Debates on the Law on Wood Theft – 1 November 1842

Marx/Engels

1.5. Correction

Created on 30 August 1999

Karl Marx

Debates on the Law on Wood Theft

By a Rhinelander

[*Rheinische Zeitung* No. 298 of 25 October 1842]

[*Rheinische Zeitung* No. 300 of 27 October 1842]

[*Rheinische Zeitung* No. 303 of 30 October 1842]

[*Rheinische Zeitung* No. 305 of 1 November 1842]

[*Rheinische Zeitung* No. 307 of 3 November 1842]

[*Rheinische Zeitung* No. 305 of 1 November 1842]

*** The good burgomaster is expected to take on a burden and perform a fine act so that the forest owner can discharge his duty towards the community without expense. With the same right the forest owner could claim the burgomaster as chief cook or chief butler. Is it not a fine act if the burgomaster keeps the kitchen and cellar of those he administers in repair? The convicted criminal is not administered by the burgomaster, he is administered by the prison warder. Does not the burgomaster lose the very resources and dignity of his position if he is transformed from a head of the community into the executor of individual members of the community, from a burgomaster into a gaoler? Are not the other free members of the community offended when their honest labour in the service of the general good sinks to the level of penal labour in the service of individual persons?

Yet it is superfluous to expose such sophistries. The *rapporteur* may be so good as to tell us himself how worldly-wise people judge humane phrases. He has the *forest owner* harangue the humanising *landowner* as follows:

“If ears of corn were cut from a landowner, the thief would say: ‘I have no bread, therefore I take some ears from the great piece you possess,’ just as the wood thief says: ‘I have no wood to burn, therefore I steal wood.’ The landowner is protected by Article 444 of the Criminal Code, which imposes a penalty of two to five years’ imprisonment for cutting off ears; the forest owner has no such powerful protection.”

In this last envious, sidelong exclamation of the forest owner lies a whole creed. Landowner, why do you act so magnanimous when *my* interest is at stake? Because *your* interest has already been taken care of. So, no illusions! Magnanimity either costs nothing or brings something in. So, landowner, you do not dazzle the forest owner! So, forest owner, do not dazzle the burgomaster!

This little *intermezzo* would prove how little sense “fine acts” can have in our debate, were it not that the entire debate proves that ethical and humane grounds find a place here only as phrases. But interest is even mean with phrases. It invents them only when it needs to, when substantial consequences are at stake. Then it becomes eloquent, its blood rolls more quickly, it does not even balk at fine acts that bring it gain and cost others, at flattering words, at cozening sweet-talk, and all this, all this is merely exploited to stamp wood theft as a more convenient coin for the forest owner, to turn the wood thief into a productive wood thief, to enable the capital – for the wood thief has become capital to the forest owner – to be invested more comfortably. The point is not to use the burgomaster for the benefit of the wood thief, it is to misuse him for the benefit of the forest owner. What a remarkable destiny, what an astonishing fact, that the rare intervals in which a problematic good is even mentioned for the offender secure an apodictic good for the forest owner!

Another example of these humane incidental points!

*Rapporteur*: “*French law does not know the commutation of imprisonment into forest labour; he [the rapporteur] considers it a wise and beneficent measure, for stay in prison does not always lead to improvement and very often leads to worsening.*”

Earlier, when innocent people were turned into criminals, when a deputy, with reference to the collectors of fallen wood, remarked that imprisonment brought them together with habitual thieves, *prisons were good*. Suddenly the houses of correction have metamorphosed into houses of corruption, for at this moment it is advantageous to the interest of the forest owner that prisons corrupt. By the improvement of criminals one understands an *improvement of the percentage* which criminals have the high-minded calling of yielding to the forest owner.

Interest has no memory, for it thinks only of itself. The *one* thing that matters to it, itself, it does not forget. But contradictions do not matter to it, for with itself it does not fall into contradictions. It is a constant improviser, for it has no system, but it has *expedients*.

While humane and legal considerations do nothing but

Ce qu’au bal nous autres sots humains
Nous appelons faire tapisserie
[what we silly humans at a ball call being a wallflower],

the expedients are the most active agents in the reasoning mechanism of interest. Among these expedients we notice two that constantly recur in this debate and form the main categories: the “*good motives*” and the “*injurious consequences*”. We see now the *rapporteur* of the committee, now another member of the Diet cover every ambiguous provision with the shield of seasoned, wise and good motives against the arrows of contradiction. We see every consequence of legal points of view rejected by pointing to the injurious or alarming consequences. Let us examine for a moment these capacious expedients, these expedients *par excellence*, these expedients for everything and even for a few things besides.

Interest knows how to blacken the law by holding up the prospect of injurious consequences, by its effects in the external world; it knows how to whitewash injustice by good motives, that is, by retreating into the inwardness of its thought-world. The law has bad consequences in the external world among wicked men, injustice has good motives in the breast of the worthy man who decrees it; but both, the good motives and the injurious consequences, share the peculiarity that they do not treat the matter in relation to itself, that they do not treat the law as an independent object, but point away from the law either out into the world or back into one’s own head, that they therefore manoeuvre *behind the back of the law*.

What are injurious consequences? Our whole exposition proves that these are not to be understood as injurious consequences for the state, the law, the accused. Moreover, we shall in a few strokes make it evident that injurious consequences are not to be understood as injurious consequences for *civil security*.

We have already heard from members of the Diet themselves how the provision “that everyone must prove where he got his wood” jars harshly and offensively upon civil life and abandons every citizen to vexatious harassment. Another provision declares everyone a thief in whose *custody* stolen wood is found, although a deputy declared:

“this could be dangerous to many an honest man. Stolen wood was thrown into someone’s yard in his vicinity and the innocent man was sentenced.”

§ 66 condemns every citizen who buys a broom that is not a monopolised broom to a penitentiary term of four weeks to two years, to which an urban deputy added the marginal gloss:

“This paragraph threatens the inhabitants of the districts of Elberfeld, Lennep and Solingen, one and all, with penitentiary.”

Finally, the supervision and enforcement of the game and forest police has been made both a right and a duty of the *military*, although Article 9 of the Criminal Ordinance recognises only officials who are under the supervision of the public prosecutors and can therefore be prosecuted directly by them, which is not the case with the military. This threatens the independence of the courts as well as the freedom and security of the citizens.

Far from there being any question of injurious consequences for civil security, therefore, civil security itself is treated as a *circumstance of injurious consequences*.

What, then, are injurious consequences? Injurious is whatever is injurious to the interest of the forest owner. If, therefore, the consequences of the law are not successes for his interest, they are injurious consequences. And here interest is acute. If just now it did not see what ordinary eyes show, it now even sees what only the microscope discovers. The whole world is a thorn in its eye, a world of dangers, precisely because it is not the world of *one* interest but of *many* interests. Private interest regards itself as the ultimate end of the world. If, then, the law does not realise this ultimate end, it is a law running counter to its purpose. A *law injurious to private interest* is therefore a *law of injurious consequences*.

Could the *good motives* be better than the injurious consequences?

Interest does not think, it reckons. Motives are its figures. The motive is a reason for moving, a motive for cancelling legal grounds, and who doubts that private interest will have many such reasons for moving? The goodness of the motive consists in the accidental pliancy with which it knows how to shift the objective facts of the case and to lull itself and others into the illusion that it is not the good thing that needs to be thought, but that, in the case of a bad thing, good thought is sufficient.

Taking up our thread again, we first present a pendant to the fine acts recommended to the burgomaster.

“A revised wording of § 34 was proposed by the committee as follows: If the appearance of the recording protection official is brought about by the accused, the latter shall first of all deposit the relevant costs with the forest court.

The state and the court are to do nothing gratuitously in the interest of the accused. They are to get themselves paid first of all, whereby obviously, first of all, the confrontation of the denouncing protection official and the accused is made more difficult.”

A fine act! Just a single fine act! A kingdom for a fine act! But the only fine act that is proposed is to be performed by the burgomaster for the benefit of the forest owner. The burgomaster is the representative of fine acts, their human embodiment, and the series of fine acts has been exhausted and closed forever with the burden which the mournful self-sacrifice has possessed to lay upon the burgomaster.

If the burgomaster is to do more than his duty in the service of the state and for the ethical good of the criminal, should the forest owners not demand *less* for the same good than their *interest*?

One might believe that the answer to this question is already contained in the part of the debates we have treated so far, but one would be mistaken. We come to the *penal provisions*.

“A deputy of the knighthood considered that the forest owner was still not sufficiently compensated even if the fines (in addition to the restitution of the simple value) went to him, since they would frequently not be collectable.”

An urban deputy remarks:

“The provisions of this paragraph (§ 15) could lead to the most alarming consequences. The forest owner would in this way obtain *triple* compensation, namely the value, the four-, six- or eight-fold fine and in addition special damages, which would often be established quite arbitrarily and be more the result of a fiction than of reality. In any case, it seemed to him that it must be ordered that the special compensation in question must be claimed at once before the forest court and awarded in the forest judgement. That the proof of the damage must be furnished separately and cannot be founded merely on the protocol lies in the nature of the matter.”

Against this, it was explained by the *rapporteur* and another member how the *surplus-value* here cited could arise in various cases designated by them. The paragraph was adopted.

Crime becomes a lottery in which the forest owner, if luck will have it, can even draw winnings. A *surplus-value* can result, but the forest owner, who already receives the simple value, can also do a deal through the four-, six- or eight-fold fine. If, however, in addition to the simple value he also obtains special damages, the four-, six- or eight-fold fine is in any case pure profit. If a member of the knighthood believes that the accruing fines are insufficient guarantees because they would frequently not be collectable, they certainly do not become collectable by the fact that, besides them, value and damages also have to be collected. We shall, moreover, see how the sting is taken out of this non-collectability.

Could the forest owner insure his wood better than has happened here, where crime has been transformed into a rent? A skilful general, he transforms the attack upon himself into an infallible occasion for victorious gain, for even the *surplus-value* of the wood, the economic phantasm, is transformed by the theft into a substance. The forest owner must be guaranteed not only his wood but also his wood *business*, while the comfortable homage he offers his business manager, the state, consists in not paying him. It is an exemplary conceit to transform the punishment of crime from a victory of the law against attacks on the law into a victory of self-interest against attacks on self-interest.

We, however, draw our readers’ attention in particular to the provision of § 14, a provision with regard to which one must divest oneself of the habit of taking the *leges barbarorum* for laws of barbarians. *Punishment* as such, the restoration of the law, to be well distinguished from the restitution of value and the compensation, the restoration of private property, is turned from a *public penalty* into a *private composition*; the fines flow not into the state treasury but into the private purse of the forest owner.

An urban deputy indeed thinks: “This conflicts with the dignity of the state and the principles of a sound administration of criminal law,” but a deputy of the knighthood “appeals to the sense of justice and equity of the Assembly for the protection of the *interest* of the forest owner”, hence to a *separate* sense of justice and equity.

Barbarian peoples allow the injured party to be paid a specific *composition* (expiation money) for a specific crime. The concept of public penalty first arose in opposition to this view, which sees in

crime only a violation of the individual. Yet the people and the theory have still to be invented who possess the complaisance to vindicate for the individual both the private and the state penalty.

A complete *qui pro quo* must have seduced the Estates. The legislating forest owner momentarily confused the persons, himself as legislator and himself as forest owner. On one occasion he, as forest owner, had himself paid for the wood, and on the other occasion he, as legislator, had himself paid for the *criminal disposition* of the thief, it being a completely chance coincidence that the forest owner was paid both times. We are thus no longer dealing with the simple *droit des seigneurs* [seignorial right]. We have passed through the epoch of public law into the epoch of duplicated, of potentiated patrimonial law. The patrimonial owners exploit the progress of the age, which is the refutation of their demand, in order to usurp both the private penalty of the barbarian world-view and the public penalty of the modern world-view.

Through the restitution of the value and, in addition, of a special compensation, no relationship any longer exists between the wood thief and the forest owner, for the violation of the wood is completely annulled. Both, thief and owner, have reverted to the integrity of their former condition. The forest owner is affected by the wood theft only in so far as the wood, but not in so far as the law is violated. Only the sensuous side of the criminal touches him, but the criminal *essence* of the act is not the attack on the material wood, but the attack on the state-vein of the wood, on the right of property as such, the realisation of the unlawful disposition. Does the forest owner have private claims on the legal disposition of the thief, and what else could the multiplication of the penalty in cases of repetition be but a punishment of the criminal disposition? Or can the forest owner have private demands where he has no private claims? Was the forest owner the state before the wood theft? No, but he becomes it after the wood theft. Wood possesses the remarkable property that, as soon as it is stolen, it acquires for its owner state qualities which he did not possess before. The forest owner can at most get back what was taken from him. If the state is given back to him, and it is given back to him when, besides the private right, he obtains the state’s right over the offender, then the state must also have been robbed from him, then the state must have been his private property. The wood thief, therefore, like a second

Christopher, carried the state itself on his back in the stolen logs.

Public penalty is the equalisation of crime with the reason of the state; it is therefore a right of the state, but it is a right of the state which it can as little cede to private persons as one individual can transfer his conscience to another. Every right of the state against the criminal is at the same time a state right of the criminal. His relation to the state cannot be transformed into a relation to private persons by the interposition of intermediate members. If one wanted to permit the state itself to renounce its rights, to commit suicide, the renunciation of its duties would still be not merely a negligence but a crime.

The forest owner can thus, through the state, no more obtain a private right to the public penalty than he possesses, in and for himself, any conceivable right to it. If, however, in the absence of legal claims, I arrange for the criminal act of a third party to become an independent source of gain for myself, do I not thereby become his accomplice? Or am I less his accomplice because the punishment falls to him and to me the enjoyment of the crime? The guilt is not mitigated if a private individual abuses his quality as legislator to arrogate to himself state rights through the crime of third parties. The embezzlement of public state moneys is a state crime, and are not the fines public state moneys?

The wood thief has stolen wood from the forest owner, but the forest owner has used the wood thief to steal the *state itself*. How literally true this is is proved by § 19, where they do not stop at the monetary fine but also lay claim to the *body and life* of the accused. According to § 19, the forest offender is handed over completely into the hands of the forest owner by *forest labour* to be performed for him, which, according to an urban deputy,

“could lead to great inconveniences. He wished only to draw attention to the dangerousness of this mode of execution in the case of persons of the other sex.”

A deputy of the knighthood gives the ever-memorable rejoinder:

“that, while it is indeed as necessary as it is expedient, during the discussion of a bill, first of all to discuss and establish its principles, once this has been done, however, it cannot be reverted to again during the debate on each individual paragraph”,

upon which the paragraph was adopted *without contradiction*.

Be so skilful as to start from bad principles, and you will acquire an infallible legal title to the bad consequences. You might indeed think that the nullity of the principle reveals itself in the abnormality of its consequences, but if you possess worldly wisdom, you will realise that the clever man drains, down to the last consequence, what he has once carried through. We are only surprised that the forest owner may not also heat his stove with the forest thieves. Since the question is not one of law but of the principles from which the Diet chooses to proceed, not a grain of sand would stand in the way of this consequence either.

In direct contradiction to the dogma just set forth, a short retrospect teaches us how necessary it would have been to discuss the principles anew with each paragraph, how, through the voting on paragraphs that seemed unrelated and were kept at a proper distance from one another, one provision after another was *smuggled through*, and after the first had been smuggled through, with the following one they now even dropped the *pretence* of the condition under which the first alone was acceptable.