"Neue Rheinische Zeitung" - The Prussian Counter-Revolution and the Prussian Judiciary

["Neue Rheinische Zeitung" No. 177 of December 24, 1848]

*
Cologne
. The main fruit of the revolutionary movement of 1848 is not what the peoples gained, but what they lost—the loss of their illusions.

June, November, December of the year 1848, these are the giant milestones marking the disenchantment and sobering of the European popular mind.

Among the last illusions that hold the German people captive, its superstition regarding the judiciary stands foremost.

The prosaic north wind of the Prussian counter-revolution snaps also this flower of the popular imagination, whose true motherland is Italy—eternal Rome.

The actions and declarations of the Rhenish Court of Cassation, the Supreme Court of Berlin, the Higher Regional Courts of Münster, Bromberg, Ratibor against Esser, Waldeck, Temme, Kirchmann, Gierke prove once again that the French Convention is and remains the beacon of all revolutionary epochs. It inaugurated the Revolution by issuing a decree dismissing all officials. Judges too are nothing but officials, which the aforementioned courts testify to before all Europe. Turkish qadis and Chinese mandarin colleges can confidently countersign the latest edicts of those “high” courts against their colleagues.

Our readers are already acquainted with the edicts of the Supreme Court of Berlin and of the Higher Regional Court of Ratibor. For today we have to deal with the Higher Regional Court of Münster.

But first a few words about the Rhenish Court of Cassation, which sits in Berlin, the summus pontifex (pope) of Rhenish jurisprudence.

The Rhenish jurists, as is well known (with a few honourable exceptions), had nothing more pressing to do in the Prussian Assembly of Agreement than to cure the Prussian government of its old prejudices and old rancour. They actually proved to it that their erstwhile opposition was worth hardly more than the opposition of the French parlements before 1789—the stubborn, liberally strutting assertion of corporate interests. Just as in the French National Assembly of 1789 the liberal members of the parlements were the bravest of the brave in the army of servility, so in the Prussian Assembly of 1848 the liberal Rhenish jurists were the bravest of the brave in the army of servilism. The Rhenish-Prussian prosecuting magistrates put the old Prussian inquisitorial judges to shame by their “political fanaticism.” Naturally, the Rhenish jurists had to maintain their reputation also after the dissolution of the Assembly of Agreement. The laurels of the old Prussian Supreme Court would not let the Rhenish-Prussian Court of Cassation sleep. Its Chief President Sethe addressed a similar letter to the Senior Revisory Councillor Esser (not to be confused with the “well-disposed” Cologne “Essers” <Esser I and Esser II>) as the President of the Supreme Court, Mühler, did to the Privy Supreme Court Councillor Waldeck. But the Rhenish-Prussian court knew how to outdo the old Prussian one. The President of the Rhenish Court of Cassation played a trump card against his rival by committing the perfidious discourtesy of communicating the letter to Herr Esser to the Berlin public in the Deutsche Reform before he had communicated it to Herr Esser himself. We are convinced that the entire Rhine Province will answer Herr Sethe’s letter with a monster address to our aged, worthy countryman, Herr Esser.

It is not something that is rotten in the “state of Denmark,” but everything.

Now on to Münster!

Our readers have already heard of the protest of the Higher Regional Court of Münster against the return of its Director Temme.

The matter is as follows:

The Ministry of the Counter-Revolution had, directly or indirectly, intimated to the Privy Supreme Court, the Rhenish Court of Cassation and the Higher Regional Courts in Bromberg, Ratibor and Münster that the King would view it with displeasure if Waldeck, Esser, Gierke, Kirchmann and Temme were to return to their high judicial posts, because they had continued to hold sessions in Berlin and had taken part in the tax-refusal resolution. They should therefore protest against it.

The high courts (at first the Rhenish Court of Cassation wavered; great artists achieve their successes not by appearing first, but by appearing last) all acceded to this suggestion and sent protests to and from Berlin. The Higher Regional Court of Münster was stupid enough to turn directly to the King (the so-called constitutional King) with a protest against Temme, in which it literally states,

“that by participating in the unlawful sessions of a faction of the adjourned National Assembly he has placed himself in open rebellion against His Majesty’s Government, and that by voting for the motion on tax refusal he has trodden the ground of revolution and sought to hurl the firebrand of anarchy into the fatherland,”

and it then continues:

“It contradicts our sense of justice, the public’s demands regarding the integrity of the director of a provincial judicial college, his obligations with regard to the training of aspiring judicial officials and his position vis-à-vis the lower court officials, that after such events P. P. Temme should remain in his official position in our college. We therefore feel impelled by our conscience most submissively to express to Your Majesty the urgent wish to be placed outside any official connection with Director Temme.”

The address is signed by the entire college, with the exception of a single councillor, a brother-in-law of the Minister of Justice, Rintelen.

This Minister of Justice, on 18 December, sent Herr Temme a copy of this address “for his resolution” to Münster, after Temme had already resumed his office here, without opposition from the cowards.

On the morning of 19 December, Temme appeared, as the Düsseldorfer Zeitung reports, “for the first time in the plenary sitting of the Higher Regional Court and took his seat as Director next to the Deputy Chief President v. Olfers. Immediately after the beginning of the sitting he asked for the floor and, in a brief statement, spoke roughly as follows: He had received a rescript from the Minister of Justice with an enclosure containing a copy. This enclosure contained a petition from the ‘high college’ which he now had the honour of belonging to, in which protest was entered against his resuming his post. The Minister of Justice had communicated this petition to him for his information and ‘so that he might take his resolution accordingly.’ The protest of the ‘high college’ was obviously grounded in his political activity; but of this, as indeed of his political views in general, he did not wish to speak here, since he had no occasion to answer for them to the ‘high college.’ As for his ‘resolution,’ he had already manifested it by taking his seat here as Director, and he gave the ‘high college’ the assurance that he would not vacate it until he was compelled to do so by judgement and law. For the rest, he did not intend that the difference of political views should disturb the collegial relationship; at least, so far as he was concerned, that should be avoided as far as possible.”

The bravest of the brave were as if struck by a thunderbolt. They sat there, mute, motionless, petrified, as if the Medusa’s head had been hurled into the mandarin college.

The brave Higher Regional Court of Münster! In its officious zeal it has had a host of people investigated and imprisoned because they wanted to carry out the National Assembly’s resolution on tax refusal <see “No More Taxes!!!”>. By its pronouncement on Herr Temme, even directly at the steps of the throne, this brave Higher Regional Court has now constituted itself as a party, passed a prejudgement, and can no longer possibly play the role of judge vis-à-vis the other party.

One recalls that the alleged coercion exerted on the Prussian National Assembly by the Berlin mob had to serve as the pretext for the first coup d’état of the Brandenburg Ministry. So as to exert no coercion on the deputies, it continues the “wild hunt” on them begun in Berlin, even subsequently after the deputies’ return to their places of residence!

The Minister of Justice, Rintelen, says in his edict which we print below:
“The delusion deliberately nourished by many that the existing penal laws, particularly in the case of crimes against the state, have no longer been valid since March of this year, has contributed greatly to increasing the anarchy, and has perhaps also gained a dangerous influence among individual courts.”

The majority of the acts of Herr Rintelen and the courts infeudated (subordinated) to him prove anew that in Prussia, since the violent dissolution of the National Assembly, only one law still prevails: the arbitrariness of the Berlin camarilla.

On 29 March 1844 <in the N.Rh.Ztg.: 30 March 1844> the Prussian government issued the notorious disciplinary law against judges, according to which they could be removed, transferred or pensioned off by a decision of the State Ministry. The last United Diet repealed this law and again asserted the principle that judges can be removed, transferred or pensioned only by judgement and law. The imposed constitution confirms this principle. Are not these laws trampled underfoot by the courts, which, following the prescription of the Minister of Justice Rintelen, want to drive their politically compromised colleagues to resign their office by moral force? Do these courts not transform themselves into officers’ corps, which throw out any member whose political views do not suit their royal Prussian “honour”?

And is there not also a law on the irresponsibility and inviolability of the people’s representatives?
Smoke and sound!

If the Prussian constitution did not already annul itself through its own paragraphs and through the manner of its origin, it would be annulled by the simple fact that the Supreme Court of Berlin is its last guarantor. The constitution is guaranteed by the responsibility of the ministers, and the irresponsibility of the ministers is guaranteed by the court imposed on them, which is none other than the Supreme Court of Berlin, which finds its classic representative in Herr Mühler.

The latest rescripts of the Supreme Court are therefore nothing more and nothing less than the manifest—cassation of the imposed constitution.

In Austria, the bourgeoisie is convinced by the government’s direct threats of extortion against the bank, which was left untouched by the Viennese people in the moments of their greatest and most just embitterment against the financial feudalists, that its betrayal of the proletariat delivered up what precisely this betrayal believed it was safeguarding—bourgeois property.

In Prussia, the bourgeoisie sees the indispensable guarantee of bourgeois property—bourgeois justice—threatened by its cowardly confidence in the government and its treacherous distrust of the people.

With the dependence of the judiciary, bourgeois justice itself becomes dependent on the government; i.e., bourgeois law itself yields to official arbitrariness. La bourgeoisie sera punie, par où elle a péché—the bourgeoisie will be punished through the very thing by which it sinned—the government.

That the servile declarations of the highest Prussian courts are only the first symptoms of the impending absolutist transformation of the courts is attested to by the following most recent decree of the Ministry of Justice:

“By the general order of 8 October of this year, my predecessor in office already recalled that it is pre-eminently the task of the judicial authorities to uphold the respect for and efficacy of the law, that by fulfilling this task they serve the country best, because true freedom can flourish only on the soil of the law. Since then, unfortunately, the most severe outbreaks of anarchic doings, mocking the laws and order, have occurred in many places; in particular parts of the country there have even been violent insurrections against the authorities, which have not everywhere been countered with energy. In view of such a deplorable state of affairs, I now turn, at a moment when His Majesty the King’s government has taken a decisive step to save the state, which has been pushed towards the abyss, I now turn anew to the judicial authorities and the Gentlemen, the Public Prosecutors of the entire country, to summon them to do their duty everywhere and without respect of persons. Whoever the guilty party may be, he must not escape the legal punishment to be brought about by the most expeditious means.

With especially deep regret I have had to learn, both from individual reports of the provincial authorities and from public papers, that individual judicial officials, unmindful of their particular professional duties, have allowed themselves, on the one hand, to be carried away into committing manifestly unlawful acts, and, on the other, have not shown the courage and intrepidity with which alone terrorism could be successfully countered. I expect that, with regard to those persons as well, steps will be taken to establish the facts of the case and, should the occasion arise, to initiate investigation, without leniency and with serious dispatch, for the officials of the administration of justice, to whom the upholding of the authority of the laws is entrusted, have doubly erred through their own violation of the law; the acceleration of the proceedings against them is, however, especially necessary, because the handling of justice must not remain in the hands of such officials. If among the guilty parties there are officials against whom, in accordance with the existing regulations, a formal investigation or the suspension from office—which in cases of this kind is each time to be taken into dutiful consideration—may not be imposed without higher authorisation, then the circumstances are to be investigated for the purpose of substantiating the investigation without special instruction, and the requisite authorisation is then to be obtained with the utmost dispatch. With regard to the Referendaries and Auscultators, it must not be overlooked that special regulations exist concerning their dismissal from the state service.

The delusion, deliberately nourished by many:

that the previous criminal laws, especially in the case of crimes against the state, have no longer been valid since March of this year,

has greatly contributed to increasing the anarchy, and has perhaps also gained a dangerous influence with individual courts. Given the excellent spirit of the Prussian judicial officials, which has on the whole proved itself even now, it requires only the reference to the well-known legal principle that laws retain their force until they are repealed or amended by way of legislation, as well as to the express provision of Article 108 of the Constitutional Charter of the 5th of this month, to be certain that the honourable Prussian judicial officials, with all their interest in true, moral and civic freedom, will place the authority of the laws and order above all else.

With these principles and with contempt for all personal dangers, let us advance in confidence of victory over crime, over anarchy. Precisely in this way we shall contribute in the most essential manner to ensuring that the formerly so brilliant Prussian state shall once again show itself in its moral strength and shall no longer tolerate, to speak with a valiant deputy at Frankfurt, that wickedness and brute force continue to carry on their doings amongst us.

The Gentlemen, the Presidents of the courts, as well as the Gentleman, the General Procurator in Cologne, may accordingly arrange what is required with the officials of their departments and inform me thereof, stating against which officials and for which offences suspensions and investigations have been initiated.

Berlin, 8 December 1848

The Minister of Justice

Rintelen”

When the revolution in Prussia is one day victorious, it will not need, like the February Revolution, to abolish the irremovability of the old judicial estate by a specific decree. It will find the documented renunciation by this caste of its privilege in the authentic declarations of the
Rhenish Court of Cassation
, the
Supreme Tribunal in Berlin
, the
Higher Provincial Courts of Bromberg
,
Ratibor and Münster
.