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Articles in Rheinische Zeitung 1842 Proceedings of the Sixth Rhine Province Assembly. Third Article. Debates on the Law on Thefts of Wood Written: October 1842 [88]; First published: in the Supplement to the Rheinische Zeitung, Nos. 298, 300, 303, 305 and 307, October 25, 27 and 30, November 1 and 3, 1842; Translated: by Clemens Dutt. Signed: a Rhinelander; Transcribed: by [email protected], November 1996. Rheinische Zeitung, No. 298, Supplement, October 25 1842 RZ editorial note: "We regret that we have not been able to publish the second article for our readers. Editorial board of the Rheinische Zeitung." So far we have described two most important state acts of the Provincial Assembly, namely, its confusion over freedom of the press and its unfreedom in regard to the confusion. [2] We have now come down to ground level. Before we proceed to the really earthly question in all its life­ size, the question of the parcellation of landed property, we shall give our readers some genre pictures which reflect in manifold ways the spirit and, we might say, even the actual physical nature of the Assembly. It is true that the law on thefts of wood, like the law on offences in regard to hunting, forests and fields, deserves to be discussed not only in relation to the Assembly but equally on its own account. However, we do not have the draft of the law before us. Our material is limited to some vaguely indicated additions made by the Assembly and its commission to laws that figure only as paragraph numbers. The Assembly proceedings themselves are reported so extremely meagerly, incoherently and apocryphally that the report looks like an attempt at mystification. To judge from the truncated torso available to us, the Assembly wanted by this passive quietude to pay an act of respect to our province. One is immediately struck by a fact which is characteristic of these debates. The Assembly acts as a supplementary legislator alongside the state legislator. It will prove most interesting to examine the legislative qualities of the Assembly by means of an example. In view of this, the reader will forgive us for demanding from him patience and endurance, two virtues which had to be constantly exercised in analysing our barren subject­matter. 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 above­mentioned urban deputy remarks: "Since the punishment could run to a long term of imprisonment, such severity would lead people who otherwise followed an honest path on to the path of crime. That would happen also because in prison they would be in the company of inveterate thieves; therefore he considered that the gathering or pilfering of dry fallen wood should be punished by a simple police penalty." Another urban deputy, however, refuted him with the profound argument "that in the forest areas of his region, at first only gashes were made in young trees, and later, when they were dead, they were treated as fallen wood". It would be impossible to find a more elegant and at the same time more simple method of making the right of human beings give way to that of young trees. On the one hand, after the adoption of the paragraph, it is inevitable that many people not of a criminal disposition are cut off from the green tree of morality and cast like fallen wood into the hell of crime, infamy and misery. On the other hand, after rejection of the paragraph, there is the possibility that some young trees may be damaged, and it needs hardly be said that the wooden idols triumph and human beings are sacrificed! The supreme penal code [3] includes under theft of wood only the pilfering of hewn wood and the cutting of wood for the purpose of theft. Indeed ­­ our Provincial Assembly will not believe it ­­ it states: "If, however, in daytime someone takes fruit for eating and by its removal does no great damage, then, taking into account his personal position and the circumstances, he is to be punished by civil" (therefore, not criminal!) "proceedings." The supreme penal code of the sixteenth century requests us to defend it against the charge of excessive humanity made by a Rhine Province Assembly of the nineteenth century, and we comply with this request. The gathering of fallen wood and the most composite wood theft! They both have a common definition. The appropriation of wood from someone else. Therefore both are theft. That is the sum and substance of the far­sighted logic which has just issued laws. First of all, therefore, we call attention to the difference between them, and if it must be admitted that the two actions are essentially different, it can hardly be maintained that they are identical from the legal standpoint. In order to appropriate growing timber, it has to be forcibly separated from its organic association. Since this is an obvious outrage against the tree, it is therefore an obvious outrage against the owner of the tree. Further, if felled wood is stolen from a third person, this felled wood is material that has been produced by the owner. Felled wood is wood that has been worked on. The natural connection with property has been replaced by an artificial one. Therefore anyone who takes away felled wood takes away property In the case of fallen wood, on the contrary, nothing has been separated from property. It is only what has already been separated from property that is being separated from it. The wood thief pronounces on his own authority a sentence on property. The gatherer of fallen wood only carries out a sentence already pronounced by the very nature of the property, for the owner possesses only the tree, but the tree no longer possesses the branches that have fallen from it. The gathering of fallen wood and the theft of wood are therefore essentially different things. The objects concerned are different, the actions in regard to them are no less different hence the frame of mind must also be different, for what objective standard can be applied to the frame of mind other than the content of the action and its form? But, in spite of this essential difference, you call both of them theft and punish both of them as theft. Indeed, you punish the gathering of fallen wood more severely than the theft of wood, for you punish it already by declaring it to be theft, a punishment which you obviously do not pronounce on the actual theft of wood. You should have called it murder of wood and punished it as murder. The law is not exempt from the general obligation to tell the truth. It is doubly obliged to do so, for it is the universal and authentic exponent of the legal nature of things. Hence the legal nature of things cannot be regulated according to the law; on the contrary, the law must be regulated according to the legal nature of things. But if the law applies the term theft to an action that is scarcely even a violation of forest regulations, then the law lies, and the poor are sacrificed to a legal lie. "Il y a deux genres de corruption," says Montesquieu, "l'un lorsque le peuple n'observe point les lois; l'autre lorsqu'il est corrompu par les lois; mal incurable parce qu'il est dans le remède même." [a] You will never succeed in making us believe that there is a crime where there is no crime, you will only succeed in converting crime itself into a legal act.

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