In
other words, it is not the people taken distributively, but the
tribunal of public justice, as distinct from the criminal, that
prescribes capital punishment; and it is not to be viewed as if the
social contract contained the promise of all the individuals to
allow themselves to be punished, thus disposing of themselves and
their lives. For if the right to punish must be grounded upon a
promise of the wrongdoer, whereby he is to be regarded as being
willing to be punished, it ought also to be left to him to find
himself deserving of the punishment; and the criminal would thus be
his own judge. The chief error (proton pseudos) of this sophistry
consists in regarding the judgement of the criminal himself,
necessarily determined by his reason, that he is under obligation to
undergo the loss of his life, as a judgement that must be grounded
on a resolution of his will to take it away himself; and thus the
execution of the right in question is represented as united in one and
the same person with the adjudication of the right.
There are, however, two crimes worthy of death, in respect of
which it still remains doubtful whether the legislature have the right
to deal with them capitally. It is the sentiment of honour that
induces their perpetration. The one originates in a regard for womanly
honour, the other in a regard for military honour; and in both cases
there is a genuine feeling of honour incumbent on the individuals as a
duty.
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