Defence Speech in the First Press Trial
against the *Neue Rheinische Zeitung*
No. 221, 14 February 1849

Neue Rheinische Zeitung.
* Cologne, February 13.
Press Trial of the *Neue Rheinische Zeitung*.
Heard on February 7 before the Assizes at Cologne.

[...] K. Marx: Gentlemen of the Jury! Today’s proceedings have a certain importance, because Articles 222 and 367 of the Code pénal, referred to in the indictment against the *Neue Rheinische Zeitung*, are the only ones which the Rhenish legislation offers the public authorities, unless there is direct incitement to insurrection.

You all know with what quite special predilection the public prosecutor’s office persecutes the *Neue Rheinische Zeitung*. However, despite all its zeal, it has not yet succeeded in accusing us of offences other than those provided for in Articles 222 and 367. In the interest of the press, I therefore consider a closer examination of these articles necessary.

But before I launch into a legal exposition, permit me a personal remark. The Public Ministry has called the passage of the incriminated article: “Does Herr Zweiffel perhaps combine the executive power with the legislative? Are the laurels of the chief public prosecutor to cover the nakedness of the people’s representative?” a vulgarity! Gentlemen! A person can be a very good chief public prosecutor and at the same time a bad people’s representative. He is perhaps only a good chief public prosecutor because he is a bad people’s representative. The Public Ministry appears to be little conversant with parliamentary history. The question of incompatibilities, which occupies so large a place in the proceedings of the constitutional chambers, on what is it based? On the mistrust of executive officials, on the suspicion that an executive official easily sacrifices the interest of society to the interest of the existing government and is therefore suited to anything rather than to being a people’s representative.

And now specifically the post of public prosecutor? In what country has it not been deemed incompatible with the dignity of a people’s representative? I remind you of the attacks against Hébert, Plougoulm, Bavay, in the French and Belgian press, in the French and Belgian chambers, attacks precisely directed against the contradictory combination of the qualities of Procurator General and deputy in one person. Never did these attacks result in a judicial investigation, not even under Guizot, and the France of Louis Philippe, the Belgium of Leopold, were regarded as the model constitutional states. In England, of course, the position is different with the Attorney-General and the Solicitor-General. Their position, however, is also essentially different from that of a procureur du roi. They are more or less already judicial officials. We, gentlemen, are not constitutionalists, but we place ourselves on the standpoint of the gentlemen who accuse us, in order to beat them on their own terrain with their own weapons. We therefore appeal to constitutional usage.

The Public Ministry wants to wipe out a large chapter of parliamentary history — with a moral platitude. I firmly reject its reproach of vulgarity; I attribute it to its ignorance.

I now proceed to the discussion of the juridical question.

Already my counsel has proved to you that without the Prussian law of July 5, 1819, the indictment for insulting Chief Public Prosecutor Zweiffel was inadmissible from the very beginning. Article 222 of the Code pénal speaks only of “outrages par paroles”, of verbal insults, not of written or printed ones. However: the Prussian law of 1819 was intended to supplement Article 222, not to abrogate it. The Prussian law can extend the penalty of Article 222 to written insults only where the code imposes it for verbal insults. The written insults must occur under the same circumstances and conditions which Article 222 presupposes for verbal insults. It is therefore necessary to determine precisely the meaning of Article 222.*)

*) Article 222 reads literally: “Lorsqu’un ou plusieurs magistrats de l’ordre administratif ou judiciaire auront reçu dans l’exercice de leurs fonctions ou à l’occasion de cet exercice quelque outrage par paroles tendant à inculper leur honneur ou leur délicatesse, celui qui les aura ainsi outragés sera puni d’un emprisonnement d’un mois à deux ans.”

In the motives for Article 222 (Exposé par M. le conseiller d’état Berlier, séance du février 1810) it is stated:

« Il ne sera donc ici question que des seuls outrages qui compromettent la paix publique, c’est-à-dire de ceux dirigés contre les fonctionnaires ou agents publics dans l’exercice ou à l’occasion de l’exercice de leurs fonctions; dans ce cas ce n’est plus un particulier, c’est l’ordre public qui est blessé ... La hiérarchie politique sera dans ce cas prise en considération: celui qui se permet des outrages ou violences envers un officier ministériel est coupable sans doute, mais il commet un moindre scandale que lorsqu’il outrage un magistrat. »

That is to say in German: “It will therefore here be a question only of those insults which expose public order, the public peace, i.e., of the insults directed against officials or public agents during or on the occasion of the exercise of their functions; in this case it is no longer a private individual, it is public order which is injured ... The political hierarchy will in this case be taken into consideration: he who permits himself insults or acts of violence against a ministerial agent is doubtless guilty, but he causes a lesser scandal than when he insults a magistrate.”

You see from these motives, gentlemen, what the legislator intended with Article 222. Article 222 is “only” applicable to insults against officials which compromise, call into question public order, the public peace. When is public order, la paix publique, compromised? Only when an insurrection to overthrow the laws is undertaken, or when the realisation of the existing laws is disturbed, i.e., when a rebellion against the official who carries out the law takes place, when the official act of a functioning official is interrupted, impaired. The rebellion may stop at mere murmuring, at insulting words: it may proceed to acts of violence, to forcible resistance. The outrage, the insult, is only the lowest degree of violence, of insubordination, of forcible rebellion. The motives therefore say “outrages ou violences”, “insults or acts of violence”. Both are identical in concept; violence, the act of violence, is only an aggravated form of outrage, of insult towards the functioning official.

It is therefore presupposed in these motives, 1) that the official was insulted while he was exercising an official function; 2) that he is insulted in his personal presence. In no other case does a real disturbance of public order take place.

You find the same presupposition in the whole section which deals with “outrages et violences envers les dépositaires de l’autorité et de la force publique”, i.e., “insults and acts of violence against those to whom public authority and public force are entrusted”. The various articles of this section set up the following gradation of insubordination: looks, words, threats, acts of violence; the acts of violence themselves are again distinguished according to their degree of gravity. Finally, all these articles prescribe a more severe penalty for the case that these various forms of insubordination take place in the sitting of a court. Here the greatest “scandal” is caused, and the execution of the laws, the paix publique, is disturbed in the most flagrant manner.

Article 222 is therefore applicable to written insults against officials only where written insults are conceivable 1) in the personal presence of the official, 2) during his official function. My counsel has given you, gentlemen, an example of such a case. He himself would fall under Article 222 if, for example, now, during the assize proceedings, in a written motion he insulted the president, etc. On the other hand, to a newspaper article which “insults” long after the completion of the official act, in the absence of the functioning official, this article of the Code pénal can under no circumstances whatever find any application.

This interpretation of Article 222 explains to you an apparent gap, an apparent inconsistency of the Code pénal. Why am I allowed to insult the king, while I am not allowed to insult the chief public prosecutor? Why does the code dictate no penalty for lèse-majesté, as does the Prussian Landrecht?

Because the king never exercises an official function himself, but always has it exercised only through others, because the king never confronts me personally, but always only through representatives. The despotism of the Code pénal, arising out of the French Revolution, is worlds apart from the patriarchal, schoolmasterly despotism of the Prussian Landrecht. The Napoleonic despotism strikes me down as soon as I actually obstruct the state power, even if only by insulting an official who, engaged in an official function, asserts the state power against me. Outside the official function, on the other hand, the official becomes an ordinary member of civil society, without privileges, without an exceptional bulwark. Prussian despotism, on the other hand, confronts me in the official as a higher, sanctified being. His official character is grown together with him, like the unction with the Catholic priest. For the Prussian layman, i.e., the non-official, the Prussian official remains always a priest. The insulting of such a priest, even of a non-

...functioning, of an absent one, of one who has returned to private life, remains a religious desecration, a profanation. The higher the official, the more serious the religious desecration. The highest insult to the state priest is therefore the insult to the king, lèse-majesté, which, according to the code pénal, belongs among the criminal impossibilities.

But, it will be said, if Article 222 of the code pénal spoke only of outrages against officials « dans l’exercice de leurs fonctions », of insults against officials during the exercise of their official functions, then no proof would be required that the personal presence of the official is assumed by the legislator and is the necessary precondition of any insult to be subsumed under Article 222. Article 222, however, adds to the words « dans l’exercice de leurs fonctions » the words « à l’occasion de cet exercice ».

The public prosecutor’s office has translated this as: “with reference to their office”. I shall prove to you, gentlemen, that this translation is false and directly contradicts the intention of the legislator. Cast a glance at Article 228 of the same section. It says here: Anyone who strikes an official « dans l’exercice de ces fonctions ou à l’occasion de cet exercice » shall be punished with imprisonment of two to five years. Can one now translate this as: “With reference to his office”? Can one deal out relative blows? Is the assumption of the personal presence of the official abandoned here? Can I thrash an absent person? It must obviously be translated as: “Anyone who strikes an official on the occasion of his official functions.” But in Article 228 you find word for word the same phrase as in Article 222. The « à l’occasion de cet exercice » obviously has the same meaning in both articles. So far from this addition excluding the condition of the personal presence of the official, it rather presupposes it.

The history of French legislation provides you with a further striking proof. You will recall that in the first years of the French Restoration the parties confronted each other implacably, in the parliaments, in the courts of law, with the dagger in the south of France. The jury courts at that time were nothing but summary tribunals of the winning party against the defeated party. The opposition press mercilessly castigated the jury verdicts. No weapon against this unpopular polemic was found in Article 222, because Article 222 would only be applicable to insults against the jurors while they sit in their personal presence. Therefore, in 1819, a new law was fabricated which punishes any attack upon the chose jugée, upon a verdict rendered. The code pénal does not recognise this inviolability of the judicial verdict. Would it have been supplemented by a new law if § 222 dealt with insults “with reference” to the official function?

But what then is the purpose of the addition « à l’occasion de cet exercice »? It does nothing more than secure the official against attacks shortly before or after his official function. If Article 222 only spoke of “insult and physical molestation” against the official during the duration of his official function, then I could, for example, throw a bailiff down the stairs after he has completed a distraint and claim that I insulted him only after he had ceased to confront me officially as a bailiff. I could waylay and beat up a justice of the peace while he is riding to my place of residence to exercise judicial police powers against me, and I could evade the punishment threatened in Article 228 by asserting that I did not maltreat him during, but before his official function.

The addition « à l’occasion de cet exercice », on the occasion of the official function, therefore aims at the security of officials functioning in office. It refers to insults or physical molestations which, although they do not occur directly during the official function, take place shortly before or after it and, what is essential, stand in a living connection with the official function, thus in all circumstances presupposing the personal presence of the maltreated official.

Is further elaboration required to show that § 222 is not applicable to our article, even if we had insulted the same Herr Zweiffel by it? When that article was written, Herr Zweiffel was absent; he was not living in Cologne at that time, but in Berlin. When that article was written, Herr Zweiffel was not functioning as chief public prosecutor, but as conciliator. He could therefore not be insulted, defamed as a functioning chief public prosecutor.

Aside from my entire previous exposition, it also emerges in another way that Article 222 is not applicable to the incriminated article of the Neue Rheinische Zeitung.

This follows from the distinction that the code pénal draws between insult and calumny. You will find this distinction precisely drawn in Article 375. After “calumny” has been spoken of, it says here:

« Quant aux injures ou aux expressions outrageantes qui ne renfermeraient l’imputation d’aucun fait précis (in the calumny article 367 this is called: « des faits, qui s’ils existaient », facts which, “if they were real facts”), mais celle d’un vice déterminé, la peine sera une amende de seize à cinq cent francs ». “Injuries or insulting expressions which do not contain the accusation of a specific deed, but rather the accusation of a specific vice, shall be ... punished with a fine of sixteen to five hundred francs.” Article 376 goes on to say: “All other injuries or insulting expressions ... entail a simple police punishment.”

What, then, constitutes calumny? Defamations that impute a specific fact to the defamed person. What constitutes insult? The accusation of a specific vice and, generally phrased, insulting expressions. If I say: You have stolen a silver spoon, I calumniate you within the meaning of the code pénal. If, on the other hand, I say: You are a thief, you have thievish cravings, I insult you.

But the article of the N. Rhein. Ztg. by no means charges Herr Zweiffel with: Herr Zweiffel is a traitor to the people, Herr Zweiffel has made infamous statements. On the contrary, the article expressly says: “Herr Zweiffel is furthermore supposed to have declared that within 8 days he would put an end to the 19th of March, to the clubs and the freedom of the press and other degenerations of the evil year 1848, in Cologne on the Rhine.”

Herr Zweiffel is thus charged with a quite specific statement. If, therefore, one of the two articles 222 and 367 were applicable, it could not be Article 222, the insult article, but only Article 367, the calumny article.

Why has the public prosecutor’s office applied Article 222 to us instead of Article 367?

Because Article 222 is far more vague and makes it much easier to worm a conviction whenever a conviction is desired. The violation of « délicatesse et honneur », of delicacy and honour, eludes all measure. What is honour, what is delicacy? What is violation of the same? It depends purely on the individual I am dealing with, on his level of education, on his prejudices, on his self-conceit. No other measure remains than the noli me tangere of a pompous official vanity that deems itself incomparable.

But even the calumny article, Article 367, is not applicable to the article in the Neue Rheinische Zeitung.

Article 367 demands a « fait précis », a specific fact, « un fait, qui peut exister », a fact which can be a real fact. But Herr Zweiffel is not accused of having abolished the freedom of the press, closed the clubs, destroyed the March achievement in this or that place. A mere statement is charged against him. Article 367, however, demands the accusation of specific facts “which, if they were real facts, would expose the person to whom they are imputed to criminal or correctional police prosecution, or even only to the contempt or hatred of the citizens.”

But the mere statement that I will do this or that does not expose me to criminal or correctional police prosecution. One cannot even say that it necessarily exposes one to the hatred or contempt of the citizens. A statement may certainly be the expression of very base, hateful, contemptible sentiments. However, cannot I, in a state of agitation, utter a statement that threatens actions of which I am incapable? Only the deed proves that I am in earnest with a statement.

And the Neue Rheinische Zeitung says: “Herr Zweiffel is supposed to have declared.” To calumniate someone, I must not myself call my assertion into question, as is done here by the “is supposed to”; I must appear apodictically.

Finally, gentlemen of the jury, the « citoyens », the citizens, whose hatred or contempt the accusation of a fact must expose me to according to Article 367 in order to constitute a calumny—these citoyens, these citizens no longer exist at all in political matters. Only party adherents still exist. What exposes me to the hatred and contempt of the members of one party exposes me to the love and veneration of the members of the other party. The organ of the present ministry, the Neue Preußische Zeitung, has accused Herr Zweiffel of being a sort of Robespierre. In its eyes, in the eyes of its party, our article has not exposed Herr Zweiffel to hatred and contempt, but has freed him from the hatred weighing upon him, from the contempt weighing upon him.

It is of the highest interest to place weight on this remark, not for the pending case, but for all cases in which an attempt should be made on the part of the public prosecutor’s office to apply Article 367 to political polemic.

In general, gentlemen of the jury, if you wish to apply the calumny article, Article 367, in the sense of the public prosecutor’s office to the press, then you abolish the freedom of the press by means of the penal legislation, while you have recognised the same through a constitution and won it through a revolution. You then sanction every arbitrariness of the officials, you permit every official infamy, you only punish the denunciation of infamy. What, then, is the use of the hypocrisy of a free press? When existing laws come into open contradiction with a newly won stage of social development, then, gentlemen of the jury, then it is

It is for you to step between the dead letter of the law and the living demands of society. Then it is for you to anticipate legislation until it learns how to meet social needs. This is the noblest attribute of juries. In the present case, gentlemen, this task is made easier for you by the very letter of the law. You have only to interpret it in the sense of our time, our political rights, our social needs.

Art. 367 concludes with the following words:
« La présente disposition n’est point applicable aux faits dont la loi autorise la publicité, ni à ceux que l’auteur de l’imputation était, par la nature de ses fonctions ou de ses devoirs, obligé de révéler ou de réprimer.»
“The present provision is not applicable to facts whose publication the law permits, nor to those which the author of the imputation was, by the nature of his functions or duties, obliged to disclose or to repress.”

No doubt, gentlemen, that the legislator was not thinking of the free press when he spoke of the duty to denounce. But just as little did he think that this article would ever be applied to the free press. As is well known, there was no freedom of the press under Napoleon. If, therefore, you wish to apply the law to a stage of political and social development for which it was not intended, then apply it fully, then interpret it in the spirit of our time, then allow the press to benefit from this final clause of Art. 367 as well.

Art. 367, taken in the narrow sense of the Public Ministry, excludes proof of the truth and permits denunciation only when it is based on public documents or already existing judicial sentences. To what end should the press denounce post festum, after the judgment has been passed? Its calling is to be the public watchdog, the tireless denunciator of those in power, the omnipresent eye, the omnipresent mouth of the people’s spirit that jealously guards its freedom. If you interpret Art. 367 in this sense, and you must interpret it thus if you do not wish to confiscate the freedom of the press in the interest of governmental authority, then the Code at the same time provides you with a handle against encroachments by the press. According to Art. 372, in the case of a denunciation during the investigation of the facts, proceedings and the decision on the offence of calumny are to be suspended. According to Art. 373, a denunciation that proves to be calumnious is punished.

Gentlemen! A mere glance at the incriminated article will suffice to convince you that the *Neue Rheinische Zeitung*, far from having any intention of insult or calumny, was only fulfilling its duty to denounce when it attacked the local parquet and the gendarmes. The hearing of witnesses has proved to you that we merely reported the real facts concerning the gendarmes. But the whole point of the article is the prediction of the counter-revolution that was subsequently carried out, an attack on the Hansemann Ministry, which began its tenure with the strange assertion that the greater the police force, the freer the state. This ministry fancied that the aristocracy had been defeated; that it had only one task left – to deprive the people of its revolutionary gains in the interest of a class, the bourgeoisie. It was thus preparing the paths for the feudal counter-revolution. What we denounced in the incriminated article was nothing more nor less than a palpable phenomenon, torn from our immediate surroundings, of the systematic counter-revolutionary activity of the Hansemann Ministry and the German governments in general.

It is impossible to regard the arrests in Cologne as an isolated fact. To convince oneself of the opposite, one need only cast a fleeting glance at the contemporary history of that time. Shortly before, there were the press prosecutions in Berlin, based on the old paragraphs of the Prussian General Legal Code. A few days later, on 8 July, J. Wulff, president of the Düsseldorf People’s Club, was arrested, and house searches were carried out at the homes of many committee members of this club. The jury later acquitted Wulff, just as not a single political persecution of that period obtained the sanction of the jury. On that same 8 July, officers, civil servants, and court clerks in Munich were forbidden to take part in popular assemblies. On 9 July, Falkenhain, president of the Germania society in Breslau, was arrested. On 15 July, Senior Public Prosecutor Schnaase delivered a formal accusing speech in the Citizens’ Club in Düsseldorf against the People’s Club, whose president had been arrested on the 8th at his instigation. Here you have an example of the sublime impartiality of the parquet, an example of how the Senior Public Prosecutor acted at the same time as party man and the party man as Senior Public Prosecutor. Undeterred by the prosecution for our attack on Zweiffel, we denounced Schnaase at that time. He took good care not to reply. On the same day that Senior Public Prosecutor Schnaase delivered this Philippic against the Düsseldorf People’s Club, the Democratic District Society in Stuttgart was banned by royal ordinance. On 19 July, the Democratic Students’ Association in Heidelberg was dissolved, on 27 July all democratic associations in Baden and shortly afterwards in Württemberg and Bavaria. And we were supposed to have kept silent in the face of this blatant conspiracy, betraying the people, on the part of all German governments? The Prussian government did not then dare to do what the Baden, Württemberg, and Bavarian governments dared. It did not dare because the Prussian National Assembly was just beginning to suspect the counter-revolutionary conspiracy and to rear up against the Hansemann Ministry.

But, gentlemen of the jury, I say it frankly, with the most certain conviction: if the Prussian counter-revolution is not soon wrecked by a Prussian popular revolution, the freedom of association and of the press will also be completely destroyed in Prussia. Already now they have been partially killed by states of siege. They have even dared to reintroduce censorship in Düsseldorf and in some Silesian districts.

But it was not only the general German, the general Prussian situation that obliged us to watch every move of the government with the utmost distrust and to denounce loudly to the people the slightest symptoms of the system. The local, the Cologne parquet, gave us quite special occasion to expose it before public opinion as a counter-revolutionary instrument. In the month of July alone we had to denounce three illegal arrests. The first two times Public Prosecutor Hecker kept silent, the third time he tried to justify himself, but fell silent upon our reply for the simple reason that there was nothing to say.

And under these circumstances the Public Ministry dares to assert that this is not a matter of a denunciation, but of a petty, malicious vilification? This conception rests upon a peculiar misunderstanding. For my part, gentlemen, I assure you, I far prefer to follow the great world events, I far prefer to analyse the course of history, than to grapple with local idols, with gendarmes and parquets. However great these gentlemen may fancy themselves to be in their own imagination, they are nothing, absolutely nothing in the gigantic struggles of the present day. I regard it as a genuine sacrifice when we resolve to break a lance with these opponents. But, in the first place, it is the duty of the press to come forward on behalf of the oppressed in its immediate surroundings. And then, gentlemen, the edifice of bondage has its true mainstay in the subordinate political and social powers that confront the individual’s private life, his person, the living individual directly. It is not enough to combat the general conditions and the supreme powers. The press must resolve to enter the lists against this gendarme, that public prosecutor, that district councillor. What did the March revolution founder on? It reformed only the highest political summit; it left untouched all the foundations of that summit – the old bureaucracy, the old army, the old parquets, the old judges who were born, trained and grew grey in the service of absolutism. The first duty of the press is now to undermine all the foundations of the existing political state of affairs.