E. The Right of Punishing and of Pardoning.
I. The Right of Punishing.
The right of administering punishment is the right of the
sovereign as the supreme power to inflict pain upon a subject on
account of a crime committed by him. The head of the state cannot
therefore be punished; but his supremacy may be withdrawn from him.
Any transgression of the public law which makes him who commits it
incapable of being a citizen, constitutes a crime, either simply as
a private crime (crimen), or also as a public crime (crimen publicum).
Private crimes are dealt with by a civil court; public crimes by a
criminal court. Embezzlement or speculation of money or goods
entrusted in trade, fraud in purchase or sale, if done before the eyes
of 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 some
particular individual, is endangered thereby. Such crimes may be
divided into those of a base character (indolis abjectae) and those of
a violent character (indolis violentiae).
Judicial or juridical punishment (poena forensis) is to be
distinguished from natural punishment (poena naturalis), in which
crime as vice punishes itself, and does not as such come within the
cognizance of the legislator.
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