murder itself; for the law desires to punish the deed, not to revenge its consequences. In general the injury to be guarded against affords the right measure for the punishment which is to be threatened, but it does not give the moral baseness of the forbidden action. Therefore the law may rightly impose the punishment of imprisonment for allowing a flower-pot to fall from a window, or impose hard labour for smoking in the woods during the summer, and yet permit it in the winter. But to impose the punishment of death, as in Poland, for shooting an ure-ox is too much, for the maintenance of the species of ure-oxen may not be purchased with human life. In determining the measure of the punishment, along with the magnitude of the injury to be guarded against, we have to consider the strength of the motives which impel to the forbidden action. Quite a different standard of punishment would be established if expiation, retribution, jus talionis, were its true ground. But the criminal code ought to be nothing but a register of counter-motives for possible criminal actions: therefore each of these motives must decidedly outweigh the motives which lead to these actions, and indeed so much the more the greater the evil is which would arise from the action to be guarded against, the stronger the temptation to it, and the more difficult the conviction of the criminal; always under the correct assumption that the will is not free, but determinable by motives; – apart from this it could not be got at at all. So much for the philosophy of law.
In my prize essay on the freedom of the will (p. 50 seq.) I have proved the originality and unalterableness of the inborn character, from which the moral content of the course of life proceeds. It is established as a fact. But in order to understand problems in their full extent it is sometimes necessary to oppose opposites sharply to each other. In this case, then, let one recall how incredibly great is the inborn difference between man and man, in a moral and in an intellectual regard. Here nobleness and wis-
