The former is the crime of maternal infanticide (infanticidium
maternale); the latter is the crime of killing a fellow-soldier in a
duel (commilitonicidium). Now legislation cannot take away the shame
of an illegitimate birth, nor wipe off the stain attaching from a
suspicion of cowardice, to an officer who does not resist an act
that would bring him into contempt, by an effort of his own that is
superior to the fear of death. Hence it appears that, in such
circumstances, the individuals concerned are remitted to the state
of nature; and their acts in both cases must be called homicide, and
not murder, which involves evil intent (homicidium dolosum). In all
instances the acts are undoubtedly punishable; but they cannot be
punished by the supreme power with death. An illegitimate child
comes into the world outside of the law which properly regulates
marriage, and it is thus born beyond the pale or constitutional
protection of the law. Such a child is introduced, as it were, like
prohibited goods, into the commonwealth, and as it has no legal
right to existence in this way, its destruction might also be ignored;
nor can the shame of the mother, when her unmarried confinement is
known, be removed by any legal ordinance. A subordinate officer,
again, on whom an insult is inflicted, sees himself compelled by the
public opinion of his associates to obtain satisfaction; and, as in
the state of nature, the punishment of the offender can only be
effected by a duel, in which his own life is exposed to danger, and
not by means of the law in a court of justice.
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