Debates on the Law on Thefts of Wood

Add a subpage to this text

Read the help page for usage.

 

Note from Marx-Engels Collected Works Volume 1, 1975 :

Marx devoted [a series of] three articles to the debates of the Sixth Rhine Province Assembly, only two of which, the first and the third, were published. In the first series of articles Marx proceeded with his criticism of the Prussian censorship which he had begun in his as yet unpublished article Comments on the Latest Prussian Censorship Instruction. The second series of articles, devoted to the conflict between the Prussian Government and the Catholic Church, was banned by the censors. The manuscript of this article has not survived, but the general outline of it is given by Marx in his letter to Ruge of July 9, 1842. The third series of articles [this one] is devoted to the debates of the Rhine Province Assembly on the law on wood thefts.

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.

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. 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 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."

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 , 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 , 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 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. 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. 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," 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. 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. 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 , 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,

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. 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. 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 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 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.

A Rhinelander