Karl Marx

Debates on the Law on Thefts of Wood

By a Rhinelander

[»Rheinische Zeitung« No. 298, October 25, 1842]
[»Rheinische Zeitung« No. 300, October 27, 1842]
[»Rheinische Zeitung« No. 303, October 30, 1842]
[»Rheinische Zeitung« No. 305, November 1, 1842]
[»Rheinische Zeitung« No. 307, November 3, 1842]
[»Rheinische Zeitung« No. 307, November 3, 1842]

*** When, in connection with § 4, the question arose of leaving the valuation to the denunciatory protective official, a town councillor remarked:

“Were the proposal not to be approved that the fine should flow into the state treasury, the provision under consideration would be doubly dangerous.”

And it is clear that the forest official does not have the same motive for overvaluation when he assesses for the state as when he assesses for his employer. They were so obliging as not to discuss this point; they preserved the semblance as though § 14, which awards the fines to the forest owner, might be rejected. § 4 was carried. After ten paragraphs had been voted on, they finally come to § 14, through which § 4 acquires an altered and dangerous meaning. This connection is not touched upon at all; § 14 is adopted, and the fines are assigned to the private purse of the forest owner. The chief reason, indeed the only reason, advanced for this is the interest of the forest owner, which is not sufficiently covered by the reimbursement of the simple value. But in § 15 they again forget that they have voted the fines to the forest owner, and decree him special compensation over and above the simple value, because a surplus-value is conceivable, as though he had not already obtained a surplus through the fines flowing to him. It was even

remarked that the fines could not always be collected. They pretended, therefore, that they only wished to take the place of the state in relation to the money; but in § 19 they throw off the mask and vindicate for themselves not only the money, but the criminal himself, not only the purse of the man, but the man himself.

At this point the method of subreption emerges sharply and bluntly, indeed with self-conscious clarity, for it no longer hesitates to proclaim itself as a principle.

The simple value and the compensation obviously gave the forest owner only a private claim against the wood thief, for the realisation of which the civil courts are open to him. If the wood thief cannot pay, the forest owner finds himself in the position of any private person who has an insolvent debtor and thereby, as is well known, acquires no right to the compulsory labour, service, in a word, temporary bondage of the debtor. What, then, gives the forest owner this claim? The fines. By vindicating the fines for himself, the forest owner, as we have seen, vindicated for himself, in addition to his private right, a public right over the wood thief, and set himself in the place of the state. But by awarding himself the fines, he cunningly concealed the fact that he awarded himself the punishment itself. He then pointed to the fines as mere money; he now points to them as punishment; he now confesses, triumphantly, that through the fines he has transformed public right into his private property. Instead of recoiling from this consequence, which is as criminal as it is revolting, they lay claim to the consequence precisely because it is a consequence. If sound common sense asserts that it contradicts our law, contradicts all law, to hand over and assign one citizen to another as a temporary bondsman, they shrug their shoulders and declare that the principles have been discussed, although neither principle nor discussion took place. In this way the forest owner surreptitiously acquires, through the fines, the person of the wood thief. § 19 first reveals the double meaning of § 14.

Thus one sees that § 4, through § 14, § 14 through § 15, § 15 through § 19, that § 19 would have been simply impossible and would have had to render the whole principle of punishment impossible, precisely because in it the whole abjectness of this principle appears.

Divide et impera could not be more skilfully handled. In the preceding paragraph they do not think of the following one, and

in the following paragraph they forget the preceding one. The one has already been discussed and the other has not yet been discussed, so that both are raised above all discussion by opposite reasons. The recognised principle, however, is “the feeling of right and equity for the protection of the interest of the forest owner,” which stands in direct opposition to the feeling of right and equity for the protection of the interest of the owner of life, the owner of freedom, the owner of humanity, the owner of the state, the owner of nothing but himself.

Yet we have already come this far. – Let the forest owner receive, in place of the block of wood, a former human being.

Shylock. Most learned judge!—A sentence! Come, prepare!
Portia. Tarry a little; there is something else.
This bond doth 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 dost 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 shalt see the act:
And you shall see the act!

On what do you base your claim to the bondage of the wood thief? On the fines. We have shown that you have no right to the fines. We pass over this. What is your fundamental principle? That the interest of the forest owner is to be secured, even if the world of right and freedom go to ruin over it. It stands immovably fixed in your minds that your wood damage must be compensated by the wood thief in some way. This firm wooden foundation of your reasoning is so rotten that a single breath of healthy common sense scatters 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 abolishing it. But the state cannot and may not say: a private interest, a particular existence of property, a coppice, a tree, a splinter of wood—and against the state the largest tree is scarcely a splinter of wood—is guaranteed against all contingencies, is immortal. The state cannot act against the nature of things; it cannot make the finite

proof against the conditions of the finite, against accident. Just as little as your property could be guaranteed by the state against every accident before the crime, just as little can the crime reverse this insecure nature of your property into its opposite. Certainly the state will secure your private interest, so far as it can be secured through reasonable laws and reasonable preventive measures, but the state can grant your private claim upon the criminal no other right than the right of private claims, the protection of civil jurisdiction. If you cannot obtain compensation by this route on account of the indigence of the criminal, the only further consequence is that every legal route to this compensation has been exhausted. The world does not thereby fall out of its hinges, the state does not thereby abandon the sunlit path of justice, and you have experienced the transitoriness of all earthly things, an experience which, to your solid religiosity, will scarcely appear as a piquant novelty or more miraculous than storms, fires and fever. But if the state were to make the criminal your temporary bondsman, it would sacrifice the immortality of right to your finite private interest. It would thus prove to the criminal the mortality of right, whose immortality it must prove to him in punishment.

When, in the time of King Philip, Antwerp could easily have kept the Spaniards at bay by flooding its territory, the butchers’ guild would not allow it because they had fat oxen on the pasture. You demand that the state surrender its spiritual territory so that your block of wood may be avenged.

A few additional provisions of § 16 are still to be reported. A deputy of the towns remarks:

“According to previous legislation, eight days’ imprisonment was reckoned as equivalent to a fine of five talers. There is no sufficient reason for departing from this.” (That is, for substituting fourteen days for the eight days.)

To the same paragraph the committee had proposed the following addition:

“that in no case shall the term of imprisonment be less than twenty-four hours.”

When it was observed that this minimum was too severe, a member from the estate of the nobility countered

“that the French forest law contains no lesser penalty than three days.”

The same breath which, in opposition to the provision of the French law, compensates five talers with fourteen days instead of eight days’ imprisonment, now bristles, out of devotion to the French law, at turning three days into twenty-four hours.

The above-mentioned town deputy further remarks:

“at the very least it would be very harsh, in cases of wood thefts, which can never be regarded as a crime to be heavily punished, to make fourteen days’ imprisonment take the place of a fine of five talers. This will lead to the well-to-do person, who buys himself free with money, being punished only once, while the poor man is punished doubly.”

A deputy of the nobility mentions that in the area round Cleve many forest offences are committed merely in order to obtain admission to the house of correction and the prisoners’ fare. Does not this deputy of the nobility prove precisely what he wishes to refute, that sheer necessity in face of hunger and homelessness drives people to wood theft? Is this appalling necessity an aggravating circumstance?

The above-mentioned town deputy:

“The reduction of fare, already censured, he must consider too harsh and, especially in the case of penal labour, wholly impracticable.”

Objection is raised from several sides that the reduction of fare to bread and water is too harsh. A deputy from the rural communities observed that in the district of Trier the reduction of fare had already been introduced and had proved very effective.

Why did the honourable speaker happen to find the cause of the good effect in Trier precisely in bread and water, why not, for example, in the heightening of religious feeling, of which the Diet was able to speak so much and so touchingly? Who would have suspected then that water and bread were the true means of grace! In certain debates one might have thought the Holy Parliament of England revived—and now? Instead of prayer and trust and song, water and bread, prison and forest labour! How generously they paraded with words to procure the Rhinelanders a chair in heaven, and how generously they are again with words in order to flog a whole class of Rhinelanders to forest labour on bread and water—an idea that a Dutch planter would scarcely dare to entertain towards his Negroes. What does all this prove? That it is easy to be holy when one does not wish to be human. In this sense one will understand the passage:

“One member of the Diet found the provision of § 23 inhuman; it was nevertheless adopted.”

Apart from the inhumanity, nothing is reported of this paragraph.

Our whole exposition has shown how the Diet degrades the executive power, the administrative authorities, the existence of the accused, the idea of the state
*
, crime itself and punishment into material means of private interest. It will be found consistent, therefore, that the judicial verdict, too, is treated as a mere means, and the legal validity of the verdict as a superfluous circumscription.

“In § 6 the committee wishes the word ‘legally valid’ to be deleted, since its inclusion would give wood thieves a means, in the case of judgments in default, of evading the severer punishment for instances of repetition; but several deputies protest against this and remark that the elimination, proposed by the committee, of the expression ‘legally valid verdict’ in § 6 of the draft must be opposed. This designation of verdicts was certainly not introduced at this point, and in the paragraph, without legal consideration. To be sure, the intention of more strictly punishing recidivism would be fulfilled more easily and more frequently if every first judicial sentence sufficed to ground the application of the severer punishment. But it must be considered whether, in this way, one is prepared to sacrifice an essential principle of right to the interest of forest protection

emphasised by the rapporteur. One could not declare oneself in agreement that, by violating an indisputable fundamental principle of legal procedure, such an effect should be attributed to a verdict which as yet has no legal status. Another deputy of the towns also moved that the committee’s amendment be rejected. It contravened the provisions of criminal law, according to which a sharpening of the punishment can never occur until the first punishment has been established by a legally valid verdict. The rapporteur replies: ‘the whole thing is an exceptional law, and so an exceptional provision like the one proposed is permissible in it.’ Proposal of the committee to delete ‘legally valid’ approved.”

The verdict exists merely to establish recidivism. The judicial forms appear to the covetous restlessness of private interest as burdensome and superfluous hindrances of a pedantic legal etiquette. The trial is merely a safe conduct which one gives to the adversary on his way to prison, a mere preparation for execution, and where it wants to be more than that, it is silenced. The anxiety of self-interest peers out, calculates, and combines with the greatest accuracy how the adversary could exploit for his own advantage the legal terrain which one is obliged to enter against him as a necessary evil; and one forestalls him by the most prudent counter-manoeuvres. One bumps up against right itself as an obstacle in the unbridled assertion of one’s private interest, and one treats right as an obstacle. One haggles, one bargains with it, one trades away a principle here and there, one mollifies it by the most suppliant reference to the right of interest, one slaps it on the shoulder, one whispers in its ear that these are exceptions and no rule without exception, one seeks to compensate right, as it were, through the terrorism and the exactitude one permits it against the enemy, for the slippery laxity of conscience with which one treats it as a guarantee of the accused and as an independent object. The interest of right is allowed to speak, in so far as it is the right of interest, but it must be silent as soon as it collides with this holy of holies.

The forest owner, who has himself carried out the punishment, is consistent enough also to judge himself, for he obviously judges when he declares a verdict without legal validity to be legally valid. What a foolish, unpractical illusion a dispassionate judge is anyway, if the legislator is partisan! What is the use of a disinterested verdict if the law is interested? The judge can only give a Puritanical formulation to the self-interest of the law, only apply it without compunction. Dispassionateness is then the form, it is not the content of the verdict. The content has been anticipated by the law. If the trial is nothing but an insubstantial form, then such a formal trifle has no independent value. According to this view, Chinese law would become French law if one squeezed it into the French procedure; but material right has its necessary, inborn form of procedure, and just as necessarily as the cudgel belongs to Chinese law, just as necessarily as torture belongs as a procedural form to the content of the high criminal code of the Carolina, just so necessarily does a content freely imposed by public opinion, dictated by freedom and not by private interest, belong to the public, free trial. Procedure and right are as little indifferent to one another as, say, the forms of plants and animals are indifferent to the flesh and blood of the animals. It must be one spirit that animates the procedure and the laws, for procedure is only the mode of life of the law, hence the manifestation of its inner life.

To make sure of them, the pirates of Tidong break the arms and legs of their prisoners. To make sure of the wood thieves, the Diet has not only broken arms and legs, but even pierced the heart of right. We esteem its merit for the reintroduction of our procedure in some categories to be an absolute nullity in comparison with this; we must, on the contrary, acknowledge the frankness and consistency which gives an unfree content an unfree form. If one brings materially into our law the private interest which cannot bear the light of publicity, then give it also its appropriate form, secret procedure, so that at least no dangerous, self-complacent illusions are aroused and nurtured. We consider it the duty of all Rhinelanders, and especially of the Rhenish jurists, at this moment to devote their main attention
*
to the content of right, so that we are not left in the end with the empty mask. Form has no value if it is not the form of the content.

The committee’s proposal just discussed and the approving vote of the Diet are the flowering point of the whole debate, for the collision between the interest of forest protection and the principles of right, the principles of right sanctioned by our own law, here enters the Diet’s own consciousness. The Diet voted on the question whether the principles of right should be sacrificed to the interest of forest protection, or the interest of forest protection to the principles of right, and interest outvoted right. It was even perceived that the whole law was an exception to the law, and it was consequently inferred that every exceptional provision was permissible in it. They confined themselves to drawing conclusions which the legislator had neglected. Wherever the legislator forgot that it was a question of an exception to the law and not of a law, wherever he asserted the standpoint of right, the activity of our Diet stepped in with sure tact, correcting and supplementing, and make private interest give laws to right where right gave laws to private interest.

The Diet has thus fulfilled its vocation completely. It has represented a particular interest, as that for which it is called, and treated it as its ultimate end. That in the process it trod right underfoot is a simple consequence of its task, for interest is by its nature blind, measureless, one-sided, in a word, lawless natural instinct, and can the lawless give laws? Private interest is no more qualified to legislate by being set on the throne of the legislator than a mute is qualified to speak by being handed a speaking-trumpet of enormous length.

We have followed this tedious and spiritless debate only with repugnance, but we considered it our duty to show by an example what is to be expected from an assembly of estates of particular interests, were it once seriously called upon to legislate.

We repeat once more: our provincial estates have fulfilled their vocation as provincial estates, but we are far from wishing to justify them by this. In them the Rhinelander should have triumphed over the estate-owner, the man over the forest owner. By law they are entrusted not only with the representation of particular interests, but also with the representation of the interest of the province, and contradictory as these two tasks are, in a case of collision one should not have hesitated for a moment to sacrifice the

representation of the particular interest to the representation of the province. The sense of right and law is the most significant provincialism of the Rhinelanders; but it is self-evident that particular interest knows no fatherland, just as it knows no province, knows no general spirit, just as it knows no local spirit. In direct contradiction to the assertion of those writers of imagination who are pleased to discover ideal romanticism, unfathomable depths of feeling and the most fruitful source of individual and peculiar moral configurations in a representation of particular interests, such representation abolishes all natural and spiritual differences by enthroning in their stead the immoral, irrational and soulless abstraction of a particular matter and a particular consciousness slavishly subjected to it.

Wood remains wood in Siberia just as it does in France; the forest owner remains a forest owner in Kamchatka just as he does in the Rhine Province. If, then, wood and the wood-owner as such give laws, these laws will differ in nothing but the geographical point where they are given and the language in which they are given. This
reprobate materialism,
this sin against the holy spirit of peoples and of humanity, is an immediate consequence of the doctrine which the *Prussian State Gazette* preaches to the legislator, namely, when dealing with a wood law to think only of wood and forest and to solve the particular material task
not politically,
i.e., not in connection with the whole of state reason and state morality.

The
savages of Cuba
held gold to be the
fetish of the Spaniards.
They held a festival for it, sang around it, and then threw it into the sea. If the savages of Cuba had attended the session of the Rhenish Provincial Assembly, would they not have considered
wood
to be the
fetish
of the
Rhinelanders?
But a subsequent session would have taught them that fetishism is combined with animal worship, and the savages of Cuba would have thrown the
hares
into the sea in order to save the
men.