The First Press Trial of the "Neue Rheinische Zeitung"

[From the "Neue Rheinische Zeitung" No. 221, February 14, 1849]

[Defence Speech by Karl Marx]

Gentlemen of the jury! Today’s proceedings possess a certain importance because Articles 222 and 367 of the Code pénal, invoked by the indictment against the Neue Rheinische Zeitung, are the only ones which Rhenish legislation provides the public authorities with, unless there is a direct incitement to insurrection.

You all know with what quite particular fondness the prosecution pursues the Neue Rheinische Zeitung. Yet despite all its zeal, it has not succeeded to date in accusing us of offences other than those provided for in Arts. 222 and 367. In the interest of the press, I therefore consider it necessary to examine these articles more closely.

Before I embark on a legal discussion, however, allow me a personal remark. The public prosecutor’s office has called the passage of the incriminated article: “Does Herr Zweiffel perhaps combine executive power with the legislative? Are the laurels of the chief prosecutor to cover the nakedness of the people’s representative?” a *vulgarity*!

Gentlemen! A person can be a very good chief prosecutor and at the same time a bad people’s representative. He is perhaps only a good chief prosecutor because he is a bad people’s representative. The public prosecutor’s office seems little acquainted with parliamentary history. The question of incompatibilities, which occupies so large a space in the proceedings of constitutional chambers, on what does it rest? Upon mistrust of the executive officials, upon the suspicion that an executive official easily sacrifices the interest of society to the interest of the existing government and is therefore more suited to anything else than to being a people’s representative. And now specifically the post of a state prosecutor. In what country has it not been considered incompatible with the dignity of a representative of the people? I remind you of the attacks on Hébert, Plougoulm, Bavay in the French and Belgian press, in the French and Belgian chambers, attacks which were directed precisely against the contradictory combination of the qualities of a procureur général and a deputy in one person. These attacks never led to a judicial investigation, not even under Guizot, and the France of Louis Philippe and the Belgium of Leopold were regarded as the constitutional model states. In England, it is true, things are different with the Attorney-General and the Solicitor-General. But their position 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 are prosecuting us in order to beat them on their own terrain with their own weapons. We therefore appeal to constitutional usage.

The public prosecutor’s office seeks to annihilate a large chapter of parliamentary history—with a moral platitude. I decisively reject its reproach of vulgarity, I declare it to stem from its ignorance.

I now proceed to the discussion of the legal question.

My defence counsel <Schneider II> has already demonstrated to you that without the Prussian law of July 5, 1819, the charge of insulting the chief prosecutor Zweiffel would have been inadmissible from the start. Art. 222 of the Code pénal speaks only of “outrages par paroles” <all passages from the Code pénal appearing in italics in this article are Marx’s and Engels’s emphases>, of verbal insults, not of written or printed ones. However, the Prussian law of 1819 was intended to supplement Art. 222, not to abrogate it. The Prussian law can only extend the penalty of Art. 222 to written insults where the Code imposes it for verbal ones. Written insults must occur under the same circumstances and conditions which Art. 222 presupposes for verbal insults. It is therefore necessary to determine precisely the meaning of Article 222.[^1]

[^1]: In the motives for Art. 222 (Exposé per M. le conseiller d’état Berlier, séance du février 1810 <set forth by M. State Councillor Berlier in the session of February 1810>) it is stated:

 “Il ne sera donc ici question que des seuls outrages qui compromettent la paix publique, c. a. d. 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 English:

 “Here, therefore, the question will only be of those outrages which compromise the public peace, i.e., those directed against functionaries or public agents in the exercise or on the occasion of the exercise of their functions; in this case it is no longer a private individual, it is public order that is injured ... In this case the political hierarchy will be taken into consideration: he who permits himself outrages or violences against a ministerial officer is without doubt guilty, but he causes a lesser scandal than when he outrages a magistrate.”

You see from these motives, gentlemen, what the legislator intended with Article 222. Article 222 is “only” applicable to insults to officials which compromise, call into question, public order, the public peace. When is public order, la paix publique, compromised? Only when an insurrection for the overthrow of the laws is undertaken or when the enforcement of the existing laws is disturbed, i.e., when a rebellion against the official who executes 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 go as far as acts of violence, forcible resistance. The outrage, the insult, is only the lowest degree of violence, of resistance, of forcible rebellion. Hence the motives say “outrages ou violences”, “insults or acts of violence”. Both are identical in conception; the violence, the act of violence, is only an aggravated form of the outrage, the insult, against the functioning official.

Thus in these motives it is presupposed, 1. that the official was insulted while performing an official act; 2. that he is insulted in his personal presence. In no other case does a real disturbance of the public order take place.

You find the same presupposition in the entire section dealing with “outrages et violences envers les dépositaires de l’autorité et de la force publique”, i.e., “insults and acts of violence against those entrusted with public authority and public power”. The various articles of this section set up the following gradation of resistance: looks, words, threats, acts of violence; the acts of violence themselves are again distinguished according to the degree of their gravity. Finally, all these articles prescribe an aggravation of the penalty for the case where these various forms of resistance occur in the audience of a court of law. Here the greatest “scandal” is caused and the administration of the law, la 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 performance of an official function. My defence counsel, gentlemen, has cited such an example to you. He himself would fall under Art. 222 if, for example, during this assize session, he were to insult the president in a written motion, and the like. On the other hand, to a newspaper article which “insults” long after an official act has been performed, in the absence of the functioning official, this article of the Code pénal can under no circumstances find any application whatsoever.

This interpretation of Art. 222 explains to you an apparent gap, an apparent inconsistency of the Code pénal. Why am I allowed to insult the king, whereas I am not allowed to insult the chief prosecutor? Why does the Code not prescribe any punishment for lèse majesté as the Prussian Common Law does?

Because the king never himself exercises an official function, but always has it exercised only through others, because the king never confronts me in person, but always only through representatives. The despotism of the Code pénal, arising from the French Revolution, is as different as heaven from earth from the patriarchal, schoolmasterly despotism of the Prussian Common Law. Napoleonic despotism strikes me down as soon as I actually obstruct state power, even if only by insulting an official who, engaged in an official act, asserts state power towards me. Outside the official act, on the other hand, the official becomes an ordinary member of civil society, without privileges, without an exceptional protective wall. Prussian despotism, by contrast, confronts me in the official with a higher, sanctified being. His official character is grown together with him like consecration with the Catholic priest. The Prussian official always remains a priest for the Prussian layman, i.e., non-official. The insulting of such a priest, even of one who is not functioning, who is absent, who has returned to private life, remains a sacrilege, a profanation. The higher the official, the more serious the sacrilege. The highest insult of the state priest is therefore the insult of the king, lèse majesté, which according to the Code pénal belongs to the criminal impossibilities.

But, it will be said, if Art. 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 it would require no proof that the personal presence of the official is implied by the legislator and is the necessary condition of every insult to be subsumed under Art. 222. Art. 222, however, adds to the words “dans l’exercice de leurs fonctions”: “à l’occasion de cet exercice”.

The public prosecutor’s office has translated this: “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 Art. 228 of the same section. It reads: Whoever strikes an official “dans l’exercice de ses fonctions ou à l’occasion de cet exercice” shall be punished with imprisonment of from two to five years. Can one here translate: “with reference to his office”? Can one inflict relative blows? Is the presupposition of the personal presence of the official abandoned here? Can I beat an absent person? It must obviously be translated: “Whoever strikes an official on the occasion of his official functions.” In Art. 228, however, you find literally the same phrase as in Art. 222. The “à l’occasion de cet exercice” obviously has the same meaning in both articles. Far from excluding the condition of the personal presence of the official, this addition therefore rather presupposes it.

The history of French legislation offers you a further striking proof. You will recall that during the early years of the French Restoration the parties confronted each other implacably, in the chambers, in the courts, with the dagger in southern France. At that time, juries were nothing but summary tribunals of the winning party against the defeated party. The opposition press mercilessly castigated the jury verdicts. Article 222 provided no weapon against this unwelcome polemic, because Article 222 could only be applied to insults against jurors while they were sitting, in their personal presence. A new law was therefore fabricated in 1819, which punished any attack on the *chose jugée*, on a pronounced judgment. 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 official functions?

But what does the addition “*à l’occasion de cet exercice*” mean? It merely seeks to secure the official against attacks shortly before or after the performance of his functions. If Art. 222 spoke only of “insult and assault” against the official during the exercise of his functions, I could, for example, throw a bailiff down the stairs after he has carried out a seizure and claim that I insulted him only after he had ceased to face me officially as a bailiff. I could assault and beat a justice of the peace while he was riding to my place of residence to exercise judicial police powers against me, and evade the penalty prescribed in Art. 228 by claiming that I maltreated him not during, but before, the performance of his functions.

The addition “*à l’occasion de cet exercice*”, on the occasion of the performance of his functions, thus aims at the safety of officials functioning in their official capacity. It refers to insults or acts of violence which, though they do not occur directly during the performance of his functions, happen shortly before or after it and, what is essential, are in a living connection with the performance of his functions, and therefore in all circumstances presuppose the personal presence of the official who is maltreated.

Is any further elaboration required to show that §222 cannot be applied to our article, even if we had insulted Mr. Zweiffel through it? When that article was written, Mr. Zweiffel was absent; he did not reside in Cologne at that time, but in Berlin. When that article was written, Mr. Zweiffel was not functioning as Chief Public Prosecutor, but as a conciliator. He could therefore not have been insulted or abused as a functioning Chief Public Prosecutor.

Quite apart from my entire preceding argument, it also emerges in another way that Art. 222 is not applicable to the incriminated article in the *Neue Rheinische Zeitung*.

This follows from the distinction which the *Code pénal* draws between insult and defamation. You will find this distinction precisely delineated in Article 375. After dealing with “defamation”, it states:

“*Quant aux injures ou aux expressions outrageantes qui ne renfermeraient l’imputation d’aucun fait précis*” (in the defamation article 367 this is called: “*des faits, qui s’ils existaient*”, “facts which, if they really were 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 imputation of a specific act, but that of a specific vice, … shall be punished with a fine of sixteen to five hundred francs.” In Article 376 it further states: “All other injuries or insulting expressions … incur a simple police penalty.”

What then constitutes defamation? Abusive language that charges the person abused with a specific fact. What constitutes insult? The imputation of a specific vice and, generally, insulting expressions. If I say: You have stolen a silver spoon, I am defaming you within the meaning of the *Code pénal*. If, on the other hand, I say: You are a thief, you have thievish inclinations, then I am insulting you.

The article in the *Neue Rheinische Zeitung*, however, in no way reproaches Mr. Zweiffel with: Mr. Zweiffel is a traitor to the people, Mr. Zweiffel has made infamous remarks. On the contrary, the article says explicitly: “Mr. Zweiffel is moreover said to have declared that within eight days he would put an end to the 19th of March, the clubs, the freedom of the press, and other excrescences of the wicked year 1848, in Cologne on the Rhine.”

A quite specific statement is therefore imputed to Mr. Zweiffel. Thus, if either of the two articles 222 and 367 were applicable, it could not be Art. 222, the article on insult, but only Art. 367, the article on defamation.

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

Because Article 222 is much more vague and makes it far easier to wangle a conviction if a conviction is to be brought about. The violation of “*délicatesse et honneur*”, of delicacy and honour, defies all measurement. What is honour, what is delicacy? What constitutes a violation of them? This depends purely on the individual with whom I am dealing, on his level of education, on his prejudices, on his conceit. The only measure is the *noli me tangere* (touch-me-not) of a bombastic official vanity that considers itself incomparable.

But the article on defamation, Art. 367, is equally inapplicable to the article in the *Neue Rheinische Zeitung*.

Art. 367 requires a “*fait précis*”, a specific fact, “*un fait, qui peut exister*”, a fact which can be an actual fact. Mr. Zweiffel, however, is not accused of having abolished the freedom of the press, closed the clubs, or destroyed the March achievements in this or that place. A mere statement is held against him. But Art. 367 demands the imputation of specific facts “which, if they were real facts, would expose the person charged with them to criminal or correctional prosecution, or even merely to the contempt or hatred of the citizens.”

But the mere statement that I intend to do this or that does not expose me to either criminal or correctional prosecution. One cannot even say that it necessarily exposes one to the hatred or contempt of the citizens. A statement can indeed be the expression of a very base, hateful, contemptible disposition. However, can I not in a moment of excitement utter a statement threatening actions of which I am incapable? Only the deed proves that I am serious about a statement.

And the *Neue Rheinische Zeitung* says: “Mr. Zweiffel *is said* to have declared.” In order to defame someone, I must not put my assertion into question, as is done here by the “is said”; I must appear apodictically.

Finally, Gentlemen of the jury, the “*citoyens*”, the citizens, to whose hatred or contempt the imputation of a fact must expose me according to Art. 367 in order to constitute a defamation—these *citoyens*, these citizens, no longer exist at all in political matters. Only party adherents 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 Mr. Zweiffel of being a kind of Robespierre. (See “*Bekenntnisse einer schönen Seele*”.) In its eyes, in the eyes of its party, our article has not exposed Mr. Zweiffel to hatred and contempt, but has freed him from the hatred that weighed upon him, from the contempt that weighed upon him.

It is of the highest interest to attach weight to this remark, not for the present case, but for all cases where the public prosecutor’s office might attempt to apply Art. 367 to political polemics.

In general, Gentlemen of the jury, if you wish to apply the article on defamation, Art. 367, to the press in the sense of the public prosecutor’s office, you will abolish the freedom of the press by means of the penal legislation, while at the same time you have recognised that freedom through a constitution and won it through a revolution. You will then sanction every despotism of the officials, you will permit every official infamy, and you will punish only the denunciation of infamy. What good then would the hypocrisy of a free press continue to be? When existing laws come into open contradiction with a newly attained stage of social development, Gentlemen of the jury, it is precisely your office to step in between the dead letter of the law and the living demands of society. It is then your office to anticipate legislation, until the latter understands how to meet society’s needs. This is the noblest attribute of jury courts. In the present case, Gentlemen, this task is made easier for you by the very letter of the law. You have merely to interpret it in the sense of our time, of our political rights, of 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 is permitted by law, nor to those which the originator of the imputation was, by the nature of his functions or his duties, bound to reveal or to suppress.”

There is no doubt, Gentlemen, that the legislator was not thinking of the free press when he spoke of the duty to denounce. But equally little did he think that this article would ever be applied to the free press. Under Napoleon, as is well known, there was no freedom of the press. If, then, you are going to apply the law to a stage of political and social development for which it was not intended, apply it fully, interpret it in the sense of our time, and thus allow the press also to benefit by this closing passage of Article 367.

Art. 367, taken in the narrow sense of the public prosecutor’s office, excludes the proof of the truth and only permits denunciation when it is based on public documents or already existing court verdicts. Why should the press continue to denounce *post festum*, after judgment has been passed? It is, by its vocation, the public watchdog, the untiring 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 in this way if you do not wish to confiscate the freedom of the press in the interest of the governmental power—the Code at the same time offers you the means against excesses by the press. According to Article 372, in the case of a denunciation, the proceedings and the decision on the offence of defamation are to be suspended during the investigation into the facts. According to Art. 373, a denunciation that has proved to be defamatory is punished.

Gentlemen! A single glance at the incriminated article will suffice to convince you that the *Neue Rheinische Zeitung*, far from any intention of insult or slander, merely fulfilled its duty of denunciation when it attacked the local public prosecutor’s office and the gendarmes. The examination of witnesses has proved to you that, with regard to the gendarmes, we only reported the actual facts.

The point of the whole article, however, is the prediction of the counter-revolution subsequently carried out, is an attack on the Hansemann ministry, which began its entry with the curious assertion: the larger the police force, the freer the state. This ministry imagined that the aristocracy had been defeated; that it had only one task left, to rob the people of their revolutionary gains in the interest of one class, the bourgeoisie. It thus paved the way for the feudal counter-revolution. What we denounced in the incriminated article was nothing more, nothing less than a tangible manifestation, torn from our immediate surroundings, of the systematic counter-revolutionary machinations of the Hansemann ministry and of 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, the press prosecutions in Berlin, based on the old paragraphs of the common law. 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 jurors later acquitted Wulff, just as not a single political prosecution of that period received the sanction of the jurors. On that same 8 July, officers, officials and accessists in Munich were forbidden to take part in popular assemblies. On 9 July, Falkenhain, president of the “Germania” association in Breslau, was arrested. On 15 July, Chief Public Prosecutor Schnaase delivered a formal indictment speech against the people’s club in the citizens’ club in Düsseldorf, whose president had been arrested on 8 July on his application. Here you have an example of the sublime impartiality of the public prosecutor’s office, an example of how the chief public prosecutor acted simultaneously as a party man and the party man simultaneously as chief public prosecutor. Undeterred by the prosecution because of our attack on Zweiffel, we denounced Schnaase at the time. He has taken good care not to answer. On the same day that Chief Public Prosecutor Schnaase delivered this Philippic against the Düsseldorf people’s club, the democratic district association 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 should have remained silent in the face of this palpable conspiracy to betray the people, a conspiracy of all German governments? The Prussian government did not dare at that time what the Baden, the Württemberg, the Bavarian government 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 plainly, with the firmest 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. Even now, it has been partially killed by states of siege. They have even dared to reintroduce censorship in Düsseldorf and in some Silesian districts. <See “Zensur”>

But it was not only the general German, the general Prussian situation that obliged us to monitor every move of the government with the utmost mistrust, to denounce loudly to the people the slightest symptoms of the system. The local public prosecutor’s office here in Cologne gave us very special cause to expose it as a counter-revolutionary tool before public opinion. In the month of July alone, we had to denounce three unlawful arrests. The first two times, State Prosecutor Hecker remained silent; the third time, he sought to justify himself, but fell silent upon our reply for the simple reason that there was nothing to be said.

And under these circumstances, the public ministry dares to assert that this is not a matter of denunciation, but of a petty, malicious insult? This view rests on a peculiar misunderstanding. For my part, I assure you, gentlemen, I prefer to follow the great world events, I prefer to analyse the course of history, rather than to contend with local idols, with gendarmes and public prosecutor’s offices. Great as these gentlemen may imagine themselves to be, they are nothing, absolutely nothing, in the gigantic struggles of the present day. I consider it a real sacrifice when we resolve to break a lance with such opponents. But, on the one hand, it is the duty of the press to stand up for the oppressed in its immediate surroundings. And then, gentlemen, the edifice of bondage has its most essential support in the subordinate political and social powers that directly confront the private life of the person, the living individual. It is not enough to fight against the general conditions and the highest authorities. The press must resolve to enter the lists against this gendarme, this prosecutor, this district councillor. What wrecked the March revolution? It reformed only the highest political summit; it left all the foundations of this summit untouched—the old bureaucracy, the old army, the old public prosecutor’s offices, the old judges, born, trained and greyed 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. (Acclamation in the courtroom.)

[Speech for the Defence by Friedrich Engels]

Gentlemen of the Jury! The previous speaker mainly dealt with the charge of insulting the chief public prosecutor, Herr Zweiffel; allow me now to direct your attention to the accusation of slander against the gendarmes. This concerns above all the articles of the law on which the charge is based.

Art. 367 of the Penal Code states:

“Anyone who, in public places or in public assemblies, or in an authentic and public document, or in a printed or unprinted writing which has been posted up, sold or distributed, accuses someone of such facts as, if true, would expose the person to whom they are imputed to criminal or correctional police prosecution, or even merely to the contempt or hatred of the citizens, is guilty of the offence of slander.”

Art. 370 adds:

“If the fact constituting the subject of the accusation is proved true in a legal manner, the author of the accusation shall be exempt from all punishment … The only legal proof is that which derives from a judgment or some other authentic document.”

Gentlemen! The public prosecutor’s office has given you its interpretation of these legal provisions and called upon you to declare us guilty on that basis. You have already been made aware that these laws were enacted at a time when the press was under censorship, when quite different political conditions existed than today; and on this basis, my defence counsel <Schneider II> expressed the opinion that you cannot regard these outmoded laws as binding. The public prosecutor’s office has, at least in relation to Art. 370, concurred with this opinion. It stated: “With you, gentlemen of the jury, the main point will surely be whether the truth of the facts in question is proved”—and I thank the public prosecutor’s office for this admission.

But even if you should not share this view that at least Art. 370, in its restriction of the proof of truth, is outmoded, you will certainly be of the opinion that the articles cited must be subject to a different interpretation than the one the public prosecutor’s office seeks to give them. It is precisely the privilege of the jury to interpret the laws independently of all traditional judicial practice, as their sound sense and conscience dictate. We are charged under Art. 367 with having accused the gendarmes in question of acts which, if true, would expose them to the contempt and hatred of the citizens. If you take these expressions “hatred and contempt” in the sense that the public prosecutor’s office would like to give them, then as long as the provisions of Art. 370 remain in force, all press freedom ceases. How can the press then fulfil its first duty, the duty to protect the citizens against the encroachments of the officials? As soon as it denounces such an encroachment to public opinion, it is brought before the assizes and—if the public prosecutor’s office has its way—sentenced to imprisonment, a fine and loss of civil rights, unless it furnishes a judicial judgment, i.e., unless it publishes the denunciation only when it no longer serves any purpose!

How little the legal provisions in question, at least in the interpretation the public prosecutor’s office would like to give them, suit our present conditions is shown by a comparison with Art. 369. It reads:

“For slander made known by means of foreign newspapers, proceedings may be taken against those who have sent in the articles … or have contributed to the introduction and distribution of these papers within the country.”

According to this article, gentlemen, it would be the duty of the public prosecutor’s office to take action daily and hourly against the royal Prussian postal officials. For is there, of all the three hundred and sixty-five days of the year, a single one on which the Prussian post office does not, by forwarding and issuing this or that foreign newspaper, contribute to “the introduction and distribution” of slander in the sense of the public prosecutor’s office? And yet it never occurs to the public prosecutor’s office to prosecute the post office.

Consider further, gentlemen, that these articles were written at a time when, because of censorship, it was impossible to slander officials through the press. These articles could therefore, according to the intention of the legislator, only have the purpose of protecting private persons, not officials, from slander, and only in this way do they make sense. However, the fact that since the winning of the freedom of the press the actions of officials can also be brought before the forum of publicity essentially changes the standpoint. And precisely here, in such contradictions between an old legislation and a new political and social state of affairs, it is precisely here that the jury must intervene and adapt the old law to the new conditions by a new interpretation.

But as I have said: the Public Prosecutor’s Office itself has acknowledged that in your presence, Gentlemen, despite Article 370, the main issue is proof of the truth. It has therefore attempted to invalidate the proof of the truth which we have furnished by witnesses. Let us, then, look at the newspaper article in question <See Volume 5, pp. 166-168> to examine whether the accusations have in fact been proved, and at the same time whether they really constitute a libel. The article begins:

“Between six and seven in the morning, six or seven gendarmes entered Anneke’s dwelling, at once mishandled the servant-girl,” etc.

Gentlemen, you have heard Anneke’s testimony on this point. You will recall that I wished to put the question concerning the mishandling of the servant-girl to the witness Anneke once again, and that the presiding judge declared the question superfluous because the matter had been sufficiently established. I now ask you: Have we slandered the gendarmes on this point?

Further: “This urging on turns into acts of violence in the anteroom, in the course of which one of the gendarmes smashes the glass door to splinters. Anneke was pushed down the

stairs.” Gentlemen, you have heard the witness Anneke’s testimony; you will recall what the witness Esser said, how the gendarmes came out of the house with Anneke “full steam ahead” and likewise thrust him into the carriage; I ask you once again, Gentlemen, have we slandered anyone here?

Finally, there is a passage in the article whose correctness has not been proved literally. It is the following: “Of these four pillars of justice one was tottering more or less, already at this early hour well filled with the ‘spirit’, the water of true life, the fire-water.”

I admit, Gentlemen, that by Anneke’s express words only this much has been established: “from their deportment, the gendarmes might very well have been drunk,” that only this much is certain, that the gendarmes behaved like drunkards. But, Gentlemen, compare what we said two days later, in response to the reply of the Public Prosecutor, Herr Hecker: “The insult could refer only to that one of the gentlemen gendarmes of whom it was affirmed that he had, at an early hour, ‘tottered’, for reasons more or less spirituel or spirituous. If, however, the investigation should establish the correctness of the facts—the brutalities perpetrated by the gentlemen agents of public authority—as we do not doubt for a moment it will, then we believe we have only carefully emphasised the sole extenuating circumstance with all the impartiality befitting the press, in the very best interests of the gentlemen we have accused; and the humane statement of the sole extenuating circumstance is being turned by the Parquet into an insult!”

You see from this, Gentlemen, how we ourselves called for an investigation of the facts in question. It is not our fault that the investigation did not take place. As for the reproach of drunkenness, moreover, I ask you what great thing is it for a royal Prussian gendarme if one says of him that he has drunk a schnapps more than his thirst required? Whether that can be regarded as a libel, I appeal on that point to the public opinion of the whole Rhine Province.

And how can the Public Prosecutor’s Office speak of slander when those alleged to have been slandered are not named, not even more closely designated? The article speaks of “six or seven gendarmes.” Who are they? Where are they? Has it come to your ears, Gentlemen, that any particular gendarme has through this article been exposed to “the hatred and contempt of the citizens”? The law expressly requires that the slandered individual be precisely designated; now, in the passage in question, no specific gendarme can find an insult; at most the royal Prussian gendarmerie

as a whole can find one. It can feel itself affronted by the publication of the fact that illegalities and brutalities are perpetrated with impunity by members of this corps. But, Gentlemen, it is no offence to reproach the royal Prussian gendarmerie in general with brutalities. I challenge the Public Prosecutor’s Office to show me the passage in the law whereby it is punishable to insult, affront, or slander the royal Prussian gendarmerie corps, if slander can be spoken of here at all.

The Public Prosecutor’s Office has seen in the article in question only a proof of unbridled love of malice. Gentlemen, the article has been read out to you. Did you find in it that we considered the more or less insignificant illegalities that took place in Cologne at that time in and for themselves, exploited them, and blew them up into a grand affair in the interest of our alleged rancour against low-ranking officials? Or did we not rather present these facts as a link in the great chain of reactionary attempts that were simultaneously becoming apparent all over Germany at that time? Did we stop at the gendarmes and the Public Prosecutor’s Office in Cologne, or did we go further to the bottom of the matter and pursue it in its causes right up to the privy State Ministry in Berlin? But of course, it is less dangerous to lay hands on the great privy State Ministry in Berlin than on the small Public Prosecutor’s Office in Cologne—and as proof of this fact we stand here before you today.

Consider the conclusion of the article. It reads: “These, then, are the deeds of the Ministry of Deeds, the Ministry of the Left Centre, the Ministry of the transition to a ministry of the old nobility, the old bureaucracy, the old Prussia. As soon as Herr Hansemann has fulfilled his transitory vocation, he will be dismissed.”

Gentlemen, you recall what happened in September <In the “Neue Rheinische Zeitung”: August> of last year: how Hansemann, though under the more decent form of voluntary abdication, was “dismissed” as superfluous and how the Pfuel-Eichmann-Kisker-Ladenberg ministry, literally a “ministry of the old nobility, the old bureaucracy, the old Prussia,” followed on his heels.

It continues: “The Left in Berlin, however, must realise that the old power can calmly leave to it minor parliamentary victories and grand constitutional drafts, provided that it only seizes, in the meantime, all really decisive positions. It can calmly recognise the revolution of 19 March

in the Chamber, provided that the latter is disarmed outside the Chamber.”

How correct this view was I certainly need not waste a word explaining. You yourselves know how precisely in the same proportion as the power of the Left grew in the Chamber, the power of the people’s party outside the Chamber was destroyed. Need I enumerate the unpunished brutalities of the Prussian soldiery in countless towns, the burgeoning states of siege, the disarming of so many civic guards—and finally Wrangel’s heroic march on Berlin—to show how the revolution was indeed disarmed, how the old power in fact seized all the decisive positions?

And now, finally, the remarkable prophecy: “One fine morning the Left might find that its parliamentary victory and its real defeat coincide.”

How literally this has come true! The very day the Left finally came into possession of the majority in the Chamber was the day of its real defeat. It was precisely the parliamentary victories of the Left that led to the coup d’état of 9 November, to the removal and prorogation of the National Assembly, and finally to its dissolution and the octroying of the constitution. The parliamentary victory of the Left coincided directly with its most complete defeat outside parliament.

This political prediction, Gentlemen, which has come true so literally, is therefore the result, the sum, the conclusion that we drew from the acts of violence that occurred all over Germany and, among others, in Cologne. And people talk of blind love of malice. In fact, does it not appear as if we were appearing before you today, Gentlemen, to answer for the offence of having correctly communicated correct facts and having drawn the correct consequences from them?

In short: you, Gentlemen of the Jury, at this moment have to decide on the freedom of the press in the Rhine Province. If the press is to be forbidden to report that which takes place before its eyes; if at every delicate fact it is to wait first until a judicial sentence has been delivered; if with regard to every official, from the minister down to the gendarme, it is to ask first whether the fact adduced might offend his honour or delicacy, regardless of whether the facts are true or not; if the press is placed in the alternative of either falsifying events or falling completely silent—then, Gentlemen, freedom of the press ceases to exist, and if you desire this, then pronounce your “Guilty” upon us!

Footnotes

(1)
Article 222 literally reads: “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.”

<“If one or more functionaries of the administrative or judicial order have, in the exercise of their functions or on the occasion of this exercise, received any insult through words tending to impugn their honour or their delicacy, the one who has thus insulted them shall be punished with imprisonment from one month to two years.”>