People talk so much about birthright, and complain:
There is—alas!—no mention of the rights
That were born with us.[134]
What sort of right, then, is there that was born with me? The right to receive an entailed estate, to inherit a throne, to enjoy a princely or noble education; or, again, because poor parents begot me, to—get free schooling, be clothed out of contributions of alms, and at last earn my bread and my herring in the coal-mines or at the loom? Are these not birthrights, rights that have come down to me from my parents through birth? You think—no; you think these are only rights improperly so called, it is just these rights that you aim to abolish through the real birthright. To give a basis for this you go back to the simplest thing and affirm that every one is by birth equal to another,—to wit, a man. I will grant you that every one is born as man, hence the new-born are therein equal to each other. Why are they? Only because they do not yet show and exert themselves as anything but bare—children of men, naked little human beings. But thereby they are at once different from those who have already made something out of themselves, who thus are no longer bare "children of men," but—children of their own creation. The latter possess more than bare birthrights: they have earned rights. What an antithesis, what a field of combat! The old combat of the birthrights of man and well-earned rights. Go right on appealing to your birthrights; people will not fail to oppose to you the well-earned. Both stand on the "ground of right"; for each of the two has a "right" against the other, the one the birthright or natural right, the other the earned or "well-earned" right.
If you remain on the ground of right, you remain in—Rechthaberei.[135] The other cannot give you your right; he cannot "mete out right" to you. He who has might has—right; if you have not the former, neither have you the latter. Is this wisdom so hard to attain? Just look at the mighty and their doings! We are talking here only of China and Japan, of course. Just try it once, you Chinese and Japanese, to make them out in the wrong, and learn by experience how they throw you into jail. (Only do not confuse with this the "well-meaning counsels" which—in China and Japan—are permitted, because they do not hinder the mighty one, but possibly help him on.) For him who should want to make them out in the wrong there would stand open only one way thereto, that of might. If he deprives them of their might, then he has really made them out in the wrong, deprived them of their right; in any other case he can do nothing but clench his little fist in his pocket, or fall a victim as an obtrusive fool.
In short, if you Chinese and Japanese did not ask after right, and in particular if you did not ask after the rights "that were born with you," then you would not need to ask at all after the well-earned rights either.
You start back in fright before others, because you think you see beside them the ghost of right, which, as in the Homeric combats, seems to fight as a goddess at their side, helping them. What do you do? Do you throw the spear? No, you creep around to gain the spook over to yourselves, that it may fight on your side: you woo for the ghost's favor. Another would simply ask thus: Do I will what my opponent wills? "No!" Now then, there may fight for him a thousand devils or gods, I go at him all the same!
The "commonwealth of right," as the "Vossische Zeitung" among others stands for it, asks that office-holders be removable only by the judge, not by the administration. Vain illusion! If it were settled by law that an office-holder who is once seen drunken shall lose his office, then the judges would have to condemn him on the word of the witnesses, etc. In short, the lawgiver would only have to state precisely all the possible grounds which entail the loss of office, however laughable they might be (e. g. he who laughs in his superiors' faces, who does not go to church every Sunday, who does not take the communion every four weeks, who runs in debt, who has disreputable associates, who shows no determination, etc., shall be removed. These things the lawgiver might take it into his head to prescribe, e. g., for a court of honor); then the judge would solely have to investigate whether the accused had "become guilty" of those "offences," and, on presentation of the proof, pronounce sentence of removal against him "in the name of the law."
The judge is lost when he ceases to be mechanical, when he "is forsaken by the rules of evidence." Then he no longer has anything but an opinion like everybody else; and, if he decides according to this opinion, his action is no longer an official action. As judge he must decide only according to the law. Commend me rather to the old French parliaments, which wanted to examine for themselves what was to be matter of right, and to register it only after their own approval. They at least judged according to a right of their own, and were not willing to give themselves up to be machines of the lawgiver, although as judges they must, to be sure, become their own machines.
It is said that punishment is the criminal's right. But impunity is just as much his right. If his undertaking succeeds, it serves him right, and, if it does not succeed, it likewise serves him right. You make your bed and lie in it. If some one goes foolhardily into dangers and perishes in them, we are apt to say, "It serves him right; he would have it so." But, if he conquered the dangers, i. e. if his might was victorious, then he would be in the right too. If a child plays with the knife and gets cut, it is served right; but, if it doesn't get cut, it is served right too. Hence right befalls the criminal, doubtless, when he suffers what he risked; why, what did he risk it for, since he knew the possible consequences? But the punishment that we decree against him is only our right, not his. Our right reacts against his, and he is "in the wrong at last" because—we get the upper hand.