[Rheinische Zeitung No. 298, October 25, 1842, Supplement] 

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.8? 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 

* We regret that we have not been able to publish the second article for our 
readers. Editorial board of the Rheinische Zeitung. 

Debates on the Law on Thefts of Wood 995 

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.” 

g* 

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!) “proceed- 
ings.” 

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 

Debates on the Law on Thefts of Wood 227 

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 pro- 
nounced 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. 

“Tl 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 reméde méme.” * 

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 

* “There are two kinds of corruption,” says Montesquieu, “one when the 
people do not observe the laws, the other when they are corrupted by the laws: an 
incurable evil because it is in the very remedy itself.” Ch. Montesquieu, De l’esprit des 
lois, Tome premier, livre sixiéme, chapitre XII.— Ed. 

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 def- 
inition 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 def- 
inition, 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 differ- 
ent 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, infringe- 
ment of forest regulations, and theft of wood. It repudiates the 
difference between these actions, refusing to regard it as deter- 
mining 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 sala 3 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-sighted- 
ness 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 cir- 
cumstance, 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 unprac- 
tical’. 

Debates on the Law on Thefts of Wood 999 

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 viola- 
tions 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 crim- 
inal 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 defi- 
nite 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 de- 
fining 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 differ- 
ences, 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 individu- 
ality. 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, political- 
ly 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. 

* A pun on the German word Kasten, meaning both “castes” and “boxes”.— Ed. 

Debates on the Law on Thefts of Wood 931 

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, October 27, 1842, Supplement] 

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 necessi- 
ty— 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 

* Little extras.— Ed. 

232. Karl Marx 

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, in- 
sofar as some rational content of right was to be found in those 
pretensions, they ought also to have converted accidental conces- 
sions 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 

Debates on the Law on Thefts of Wood 233 

definitely private property, but neither were they definitely com- 
mon 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 root- 
ed 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 gath- 
ering, the elemental class of human society appoints itself to intro- 
duce 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 

Debates on the Law on Thefts of Wood 235 

“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 con- 
stituting any violation of the eternal rule of law. The punishment 
must not inspire more repugnance than the offence, the igno- 
miny 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 charac- 
teristic 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,” < 

“ A pun on the German words Hiihneraugen—corns, and Augen—eyes.— Ed. 
Dw. Shakespeare, The Merchant of Venice, Act IV, Scene 1.— Ed. 
© “When he is afraid, he is terrible.”— Ed. 

Debates on the Law on Thefts of Wood 237 

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 commis- 
sion. 

We see here the enactment of patrimonial jurisdiction. The pat- 
rimonial warden is at the same time in part a judge. The val- 
uation 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 patrimo- 
nial 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 rark 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 

Debates on the Law on Thefts of Wood 239 

“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 com- 
munities, 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 own- 
ers of all forest protection. In a large part of the province, communities and pri- 
vate 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 confi- 
dence when they reported a theft of wood, but were trusted when they testified to the 
infringement of forest regulations.” 

[Rheinische Zeitung No. 303, October 30, 1842, Supplement] 

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 minu- 
test detail is imperative, whereas in the former case inequality is 
an axiom. Why does the small forest owner demand the same pro- 
tection 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 man- 
ner 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 

pro perty . 

Debates on the Law on Thefts of Wood 241 

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 pri- 
vate 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 de- 
grade, 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, delight- 
ful 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 termi- 
nated: “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 

Debates on the Law on Thefts of Wood 243 

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 resem- 
bled 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 pri- 
vate persons who promulgate public laws? It is, indeed, scan- 
dalous. 

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 

* Full powers.— Ed. 

Debates on the Law on Thefts of Wood 245 

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 appoint- 
ment 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 log- 
ic 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 adminis- 
trative 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, ap- 
praises, 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 compensa- 
tion for the work which has to be performed by paid day-labourers or servants”. 

* Nothing is more terrible than logic carried to absurdity.— Ed. 

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.” 

The Provincial Assembly adopted the proposal. 

[Rheinische Zeitung No. 305, November 1, 1842, Supplement] 

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 spokes- 
man be so good as to tell us himself how worldly-wise people 
judge humane phrases. He makes the forest owner address the follow- 
ing 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. There- 

* J. Goethe, Reineke Fuchs, Sechster Gésang — Ed. 

Debates on the Law on Thefts of Wood 247 

fore, 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 mean- 
ing “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 convenient- 
ly —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 burgomas- 
ter 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 unquestion- 
able benefit! 

The following is yet another example of these humane senti- 
ments! 

Spokesman: “French law does not acknowledge the commutation of imprison- 
ment 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 re- 
marked that in prison they were brought into contact with invet- 
erate thieves, prisons were said to be good. Suddenly reforma- 
tories have been metamorphosed into institutions for corrup- 
tion, for at this moment it is of advantage to the interests of 
the forest owner that prisons corrupt. By reform of the crimi- 
nal 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 bal 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 expe- 
dients 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 them- 
selves 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: 

? What, at a ball, we simple folk call being wallflowers.— Ed. 

Debates on the Law on Thefts of Wood 249 

“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 Bur- 
gomaster. 

“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 im- 
posed with melancholy sacrifice on the burgomaster. 

If, for the good of the state and the moral benefit of the crimi- 
nal, 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 conse- 
quences. 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. 

* These words are reminiscent of “A horse, a horse! My kingdom for a horse!” 
W. Shakespeare, King Richard III, Act V, Scene 4.— Ed. 

Debates on the Law on Thefts of Wood 251 

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 proper- 
ty 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 

* Right of the (feudal) lord.— Ed. 

Debates on the Law on Thefts of Wood 253 

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 per- 
son 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 provi- 
sions 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 princi- 
ple 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 conse- 
quence. 

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 uncon- 
nected 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, November 3, 1842, Supplement] 

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 
814, by which §4 was given an altered and dangerous meaning. 
But this connection was totally ignored; §14 was adopted, provid- 
ing 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 

Debates on the Law on Thefts of Wood 255 

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 prin- 

ciple of the punishment, precisely because in it all the viciousness 
of this principle is revealed. 

The principle of divide et impera* 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, human- 
ity, and citizenship of the state, who own nothing except them- 
selves. 

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 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. 1s that the law? 

Portia. Thyself shaft see the act. 

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 

* Divide and rule. — Ed. 
bw. Shakespeare, The Merchant of Venice, Act IV, Scene 1.— Ed. 

Debates on the Law on Thefts of Wood 257 

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 oppo- 
site. 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 

Debates on the Law on Thefts of Wood 259 

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 ‘legally 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 ‘legally 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 

260 Kar! Marx 

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 counter- 
manoeuvres 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 
holies. 

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 disin- 
terested 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 contro] over them. To ensure control over 
wood thieves, the Provincial Assembly has not only broken the 

Debates on the Law on Thefts of Wood 261 

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 provi- 
sion 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 tts 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 task, 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 fruit- 
ful 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 im- 
mediate 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 

Debates on the Law on Thefts of Wood 263 

not have regarded wood as the Rhinelanders’ fetish? But a subse- 
quent 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.™ 

November 1 and 3, 1842 mS