of the monarch entirelydisappeared, not by being merely suspended, but by passing over infact to the people, to whose legislative will the property of everysubject thus became subjected. Nor can it be said that a tacit and yetobligatory promise must be assumed as having, under suchcircumstances, been given by the national assembly, not toconstitute themselves into a sovereignty, but only to administer theaffairs of the sovereign for the time, and after this was done todeliver the reins of the government again into the monarch's hands.Such a supposed contract would be null and void. The right of thesupreme legislation in the commonwealth is not an alienable right, butis the most personal of all rights. Whoever possesses it can onlydispose by the collective will of the people, in respect of thepeople; he cannot dispose in respect of the collective will itself,which is the ultimate foundation of all public contracts. Acontract, by which the people would be bound to give back theirauthority again, would not be consistent with their position as alegislative power, and yet it would be made binding upon the people;which, on the principle that "No one can serve two masters," is acontradiction.        II. The Right of Nations and International Law.                       (Jus Gentium).        53. Nature and Division of the Right of Nations.  The individuals, who make up a people, may be regarded as natives ofthe country sprung by natural descent from a common ancestry(congeniti), although this may not hold entirely true in detail.Again, they may be viewed according to the intellectual andjuridical relation, as born of a common political mother, therepublic, so that they constitute, as it were, a public family ornation (gens, natio) whose members are all related to each other ascitizens of the state. As members of a state, they do not mix withthose who live beside them in the state of nature, considering such tobe ignoble. Yet these savages, on account of the lawless freedomthey have chosen, regard themselves as superior to civilizedpeoples; and they constitute tribes and even races, but not states.The public right of states (jus publicum civitatum), in theirrelations to one another, is what we have to consider under thedesignation of the "right of nations." Wherever a state, viewed as amoral person, acts in relation to another existing in the condition ofnatural freedom, and consequently in a state of continual war, suchright takes it rise.  The right of nations in relation to the state of war may bedivided into: 1. the right of going to war; 2. right during war; and3. right after war, the object of which is to constrain the nationsmutually to pass from this state of war and to found a commonconstitution establishing perpetual peace. The difference betweenthe right of individual men or families as related to each other inthe state of nature, and the right of the nations among themselves,consists in this, that in the right of nations we have to consider notmerely a relation of one state to another as a whole, but also therelation of the individual persons in one state to the individualsof another state, as well as to that state as a whole. Thisdifference, however, between the right of nations and the right ofindividuals in the mere state of nature, requires to be determinedby elements which can easily be deduced from the conception of thelatter.             54. Elements of the Right of Nations.  The elements of the right of nations are as follows:  1. States, viewed as nations, in their external relations to oneanother- like lawless savages- are naturally in a non-juridicalcondition;  2. This natural condition is a state of war in which the right ofthe stronger prevails; and although it may not in fact be always foundas a state of actual war and incessant hostility, and although no realwrong is done to any one therein, yet the condition is wrong in itselfin the highest degree, and the nations which form states contiguous toeach other are bound mutually to pass out of it;  3. An alliance of nations, in accordance with the idea of anoriginal social contract, is necessary to protect each other againstexternal aggression and attack, but not involving interference withtheir several internal difficulties and disputes;  4. This mutual connection by alliance must dispense with adistinct sovereign power, such as is set up in the civil constitution;it can only take the form of a federation, which as such may berevoked on any occasion, and must consequently be renewed from time totime.  This is therefore a right which comes in as an accessory (insubsidium) of another original right, in order to prevent thenations from falling from right and lapsing into the state of actualwar with each other. It thus issues in the idea of a foedusamphictyonum.         55. Right of Going to War as related to the                   Subjects of the State.  We have then to consider, in the first place, the original rightof free states to go to war with each other as being still in astate of nature, but as exercising this right in order to establishsome condition of society approaching the juridical And, first of all,the question arises as to what right the state has in relation toits own subjects, to use them in order to make war against otherstates, to employ their property and even their lives for thispurpose, or at least to expose them to hazard and danger; and all thisin such a way that it does not depend upon their own personaljudgement whether they will march into the field of war or not, butthe supreme command of the sovereign claims to settle and dispose ofthem thus.  This right appears capable of being easily established. It may begrounded upon the right which every one has to do with what is his ownas he will. Whatever one has made substantially for himself, heholds as his incontestable property. The following, then, is such adeduction as a mere jurist would put forward.  There are various natural products in a country which, as regardsthe number and quantity in which they exist, must be considered asspecially produced (artefacta) by the work of the state; for thecountry would not yield them to such extent were it not under theconstitution of the state and its regular administrative government,or if the inhabitants were still living in the state of nature. Sheep,cattle, domestic fowl the most useful of their kind- swine, and suchlike, would either be used up as necessary food or destroyed by beastsof prey in the district in which I live, so that they would entirelydisappear, or be found in very scant supplies, were it not for thegovernment securing to the inhabitants their acquisitions andproperty. This holds likewise of the population itself, as we see inthe case of the American deserts; and even were the greatestindustry applied in those regions- which is not yet done- theremight be but a scanty population. The inhabitants of any country wouldbe but sparsely sown here and there were it not for the protectionof government; because without it they could not spread themselveswith their households upon a territory which was always in danger ofbeing devastated by enemies or by wild beasts of prey; and further, sogreat a multitude of men as now live in any one country could nototherwise obtain sufficient means of support. Hence, as it can be saidof vegetable growths, such as potatoes, as well as of domesticatedanimals, that because the abundance in which they are found is aproduct of human labour, they may be used, destroyed, and consumedby man; so it seems that it may be said of the sovereign, as thesupreme power in the state, that he has the right to lead hissubjects, as being for the most part productions of his own, to war,as if it were to the chase, and even to march them to the field ofbattle, as if it were on a pleasure excursion.  This principle of right may be supposed to float dimly before themind of the monarch, and it certainly holds true at least of the loweranimals which may become the property of man. But such a principlewill not at all apply to men, especially when viewed as citizens whomust be regarded as members of the state, with a share in thelegislation, and not merely as means for others but as ends inthemselves. As such they must give their free consent, through theirrepresentatives, not only to the carrying on of war generally, butto every separate declaration of war; and it is only under thislimiting condition that the state has a right to demand their servicesin undertakings so full of danger.  We would therefore deduce this right rather from the duty of thesovereign to the people than conversely. Under this relation, thepeople must be regarded as having given their sanction; and, havingthe right of voting, they may be considered, although thus passivein reference to themselves individually, to be active in so far asthey represent the sovereignty itself.              56. Right of Going to War in relation                        to Hostile States.  Viewed as in the state of nature, the right of nations to go towar and to carry on hostilities is the legitimate way by which theyprosecute their rights by their own power when they regardthemselves as injured; and this is done because in that state themethod of a juridical process, although the only one proper tosettle such disputes, cannot be adopted.  The threatening of war is to be distinguished from the active injuryof a first aggression, which again is distinguished from the generaloutbreak of hostilities. A threat or menace may be given by the activepreparation of armaments, upon which a right of prevention (juspraeventionis) is founded on the other side, or merely by theformidable increase of the power of another state (potestastremenda) by acquisition of territory. Lesion of a less powerfulcountry may be involved merely in the condition of a more powerfulneighbour prior to any action at all; and in the state of nature anattack under such circumstances would be warrantable. Thisinternational relation is the foundation of the right ofequilibrium, or of the "balance of power," among all the states thatare in active contiguity to each other.  The right to go to war is constituted by any overt act of injury.This includes any arbitrary retaliation or act of reprisal(retorsio) as a satisfaction taken by one people for an offencecommitted by another, without any attempt being made to obtainreparation in a peaceful way. Such an act of retaliation would besimilar in kind to an outbreak of hostilities without a previousdeclaration of war. For if there is to be any right at all duringthe state of war, something analogous to a contract must be assumed,involving acceptance on the side of the declaration on the other,and amounting to the fact that they both will to seek their right inthis way.                 57. Right during War.  The determination of what constitutes right in war, is the mostdifficult problem of the right of nations and international law. It isvery difficult even to form a conception of such a right, or tothink of any law in this lawless state without falling into acontradiction. Inter arma silent leges.* It must then be just theright to carry on war according to such principles as render it alwaysstill possible to pass out of that natural condition of the statesin their external relations to each other, and to enter into acondition of right.  *["In the midst of arms the laws are silent." Cicero.]  No war of independent states against each other can rightly be a warof punishment (bellum punitivum). For punishment is only in placeunder the relation of a superior (imperantis) to a subject (subditum);and this is not the relation of the states to one another. Neither canan international war be "a war of extermination" (belluminternicinum), nor even "a war of subjugation" (bellum subjugatorium);for this would issue in the moral extinction of a state by itspeople being either fused into one mass with the conquering state,or being reduced to slavery. Not that this necessary means ofattaining to a condition of peace is itself contradictory to the rightof a state; but because the idea of the right of nations includesmerely the conception of an antagonism that is in accordance withprinciples of external freedom, in order that the state may maintainwhat is properly its own, but not that it may acquire a conditionwhich, from the aggrandizement of its power, might becomethreatening to other states.  Defensive measures and means of all kinds are allowable to a statethat is forced to war, except such as by their use would make thesubjects using them unfit to be citizens; for the state would thusmake itself unfit to be regarded as a person capable ofparticipating in equal rights in the international relations accordingto the right of nations. Among these forbidden means are to bereckoned the appointment of subjects to act as spies, or engagingsubjects or even strangers to act as assassins, or poisoners (in whichclass might well be included the so called sharpshooters who lurk inambush for individuals), or even employing agents to spread falsenews. In a word, it is forbidden to use any such malignant andperfidious means as would destroy the confidence which would berequisite to establish a lasting peace thereafter.  It is permissible in war to impose exactions and contributionsupon a conquered enemy; but it is not legitimate to plunder the peoplein the way of forcibly depriving individuals of their property. Forthis would be robbery, seeing it was not the conquered people butthe state under whose government they were placed that carried onthe war by means of them. All exactions should be raised by regularrequisition, and receipts ought to be given for them, in order thatwhen peace is restored the burden imposed on the country or theprovince may be proportionately borne.                    58. Right after War.  The right that follows after war, begins at the moment of the treatyof peace and refers to the consequences of the war. The conqueror laysdown the conditions under which he will agree with the conquered powerto form the conclusion of peace. Treaties are drawn up; not indeedaccording to any right that it pertains to him to protect, onaccount of an alleged lesion by his opponent, but as taking thisquestion upon himself, he bases the right to decide it upon his ownpower. Hence the conqueror may not demand restitution of the cost ofthe war; because he would then have to declare the war of his opponentto be unjust. And even although he should adopt such an argument, heis not entitled to apply it; because he would have to declare thewar to be punitive, and he would thus in turn inflict an injury. Tothis right belongs also the exchange of prisoners, which is to becarried out without ransom and without regard to equality of numbers.  Neither the conquered state nor its subjects lose their politicalliberty by conquest of the country, so as that the former should bedegraded to a colony, or the latter to slaves; for otherwise itwould have been a penal war, which is contradictory in itself. Acolony or a province is constituted by a people which has its ownconstitution, legislation, and territory, where persons belonging toanother state are merely strangers, but which is neverthelesssubject to the supreme executive power of another state. This otherstate is called the mother-country. It is ruled as a daughter, but hasat the same time its own form of government, as in a separateparliament under the presidency of a viceroy (civitas hybrida). Suchwas Athens in relation to different islands; and such is at present(1796) the relation of Great Britain to Ireland.  Still less can slavery be deduced as a rightful institution, fromthe conquest of a people in war; for this would assume that the warwas of a punitive nature. And least of all can a basis be found in warfor a hereditary slavery, which is absurd in itself, since guiltcannot be inherited from the criminality of another.  Further, that an amnesty is involved in the conclusion of a treatyof peace is already implied in the very idea of a peace.                   59. The Rights of Peace.  The rights of peace are:  1. The right to be in peace when war is in the neighbourhood, or theright of neutrality.  2. The right to have peace secured so that it may continue when ithas been concluded, that is, the right of guarantee.  3. The right of the several states to enter into a mutualalliance, so as to defend themselves in common against all external oreven internal attacks. This right of federation, however, does notextend to the formation of any league for external aggression orinternal aggrandizement.           60. Right as against an Unjust Enemy.  The right of a state against an unjust enemy has no limits, at leastin respect of quality as distinguished from quantity or degree. Inother words, the injured state may use- not, indeed any means, butyet- all those means that are permissible and in reasonable measure inso far as they are in its power, in order to assert its right towhat is its own. But what then is an unjust enemy according to theconceptions of the right of nations, when, as holds generally of thestate of nature, every state is judge in its own cause? It is onewhose publicly expressed will, whether in word or deed, betrays amaxim which, if it were taken as a universal rule, would make astate of peace among the nations impossible, and would necessarilyperpetuate the state of nature. Such is the violation of publictreaties, with regard to which it may be assumed that any suchviolation concerns all nations by threatening their freedom, andthat they are thus summoned to unite against such a wrong and totake away the power of committing it. But this does not include theright to partition and appropriate the country, so as to make astate as it were disappear from the earth; for this would be aninjustice to the people of that state, who cannot lose theiroriginal right to unite into a commonwealth, and to adopt such a newconstitution as by its nature would be unfavourable to the inclinationfor war.  Further, it may be said that the expression "an unjust enemy inthe state of nature" is pleonastic; for the state of nature isitself a state of injustice. A just enemy would be one to whom I woulddo wrong in offering resistance; but such a one would really not be myenemy.      61. Perpetual Peace and a Permanent Congress of Nations.  The natural state of nations as well as of individual men is a statewhich it is a duty to pass out of, in order to enter into a legalstate. Hence, before this transition occurs, all the right ofnations and all the external property of states acquirable ormaintainable by war are merely provisory; and they can only becomeperemptory in a universal union of states analogous to that by which anation becomes a state. It is thus only that a real state of peacecould be established. But with the too great extension of such a unionof states over vast regions, any government of it, and consequentlythe protection of its individual members, must at last becomeimpossible; and thus a multitude of such corporations would againbring round a state of war. Hence the perpetual peace, which is theultimate end of all the right of nations, becomes in fact animpracticable idea. The political principles, however, which aim atsuch an end, and which enjoin the formation of such unions among thestates as may promote a continuous approximation to a perpetual peace,are not impracticable; they are as practicable as this approximationitself, which is a practical problem involving a duty, and foundedupon the right of individual men and states.  Such a union of states, in order to maintain peace, may be calleda permanent congress of nations; and it is free to everyneighbouring state to join in it. A union of this kind, so far atleast as regards the formalities of the right of nations in respect ofthe preservation of peace, was presented in the first half of thiscentury, in the Assembly of the States-General at the Hague. In thisAssembly most of the European courts, and even the smallest republics,brought forward their complaints about the hostilities which werecarried on by the one against the other. Thus the whole of Europeappeared like a single federated state, accepted as umpire by theseveral nations in their public differences. But in place of thisagreement, the right of nations afterwards survived only in books;it disappeared from the cabinets, or, after force had been alreadyused, it was relegated in the form of theoretical deductions to theobscurity of archives.  By such a congress is here meant only a voluntary combination ofdifferent states that would be dissoluble at any time, and not sucha union as is embodied in the United States of America, founded upon apolitical constitution, and therefore indissoluble. It is only by acongress of this kind that the idea of a public right of nations canbe established, and that the settlement of their differences by themode of a civil process, and not by the barbarous means of war, can berealized.            III. The Universal Right of Mankind.                    (Jus Cosmopoliticum)      62. Nature and Conditions of Cosmopolitical Right.  The rational idea of a universal, peaceful, if not yet friendly,union of all the nations upon the earth that may come into activerelations with each other, is a juridical principle, asdistinguished from philanthropic or ethical principles. Nature hasenclosed them altogether within definite boundaries, in virtue ofthe spherical form of their abode as a globus terraqueus; and thepossession of the soil upon which an inhabitant of the earth maylive can only be regarded as possession of a part of a limited wholeand, consequently, as a part to which every one has originally aright. Hence all nations originally hold a community of the soil,but not a juridical community of possession (communio), norconsequently of the use or proprietorship of the soil, but only of apossible physical intercourse (commercium) by means of it. In otherwords, they are placed in such thoroughgoing relations of each toall the rest that they may claim to enter into intercourse with oneanother, and they have a right to make an attempt in this direction,while a foreign nation would not be entitled to treat them on thisaccount as enemies. This right, in so far as it relates to apossible union of all nations, in respect of certain lawsuniversally regulating their intercourse with each other, may becalled "cosmopolitical right" (jus cosmopoliticum).  It may appear that seas put nations out of all communion with eachother. But this is not so; for by means of commerce, seas form thehappiest natural provision for their intercourse. And the more thereare of neighbouring coastlands, as in the case of the MediterraneanSea, this intercourse becomes the more animated. And hencecommunications with such lands, especially where there are settlementsupon them connected with the mother countries giving occasion for suchcommunications, bring it about that evil and violence committed in oneplace of our globe are felt in all. Such possible abuse cannot,however, annul the right of man as a citizen of the world to attemptto enter into communion with all others, and for this purpose to visitall the regions of the earth, although this does not constitute aright of settlement upon the territory of another people (jusincolatus), for which a special contract is required.  But the question is raised as to whether, in the case of newlydiscovered countries, a people may claim the right to settle(accolatus), and to occupy possessions in the neighbourhood of anotherpeople that has already settled in that region; and to do this withouttheir consent.  Such a right is indubitable, if the new settlement takes place atsuch a distance from the seat of the former that neither wouldrestrict or injure the other in the use of their territory. But in thecase of nomadic peoples, or tribes of shepherds and hunters (such asthe Hottentots, the Tungusi, and most of the American Indians),whose support is derived from wide desert tracts, such occupationshould never take place by force, but only by contract; and any suchcontract ought never to take advantage of the ignorance of theoriginal dwellers in regard to the cession of their lands. Yet it iscommonly alleged that such acts of violent appropriation may bejustified as subserving the general good of the world. It appears asif sufficiently justifying grounds were furnished for them, partlyby reference to the civilization of barbarous peoples (as by a pretextof this kind even Busching tries to excuse the bloody introductionof the Christian religion into Germany), and partly by founding uponthe necessity of purging one's own country from depraved criminals,and the hope of their improvement or that of their posterity, inanother continent like New Holland. But all these alleged goodpurposes cannot wash out the stain of injustice in the meansemployed to attain them. It may be objected that, had suchscrupulousness about making a beginning in founding a legal state withforce been always maintained, the whole earth would still have been ina state of lawlessness. But such an objection would as little annulthe conditions of right in question as the pretext of the politicalrevolutionaries that, when a constitution has become degenerate, itbelongs to the people to transform it by force. This would amountgenerally to being unjust once and for all, in order thereafter tofound justice the more surely, and to make it flourish.CONCLUSION                         Conclusion.  If one cannot prove that a thing is, he may try to prove that itis not. And if he succeeds in doing neither (as often occurs), hemay still ask whether it is in his interest to accept one or otherof the alternatives hypothetically, from the theoretical or thepractical point of view. In other words, a hypothesis may beaccepted either in order to explain a certain phenomenon (as inastronomy to account for the retrogression and stationariness of theplanets), or in order to attain a certain end, which again may beeither pragmatic, as belonging merely to the sphere of art, ormoral, as involving a purpose which it is a duty to adopt as a maximof action. Now it is evident that the assumption (suppositio) of thepracticability of such an end, though presented merely as atheoretical and problematical judgement, may be regarded asconstituting a duty; and hence it is so regarded in this case. Foralthough there may be no positive obligation to believe in such anend, yet even if there were not the least theoretical probability ofaction being carried out in accordance with it, so long as itsimpossibility cannot be demonstrated, there still remains a dutyincumbent upon us with regard to it.  Now, as a matter of fact, the morally practical reason utters withinus its irrevocable veto: There shall be no war. So there ought to beno war, neither between me and you in the condition of nature, norbetween us as members of states which, although internally in acondition of law, are still externally in their relation to each otherin a condition of lawlessness; for this is not the way by which anyone should prosecute his right. Hence the question no longer is asto whether perpetual peace is a real thing or not a real thing, oras to whether we may not be deceiving ourselves when we adopt theformer alternative, but we must act on the supposition of its beingreal. We must work for what may perhaps not be realized, and establishthat constitution which yet seems best adapted to bring it about(mayhap republicanism in all states, together and separately). Andthus we may put an end to the evil of wars, which have been thechief interest of the internal arrangements of all the stateswithout exception. And although the realization of this purpose mayalways remain but a pious wish, yet we do certainly not deceiveourselves in adopting the maxim of action that will guide us inworking incessantly for it; for it is a duty to do this. To supposethat the moral law within us is itself deceptive, would besufficient to excite the horrible wish rather to be deprived of allreason than to live under such deception, and even to see oneself,according to such principles, degraded like the lower animals to thelevel of the mechanical play of nature.  It may be said that the universal and lasting establishment of peaceconstitutes not merely a part, but the whole final purpose and endof the science of right as viewed within the limits of reason. Thestate of peace is the only condition of the mine and thine that issecured and guaranteed by laws in the relationship of men living innumbers contiguous to each other, and who are thus combined in aconstitution whose rule is derived not from the mere experience ofthose who have found it the best as a normal guide for others, butwhich must be taken by the reason a priori from the ideal of ajuridical union of men under public laws generally. For all particularexamples or instances, being able only to furnish illustration but notproof, are deceptive, and at all events require a metaphysic toestablish them by its necessary principles. And this is concededindirectly even by those who turn metaphysics into ridicule, when theysay, as they often do: "The best constitution is that in which not menbut laws exercise the power." For what can be more metaphysicallysublime in its own way than this very idea of theirs, whichaccording to their own assertion has, notwithstanding, the mostobjective reality? This may be easily shown by reference to actualinstances. And it is this very idea, which alone can be carried outpractically, if it is not forced on in a revolutionary and suddenway by violent overthrow of the existing defective constitution; forthis would produce for the time the momentary annihilation of thewhole juridical state of society. But if the idea is carried forwardby gradual reform and in accordance with fixed principles, it may leadby a continuous approximation to the highest political good, and toperpetual peace.                                 -THE END-.