George Nathan - The Collected Works of H. L. Mencken

"We rejoice in everything, which like ourselves, loves danger, war and adventure—which does not make compromises, nor let itself be captured, conciliated or faced.... We ponder over the need of a new order of things—even of a new slavery, for the strengthening and elevation of the human race always involves the existence of slaves...." 11

"The horizon is unobstructed.... Our ships can start on their voyage once more in the face of danger.... The sea—our sea!—lies before us!" 12

1." Also sprach Zarathustra ," IV.

2.That of Wisconsin at the 1907 session.

3.This has been done, time and again, by the legislature of every state in the Union, and the overturning of such legislation occupies part of the time of all the state courts of final judicature year after year.

4.That of South Carolina.

5. Vide the chapter on "Civilization."

6.Said the Chicago Tribune , "the best all-round newspaper in the United States," in a leading article, June 10, 1907: "Jeremy Bentham speaks of 'an incoherent and undigested mass of law, shot down, as from a rubbish cart, upon the heads of the people.' This is a fairly accurate summary of the work of the average American legislature, from New York to Texas.... Bad, crude and unnecessary laws make up a large part of the output of every session.... Roughly speaking, the governor who vetoes the most bills is the best governor. When a governor vetoes none the legitimate presumption is, not that the work of the legislature was flawless, but that he was timid, not daring to oppose ignorant popular sentiment ... or that he had not sense enough to recognize a bad measure when he saw it."

7." Morgenröte ," § 5.

8."The word 'honesty' is not to be found in the code of either the Socratic or the Christian virtues. It represents a new virtue, not quite ripened, frequently misunderstood and hardly conscious of itself. It is yet something in embryo, which we are at liberty either to foster or to check."—" Morgenröte ," § 456.

9.An excellent discussion of this subject, by Prof. Warner Fite, of Indiana University, appeared in The Journal of Philosophy, Psychology and Scientific Methods of July 18, 1907. Prof. Fite's article is called "The Exaggeration of the Social," and is a keen and sound criticism of "the now popular tendency to regard the individual as the product of society." As he points out, "any consciousness of belonging to one group rather than another must involve some sense of individuality." In other words, gregariousness is nothing more than an instinctive yearning to profit personally by the possibility of putting others, to some measurable extent, in the attitude of slaves.

10." Morgenröte ," § 189.

11." Die fröhliche Wissenschaft ," § 377.

12." Die fröhliche Wissenschaft ," § 343.

Table of Contents

Nietzsche says that the thing which best differentiates man from the other animals is his capacity for making and keeping a promise. That is to say, man has a trained and efficient memory and it enables him to project an impression of today into the future. Of the millions of impressions which impinge upon his consciousness every day, he is able to save a chosen number from the oblivion of forgetfulness. An animal lacks this capacity almost entirely. The things that it remembers are far from numerous and it is devoid of any means of reinforcing its memory. But man has such a means and it is commonly called conscience. At bottom it is based upon the principle that pain is always more enduring than pleasure. Therefore, "in order to make an idea stay it must be burned into the memory; only that which never ceases to hurt remains fixed." 1Hence all the world's store of tortures and sacrifices. At one time they were nothing more than devices to make man remember his pledges to his gods. Today they survive in the form of legal punishments, which are nothing more, at bottom, than devices to make a man remember his pledges to his fellow men.

From all this Nietzsche argues that our modern law is the outgrowth of the primitive idea of barter—of the idea that everything has an equivalent and can be paid for—that when a man forgets or fails to discharge an obligation in one way he may wipe out his sin by discharging it in some other way. "The earliest relationship that ever existed," he says, "was the relationship between buyer and seller, creditor and debtor. On this ground man first stood face to face with man. No stage of civilization, however inferior, is without the institution of bartering. To fix prices, to adjust values, to invent equivalents, to exchange things—all this has to such an extent preoccupied the first and earliest thought of man, that it may be said to constitute thinking itself. Out of it sagacity arose, and out of it, again, arose man's first pride—his first feeling of superiority over the animal world. Perhaps, our very word man ( manus ) expresses something of this. 2Man calls himself the being who weighs and measures." 3

Now besides the contract between man and man, there is also a contract between man and the community. The community agrees to give the individual protection and the individual promises to pay for it in labor and obedience. Whenever he fails to do so, he violates his promise, and the community regards the contract as broken. Then "the anger of the outraged creditor—or community—withdraws its protection from the debtor—or law-breaker—and he is laid open to all the dangers and disadvantages of life in a state of barbarism. Punishment, at this stage of civilization, is simply the image of a man's normal conduct toward a hated, disarmed and cast-down enemy, who has forfeited not only all claims to protection, but also all claims to mercy. This accounts for the fact that war (including the sacrificial cult of war) has furnished all the forms in which punishment appears in history." 4

It will be observed that this theory grounds all ideas of justice and punishment upon ideas of expedience. The primeval creditor forced his debtor to pay because he knew that if the latter didn't pay he (the creditor) would suffer. In itself, the debtor's effort to get something for nothing was not wrong, because, as we have seen in previous chapters, this is the ceaseless and unconscious endeavor of every living being, and is, in fact, the most familiar of all manifestations of the primary will to live, or more understandably, of the will to acquire power over environment. But when the machinery of justice was placed in the hands of the state, there came a transvaluation of values. Things that were manifestly costly to the state were called wrong, and the old individualistic standards of good and bad— i.e. beneficial and harmful—became the standards of good and evil— i.e. right and wrong.

In this way, says Nietzsche, the original purpose of punishment has become obscured and forgotten. Starting out as a mere means of adjusting debts, it has become a machine for enforcing moral concepts. Moral ideas came into the world comparatively late, and it was not until man had begun to be a speculative being that he invented gods, commandments and beatitudes. But the institution of punishment was in existence from a much earlier day. Therefore, it is apparent that the moral idea,—the notion that there is such a thing as good and such a thing as evil,—far from being the inspiration of punishment, was engrafted upon it at a comparatively late period. Nietzsche says that man, in considering things as they are today, is very apt to make this mistake about their origins. He is apt to conclude, because the human eye is used for seeing, that it was created for that purpose, whereas it is obvious that it may have been created for some other purpose and that the function of seeing may have arisen later on. In the same way, man believes that punishment was invented for the purpose of enforcing moral ideas, whereas, as a matter of fact, it was originally an instrument of expediency only, and did not become a moral machine until a code of moral laws was evolved. 5