第50章

The right of pardoning (jus aggratiandi), viewed in relation to the criminal, is the right of mitigating or entirely remitting his punishment.On the side of the sovereign this is the most delicate of all rights, as it may be exercised so as to set forth the splendour of his dignity, and yet so as to do a great wrong by it.It ought not to be exercised in application to the crimes of the subjects against each other; for exemption from punishment (impunitas criminis)would be the greatest wrong that could be done to them.It is only an occasion of some form of treason (crimen laesae majestatis), as a lesion against himself, that the sovereign should make use of this right.And it should not be exercised even in this connection, if the safety of the people would be endangered by remitting such punishment.This right is the only one which properly deserves the name 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 its political constitution and without the necessary intervention of a special juridical act- are, by birth, fellow-citizens of one and the same commonwealth, is called their country or fatherland.A foreign country is one in which they would not possess this condition, but would be living abroad.If a country abroad form part of the territory under the same government as at home, it constitutes a province, according to the Roman usage of the term.It does not constitute an incorporated portion of the empire (imperii) so as to be the abode of equal fellow-citizens, but is only a possession of the government, like a lower house; and it must therefore honour the domain of the ruling state as the "mother country" (regio domina).

1.A subject, even regarded as a citizen, has the right of emigration; for the state cannot retain him as if he were its property.But he may only carry away with him his moveables as distinguished from his fixed possessions.However, he is entitled to sell his immovable property, and take the value of it in money with him.

2.The supreme power, as master of the country, has the right to favour immigration and the settlement of strangers and colonists.This will hold even although the natives of the country may be unfavourably disposed to it, if their private property in the soil is not diminished or interfered with.

3.In the case of a subject who has committed a crime that renders all society of his fellow-citizens with him prejudicial to the state, the supreme power has also the right of inflicting banishment to a country abroad.By such deportation, he does not acquire any share in the rights of citizens of the territory to which he is banished.

4.The supreme power has also the right of imposing exile generally (jus exilii), by which a citizen is sent abroad into the wide world as the "out-land." And because the supreme authority thus withdraws all legal protection from the citizen, this amounts to making 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 a public government generally (res publica latius dicta), are only so many relations of the united will of the people which emanates from the a priori reason; and viewed as such it is the objective practical realization of the pure idea of a supreme head of the state.

This supreme head is the sovereign; but conceived only as a representation of the whole people, the idea still requires physical embodiment in a person, who may exhibit the supreme power of the state and bring the idea actively to bear upon the popular will.The relation of the supreme power to the people is conceivable in three different forms: either one in the state rules over all; or some, united in relation of equality with each other, rule over all the others; or all together rule over each and all individually, including themselves.The form of the state is therefore either autocratic, or aristocratic, or democratic.The expression monarchic is not so suitable as autocratic for the conception here intended; for a monarch is one who has the highest power, an autocrat is one who has all power, so that this latter is the sovereign, whereas the former merely represents the sovereignty.

It is evident that an autocracy is the simplest form of government in the state, being constituted by the relation of one, as king, to the people, so that there is one only who is the lawgiver.An aristocracy, as a form of government, is, however, compounded of the union of two relations: that of the nobles in relation to one another as the lawgivers, thereby constituting the sovereignty, and that of this sovereign power to the people.A democracy, again, is the most complex of all the forms of the state, for it has to begin by uniting the will of all so as to form a people; and then it has to appoint a sovereign over this common union, which sovereign is no other than the united will itself.The consideration of the ways in which these forms are adulterated by the intrusion of violent and illegitimate usurpers of power, as in oligarchy and ochlocracy, as well as the discussion of the so called mixed constitutions, may be passed over here as not essential, and as leading into too much detail.