Judicial Investigation against the *Neue Rheinische Zeitung*

[“*Neue Rheinische Zeitung*” No. 41, July 11, 1848]

*
*Cologne*, July 10. Yesterday eleven typesetters from our newspaper and Herr Clouth were summoned as witnesses to appear before the examining magistrate’s office on Tuesday, July 11. The object is still to discover the author of the incriminated article <see “Verhaftungen”>. We recall that in the days of the old *Rheinische Zeitung*, in the time of censorship and the Arnim ministry, when the aim was to discover the sender of the famous “Draft Marriage Law”, there was neither a house search nor an interrogation of the typesetters and the printing-house owner. Since that time we have, to be sure, experienced a revolution which has the misfortune of being recognised by Herr Hansemann.

We must once more return to the “Rejoinder” of the Public Prosecutor, Herr Hecker, of July 5. <see “Judicial Investigation against the *Neue Rheinische Zeitung*”>
In this rejoinder, Herr Hecker gives us the lie with regard to one or another statement attributed to him. We perhaps now have the means in hand to correct the correction, but who will guarantee us that in this unequal struggle, the reply will not once again be given by means of §222 or §367 of the Criminal Code?

Herr Hecker’s “Rejoinder” ends with the following words:
“The libels or insults contained in the article” (de dato Cologne, 4 July) “against the Chief Public Prosecutor Zweiffel and the gendarmes who carried out the arrest will receive their due consideration in the judicial investigation that will be initiated on that account.”

Their due consideration! Did the black-red-gold colours find their “due consideration” in the “judicial investigations” launched under the Kamptz ministry?

Let us look up the Criminal Code. We read §367:
“Guilty of the offence of libel is anyone who, in public places, or in an authentic and public document, or in a printed or unprinted writing which has been posted, sold or distributed, accuses any person of such facts as, if they were true, would expose the person to whom they are imputed to criminal or correctional prosecution, or even to the contempt or hatred of the citizens.”

§370: “If the fact forming the subject of the accusation is proved in the manner prescribed by law, the originator of the accusation shall be exempt from all punishment. Only such proof as derives from a judgment or from some other authentic document shall be regarded as legal proof.”

To elucidate this paragraph, we add §368:
“Consequently, the originator of the accusation shall not, in his defence, be permitted to request that evidence thereof be taken; nor may he plead as an extenuating ground that the evidentiary material or the fact is notorious, or that the accusations giving rise to the prosecution were copied or extracted from other newspapers or other printed matter.” <All emphases in the text of the Criminal Code are Marx’s.>

The imperial epoch, with all its refined despotism, shines out of these paragraphs.

According to ordinary common sense, a person is libelled when he is charged with invented facts; but according to the extraordinary sense of the Criminal Code, he is libelled when he is reproached with real facts, facts that can be proved, but only not in an exceptional manner, only not by a judgment, by an official document. Miraculous power of judgments and official documents! Only convicted, only officially certified facts are true, are real facts. Has a code ever libelled the most ordinary common sense more atrociously? Has bureaucracy ever thrown up a similar Chinese wall between itself and the public? Covered with the shield of this paragraph, officials and deputies are inviolable, like constitutional kings. These gentlemen may commit as many facts “that expose them to the hatred and contempt of the citizens” as they see fit, but these facts may not be uttered, written or printed, under penalty of the loss of civil rights, together with obligatory imprisonment and fine. Long live the freedom of the press and speech, mitigated by §§ 367, 368, 370! You are illegally locked up. The press denounces the illegality. Result: The denunciation finds its “due consideration” in a “judicial investigation” for “libel” of the worthy official who perpetrated the illegality, unless a miracle occurs and a judgment has already been passed yesterday concerning the illegality he commits today.

No wonder that the Rhenish jurists, and among them the people’s representative Zweiffel, voted against a Polish commission with absolute authority! From their standpoint, the Poles would have to be condemned for “libelling” Colomb, Steinäcker, Hirschfeld, Schleinitz, Pomeranian Landwehr men and old Prussian gendarmes, to the loss of their civil rights, together with obligatory imprisonment and fine. Thus would the peculiar pacification of Posen be most gloriously crowned.

And what a contradiction, to dub the rumour of the threat to finish with “the 19th of March, the clubs and the freedom of the press” <see “Verhaftungen”, p. 168> a libel, with reference to these paragraphs of the Criminal Code! As though the application of §§ 367, 368, 370 of the Criminal Code to political speeches and writings were not the real, definitive finishing-off of the 19th of March, the clubs and the freedom of the press! What is a club without freedom of speech? And what is freedom of speech with §§ 367, 368, 370 of the Criminal Code? And what is the 19th of March without clubs and freedom of speech? To suppress freedom of speech and the press by deed — is there any more striking proof that only libel could invent the intention of this deed? Take care not to sign the address drawn up yesterday at the Gürzenich. The Parquet will “consider” your address by initiating a “judicial investigation” for “libelling” Hansemann-Auerswald, or is it only the ministers who may be libelled with impunity, libelled in the sense of the French Criminal Code, that code of political slavery hewn in lapidary style? Do we have responsible ministers and irresponsible gendarmes?

It is not, therefore, the incriminated article that can find its due consideration through the application of the paragraphs on “libel in the legal sense”, libel in the sense of a despotically minded fiction, revolting to sound common sense. What can find its due consideration therein is solely and exclusively the achievements of the March revolution, it is the high point that the counter-revolution has reached, it is the temerity with which the bureaucracy is permitted to bring forth and assert the weapons still to be found in the arsenal of the old legislation against the new political life. This application of the calumny article in attacks on people’s representatives — what a splendid means of withdrawing the gentlemen from criticism and the press from the jury!

Let us pass from the charge of libel to the charge of insult. Here we encounter §222, which reads:
“If one or more persons in authority belonging to the administrative or judicial branch, in the exercise of their official duties or on account of such exercise, suffer any insult by words aimed at attacking their honour or their delicacy, then the person who has insulted them in this manner shall be punished with imprisonment from one month to two years.”

Herr Zweiffel, when the article of the *Neue Rheinische Zeitung* appeared, was functioning as a people’s representative in Berlin and in no way as a person in authority from the judicial branch in Cologne. Since he was not performing any official functions, it was factually impossible to insult him in the exercise of his official duties or on account of such exercise. The honour and delicacy of the gendarmes, however, would only stand under the protective guard of this article if they had been insulted by words (par parole). But we have written and not spoken, and par écrit <by writing> is not par parole. What then remains? The moral, to speak with more circumspection of the last gendarme than of the first prince, and in particular not to venture to touch the highly irritable gentlemen of the Parquet. We draw the public’s attention once more to the fact that in various places simultaneously, thus in Cologne, in Düsseldorf, in Koblenz, the same prosecutions have begun. A strange method of chance!