Articles in Rheinische Zeitung 1842
Proceedings of the Sixth Rhine Province Assembly.
Third Article.
Debates on the Law on Thefts of Wood
Written: October 1842 [88];
First published: in the Supplement to the Rheinische
Zeitung, Nos. 298, 300, 303, 305 and 307, October 25, 27 and 30, November 1 and 3, 1842;
Translated: by Clemens Dutt.
Signed: a Rhinelander;
Transcribed: by [email protected], November 1996.
Rheinische Zeitung, No. 298, Supplement, October 25 1842
RZ editorial note:
"We regret that we have not been able to publish the second article for our readers.
Editorial board of the Rheinische Zeitung."
So far we have described two most important state
acts of the Provincial Assembly, namely, its confusion over freedom of
the press and its unfreedom in regard to the confusion. [2]
We have now come down to ground level. Before we proceed to the really
earthly question in all its life-size, the question of the parcellation
of landed property, we shall give our readers some genre pictures which
reflect in manifold ways the spirit and, we might say, even the actual
physical nature of the Assembly.
It is true that the law on thefts of wood, like the law on offences
in regard to hunting, forests and fields, deserves to be discussed not
only in relation to the Assembly but equally on its own account. However,
we do not have the draft of the law before us. Our material is limited
to some vaguely indicated additions made by the Assembly and its commission
to laws that figure only as paragraph numbers. The Assembly proceedings
themselves are reported so extremely meagerly, incoherently and apocryphally
that the report looks like an attempt at mystification. To judge from the
truncated torso available to us, the Assembly wanted by this passive quietude
to pay an act of respect to our province.
One is immediately struck by a fact which is characteristic of
these debates. The Assembly acts as a supplementary legislator alongside
the state legislator. It will prove most interesting to examine the legislative
qualities of the Assembly by means of an example. In view of this, the
reader will forgive us for demanding from him patience and endurance, two
virtues which had to be constantly exercised in analysing our barren subject-matter.
In our account of the Assembly debates on the law on thefts we are directly
describing the Assembly's debates on its legislative function.
At the very beginning of the debate, one of the urban deputies
objected to the title of the law, which extends the category of
"theft" to include simple offences against forest regulations.
A deputy of the knightly estate replied:
"It is precisely because the pilfering of wood is not regarded as theft
that it occurs so often."
By analogy with this, the legislator would have to draw the conclusion:
It is because a box on the ear is not regarded as murder that it has become
so frequent. It should be decreed therefore that a box on the ear is murder.
Another deputy of the knightly estate finds it
"still more risky not to pronounce the word 'theft', because people
who become acquainted with the discussion over this word could easily be
led to believe that the Assembly does not regard the pilfering of wood
also as theft".
The Assembly has to decide whether it considers pilfering of wood as theft;
but if the Assembly does not declare it to be theft, people could believe
that the Assembly really does not regard the pilfering of wood as theft.
Hence it is best to leave this ticklish controversial question alone. It
is a matter of a euphemism and euphemisms should be avoided. The forest
owner prevents the legislator from speaking, for walls have ears.
The same deputy goes even further. He regards this whole examination
of the expression "theft" as
"a dangerous preoccupation with correcting formulations on the
part of the plenary assembly".
After these illuminating demonstrations, the Assembly voted the title of
the law.
From the point of view recommended above, which mistakes the conversion
of a citizen into a thief for a mere negligence in formulation and rejects
all opposition to it as grammatical purism, it is obvious that even the
pilfering of fallen wood or the gathering of dry wood is included
under the heading of theft and punished as severely as the stealing of
live growing timber.
It is true that the above-mentioned urban deputy remarks:
"Since the punishment could run to a long term of imprisonment, such
severity would lead people who otherwise followed an honest path on to
the path of crime. That would happen also because in prison they would
be in the company of inveterate thieves; therefore he considered that the
gathering or pilfering of dry fallen wood should be punished by a simple
police penalty."
Another urban deputy, however, refuted him with the profound argument
"that in the forest areas of his region, at first only gashes were
made in young trees, and later, when they were dead, they were treated
as fallen wood".
It would be impossible to find a more elegant and at the same time more
simple method of making the right of human beings give way to that of young
trees. On the one hand, after the adoption of the paragraph, it is inevitable
that many people not of a criminal disposition are cut off from the green
tree of morality and cast like fallen wood into the hell of crime, infamy
and misery. On the other hand, after rejection of the paragraph, there
is the possibility that some young trees may be damaged, and it needs hardly
be said that the wooden idols triumph and human beings are sacrificed!
The supreme penal code [3] includes under theft
of wood only the pilfering of hewn wood and the cutting of wood for the
purpose of theft. Indeed -- our Provincial Assembly will not believe it
-- it states:
"If, however, in daytime someone takes fruit for eating and by its
removal does no great damage, then, taking into account his personal position
and the circumstances, he is to be punished by civil" (therefore, not criminal!)
"proceedings."
The supreme penal code of the sixteenth century requests us to defend it
against the charge of excessive humanity made by a Rhine Province Assembly
of the nineteenth century, and we comply with this request.
The gathering of fallen wood and the most composite wood theft!
They both have a common definition. The appropriation of wood from someone
else. Therefore both are theft. That is the sum and substance of the far-sighted
logic which has just issued laws.
First of all, therefore, we call attention to the difference
between them, and if it must be admitted that the two actions are essentially
different, it can hardly be maintained that they are identical from the
legal standpoint.
In order to appropriate growing timber, it has to be forcibly
separated from its organic association. Since this is an obvious outrage
against the tree, it is therefore an obvious outrage against the owner
of the tree.
Further, if felled wood is stolen from a third person, this felled
wood is material that has been produced by the owner. Felled wood is wood
that has been worked on. The natural connection with property has been
replaced by an artificial one. Therefore anyone who takes away felled wood
takes away property
In the case of fallen wood, on the contrary, nothing has been
separated from property. It is only what has already been separated from
property that is being separated from it. The wood thief pronounces on
his own authority a sentence on property. The gatherer of fallen wood only
carries out a sentence already pronounced by the very nature of the property,
for the owner possesses only the tree, but the tree no longer possesses
the branches that have fallen from it.
The gathering of fallen wood and the theft of wood are therefore
essentially different things. The objects concerned are different, the
actions in regard to them are no less different hence the frame of mind
must also be different, for what objective standard can be applied to the
frame of mind other than the content of the action and its form? But, in
spite of this essential difference, you call both of them theft and punish
both of them as theft. Indeed, you punish the gathering of fallen wood
more severely than the theft of wood, for you punish it already by declaring
it to be theft, a punishment which you obviously do not pronounce on the
actual theft of wood. You should have called it murder of wood and punished
it as murder. The law is not exempt from the general obligation to tell
the truth. It is doubly obliged to do so, for it is the universal and authentic
exponent of the legal nature of things. Hence the legal nature of things
cannot be regulated according to the law; on the contrary, the law must
be regulated according to the legal nature of things. But if the law applies
the term theft to an action that is scarcely even a violation of forest
regulations, then the law lies, and the poor are sacrificed to a
legal lie.
"Il y a deux genres de corruption," says Montesquieu, "l'un lorsque
le peuple n'observe point les lois; l'autre lorsqu'il est corrompu par
les lois; mal incurable parce qu'il est dans le remède même."
[a]
You will never succeed in making us believe that there is a crime where
there is no crime, you will only succeed in converting crime itself into
a legal act. You have wiped out the boundary between them, but you err
if you believe that you have done so only to your advantage. The people
sees the punishment, but it does not see the crime, and because it sees
punishment where there is no crime, it will see no crime where there is
punishment. By applying the category of theft where it ought not to be
applied, you have also exonerated it where this category ought to be applied.
And does not this crude view, which lays down a common definition
for different kinds of action and leaves the difference out of account,
itself bring about its own destruction ? If every violation of property
without distinction, without a more exact definition, is termed theft,
will not all private property be theft? By my private ownership do I not
exclude every other person from this ownership? Do I not thereby violate
his right of ownership? If you deny the difference between essentially
different kinds of the same crime, you are denying that crime itself is
different from right, you are abolishing right itself, for every
crime has an aspect in common with right. Hence it is a fact, attested
equally by history and reason, that undifferentiated severity makes punishment
wholly unsuccessful, for it does away with punishment as a success for
right.
But what are we arguing about? The Assembly, it is true, repudiates
the difference between gathering fallen wood, infringement of forest regulations,
and theft of wood. It repudiates the difference between these actions,
refusing to regard it as determining the character of the action, when
it is a question of the interests of the infringers of forest regulations,
but it recognises this difference when it is a question of the interests
of the forest owners.
Thus the commission proposes the following addition:
"to regard it as an aggravating circumstance if growing timber is hewn
or cut off with edged tools and if a saw is used instead of an axe".
The Assembly approves this distinction. The same keen-sightedness which
so conscientiously distinguishes between an axe and a saw when it is a
matter of its own interests, is so lacking in conscience as to refuse to
distinguish between fallen wood and growing wood when it is a question
of other people's interests. The difference was found to be important as
an aggravating circumstance but without any significance as a mitigating
circumstance, although the former cannot exist if the latter is impossible.
The same logic occurred repeatedly during the debate.
In regard to §65, an urban deputy desired
"that the value of the stolen wood also should be used as a
measure for fixing the punishment", "which was opposed by the commission's
spokesman as unpractical."
The same urban deputy remarked in connection with §66:
"in general there is missing from the whole law any statement of value,
in accordance with which the punishment would be increased or diminished".
The importance of value in determining punishment for violations of property
is self-evident.
If the concept of crime involves that of punishment, the actual
crime calls for a measure of punishment. An actual crime has its limit.
The punishment will therefore have to be limited in order to be actual,
it must be limited in accordance with a principle of law in order to be
just. The problem is to make the punishment the actual consequence of the
crime. It must be seen by the criminal as the necessary result of his act,
and therefore as his own act. Hence the limit of his punishment
must be the limit of his act. The definite content of a violation
of the law is the limit of a definite crime. The measure of this
content is therefore the measure of the crime. In the case of property
this measure is its value Whereas personality, whatever its limits,
is always a whole, property always exists only within a definite limit
that is not only determinable but determined, not only measurable but measured.
Value is the civil mode of existence of property, the logical expression
through which it first becomes socially comprehensible and communicable.
It is clear that this objective defining element provided by the nature
of the object itself must likewise be the objective and essential defining
element for the punishment. Even if legislation here, where it is a matter
of figures, can only be guided by external features so as not to be lost
in an infinitude of definitions, it must at least regulate. It is not a
question of an exhaustive definition of differences, but of establishing
differences. But the Assembly was not at all disposed to devote its distinguished
attention to such trifles.
But do you consider then that you can conclude that the Assembly
completely excluded value in determining punishment? That would be an ill-considered,
unpractical conclusion! The forest owner -- we shall deal with this later
in more detail -- does not merely demand to be compensated by the thief
for the simple general value. He even gives this value an individual character
and bases his demand for special compensation on this poetic individuality.
We can now understand what the commission's spokesman understands by practical.
The practical forest owner argues as follows: This legal definition is
good insofar as it is useful to me, for what is useful to me is good. But
this legal definition is superfluous, it is harmful, it is unpractical,
insofar as it is intended to be applied to the accused on the basis of
a purely theoretical legal whim. Since the accused is harmful to me, it
stands to reason that everything is harmful to me that lessens the harm
coming to him. That is practical wisdom.
We unpractical people, however, demand for the poor, politically
and socially propertyless many what the learned and would-be learned servility
of so-called historians has discovered to be the true philosopher's stone
for turning every sordid claim into the pure gold of right. We demand for
the poor a customary right, and indeed one which is not of a local
character but is a customary right of the poor in all countries. We go
still further and maintain that a customary right by its very nature can
only be a right of this lowest, propertyless and elemental mass.
The so-called customs of the privileged classes are understood
to mean customs contrary to the law. Their origin dates to the period
in which human history was part of natural history, and in which,
according to Egyptian legend, all gods concealed themselves in the shape
of animals. Mankind appeared to fall into definite species of animals which
were connected not by equality, but by inequality, an inequality fixed
by laws. The world condition of unfreedom required laws expressing this
unfreedom, for whereas human law is the mode of existence of freedom, this
animal law is the mode of existence of unfreedom. Feudalism in the
broadest sense is the spiritual animal kingdom, the world of divided
mankind, in contrast to the human world that creates its own distinctions
and whose inequality is nothing but a refracted form of equality. In the
countries of naive feudalism, in the countries of the caste system, where
in the literal sense of the word people are put in separate boxes [b],
and the noble, freely interchanging members of the great sacred body, the
holy Humanus, are sawn and cleft asunder, forcibly torn apart, we find
therefore also the worship of animals, animal religion in its primitive
form, for man always regards as his highest being that which is his true
being. The sole equality to be found in the actual life of animals is the
equality between one animal and other animals of the same species; it is
the equality of the given species with itself, but not the equality of
the genus. The animal genus itself is seen only in the hostile behaviour
of the different animal species, which assert their particular distinctive
characteristics one against another. In the stomach of the beast of
prey, nature has provided the battlefield of union, the crucible of
closest fusion, the organ connecting the various animal species.
Similarly, under feudalism one species feeds at the expense of
another, right down to the species which, like the polyp, grows on the
ground and has only numerous arms with which to pluck the fruits of the
earth for higher races while it itself eats dust for whereas in the natural
animal kingdom the worker bees kill the drones, in the spiritual animal
kingdom the drones kill the worker bees, and precisely by labour. When
the privileged classes appeal from legal right to their customary
rights, they are demanding instead of the human content of right, its
animal form, which has now lost its reality and become a mere animal mask.
Rheinische Zeitung, No. 300, Supplement, October 27 1842
The customary rights of the aristocracy conflict
by their content with the form of universal law. They cannot be
given the form of law because they are formations of lawlessness. The fact
that their content is contrary to the form of law -- universality and necessity
-- proves that they are customary wrongs and cannot be asserted
in opposition to the law, but as such opposition they must be abolished
and even punished if the occasion arises, for no one's action ceases to
be wrongful because it is his custom, just as the bandit son of a robber
is not exonerated because banditry is a family idiosyncrasy. If someone
intentionally acts contrary to law he is punished for his intention; if
he acts by custom, this custom of his is punished as being a bad custom.
At a time when universal laws prevail, rational customary right is nothing
but the custom of legal right, for right has not ceased to be custom
because it has been embodied in law, although it has ceased to be merely
custom. For one who acts in accordance with right, right becomes his own
custom, but it is enforced against one who violates it, although it is
not his custom. Right no longer depends on chance, on whether custom is
rational or not, but custom becomes rational because right is legal, because
custom has become the custom of the state.
Customary right as a separate domain alongside legal right
is therefore rational only where it exists alongside and in addition
to law, where custom is the anticipation of a legal right. Hence
one cannot speak of the customary rights of the privileged estates. The
law recognises not only their rational right but often even their irrational
pretensions. The privileged estates have no right of anticipation in regard
to law, for law has anticipated all possible consequences of their right.
Hence, too, the customary rights are demanded only as a domain for menus
plaisirs [c], in order that the same content which
is dealt with in the law inside its rational limits should find in custom
scope for whims and pretensions outside these rational limits.
But whereas these customary rights of the aristocracy are customs
which are contrary to the conception of rational right, the customary rights
of the poor are rights which are contrary to the customs of positive law.
Their content does not conflict with legal form, but rather with its own
lack of form. The form of law is not in contradiction to this content,
on the contrary, the latter has not yet reached this form. Little thought
is needed to perceive how one-sidedly enlightened legislation has
treated and been compelled to treat the customary rights of the poor,
of which the various Germanic rights [4] can be
considered the most prolific source.
In regard to civil law, the most liberal legislations have
been confined to formulating and raising to a universal level those rights
which they found already in existence. Where they did not find any such
rights, neither did they create any. They abolished particular customs,
but in so doing forgot that whereas the wrong of the estates took the form
of arbitrary pretensions, the right of those without social estate appeared
in the form of accidental concessions. This course of action was correct
in regard to those who, besides right, enjoyed custom, but it was incorrect
in regard to those who had only customs without rights. Just as these legislations
converted arbitrary pretensions into legal claims, insofar as some rational
content of right was to be found in those pretensions, they ought also
to have converted accidental concessions into necessary ones. We can make
this clear by taking the monasteries as an example. The monasteries were
abolished, their property was secularised, and it was right to do so. But
the accidental support which the poor found in the monasteries was not
replaced by any other positive source of income. When the property of the
monasteries was converted into private property and the monasteries received
some compensation, the poor who lived by the monasteries were not compensated.
On the contrary, a new restriction was imposed on them, while they were
deprived of an ancient right. This occurred in all transformations of privileges
into rights. A positive aspect of these abuses -- which was also an abuse
because it turned a right of one side into something accidental -- was
abolished not by the accidental being converted into a necessity, but by
its being left out of consideration.
These legislations were necessarily one-sided, for all customary
rights of the poor were based on the fact that certain forms of property
were indeterminate in character, for they were not definitely private property,
but neither were they definitely common property, being a mixture of private
and public right, such as we find in all the institutions of the Middle
Ages. For the purpose of legislation, such ambiguous forms could be grasped
only by understanding, and understanding is not only one-sided, but has
the essential function of making the world one-sided, a great and remarkable
work, for only one-sidedness can extract the particular from the unorganised
mass of the whole and give it shape. The character of a thing is a product
of understanding. Each thing must isolate itself and become isolated in
order to be something. By confining each of the contents of the world in
a stable definiteness and as it were solidifying the fluid essence of this
content, understanding brings out the manifold diversity of the world,
for the world would not be many-sided without the many one-sidednesses.
Understanding therefore abolished the hybrid, indeterminate forms
of property by applying to them the existing categories of abstract civil
law, the model for which was available in Roman law. The legislative mind
considered it was the more justified in abolishing the obligations of this
indeterminate property towards the class of the very poor, because it also
abolished the state privileges of property. It forgot, however, that even
from the standpoint of civil law a twofold private right was present here:
a private right of the owner and a private right of the non-owner and this
apart from the fact that no legislation abolishes the privileges of property
under constitutional law, but merely divests them of their strange character
and gives them a civil character. If, however, every medieval form of right,
and therefore of property also, was in every respect hybrid, dualistic,
split into two, and understanding rightly asserted its principle of unity
in respect of this contradictory determination, it nevertheless overlooked
the fact that there exist objects of property which, by their very nature,
can never acquire the character of predetermined private property, objects
which, by their elemental nature and their accidental mode of existence,
belong to the sphere of occupation rights, and therefore of the occupation
right of that class which precisely because of these occupation rights,
is excluded from all other property and which has the same position in
civil society as these objects have in nature.
It will be found that the customs which are customs of the entire
poor class are based with a sure instinct on the indeterminate aspect
of property; it will be found not only that this class feels an urge to
satisfy a natural need, but equally that it feels the need to satisfy a
rightful urge. Fallen wood provides an example of this. Such wood has as
little organic connection with the growing tree as the cast-off skin has
with the snake. Nature itself presents as it were a model of the antithesis
between poverty and wealth in the shape of the dry, snapped twigs and branches
separated from organic life in contrast to the trees and stems which are
firmly rooted and full of sap, organically assimilating air, light, water
and soil to develop their own proper form and individual life. It is a
physical representation of poverty and wealth. Human poverty senses this
kinship and deduces its right to property from this feeling of kinship.
If, therefore, it claims physical organic wealth for the predetermined
property owners, it claims physical poverty for need and its fortuity.
In this play of elemental forces, poverty senses a beneficent power more
humane than human power. The fortuitous arbitrary action of privileged
individuals is replaced by the fortuitous operation of elemental forces,
which take away from private property what the latter no longer voluntarily
foregoes. Just as it is not fitting for the rich to lay claim to alms distributed
in the street, so also in regard to these alms of nature. But it
is by its activity, too, that poverty acquires its right. By its
act of gathering, the elemental class of human society appoints
itself to introduce order among the products of the elemental power of
nature. The position is similar in regard to those products which, because
of their wild growth, are a wholly accidental appendage of property and,
if only because of their unimportance, are not an object for the activity
of the actual owner. The same thing holds good also in regard to gleaning
after the harvest and similar customary rights.
In these customs of the poor class, therefore, there is an instinctive
sense of right; their roots are positive and legitimate, and the form of
customary right here conforms all the more to nature because up
to now the existence of the poor class itself has been a mere
custom of civil society, a custom which has not found an appropriate
place in the conscious organisation of the state.
The debate in question affords an example of the way in which
these customary rights are treated, an example which exhaustively illustrates
the method and spirit of the whole procedure.
An urban deputy opposed the provision by which the gathering of
bilberries and cranberries is also treated as theft. He spoke primarily
on behalf of the children of the poor, who pick these fruits to earn a
trifling sum for their parents; an activity which has been permitted by
the owners since time immemorial and has given rise to a customary
right of the children. This fact was countered by another deputy, who
remarked that
"in his area these berries have already become articles of commerce
and are dispatched to Holland by the barrel".
In one locality, therefore, things have actually gone so far that
a customary right of the poor has been turned into a monopoly of
the rich. That is exhaustive proof that common property can be monopolised,
from which it naturally follows that it must be monopolised. The nature
of the object calls for monopoly because private property interests here
have invented this monopoly. The modern idea conceived by some money-grabbing
petty traders becomes irrefutable when it provides profit for the age-old
Teutonic landed interest.
The wise legislator will prevent crime in order not to have to
punish it, but he will do so not by obstructing the sphere of right, but
by doing away with the negative aspect of every instinct of right, giving
the latter a positive sphere of action. He will not confine himself to
removing the impossibility for members of one class to belong to
a higher sphere of right, but will raise their class itself to the real
possibility of enjoying its rights. But if the state is not humane,
rich and high-minded enough for this, it is at least the legislator's absolute
duty not to convert into a crime what circumstances alone have caused
to be an offence. He must exercise the utmost leniency in correcting
as a social irregularity what it would be the height of injustice
for him to punish as an anti-social crime. Otherwise he will be combating
the social instinct while supposing that he is combating its anti-social
form. In short, if popular customary rights are suppressed, the attempt
to exercise them can only be treated as the simple contravention of
a police regulation, but never punished as a crime. Punishment by police
penalties is an expedient to be used against an act which circumstances
characterise as a superficial irregularity not constituting any violation
of the eternal rule of law. The punishment must not inspire more repugnance
than the offence, the ignominy of crime must not be turned into the ignominy
of law, the basis of the state is undermined if misfortune becomes a crime
or crime becomes a misfortune. Far from upholding this point of view, the
Provincial Assembly does not observe even the elementary rules of legislation.
The petty, wooden, mean and selfish soul of interest sees only
one point, the point in which it is wounded, like a coarse person who regards
a passer-by as the most infamous, vilest creature under the sun because
this unfortunate creature has trodden on his corns. He makes his corns
the basis for his views and judgment, he makes the one point where the
passer-by comes into contact with him into the only point where the very
nature of this man comes into contact with the world. But a man may very
well happen to tread on my corns without on that account ceasing to be
an honest, indeed an excellent, man. Just as you must not judge people
by your corns, you must not see them through the eyes of your private interest.
[d] Private interest makes the one sphere in which a
person comes into conflict with this interest into this person's whole
sphere of life. It makes the law a rat-catcher, who wants only to
destroy vermin, for he is not a naturalist and therefore regards rats only
as vermin. But the state must regard the infringer of forest regulations
as something more than a wood-pilferer, more than an enemy to wood.
Is not the state linked with each of its citizens by a thousand vital nerves,
and has it the right to sever all these nerves because this citizen has
himself arbitrarily severed one of them? Therefore the state will
regard even an infringer of forest regulations as a human being, a living
member of the state, one in whom its heart's blood flows, a soldier who
has to defend his Fatherland, a witness whose voice must be heard by the
court, a member of the community with public duties to perform, the father
of a family, whose existence is sacred, and, above all, a citizen of the
state. The state will not light-heartedly exclude one of its members from
all these functions, for the state amputates itself whenever it turns a
citizen into a criminal. Above all, the moral legislator will consider
it a most serious, most painful, and most dangerous matter if an action
which previously was not regarded as blameworthy is classed among criminal
acts.
Interest, however, is practical, and nothing in the world is more
practical than to strike down one's enemy. "Hates any man the thing he
would not kill?" we are already told by Shylock. [e]
The true legislator should fear nothing but wrong, but the legislative
interest knows only fear of the consequences of rights, fear of the evil-doers
against whom the laws are made. Cruelty is a characteristic feature of
laws dictated by cowardice, for cowardice can be energetic only by being
cruel. Private interest, however, is always cowardly, for its heart, its
soul, is an external object which can always be wrenched away and injured,
and who has not trembled at the danger of losing heart and soul? How could
the selfish legislator be human when something inhuman, an alien material
essence, is his supreme essence? "Quand il a peur, il est terrible,"
[f] says the National about Guizot. These words
could be inscribed as a motto over all legislation inspired by self-interest,
and therefore by cowardice.
When the Samoyeds kill an animal, before skinning it they assure
it in the most serious tones that only Russians have done it this injury,
that it is being dismembered with a Russian knife, and therefore it should
revenge itself only on Russians. Even without any claim to be a Samoyed,
it is possible to turn the law into Russian knife. Let us see how
this is done.
In connection with §4, the commission proposed:
"At distances greater than two miles, the warden who makes the charge
determines the value according to the existing local price."
An urban deputy protested against this as follows:
"The proposal to allow the valuation of the stolen wood to be made
by the forester who brings the charge evokes serious doubt. Of course,
this official has our full confidence, but only as regards the fact, by
no means as regards the value. The latter should be determined according
to a valuation made by the local authorities and confirmed by the district
president. It is true that it has been proposed that §14, according
to which the penalty imposed should accrue to the forest owner, should
not be adopted", etc. "If §14 were to be retained. the proposed provision
would be doubly dangerous. For, in the nature of things, the forester who
is employed by the forest owner and paid by him would certainly have to
put the value of the stolen wood as high as possible."
The Provincial Assembly approved the proposal of the commission.
We see here the enactment of patrimonial jurisdiction. The patrimonial
warden is at the same time in part a judge. The valuation is part of the
sentence. Hence the sentence is already partly anticipated in the record
of the charge. The warden who made the charge sits in the collegium of
judges; he is the expert whose decision is binding for the court, he performs
a function from which the other judges are excluded by him. It is foolish
to oppose inquisitorial methods when there exist even patrimonial gendarmes
and denouncers who at the same time act as judges.
Apart from this fundamental violation of our institutions, it
is obvious from an examination of the qualifications of the warden who
makes the charge how little he is objectively able to be at the same time
the valuer of the stolen wood.
As warden, he personifies the protecting genius of the forest.
Protection, especially personal, physical protection, calls for an effective,
energetic and loving attitude to the object of his care, an attitude in
which he as it were coalesces with the growing forest. The forest must
be everything to him, its value for him must be absolute. The valuer's
attitude to the stolen wood, on the other hand, is one of sceptical distrust.
He measures it with a keen prosaic eye by an ordinary standard and reckons
how much it is worth in hellers and pfennigs. A warden and a valuer are
as different as a mineralogist and a trader in minerals. The forest warden
cannot estimate the value of the stolen wood, for in any record for the
court giving his estimate of the value of the stolen material he is estimating
his own value, because it is the value of his own activity, and
do you believe that he would not protect the value of the object
under his care as much as the substance of it?
The functions entrusted to one man, for whom severity is an official
duty, are contradictory not only in relation to the object under protection,
but also in relation to the persons concerned.
As guardian of the wood, the warden has to protect the interests
of the private owner, but as valuer he has just as much to protect the
interests of the infringer of forest regulations against the extravagant
demands of the private owner. While he has, perhaps, to use his fists on
behalf of the forest, he has immediately thereafter to use his brains on
behalf of the forest's enemy. While embodying the interests of the forest
owner, he has at the same time to be a guarantee against these same interests.
The warden, furthermore, is the denouncer. The charge he draws
up is a denunciation. The value of the object, therefore becomes the subject-matter
of the denunciation. The warden loses his dignity as a judge, and the function
of judge is most profoundly debased, because at that moment it is indistinguishable
from the function of denouncer.
Finally, this denouncing warden, who cannot rank as an expert,
whether in his capacity of denouncer or in that of warden, is in the pay
and service of the forest owner. One might just as well leave the valuation,
under oath, to the forest owner himself, since in the person of his warden
he has actually only assumed the shape of a third person.
Instead, however, of finding this position of the denouncing warden
even somewhat dubious, the Provincial Assembly, on the contrary, regarded
as dubious the sole provision which constitutes the last semblance of the
state's power in the realm of forest glory, namely, life appointment
of the denouncing wardens. This proposal evoked the most vehement protest,
and the storm seems hardly to have been allayed by the explanation of the
spokesman
"that already previous Provincial Assemblies had called for life appointment
of wardens to be abandoned, but that the government had not agreed to this
and regarded life appointment as a protection for the state's subjects."
At an earlier date, therefore, the Provincial Assembly had already tried
to bargain with the government so as to make it abandon protection for
its subjects, but the Assembly did not go beyond bargaining. Let us examine
the arguments, as generous as they are irrefutable, advanced against
life appointment.
A deputy from the rural communities
"finds that life appointment of wardens as a condition for confidence
in them is greatly to the detriment of the small forest owners; and another
deputy insists that protection must be equally effective for small and
big forest owners."
A member of the princely estate remarked
"that life appointment with private persons is very inadvisable, and
in France it has not been found at all necessary for ensuring confidence
in the records drawn up by the wardens, but that something must of necessity
be done to prevent infringements from increasing".
An urban deputy said:
"Credence must be given to all testimony of properly appointed and
sworn forest officials. Life appointment is, so to speak, an impossibility
for many communities, and especially for owners of small estates. A decision
that only forest officials who have been appointed for life should be trusted,
would deprive these owners of all forest protection. In a large part of
the province, communities and private owners would necessarily have to
entrust the protection of their wooded areas to field wardens, because
their forest area is not large enough to enable them to appoint special
foresters for it. It would indeed be strange if these field wardens, who
have also taken an oath to protect the forests, were not to enjoy complete
confidence when they reported a theft of wood, but were trusted when they
testified to the infringement of forest regulations."
Rheinische Zeitung, No. 303, Supplement, October 30, 1842
Thus town and countryside and the
princely estate have had their say. Instead of smoothing out the
difference between the rights of the infringer of forest regulations and
the claims of the forest owner, they found that this difference was not
great enough. There was no attempt to afford equal protection to the forest
owner and the infringer of forest regulations, it was only sought to make
the protection of the small forest owner equal to that of the big forest
owner. In this latter case, equality down to the minutest detail is imperative,
whereas in the former case inequality is an axiom. Why does the small forest
owner demand the same protection as the big forest owner? Because both
are forest owners. But are not both the forest owners and the infringers
of forest regulations citizens of the state? If small and big forest owners
have the same right to protection by the state, does this not apply even
more to small and big citizens of the state?
When the member of the princely estate refers to France -- for
interest knows no political antipathies -- he only forgets to add that
in France the warden's charge concerns the fact but not the value. Similarly,
the worthy urban spokesman forgets that it is inadmissible to rely on a
field warden here because it is a matter not only of registering a theft
of wood but also of establishing the value of the wood.
What is the gist of all the arguments we have just heard? It is
that the small forest owner does not have the means for appointing
a warden for life. What follows from this? It follows that the small forest
owner is not entitled to undertake this task. But what conclusion is drawn
by the small forest owner? That he is entitled to appoint a warden as a
valuer who can be given notice of dismissal. His lack of means entitles
him to a privilege.
Moreover, the small forest owner does not have the means to support
an independent collegium of judges. Therefore let the state and
the accused manage without an independent collegium of judges, let a manservant
of the small forest owner have a seat on the tribunal, or if he has no
manservant, let it be his maidservant; and if he has no maidservant, let
him sit there himself. Has not the accused the same right in regard to
the executive power, which is an organ of the state, as he has in regard
to the judicial power? Why then should not the tribunal also be organised
in accordance with the means of the small forest owner?
Can the relation between the state and the accused be altered
because of the meagre resources of a private person, the forest owner?
The state has a right in relation to the accused because it confronts him
as the state. An immediate consequence of this is its duty to act towards
the law-breaker as the state and in the manner of the state. The state
has not only the means to act in a way which is as appropriate to its reason,
its universality, and its dignity as it is to the right, the life and the
property of the incriminated citizen; it is its absolute duty to possess
and apply these means. No one will make this demand of the forest owner,
whose forest is not the state and whose soul is not the soul of the state.
-- But what conclusion was drawn from that? It was concluded that since
private property does not have means to raise itself to the standpoint
of the state, the latter is obliged to lower itself to the irrational and
illegal means of private property.
This claim on the part of private interest, the paltry soul of
which was never illuminated and thrilled by thought of the state, is a
serious and sound lesson for the latter. If the state, even in a single
respect, stoops so low as to act in the manner of private property instead
of in its own way, the immediate consequence is that it has to adapt itself
in the form of its means to the narrow limits of private property. Private
interest is sufficiently crafty to intensify this consequence to the point
where private interest in its most restricted and paltry form makes itself
the limit and rule for the action of the state. As a result of this, apart
from the complete degradation of the state, we have the reverse effect
that the most irrational and illegal means are put into operation against
the accused; for supreme concern for the interests of limited private property
necessarily turns into unlimited lack of concern for the interests of the
accused. But if it becomes clearly evident here that private interest seeks
to degrade, and is bound to degrade, the state into a means operating for
the benefit of private interest, how can it fail to follow that a body
representing private interests, the estates, will seek to degrade,
and is bound to degrade, the state to the thoughts of private interest?
Every modern state, however little it corresponds to its concept, will
be compelled to exclaim at the first practical attempt at such legislative
power: Your ways are not my ways, your thoughts are not my thoughts!
How completely unsound the temporary hiring of a denouncing warden
is, cannot be more glaringly shown than by an argument advanced against
life appointment, which cannot be attributed to a slip of the tongue, for
it was read out. The following remark, namely, was read out by an urban
deputy:
"Community forest wardens appointed for life are not, and cannot be,
under such strict control as royal officials. Every spur to loyal
fulfilment of duty is paralysed by life appointment. If the forest
warden only half performs his duty and takes care that he cannot be charged
with any real offence, he will always find sufficient advocacy in his favour
to make a proposal for his dismissal under §56 useless. In such circumstances
the interested parties will not even dare to put forward such a proposal."
We recall that it was decreed that the warden making the charge should
be given full confidence when it was a question of entrusting him with
the task of valuation. We recall that §4 was a vote of confidence
in the warden.
We now learn for the first time that the denouncing warden needs
to be controlled, and strictly controlled. For the first time he appears
not merely as a man, but as a horse, since spurs and fodder are the only
stimuli of his conscience, and the muscles for performing his duty are
not merely slackened but completely paralysed by life appointment. We see
that selfishness has a double set of weights and measures for weighing
and measuring people, and two world outlooks, two pairs of spectacles,
one showing everything black and the other in rosy tints. When it is a
matter of making other people the victim of its tools and giving a favourable
appearance to dubious means, selfishness puts on its rose-coloured spectacles,
which impart an imaginary glory to these tools and means, and deludes itself
and others with the unpractical, delightful dreaming of a tender and trusting
soul. Every wrinkle of its countenance expresses smiling bonhomie. It presses
its opponent's hand until it hurts, but it does so as a sign of its trust
in him. But suddenly it is a question of personal advantage, of carefully
testing the usefulness of tools and means behind the scenes where stage
illusions are absent. Being a strict judge of people, it cautiously and
distrustfully puts on its world-wise dark spectacles of practice. Like
an experienced horse-dealer it subjects people to a lengthy ocular inspection,
overlooking no detail, and they seem to it to be as petty, as pitiful,
and as dirty, as selfishness itself.
We do not intend to argue with the world outlook of selfishness,
but we want to compel it to be consistent. We do not want it to reserve
all worldly wisdom for itself and leave only fantasies for others. We want
to make the sophistical spirit of private interest abide for a moment by
its own conclusions.
If the warden making the charge is a man such as you describe,
a man whom life appointment, far from giving him a feeling of independence,
security and dignity in the performance of his duty, has, on the contrary,
deprived of any incentive to do his duty, how can we expect this man to
behave impartially towards the accused when he is the unconditional slave
of your arbitrary power? If only spurs force this man to do his duty, and
if you are the wearer of the spurs, what fate must we prophesy for the
accused, who wears no spurs? If even you yourself cannot exercise sufficiently
strict control over this warden, how can the state or the accused side
in the case control him? Does not what you say of life appointment apply
instead to an appointment that can be terminated: "if the forest warden
only half performs his duty, he will always find sufficient advocacy in
his favour to make a proposal for his dismissal under §56 useless"?
Would not all of you be advocates for him as long as he performed half
his duty, namely, the protection of your interests?
The conversion of naive, excessive confidence in the forest warden
into abusive, censorious distrust reveals the gist of the matter. It is
not in the forest warden but in yourselves that you place this tremendous
confidence which you want the state and the infringer of forest regulations
to accept as a dogma.
It is not the warden's official position, nor his oath, nor his
conscience that should be the guarantee of the accused against you; on
the contrary, your sense of justice, your humanity, your disinterestedness,
your moderation should be the guarantee of the accused against the forest
warden. Your control is his ultimate and only guarantee. Imbued with a
vague notion of your personal excellence, wrapt in poetic self-delight,
you offer the parties in the case your individual qualities as a means
of protection against your laws. I confess that I do not share this romantic
conception of the forest owners. I do not at all believe that persons can
be a guarantee against laws; on the contrary, I believe that laws must
be a guarantee against persons. And can even the most daring fantasy imagine
that men who in the noble work of legislation cannot for a moment rise
above the narrow, practically base standpoint of self-seeking to the theoretical
height of a universal and objective point of view, men who tremble even
at the thought of future disadvantages and seize on anything to defend
their interests, can these men become philosophers in the face of real
danger? But no one, not even the most excellent legislator, can be allowed
to put himself above the law he has made. No one has the right to decree
a vote of confidence in himself when it entails consequences for third
persons.
But whether it is permissible for you even to demand that people
should place special confidence in you, may be judged from the following
facts.
"He must oppose §87," stated an urban deputy, "since its provisions
would give rise to extensive and fruitless investigations, as a result
of which personal freedom and freedom of intercourse would be violated.
It is not permissible beforehand to regard everyone as a criminal and to
assume a crime before having proof that it has been committed."
Another urban deputy said that the paragraph ought to be deleted. The vexatious
provision that "everyone has to prove where he obtained his wood", with
the result that everyone could be under suspicion of stealing and concealing
wood, was a gross and injurious intrusion into the life of the citizen.
The paragraph was adopted.
In truth, you presume too much on people's inconsistency if you
expect them to proclaim as a maxim that distrust is to their detriment
and confidence is to your advantage, and if you expect their confidence
and distrust to see through the eyes of your private interest and feel
through the heart of your private interest.
Yet another argument is advanced against life appointment, an
argument of which it is impossible to say whether it is more calculated
to evoke contempt or ridicule.
"It is also impermissible that the free will of private persons
should be so greatly restricted in this way, for which reason only
appointments that can be terminated should be allowed."
The news that man possesses free will which must not be restricted in all
kinds of ways, is certainly as comforting as it is unexpected. The oracles
which we have so far heard have resembled the ancient oracle at Dodona.
[5] They are dispensed from wood. Free will, however,
does not have the quality of an estate. How are we to understand this sudden
rebellious emergence of ideology, for as far as ideas are concerned we
have before us only followers of Napoleon?
The will of the forest owner requires freedom to deal with the
infringer of forest regulations as it sees fit and in the way it finds
most convenient and least costly. This will wants the state to hand over
the evil-doer to it to deal with at its discretion. It demands plein
pouvoir. [g] It does not oppose the restriction of
free will it opposes the manner of this restriction, which is so
restrictive that it affects not only the infringer of forest regulations
but also the owner of the wood. Does not this free will want to have numerous
freedoms? Is it not a very free, an excellent, free will? And is it not
scandalous in the nineteenth century to dare to restrict "so greatly in
this way" the free will of those private persons who promulgate public
laws? It is, indeed, scandalous.
Even that obstinate reformer, free will, must join the adherents
of the good arguments headed by the sophistry of private interest. But
this free will must have good manners, it must be a cautious loyal free
will, one which is able to arrange itself in such a way that its sphere
coincides with the sphere of the arbitrary power of those same privileged
private persons. Only once has there been mention of free will, and on
this one occasion it appears in the shape of a squat private person who
hurls blocks of wood at the spirit of rational will. Indeed, what need
is there for this spirit where the will is chained to the most petty and
selfish interests like a galley-slave to his rowing bench?
The climax of this whole argument is summarised in the following
remark, which turns the relationship in question upside-down:
"While the royal forest wardens and gamekeepers may be appointed for
life, in the case of rural communities and private persons this evokes
the most serious misgivings."
As if the sole source of misgivings were not in that private servants act
here in the place of state officials! As if life appointment was not aimed
precisely against private persons, who are the ones that evoke misgivings!
Rien n'est plus terrible que la logique dans l'absurdité [h],
that is to say, nothing is more terrible than the logic of selfishness.
This logic, which turns the servant of the forest owner into a
state authority, turns the authority of the state into a servant of
the forest owner. The state structure, the purpose of the individual
administrative authorities, everything must get out of hand so that everything
is degraded into an instrument of the forest owner and his interest operates
as the soul governing the entire mechanism. All the organs of the state
become ears, eyes, arms, legs, by means of which the interest of the forest
owner hears, observes, appraises, protects, reaches out, and runs.
The commission proposed the addition to §62 of a conclusion
demanding that inability to pay be certified by the tax-collector, the
burgomaster and two local officials of the community in which the infringer
of forest regulations lives. A deputy from the rural communities considered
that to make use of the tax-collector was contrary to existing legislation.
Of course, no attention was paid to this contradiction.
In connection with §20, the commission proposed:
"In the Rhine Province the competent forest owner should be authorised
to hand over convicted persons to the local authority to perform penal
labour in such a way that their working days will be put to the account
of the manual services on communal roads which the forest owner is obliged
to render in the rural community, and accordingly subtracted from this
obligation."
Against this, the objection was raised
"that burgomasters cannot be used as executors for individual members
of the rural community and that the labour of convicts cannot be accepted
as compensation for the work which has to be performed by paid day-labourers
or servants".
The spokesman commented:
"Even if it is a burdensome task for the burgomasters to see that unwilling
and insubordinate prisoners convicted of infringing forest regulations
are made to work, nevertheless it is one of the functions of these officials
to induce disobedient and evil-minded persons in their charge to return
to the path of duty, and is it not a noble deed to lead the convict
away from the wrong road back to the right path? Who in the countryside
has more means of doing this than the burgomasters?"
Reineke put on an anxious and sorrowful mien
Which excited the pity of many a good-natured man,
Lampe, the hare, especially was sore distressed.
[J Goethe, Reineke Fuchs, Sechster Gesang]
The Provincial Assembly adopted the proposal.
Rheinische Zeitung, No. 305, Supplement, November 1 1842
The good burgomaster must undertake a burdensome
task and perform a noble deed in order that the forest owner can fulfil
his duty to the community without expense to himself. The forest owner
could with equal right make use of the burgomaster as a chief cook or head
waiter. Is it not a noble deed for the burgomaster to look after the kitchen
or cellar of those in his charge? The convicted criminal is not in the
charge of the burgomaster, but in the charge of the prison superintendent.
Does not the burgomaster lose the strength and dignity of his position
if, instead of representing the community, he is made an executor for individual
members, if he is turned from a burgomaster into a taskmaster? Will not
the other, free members of the community be insulted if their honest work
for the general good is degraded to the level of penal labour for the benefit
of particular individuals?
But it is superfluous to expose these sophistries. Let the spokesman
be so good as to tell us himself how worldly-wise people judge humane phrases.
He makes the forest owner address the following reply to the farm
owner who displays humanity:
"If some ears of corn are pilfered from a landowner, the thief would
say: 'I have no bread, so I take a few ears of corn from the large amount
you possess', just as the wood thief says: 'I have no firewood, so I steal
some wood.' The landowner is protected by Article 444 of the Criminal Code,
which punishes the taking of ears of corn with 2-5 years' imprisonment.
The forest owner has no such powerful protection!"
This last envious exclamation of the forest owner contains a whole confession
of faith. You farm owner, why are you so magnanimous where my interests
are concerned? Because your interests are already looked after. So let
there be no illusions! Magnanimity either costs nothing or brings something
in. Therefore, farm owner, you cannot deceive the forest owner! Therefore,
forest owner, do not deceive the burgomaster!
This intermezzo alone would suffice to prove what little meaning
"noble deeds" can have in our debate, if the whole debate did not prove
that moral and humane reasons occur here merely as phrases. But interest
is miserly even with phrases. It invents them only in case of need, when
the results are of considerable advantage. Then it becomes eloquent, its
blood circulates faster, it is not sparing even with noble deeds that yield
it profit at the expense of others, with flattering words and sugary endearments.
And all that, all of it, is exploited only in order to convert the infringement
of forest regulations into current coin for the forest owner, to make the
infringer of forest regulations into a lucrative source of income, to be
able to invest the capital more conveniently -- for the wood thief has
become a capital for the forest owner. It is not a question of misusing
the burgomaster for the benefit of the infringer of forest regulations,
but of misusing the burgomaster for the benefit of the forest owner. What
a remarkable trick of fate it is, what a remarkable fact, that on the rare
occasions when a problematic benefit for the infringer of forest regulations
is given a passing mention, the forest owner is guaranteed an unquestionable
benefit!
The following is yet another example of these humane sentiments!
Spokesman: "French law does not acknowledge the commutation
of imprisonment into forest labour; he considers this commutation a wise
and beneficial measure, for imprisonment does not always lead to reform
but very often to corruption."
Previously, when innocent persons were turned into criminals, when in connection
with the gathering of fallen wood a deputy remarked that in prison they
were brought into contact with inveterate thieves, prisons were said to
be good. Suddenly reformatories have been metamorphosed into institutions
for corruption, for at this moment it is of advantage to the interests
of the forest owner that prisons corrupt. By reform of the criminal is
understood improvement of the percentage of profit which it is the
criminal's noble function to provide for the forest owner.
Interest has no memory, for it thinks only of itself. And the
one thing about which it is concerned, itself, it never forgets.
But it is not concerned about contradictions, for it never comes into contradiction
with itself. It is a constant improviser, for it has no system, only expedients.
Whereas humane and rightful motives have no part to play except
Ce qu'au teal nous autres sots humains,
Nous appelons faire tapisserie, [i]
expedients are the most active agents in the argumentative mechanism of
private interest. Among these expedients, we note two that constantly recur
in this debate and constitute the main categories, namely, "good motives"
and "harmful results". We see sometimes the spokesman for the commission,
sometimes another member of the Assembly, defending every ambiguous provision
against hostile shafts of objections by means of the shield of shrewd,
wise and good motives. We see every conclusion drawn from the standpoint
of right rejected by referring to its harmful or dangerous results. Let
us examine for a moment these extensive expedients, these expedients par
excellence, these expedients covering everything and a little more.
Interest knows how to denigrate right by presenting a prospect
of harmful results due to its effects in the external world, it knows how
to whitewash what is wrong by ascribing good motives to it, that is, by
retreating into the internal world of its thoughts. Law produces bad results
in the external world among bad people wrong springs from good motives
in the breast of the honest man who decrees it; but both, the good motives
and the harmful results, have in common the peculiar feature that they
do not look at a thing in relation to itself, that they do not treat the
law as an independent object, but direct attention away from the law either
to the external world or to their own mind, that therefore they manoeuvre
behind the back of the law.
What are harmful results? Our whole account has shown that they
are not to be understood as harmful results for the state, the law, or
the accused. Moreover, we should like to make quite clear in a few lines
that they do not include harmful results for the safety of citizens.
We have already heard from members of the Assembly themselves
that the provision by which "everyone has to prove where he obtained his
wood" is a gross and injurious intrusion into the life of the citizen and
makes every citizen the victim of vexatious bullying. Another provision
declares that everyone in whose keeping stolen wood is found is
to be regarded as a thief, although a deputy stated:
"This could be dangerous for many an honest man. Wood stolen by someone
nearby might be thrown into his courtyard and the innocent man punished."
Under §66 any citizen who buys a broom that is not issued under monopoly
is punishable by hard labour from four weeks to two years. On this, an
urban deputy commented as follows:
"This paragraph threatens with hard labour each and every citizen of
the Elberfeld, Lennep and Solingen districts."
Finally, supervision and management of the game and forest police have
been made not only a right but a duty of the military, although
Article 9 of the Criminal Code speaks only of officials who are under the
supervision of state prosecutors and can therefore be the object of immediate
proceedings on the part of the latter, which is not the case with the military.
This is a threat both to the independence of the courts and to the freedom
and security of citizens.
Hence, far from there being any talk of possible harmful results
for the safety of citizens, their safety itself is treated as a circumstance
having harmful results.
What then are harmful results? Harmful is that which is harmful
to the interests of the forest owner. If, therefore, the law does not result
in the furtherance of his interests, its results are harmful. And in this
respect interest is keen-sighted. Whereas previously it did not see what
was obvious to the naked eye, it now sees even what is only visible through
a microscope. The whole world is a thorn in the side of private interest,
a world full of dangers, precisely because it is the world not of a single
interest but of many interests. Private interest considers itself the ultimate
purpose of the world. Hence if the law does not realise this ultimate purpose,
it becomes inexpedient law. Law which is harmful to private interests
is therefore law with harmful results.
Are good motives considered to be better than harmful results?
Interest does not think, it calculates. Motives are its figures.
Motive is an incentive for abolishing the basis of law, and who can doubt
that private interest will have many incentives for doing so? The goodness
of a motive lies in the casual flexibility with which it can set aside
the objective facts of the case and lull itself and others into the illusion
that it is not necessary to keep one's mind on what is good, but that it
suffices to have good thoughts while doing a bad thing.
Resuming the thread of our argument, we mention first of all a
side line to the noble deeds recommended to the Herr Burgomaster.
"The commission proposed an amended version of §34 along the following
lines: if the accused demands that the warden who drew up the charge be
summoned, then he must also deposit with the forestry court in advance
all the costs thereby incurred."
The state and the court must not do anything gratis in the interests of
the accused. They must demand payment in advance which obviously in advance
makes difficult any confrontation of the warden making the charge and the
accused.
A noble deed! Just one single noble deed! A kingdom for a noble
deed! But the only noble deed proposed is that which the Herr Burgomaster
has to perform for the benefit of the Herr Forest Owner. The burgomaster
is the representative of noble deeds, their humanised expression, and the
series of noble deeds is exhausted and ended for ever with the burden which
was imposed with melancholy sacrifice on the burgomaster.
If, for the good of the state and the moral benefit of the criminal,
the Herr Burgomaster must do more than his duty, should not the forest
owners, for the sake of the same good, demand less than their private
interest requires?
One might think that the reply to this question had been given
in the part of the debate already dealt with, but that is a mistake. We
come to the penal provisions.
"A deputy from the knightly estate considered that the forest owner
would still be inadequately compensated even if he received (over and above
the simple replacement of the value) the amount of the fine imposed, which
would often not be obtainable."
An urban deputy remarked:
"The provisions of this paragraph (§15) could have the most serious
consequences. The forest owner would receive in this way threefold
compensation, namely: the value, then the four-, six-, or eightfold fine,
and in addition a special sum as compensation for loss, which will often
be assessed quite arbitrarily and will be the result of a fiction rather
than of reality. In any case, it seemed necessary to him to direct that
the special compensation in question should be claimed at once at the forestry
court and awarded in the court's sentence. It was obvious from the nature
of the case that proof of loss sustained should be supplied separately
and could not be based merely on the warden's report."
Opposing this, the spokesman and another member explained how the additional
value mentioned here could arise in various cases indicated by them.
The paragraph was adopted.
Crime becomes a lottery in which the forest owner, if he is lucky,
can even win a prize. There can be additional value, but the forest owner,
who already receives the simple value, can also make a profitable business
out of the four-, six-, or eightfold fine. But if, besides the simple value,
he receives special compensation for loss, the four-, six-, or eightfold
fine is also sheer profit. If a member of the knightly estate thinks the
money accruing as a fine is an inadequate guarantee because it would often
not be obtainable, it would certainly not become more obtainable by the
value and the compensation for loss having to be recovered as well. We
shall see presently how this difficulty of receiving money from the accused
is overcome.
Could the forest owner have any better insurance for his wood
than that instituted here, whereby crime has been turned into a source
of income? Like a clever general he converts the attack against him into
an infallible opportunity for a profitable victory, since even the additional
value of the wood, an economic fantasy, is turned into a substance by theft.
The forest owner has to be guaranteed not only his wood, but also his wood
business, while the convenient homage he pays to his business manager,
the state, consists in not paying for its services It is a remarkable idea
to turn the punishment of crime from a victory of the law over attacks
on it into a victory of selfishness over attacks on selfishness.
In particular, however, we draw the attention of our readers to
the provision of §14, which compels us to abandon the customary idea
that leges barbarorum are laws of barbaric peoples. Punishment
as such, the restoration of the law, which must certainly be distinguished
from restitution of the value and compensation for loss, the restoration
of private property, is transformed from a public punishment into
a private compensation, the fines going not to the state treasury,
but to the private coffers of the forest owner.
True, an urban deputy stated: "This is contrary to the dignity
of the state and the principles of correct criminal jurisprudence", but
a deputy from the knightly estate appealed to the Assembly's sense of right
and fairness to protect the rights of the forest owner, that is to say,
he appealed to a special sense of right and fairness.
Barbaric peoples order the payment of a definite monetary compensation
(atonement money) to the injured person for a definite crime. The notion
of public punishment arose only in opposition to this view, which regards
a crime merely as an injury to the individual, but the people and the theory
have yet to be discovered which are so complacent as to allow an individual
to claim for himself both the private punishment and that imposed by the
state.
The Assembly of the Estates must have been led astray by a complete
qui pro quo. The law-giving forest owner confused for a moment his
two roles, that of legislator and that of forest owner. In one case as
a forest owner he made the thief pay him for the wood, and in the other
as a legislator he made the thief pay him for the thief's criminal frame
of mind, and it quite accidentally happened that in both cases it was
the forest owner who was paid. So we are no longer faced by the simple
droit du seigneur. [j] We have passed through
the era of public law to the era of double patrimonial right, patrimonial
right raised to the second power. The patrimonial property owners have
taken advantage of the progress of time, which is the refutation of their
demands, to usurp not only the private punishment typical of the barbaric
world outlook, but also the public punishment typical of the modern world
outlook.
Owing to the refunding of the value and in addition a special
compensation for loss, the relation between the wood thief and the forest
owner has ceased to exist, for the infringement of forest regulations has
been completely abolished. Both thief and property owner have returned
to their former state in its entirety. The forest owner has suffered by
the theft of wood only insofar as the wood has suffered, but not insofar
as the law has been violated. Only the sensuously perceptible aspect of
the crime affects him, but the criminal nature of the act does not consist
in the attack on the wood as a material object, but in the attack on the
wood as part of the state system, an attack on the right to property as
such, the realisation of a wrongful frame of mind. Has the forest owner
any private claims to a law-abiding frame of mind on the part of the thief?
And what is the multiplication of the punishment for a repetition of the
offence except a punishment for a criminal frame of mind? Can the forest
owner present private demands where he has no private claims? Was the forest
owner the state, prior to the theft of wood? He was not, but he becomes
it after the theft. The wood possesses the remarkable property that as
soon as it is stolen it bestows on its owner state qualities which previously
he did not possess. But the forest owner can only get back what has been
taken from him. If the state is given back to him -- and it is actually
given him when he is given not only a private right, but the state's right
over the law-breaker -- then he must have been robbed of the state, the
state must have been his private property. Therefore the wood thief, like
a second St. Christopher, bore the state itself on his back in the form
of the stolen wood.
Public punishment is satisfaction for the crime to the reason
of the state; it is therefore a right of the state, but it is a right which
the state can no more transfer to private persons than one person can hand
over his-conscience to another. Every right of the state in relation to
the criminal is at the same time a right of the criminal in relation to
the state. No interposing of intermediate links can convert the relation
of a criminal to the state into a relation between him and private persons.
Even if it were desired to allow the state to give up its rights, i.e.,
to commit suicide, such an abandonment of its obligations on the part of
the state would be not merely negligence, but a crime.
It is therefore as impossible for the forest owner to obtain from
the state a private right to public punishment as it is for him to have
any conceivable right, in and for himself, to impose public punishment.
If, in the absence of a rightful claim to do so, I make the criminal act
of a third person an independent source of income for myself, do I not
thus become his accomplice? Or am I any the less his accomplice because
to him falls the punishment and to me the fruit of the crime? The guilt
is not attenuated by a private person abusing his status as a legislator
to arrogate to himself rights belonging to the state because of a crime
committed by a third person. The embezzling of public, state funds is a
crime against the state, and is not the money from fines public money belonging
to the state?
The wood thief has robbed the forest owner of wood, but the forest
owner has made use of the wood thief to purloin the state itself.
How literally true this is can be seen from §19, the provisions of
which do not stop at imposing a fine but also lay claim to the body
and life of the accused. According to §19, the infringer of forest
regulations is handed over completely to the forest owner for whom he has
to perform forest labour. According to an urban deputy, this "could
lead to great inconvenience. He wished merely to call attention to the
danger of this procedure in the case of persons of the other sex".
A deputy from the knightly estate gave the following eternally
memorable reply:
"It is, indeed, as necessary as it is expedient when discussing a draft
law to examine and firmly establish its principles in advance, but once
this has been done, there can be no going back to them in discussing each
separate paragraph."
After this, the paragraph was adopted without opposition.
Be clever enough to start out from bad principles, and you cannot
fail to be rightfully entitled to the bad consequences. You might think,
of course, that the worthlessness of the principle would be revealed in
the abnormity of its consequences, but if you knew the world you would
realise that the clever man takes full advantage of every consequence of
what he has once succeeded in carrying through. We are only surprised that
the forest owner is not allowed to heat his stove with the wood thieves.
Since it is a question not of right, but of the principles which the Provincial
Assembly has chosen to take as its starting point, there is not the slightest
obstacle in the way of this consequence.
In direct contradiction to the dogma enunciated above, a brief
retrospective glance shows us how necessary it would have been to discuss
the principles afresh in respect of each paragraph; how, through the voting
on paragraphs which were apparently unconnected and far remote from one
another, one provision after another was surreptitiously slipped through,
and once the first has been put through in this way, then in regard to
the subsequent ones even the semblance of the condition under which
alone the first could be accepted was discarded.
Rheinische Zeitung, No. 307, Supplement, November 3 1842
When in connection with §4 the question arose
of entrusting valuation to the warden making the charge, an urban deputy
remarked:
"If the proposal that fines should be paid into the state treasury
is not approved, the provision under discussion will be doubly dangerous."
It is clear that the forest warden will not have the same motive for overestimating
if his valuation is made for the state and not for his employer. Discussion
of this point was skilfully avoided, the impression being given that §14,
which awards the money from the fine to the forest owner, could be rejected.
§4 was put through. After voting ten paragraphs, the Assembly arrived
at §14, by which §4 was given an altered and dangerous meaning.
But this connection was totally ignored; §14 was adopted, providing
for fines to be paid into the private coffers of the forest owners. The
main, indeed the only, reason adduced for this is that it is in the interests
of the forest owner, who is not adequately compensated by the replacement
of the simple value. But in §15 it has been forgotten that it was
voted that the fine should be paid to the forest owner and it is decreed
that he should receive, besides the simple value, a special compensation
for loss, because it was thought proper that he should have an additional
value, as if he had not already received such an addition thanks to the
fines flowing into his coffers. It was also pointed out that the fines
were not always obtainable from the accused. Thus the impression was
given that only in regard to the money was it intended to take the
place of the state, but in §19 the mask is discarded and a claim advanced
not only for the money, but for the criminal himself, not only for the
man's purse, but for himself.
At this point the method of the deception stands out in sharp
and undisguised relief, indeed in self-confessed clarity, for there is
no longer any hesitation to proclaim it as a principle.
The right to replacement of the simple value and compensation
for loss obviously gave the forest owner only a private claim against
the wood thief, for the implementation of which the civil courts were available.
If the wood thief is unable to pay, the forest owner is in the position
of any private person faced with an impecunious debtor, and, of course,
that does not give him any right to compulsory labour, corvée services,
or in short temporary serfdom of the debtor. What then is the basis
of this claim of the forest owner? The fine. As we have seen, by
appropriating the fine for himself, the forest owner claims not only his
private right, but also the state's right to the wood thief, and
so puts himself in the place of the state. In adjudging the fine to himself,
however, the forest owner has cleverly concealed that he has adjudged himself
the right of punishment itself. Whereas previously he spoke of the
fine simply as a sum of money, he now refers to it as a punishment
and triumphantly admits that by means of the fine he has converted a public
right into his private property. Instead of recoiling in horror before
this consequence, which is as criminal as it is revolting, people accept
it precisely because it is a consequence. Common sense may maintain that
it is contrary to our concept of right, to every kind of right, to hand
over one citizen to another as a temporary serf, but shrugging their shoulders,
people declare that the principle has been discussed, although there has
been neither any principle nor any discussion. In this way, by means of
the fine, the forest owner surreptitiously obtains control over the person
of the wood thief. Only §19 reveals the double meaning of §14.
Thus we see that §4 should have been impossible because of
§14, §14 because of §15, §15 because of §19, and
§19 itself is simply impossible and should have made impossible the
entire principle of the punishment, precisely because in it all the viciousness
of this principle is revealed.
The principle of divide et impere [divide and rule] could
not be more adroitly exploited. In considering one paragraph, no attention
is paid to the next one, and when the turn of that one comes, the previous
one is forgotten. One paragraph has already been discussed, the other has
not yet been discussed, so for opposite reasons both of them are raised
to a position above all discussion. But the acknowledged principle is "the
sense of right and fairness in protecting the interests of the forest owner",
which is directly opposed to the sense of right and fairness in protecting
the interests of those whose property consists of life, freedom, humanity,
and citizenship of the state, who own nothing except themselves.
We have, however, reached a point where the forest owner, in exchange
for his piece of wood, receives what was once a human being.
Shylock. Most learned judge! -- A sentence! come, prepare!
Portia. Tarry a little; there is something else. This bond
cloth give thee here no jot of blood; The words expressly are "a pound
of flesh": Take then thy bond, take thou thy pound of flesh; But, in the
cutting it, if thou cost shed One drop of Christian blood, thy lands and
goods Are, by the laws of Venice, confiscate Unto the state of Venice.
Gratiano. O upright judge! Mark, Jew. O learned judge!
Shylock. Is that the law?
Portia. Thyself shaft see the act.
[W. Shakespeare, The Merchant of Venice, Act IV, Scene
1. -- Ed.]
You, too, should see the act!
What is the basis of your claim to make the wood thief into a
serf? The fine. We have shown that you have no right to the fine money.
Leaving this out of account, what is your basic principle? It is that the
interests of the forest owner shall be safeguarded even if this results
in destroying the world of law and freedom. You are unshakeably determined
that in some way or other the wood thief must compensate you
for the loss of your wood. This firm wooden foundation of your argument
is so rotten that a single breath of sound common sense is sufficient to
shatter it into a thousand fragments.
The state can and must say: I guarantee right against all contingencies.
Right alone is immortal in me, and therefore I prove to you the mortality
of crime by doing away with it. But the state cannot and must not say:
a private interest, a particular existence of property, a wooded plot of
land, a tree, a chip of wood (and compared to the state the greatest tree
is hardly more than a chip of wood) is guaranteed against all contingencies,
is immortal. The state cannot go against the nature of things, it cannot
make the finite proof against the conditions of the finite, against accident.
Just as your property cannot be guaranteed by the state against all contingencies
before a crime, so also a crime cannot convert this uncertain nature
of your property into its opposite. Of course, the state will safeguard
your private interests insofar as these can be safeguarded by rational
laws and rational measures of prevention, but the state cannot concede
to your private demand in respect of the criminal any other right than
the right of private demands, the protection given by civil jurisdiction.
If you cannot obtain any compensation from the criminal in this way owing
to his lack of means, the only consequence is that all legal means
to secure this compensation have come to an end. The world will not be
unhinged on that account, nor will the state forsake the sunlit path of
justice, but you will have learned that everything earthly is transitory,
which will hardly be a piquant novelty for you in view of your pure religiosity,
or appear more astonishing than storms, conflagrations or fevers. If, however,
the state wanted to make the criminal your temporary serf, it would be
sacrificing the immortality of the law to your finite private interests.
It would prove thereby to the criminal the mortality of the law, whereas
by punishment it ought to prove to him its immortality.
When, during the reign of King Philip, Antwerp could easily have
kept the Spaniards at bay by flooding its region, the butchers' guild would
not agree to this because they had fat oxen in the pastures. [6]
You demand that the state should abandon its spiritual region in order
to avenge your pieces of wood.
Some subsidiary provisions of §16 should also be mentioned.
An urban deputy remarked:
"According to existing legislation, eight days' imprisonment is reckoned
as equivalent to a fine of 5 talers. There is no sufficient reason for
departing from this." (Namely, for making it fourteen days instead of eight.)
The commission proposed the following addition to the same paragraph:
"that in no case a prison sentence should be less than 24 hours".
When someone suggested that this minimum was too great, a deputy from the
knightly estate retorted:
"The French forestry law does not have any punishment of less than
three days."
In the same breath as it opposed the provision of the French law by making
fourteen days' imprisonment instead of eight the equivalent of a fine of
5 talers, the Assembly, out of devotion to the French law, opposed the
three days being altered to 24 hours.
The above-mentioned urban deputy remarked further:
"It would be very severe at least to impose fourteen days' imprisonment
as an equivalent for a fine of 5 talers for pilfering wood, which after
all cannot be regarded as a crime deserving heavy punishment. The result
would be that one who has the means to buy his freedom would suffer simple
punishment, whereas the punishment of a poor person would be doubled."
A deputy from the knightly estate mentioned that in the neighbourhood of
Cleve many wood thefts took place merely in order to secure arrest and
prison fare. Does not this deputy from the knightly estate prove precisely
what he wants to refute, namely, that people are driven to steal wood by
the sheer necessity of saving themselves from starvation and homelessness?
Is this terrible need an aggravating circumstance?
The previously mentioned urban deputy said also:
"The cut in prison fare, which has already been condemned, must be
regarded as too severe and, especially in the case of penal labour,
quite impracticable."
A number of deputies denounced the reduction of food to bread and
water as being too severe. But a deputy from a rural community remarked
that in the Trier district the food cut had already been introduced and
had proved to be very effective.
Why did the worthy speaker find that the beneficial effect in
Trier was due precisely to bread and water and not, perhaps, to the intensification
of religious sentiment, about which the Assembly was able to speak
so much and so movingly? Who could have dreamed at that time that bread
and water were the true means for salvation? During certain debates one
could believe that the English Holy Parliament [7] had
been revived. And now? Instead of prayer and trust and song, we have bread
and water, prison and labour in the forest! How prodigal the Assembly is
with words in order to procure the Rhinelanders a seat in heaven! How prodigal
it is too, with words, in order that a whole class of Rhinelanders should
be fed on bread and water and driven with whips to labour in the forest
-- an idea which a Dutch planter would hardly dare to entertain in regard
to his Negroes. What does all this prove? That it is easy to be holy if
one is not willing to be human. That is the way in which the following
passage can be understood:
"A member of the Assembly considered the provision in §23 inhuman;
nevertheless it was adopted."
Apart from its inhumanity, no information was given about this paragraph.
Our whole account has shown how the Assembly degrades the executive
power, the administrative authorities, the life of the accused, the idea
of the state, crime itself, and punishment as well, to material means
of private interest. It will be found consistent, therefore, that the
sentence of the court also is treated as a mere means, and the legal
validity of the sentence as a superfluous prolixity.
"In §6 the commission proposed to delete the words 'legal!,
valid' since, in cases of judgment by default, their adoption would
give the wood thief a ready means of avoiding an increased punishment for
a repetition of the offence. Many deputies, however, protested against
this, declaring that it was necessary to oppose the commission's proposed
deletion of the expression 'legal!, valid sentence' in §6 of
the draft. This characterisation applied to sentences in this passage,
as also in the paragraph, was certainly not made without juridical consideration.
If every first sentence pronounced by the judge sufficed as grounds for
imposing a severer punishment, then, of course, the intention of punishing
repeated offenders more severely would be more easily and frequently achieved.
It had to be considered, however, whether one was willing to sacrifice
in this way an essential legal principle to the interests of
forest protection stressed by the spokesman: One could not agree that
the violation of an indisputable basic principle of judicial procedure
could give such a result to a sentence which was still without legal validity.
Another urban deputy also called for the rejection of the commission's
amendment. He said the amendment violated the provisions of the criminal
law by which there could be no increase of punishment until the first punishment
had been established by a legally valid sentence. The spokesman for the
commission retorted: 'The whole forms an exceptional law, and therefore
also an exceptional provision, such as has been proposed is permissible
in it.' The commission's proposal to delete the words 'legally valid' was
approved."
The sentence exists merely to identify recidivism. The judicial forms seem
to the greedy restlessness of private interest to be irksome and superfluous
obstacles of a pedantic legal etiquette. The trial is merely a reliable
escort for the adversary on his way to prison, a mere preliminary to execution,
and if the trial seeks to be more than that it has to be silenced. The
anxiety of self-interest spies out, calculates and conjectures most carefully
how the adversary could exploit the legal terrain on which, as a necessary
evil, he has to be encountered, and the most circumspect countermanoeuvres
are undertaken to forestall him. In the unbridled pursuit of private interest
you come up against the law itself as an obstacle and you treat it as such.
You haggle and bargain with it to secure the abrogation of a basic principle
here and there, you try to silence it by the most suppliant references
to the right of private interest, you slap it on the shoulder and whisper
in its ear: these are exceptions and there are no rules without an exception.
You try, by permitting the law as it were terrorism and meticulousness
in relation to the enemy, to compensate it for the slippery ease of conscience
with which you treat it as a guarantee of the accused and as an independent
object. The interest of the law is allowed to speak insofar as it is the
law of private interest, but it has to be silent as soon as it comes into
conflict with this holy of holiest
The forest owner, who himself punishes, is so consistent
that he himself also judges, for he obviously acts as a judge by
declaring a sentence legally binding although it has no legal validity.
How altogether foolish and impractical an illusion is an impartial judge
when the legislator is not impartial! What is the use of a disinterested
sentence when the law favours self-interest! The judge can only puritanically
formulate the self-interest of the law, only implement it without reservation.
Impartiality is then only in the form, not in the content of the sentence.
The content has been anticipated by the law. If the trial is nothing but
an empty form, then such a trifling formality has no independent value.
According to this view, Chinese law would become French law if it was forced
into the French procedure, but material law has its own necessary,
native form of trial. Just as the rod necessarily figures in Chinese
law, and just as torture has a place in the medieval criminal code as a
form of trial, so the public, free trial, in accordance with its own nature,
necessarily has a public content dictated by freedom and not by private
interest. Court trial and the law are no more indifferent to each other
than, for instance, the forms of plants are indifferent to the plants themselves,
and the forms of animals to their flesh and blood. There must be a single
spirit animating the trial and the law, for the trial is only the form
of life of the law, the manifestation of its inner life.
The pirates of Tidong [8] break the arms and
legs of their prisoners to ensure control over them. To ensure control
over wood thieves, the Provincial Assembly has not only broken the arms
and legs but has even pierced the heart of the law. We consider its merit
in regard to re-establishing some categories of our trial procedure as
absolutely nil; on the contrary, we must acknowledge the frankness and
consistency with which it gives an unfree form to the unfree content. If
private interest, which cannot bear the light of publicity, is introduced
materially into our law, let it be given its appropriate form, that of
secret procedure so that at least no dangerous, complacent illusions will
be evoked and entertained. We consider that at the present moment it is
the duty of all Rhinelanders, and especially of Rhenish jurists, to devote
their main attention to the content of the law, so that we should
not be left in the end with only an empty mask. The form is of no value
if it is not the form of the content.
The commission's proposal which we have just examined and the
Assembly's vote approving it are the climax to the whole debate, for here
the Assembly itself becomes conscious of the conflict between the interest
of forest protection and the principles of law, principles endorsed
by our own laws. The Assembly therefore put it to the vote whether the
principles of law should be sacrificed to the interest of forest protection
or whether this interest should be sacrificed to the principles of law,
and interest outvoted law. It was even realised that the whole law
was an exception to the law, and therefore the conclusion was drawn
that every exceptional provision it contained was permissible. The
Assembly confined itself to drawing consequences that the legislator had
neglected. Wherever the legislator had forgotten that it was a question
of an exception to the law, and not of a law, wherever he put forward the
legal point of view, our Assembly by its activity intervened with confident
tactfulness to correct and supplement him, and to make private interest
lay down laws to the law where the law had laid down laws to private interest.
The Provincial Assembly, therefore, completely fulfilled its
mission. In accordance with its function, it represented a definite
particular interest and treated it as the final goal. That in doing
so it trampled the law under foot is a simple consequence of its sash,
for interest by its very nature is blind, immoderate, one-sided; in short,
it is lawless natural instinct, and can lawlessness lay down laws? Private
interest is no more made capable of legislating by being installed on the
throne of the legislator than a mute is made capable of speech by being
given an enormously long speaking-trumpet.
It is with reluctance that we have followed the course of this
tedious and uninspired debate, but we considered it our duty to show by
means of an example what is to be expected from an Assembly of the Estates
of particular interests if it were ever seriously called upon to make
laws.
We repeat once again: our estates have fulfilled their function
as such, but far be it from us to desire to justify them on that account.
In them, the Rhinelander ought to have been victorious over the estate,
the human being ought to have been victorious over the forest owner. They
themselves are legally entrusted not only with the representation of particular
interests but also with the representation of the interests of the province,
and however contradictory these two tasks may be, in case of conflict there
should not be a moment's delay in sacrificing representation of particular
interest to representation of the interests of the province. The sense
of right and legality is the most important provincial characteristic
of the Rhinelander. But it goes without saying that a particular interest,
caring no more for the province than it does for the Fatherland, has also
no concern for local spirit, any more than for the general spirit. In direct
contradiction to those writers of fantasy who profess to find in the representation
of private interests ideal romanticism, immeasurable depths of feeling,
and the most fruitful source of individual and specific forms of morality,
such representation on the contrary abolishes all natural and spiritual
distinctions by enthroning in their stead the immoral, irrational and soulless
abstraction of a particular material object and a particular consciousness
which is slavishly subordinated to this object.
Wood remains wood in Siberia as in France; forest owners remain
forest owners in Kamchatka as in the Rhine Province. Hence, if wood and
its owners as such make laws, these laws will differ from one another only
by the place of origin and the language in which they are written. This
abject materialism, this sin against the holy spirit of the people
and humanity, is an immediate consequence of the doctrine which the Preussische
Staats-Zeitung preaches to the legislator, namely, that in connection
with the law concerning wood he should think only of wood and forest and
should solve each material problem in a non-political way, i.e.,
without any connection with the whole of the reason and morality of the
state.
The savages of Cuba regarded gold as a fetish of the
Spaniards. They celebrated a feast in its honour, sang in a circle
around it and then threw it into the sea. If the Cuban savages had been
present at the sitting of the Rhine Province Assembly, would they not have
regarded wood as the Rhinelanders' fetish? But a subsequent
sitting would have taught them that the worship of animals is connected
with this fetishism, and they would have thrown the hares into the
sea in order to save the human beings. [9]
NOTES
From the MECW
1 Proceedings of the Sixth Rhine Province Assembly. Third Article. Debates on the Law on Thefts of Wood is one
of the series of articles by Marx on the proceedings of the Rhine Province
Assembly from May 23 to July 25, 1841. Marx touched on the theme of the
material interests of the popular masses for the first time, coming out
in their defence. Work on this and subsequent articles inspired Marx to
study political economy. He wrote about this in the preface to his A
Contribution to the Critique of Political Economy (1859): "In the year
1842-43, as editor of the Rheinische Zeitung, I first found myself
in the embarrassing position of having to discuss what is known as material
interests. Debates of the Rhine Province Assembly on the theft of wood
and the division of landed property; the official polemic started by Herr
von Schaper, then Oberprasident of the Rhine Province, against the Rheinische
Zeitung about the condition of the Mosel peasantry, and finally the
debates on free trade and protective tariffs caused me in the first instance
to turn my attention to economic questions."
Excerpts from the speeches by the deputies to the Assembly are
cited from Sitzungs-Protokolle des sechsten Rheinischen Provinzial-Landtags,
Koblenz, 1841.
2 The second article written by Marx
on the proceedings of the Rhine Province Assembly, banned by the censors,
was devoted to the conflict between the Prussian Government and the Catholic
Church or the so-called church conflict.
3 Marx refers to the Criminal Code of
Karl V (Die peinliche Halsgerichtsordnung Kaiser Karls V. Constitutio
criminalis Carolina), approved by the Reichstag in Regensburg in 1532;
it was distinguished by its extremely cruel penalties.
4 The reference is to the so-called
barbaric laws (leges barbarorum) compiled in the fifth-ninth centuries
which were records of the common law of various Germanic tribes (Franks,
Frisians, Burgundians, Langobards [Lombards], Anglo-Saxons and others).
5 Dodona -- a town in Epirus,
seat of a temple of Zeus. An ancient oak grew near the main entrance to
the temple with a spring at its foot; oracles interpreted the will of the
gods from the rustling of its leaves.
6 The fact mentioned took place during
the siege of Antwerp in 1584-85 by the troops of King Philip II of Spain,
who were suppressing the Netherland's revolt against absolutist Spain.
7 The reference is to the Barebone's,
nominated, or Little Parliament summoned by Cromwell in July and dissolved
in December 1653. It was composed mainly of representatives of the Congregational
Churches who couched their criticism in religious mystic terms.
8 Tidong -- a region in Kalimantan
(Borneo).
9 An allusion to the debate of the Sixth
Rhine Province Assembly on a bill against violations of game regulations,
which deprived the peasants of the right to hunt even hares.
a "There are two kinds of corruption,"
says Montesquieu, "one when the people do not observe the laws, the other
when they are corrupted by the laws: an incurable evil because it is in
the very remedy itself." Ch. Montesquieu, De l'esprit des lois,
Tome premier, livre sixième, chapitre XII.
b A pun on the German word Kasten,
meaning both "castes" and "boxes".
d A pun on the German words Hühneraugen -- corns, and Augen -- eyes.
e W. Shakespeare, The Merchant of
Venice, Act IV, Scene 1.
f "When he is afraid, he is terrible."
h "Nothing is more terrible than logic
carried to absurdity."
Comments
Please add: Source: MECW,
Please add:
Source: MECW, Volume 1, p. 222
to the article header section
My error, that should have
My error, that should have been p 224