Neue Rheinische Zeitung — Agreement Session of 4 July (Second Article)

Agreement Session of 4 July

(Second Article)

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

Cologne
, 9 July. What an urgently necessary act of justice towards the Poles the appointment of a commission of inquiry with unconditional full powers is, emerges from the report that we began to give three days ago, on the basis of authentic documents.

The old Prussian officials, already from the outset in a hostile position towards the Poles, saw their existence threatened by the promises of reorganisation. The smallest act of justice towards the Poles brought danger upon them. Hence the fanatical fury with which they, supported by the soldiery let loose upon them, fell upon the Poles, broke the conventions, mistreated the most harmless people, allowed or sanctioned the greatest infamies, solely in order to force the Poles into a struggle in which their crushing by the most colossal superior force was certain.

The Camphausen ministry, not only weak, irresolute, badly informed, but even
deliberately
, on principle inactive, let everything take its course. The most horrifying barbarities took place, and Herr Camphausen did not stir.

What reports are now available on the Posen civil war?

On the one hand, the partisan, interested reports of the authors of the war, the officials, the officers, and the data based on both that the ministry can supply. The ministry is
itself
a party as well, as long as Herr Hansemann sits in it. These documents are partisan, but they are
official
.

On the other hand, the facts collected by the Poles, their complaints to the ministry, notably the letters of Archbishop Przyluski to the ministers. For the most part these documents have no official character, but their authors offer to provide proof of the truth.

The two classes of reports completely contradict
one another, and the commission is to investigate which side is right.

It can do this — with a few exceptional cases — only by proceeding to the spot and, through examination of witnesses, clarifying at least the most important points. If this is denied it, its whole activity is illusory; it may then exercise a certain historico-philological critique, declare one or another report to be more credible, but decide it cannot.

The whole significance of the commission therefore depends on the authority to examine witnesses, and hence the zeal of all the Polonophobes in the Assembly to eliminate it by all kinds of profound and sophistical reasons; hence the coup d’état at the close of the session.

The deputy
Bloem
said in the debate of 4 [July]:

“Is it called investigating the truth, when, as some amendments propose, one wants to draw the truth from the government proposals? Verily, not at all! From what have the government proposals arisen? From the reports of the officials for the most part. From what have the officials emerged? From the old system. Have these officials disappeared, have new Landräte been appointed by new, popular election? By no means. Are we instructed by the officials about the true mood? The old officials still report today as they did before. Thus it is clear that the mere inspection of the ministerial files will lead us nowhere.”

The deputy
Richter
goes still further. He sees in the conduct of the Posen officials only the extreme but necessary consequence of the retention of the old administrative system and of the old officials in general. Similar conflicts between official duty and the interest of the old officials can occur any day in other provinces too.

“Since the revolution we have obtained a different ministry and even a second one; but the ministry is after all only the soul, it has to organise uniformly everywhere. In the provinces, by contrast, the old organisation of the administration has everywhere remained the same. Do you want another image? One does not pour new wine into old rotten wineskins. In this way we are having the most terrible complaints in the Grand Duchy. Should we not for this reason alone set up a commission, so that people may see how necessary it is, in other provinces just as well as in Posen, to replace the old organisation with a new one that suits the time and circumstances?”

The deputy
Richter
is right. After a revolution, a renewal of all civil and military officials, as well as of a part of the judicial, and especially of the
parquets
, is the first necessity. Otherwise the best measures of the central authority come to grief on the obstinacy of the subalterns. The weakness of the French provisional government, the

weakness of the Camphausen ministry, have borne bitter fruit in this respect.

In Prussia, however, where a fully organised bureaucratic hierarchy has ruled with absolute power in the administration and in the military for forty years, in Prussia, where precisely this bureaucracy was the principal enemy which had been defeated on 19 March, here the complete renewal of the civil and military officials was infinitely more pressing still. But the ministry of mediation naturally did not have the calling to carry through revolutionary necessities. It had the avowed calling to do nothing at all, and therefore left its old opponents, the bureaucrats, real power in their hands for the time being. It “mediated” between the old bureaucracy and the new conditions; in return the bureaucracy “mediated” for it the Posen civil war and the responsibility for cruelties the like of which had not occurred since the Thirty Years’ War.

The Hansemann ministry, heir to the Camphausen ministry, had had to take over all the assets and liabilities of its predecessor, hence not only the majority in the Chamber, but also the Posen events and the Posen officials. The ministry was therefore directly interested in making the investigation by the commission as illusory as possible. The speakers of the ministerial majority, and especially the jurists, employed their whole stock of casuistry and sophistry to discover a profound, principled reason why the commission must not examine witnesses. It would take us too far if we were to embark here on an admiration of the jurisprudence of a Reichensperger, etc. We must confine ourselves to dragging the thorough exposition of Herr Minister
Kühlwetter
into the light of day.

Herr
Kühlwetter
, leaving the material question entirely aside, begins with the declaration of how extremely pleasant it will be for the ministry if such commissions lend it a hand in fulfilling its difficult task by means of elucidations, etc. Indeed, had Herr Reuter not had the happy idea of proposing such a commission <see
“Agreement Debates”
>, Herr Kühlwetter would unconditionally have pressed for it himself. The commission should only be given quite broad mandates (so that it never finishes); he agrees that an anxious weighing up is by no means required. It may draw the whole past, present, and future of the province of Posen within the sphere of its activity; so long as it is only a matter of elucidations, the ministry will not anxiously scrutinise the competence of the commis

sion. To be sure,
one could go too far, yet he leaves it to the wisdom of the commission whether, for example, it also wishes to draw the question of the dismissal of the Posen officials within its sphere.

So much for the introductory concessions of Herr Minister, which, trimmed with a few straightforward declamations, were favoured with several lively bravos. Now follow the
buts
.

“If,
however
, it has been remarked that the reports on Posen could not possibly cast a correct light, because they are only officials, and officials from the old times at that, I consider it my duty to take an honourable estate under my protection. If it is true that individual officials have not been faithful to their duty, then let this be punished in the case of the individual defaulters, but the
estate
of officials must never be degraded because individual members of it have violated their duty.”

How boldly Herr Kühlwetter steps forward! To be sure, individual violations of duty have taken place, but on the whole the officials have done their duty in an honourable manner.

And indeed, the mass of the Posen officials
has
done its “duty”, its “duty under its oath of service”, towards the whole old Prussian system of bureaucracy, towards its own interest, which coincides with this duty. They have fulfilled their duty by considering every means good in order to annihilate 19 March in Posen. And precisely for that reason, Herr Kühlwetter, it is your “duty” to dismiss these officials en masse!

But Herr Kühlwetter speaks of the duty determined by the pre-revolutionary laws, when what is at issue is a quite different duty, one that sets in after every revolution and consists in grasping the altered conditions correctly and in promoting their development. And to expect the officials to exchange the bureaucratic standpoint for the constitutional one, to expect them to place themselves on the ground of the revolution just as well as the new ministers, that means, according to Herr Kühlwetter, to degrade an honourable estate!

Herr Kühlwetter also rejects the reproach, in this generality, that party leaders have been favoured and crimes left unpunished. Individual cases, he says, should be cited.

Does Herr Kühlwetter assert in all seriousness that even a small part of the brutalities and cruelties have been punished which the Prussian soldiery perpetrated, which the officials allowed and supported, and which the German Poles and Jews acclaimed with jubilation? Herr Kühlwetter says that he has so far not been able to examine the colossal material from all sides. Indeed, he seems to have examined it from one side at the most.

But now Herr Kühlwetter comes to the
“most difficult and most delicate question”, namely that of the
forms
in which the commission should conduct its proceedings. Herr Kühlwetter would have wished this question to have been discussed more thoroughly, for “this question contains, as has been rightly remarked, a question of principle, the question of the droit d’enquête <right of investigation>”.

Herr Kühlwetter now regales us with a longer development on the division of powers in the state, which certainly contained much that was new for the Upper Silesian and Pomeranian peasants in the Assembly. It makes a remarkable impression, in the year of grace 1848, to hear a Prussian minister, and a “minister of action” to boot, expounding Montesquieu at the tribune with solemn earnestness.

The division of powers, which Herr Kühlwetter and other great state philosophers regard with the deepest reverence as a sacred and inviolable principle, is fundamentally nothing other than the profane industrial division of labour, applied to the state mechanism for the sake of simplification and control. Like all other sacred, eternal, and inviolable principles, it is applied only in so far as it just happens to suit the existing conditions. Thus, for example, in the constitutional monarchy the legislative and executive powers run into one another in the person of the prince; furthermore, in the chambers the legislative power runs together with the control over the executive, etc. Now, statesmen of the force of a “minister of action” express these indispensable limitations of the division of labour in the state in the following way:

"The legislative power, in so far as it is exercised by the popular representation, has its own organs; the executive power has its own organs and no less the judicial power. It is therefore (!) inadmissible that one power should directly lay claim to the organs of the other power, unless this be transferred to it by a special law."

Any deviation from the separation of powers is inadmissible, "unless it be prescribed by a special law"! And conversely, the application of the prescribed separation of powers is likewise inadmissible, "unless it be prescribed by special laws"! What profundity! What revelations!

Of the case of a revolution, where the separation of powers ceases without "a special law," Herr Kühlwetter says nothing at all.

Herr Kühlwetter now launches into a discussion to the effect that the commission’s authority to examine witnesses under oath, to requisition officials, etc., in short, to see with its own eyes, constitutes an encroachment upon the separation of powers and must be laid down by a special law. As an example, the Belgian constitution is adduced, whose Article 40 expressly grants the Chambers the droit d’enquête.

But, Herr Kühlwetter, does a separation of powers actually exist in Prussia, both in law and in fact, in the sense in which you understand the word, in the constitutional sense? Is not the existing separation of powers the restricted and trimmed-down version that corresponds to the absolute, bureaucratic monarchy? How then can constitutional phrases be applied to it before it is constitutionally reformed? How can the Prussians have an Article 40 of the constitution so long as this constitution itself does not yet exist at all?

Let us sum up. According to Herr Kühlwetter, the appointment of a commission with unrestricted authority is an encroachment upon the constitutional separation of powers. The constitutional separation of powers does not yet exist in Prussia; therefore one cannot encroach upon it either.

But it is to be introduced, and during the revolutionary provisional period in which we live, it must, in Herr Kühlwetter’s view, be presupposed as already existing. If Herr Kühlwetter were right, then surely the constitutional exceptions would also have to be presupposed as existing! And among these constitutional exceptions is precisely the right of inquiry of the legislative bodies!

But Herr Kühlwetter is by no means right. On the contrary: The revolutionary provisional period consists precisely in the fact that the separation of powers is provisionally suspended, that the legislative authority momentarily seizes the executive power, or the executive authority the legislative power. Whether the revolutionary dictatorship (it is a dictatorship, however slackly it may be exercised) lies in the hands of the crown or an assembly or both together, is quite immaterial. If Herr Kühlwetter wants examples of all three cases, French history since 1789 provides them in abundance.

The provisional period to which Herr Kühlwetter appeals proves the very opposite for his argument. It confers on the assembly quite other attributes than the mere right of inquiry — it even grants it the right, if need be, to turn itself into a court of justice and judge without laws!

Had Herr Kühlwetter foreseen these consequences, he would perhaps have been a little more cautious with the “recognition of the revolution.”

But let him take comfort:

Germany, the pious nursery,
Is no Roman den of murderers,
<H. Heine, “Zur Beruhigung”>

and the gentlemen compromisers may sit as long as they please, they will never become a “Long Parliament.”

Incidentally, if we compare the official doctrinaire of the Ministry of Action with his predecessor in doctrine, Herr Camphausen, we find a considerable distance between them. Herr Camphausen possessed at least infinitely more originality; he bordered on Guizot, but Herr Kühlwetter does not even come up to the diminutive Lord John Russell.

We have sufficiently admired the state-philosophical fullness of Kühlwetter’s speech. Let us now consider the purpose, the actual practical reason for this moss-grown wisdom, this whole Montesquieuan theory of separation.

For Herr Kühlwetter now comes to the consequences of his theory. The Ministry is, by way of exception, disposed to instruct the authorities to carry out what the commission finds necessary. The only thing it must oppose is that orders to the authorities should emanate directly from the commission; i.e., the commission, without direct contact with the authorities, without power over them, cannot compel them to procure for it information other than what the authorities see fit to give. And, on top of that, the dragging course of business, the endless chain of instances! A fine means of making the commission illusory under the pretext of the separation of powers!

“It cannot be the intention to transfer to the commission the entire task which the government has.”

As if anyone thought of giving the commission the right to govern!

“The government would have to continue, alongside the commission, to investigate the causes underlying the dissension in Posen” (the very fact that it has been “investigating” for so long and has not yet ferreted anything out is reason enough to leave it entirely out of the question now), “and through this pursuit of the aim by a double track, time and effort would often be wasted and collisions would hardly be avoidable.”

Judging by the antecedents so far, the commission would certainly waste a great deal of “time and effort” if it were to embark upon Herr Kühlwetter’s proposal involving the protracted chain of instances. Collisions are likewise far easier by this route than if the commission deals directly with the authorities and can clear up misunderstandings at once, and strike down bureaucratic fits of defiance.

“It therefore (!) seems to lie in the nature of the matter that the commission should seek to attain its aim in agreement with the Ministry and with its constant co-operation.”

Better and better! A commission that is supposed to control the Ministry, in agreement with it and with its constant co-operation! Herr Kühlwetter is not embarrassed to let it be noticed how he considers it desirable that the commission should be under his control, not he under its.

“If, on the other hand, the commission were to take up an isolated position, the question would have to arise whether the commission then wishes and can assume the responsibility which devolves upon the Ministry. It has already been remarked with as much truth as wit that the inviolability of the deputies is not compatible with this responsibility.”

It is not a matter of administration, but simply of establishing facts. The commission is to be given the authority to employ the means necessary for that purpose. That is all. That it is responsible to the assembly both for negligent and for excessive use of these means goes without saying.

The whole matter has as little to do with ministerial responsibility and deputies’ irresponsibility as with “truth” and “wit.”

Enough, Herr Kühlwetter laid these proposals for the solution of the collision before the compromisers, under the pretext of the separation of powers, without however making any definite proposal. The Ministry of Action feels itself on insecure ground.

We cannot go into the further discussion. The votes are known: the defeat of the government in the roll-call vote, the coup d’état of the Right, which subsequently adopted a question that had already been rejected. We have already reported all this. We add only that among the Rhinelanders who voted against the unconditional authority of the commission, the following names strike us:

Arntz, Dr. jur. Bauerband, Frencken, Lensing, v. Loe, Reichensperger II, Simons, and the last but not the least, our Chief Procurator Zweiffel.