Defence Speech in the First Press Trial against the *Neue Rheinische Zeitung*

Karl Marx (1849-02-14)

No. 221, 14 February 1849  
*Neue Rheinische Zeitung.*  
Cologne, 13 February.  
Press Trial of the *Neue Rheinische Zeitung*.  
Heard on 7 February before the Assizes in Cologne.  

[...] Karl 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 “N.Rh.Z.”, are the only ones that Rhenish legislation offers the state authority, unless there is a direct incitement to rebellion.

You all know with what quite special predilection the prosecution persecutes the “N.Rh.Z.” Hitherto, however, despite all its assiduity, it has not succeeded in accusing us of any other offences than those provided for in Art. 222 and 367. I therefore consider a closer examination of these articles necessary in the interests of the press.

Before I embark on a juridical discussion, however, permit me a personal remark. The public ministry has called the passage in the incriminated article: “Is Herr Zweiffel perhaps combining the executive power with the legislative? Are the laurels of the chief prosecutor to cover the nakedness of the people’s representative?” a vulgarity! Gentlemen! Someone can be a very good chief prosecutor and at the same time a bad people’s representative. Perhaps he is a good chief prosecutor precisely because he is a bad people’s representative. The public ministry seems to be little acquainted with parliamentary history. The question of incompatibilities, which occupies so large a space in the proceedings of the constitutional chambers, on what does it rest? 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 everything else rather than to being a people’s representative. And now, specifically, the post of a public prosecutor? In what country would it not have been considered 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 that were directed precisely against the contradictory combination of the qualities of a procurator-general and a deputy in one person. These attacks never resulted in a judicial investigation, 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 situation is 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 already more or less judicial officials. We, gentlemen, are not constitutional, but we put ourselves on the standpoint of the gentlemen who are prosecuting us, in order to beat them on their own ground with their own weapons. We therefore appeal to constitutional usage.

The public ministry seeks to annihilate a large section of parliamentary history – with a moral platitude. I decisively reject his reproach of vulgarity; I account for it by his ignorance.

I now pass to the discussion of the juridical question.

My defence counsel has already proved to you that, without the Prussian law of 5 July 1819, the prosecution for insulting Chief Prosecutor Zweiffel was inadmissible from the outset. Art. 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 Art. 222, not to abrogate it. The Prussian law can extend the penalty of Art. 222 to written insults only in cases where the code imposes it for verbal ones. The written insults must occur under the same circumstances and conditions that Art. 222 presupposes for verbal insults. It is therefore necessary to determine the meaning of Article 222 precisely.*

In the motives for Art. 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.”

In German, that is: “It will therefore be a question here only of the insults that expose public order, the public peace, i.e., therefore, of insults against officials or public agents during the exercise or on the occasion of the exercise of their functions: in this case it is no longer a private person, it is public order that 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 undoubtedly guilty, but he causes a lesser scandal than when he insults a judge.”

You see from these motives, gentlemen, what the legislator intended with Article 222. Article 222 is “only” applicable to insults to officials that 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 implementation of the existing laws is disturbed, i.e., when a rebellion against the official executing the law takes place, when the official act of a functioning official is interrupted or impaired. The rebellion may stop at mere murmuring, at insulting words; it may proceed to physical acts, to violent resistance. The outrage, the insult, is only the lowest degree of violence, of resistance, of violent rebellion. Hence, in the motives, “outrages ou violences” [“insults or acts of violence”]. The two are conceptually identical; the violence, the physical act, is only an aggravated form of the outrage, of the insult to the functioning official.

It is therefore presupposed in these motives: 1) that the official was insulted while he was performing an official act; 2) that he was insulted in his personal presence. In no other case does a real disturbance of public order occur.

The same presupposition is found 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 to whom public authority and public power are entrusted”. The various articles of this section set forth the following graduated scale of resistance: looks, words, threats, physical acts; the physical acts themselves are again differentiated according to the degree of their severity. Finally, all these articles provide for an aggravation of the penalty in the event that these various forms of resistance occur in the hearing of a court of justice. 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 the performance of his official duties. My defence counsel has given you, gentlemen, such an example. He himself would fall under Art. 222 if, for example, now, during the assize proceedings, he insulted the president in a written application, and the like. Conversely, this article of the Code pénal can under no circumstances find any application whatever to a newspaper article that “insults” after the official act has long been performed, in the absence of the functioning official.

This interpretation of Art. 222 explains to you an apparent gap, an apparent inconsistency in the Code pénal. Why am I permitted to insult the king, while I am not permitted to insult the chief prosecutor? Why does the code not prescribe any punishment for lèse-majesté, like the Prussian Landrecht?

Because the king never himself exercises an official function, 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. Napoleonic despotism strikes me down as soon as I actually impede the state authority, even if only by insulting an official who, engaged in an official act, is asserting the state authority vis-à-vis me. Outside the official act, by contrast, the official becomes an ordinary member of civil society, without privileges, without an exceptional protective rampart. Prussian despotism, by contrast, confronts me with the official as a higher, sanctified being. His official character is fused with him, like the ordination 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 a non-

* 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.”

functioning, of one absent, of one returned to private life, remains a religious desecration, a profanation. The higher the official, the more serious the religious desecration. The gravest insult to the state priest is therefore the insult to the king, lèse-majesté, which belongs, according to the Code pénal, among 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 no proof would be needed that the personal presence of the official is assumed by the legislator and is the necessary condition of any insult that is to be subsumed under Art. 222. Art. 222, however, adds the words: « à l’occasion de cet exercice » to the phrase « dans l’exercice de leurs fonctions ».

The public prosecutor 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 Art. 228 of the same section. It states: Anyone who strikes an official « dans l’exercice de ces fonctions ou à l’occasion de cet exercice » shall be punished by imprisonment of two to five years. Can one translate this as: “With reference to his office”! Can one deliver relative blows? Is the presupposition 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.” 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 on the contrary presupposes it.

The history of French legislation offers you a further striking proof. You will recall that, in the early days of the French Restoration, the parties confronted each other implacably in the parliaments, in the courts, and with the dagger in the south of France. The assize juries were then nothing but summary courts of the victorious party against the defeated party. The opposition press mercilessly castigated the jury verdicts. No weapon was found in Art. 222 against this invidious polemic, because Art. 222 could be applied only to insults against the jurors while they were sitting, in their personal presence. A new law was therefore fabricated in 1819, which punished every attack on the chose jugée, upon a pronounced verdict. The Code pénal knows nothing of 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?

What, then, is the purpose of the addition: « à l’occasion de cet exercice »? Its sole purpose is to protect the official from attacks shortly before or after the performance of his function. If Art. 222 spoke only of “insult and physical assault” against the official during the duration of his official function, I could, for example, throw a bailiff down the stairs after a completed seizure and maintain that I insulted him only after he had ceased to confront me officially as a bailiff. I could waylay a justice of the peace while he was riding to my domicile to exercise judicial police powers against me, and thrash him and escape the penalty threatened in Art. 228 by the claim that I had maltreated him not during, but before his official function.

The addition « à l’occasion de cet exercice », on the occasion of the official function, thus aims at the security of officially functioning officials. It refers to insults or physical assaults that do not occur directly during the exercise of the function, but take place shortly before or after it and, what is essential, stand in a live connection with the exercise of the function, thus in all circumstances presuppose the personal presence of the mistreated official.

Is further elaboration needed to show that § 222 is not applicable to our article, even should we have insulted that same Herr Zweiffel through it? When that article was written, Herr Zweiffel was absent; he was then living not in Cologne, but in Berlin. When that article was written, Herr Zweiffel was not functioning as Chief Public Prosecutor, but as a conciliator. He could therefore not be insulted or reviled as a functioning Chief Public Prosecutor.

Apart from my whole foregoing exposition, it also emerges in another way that Art. 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 slander. You will find this distinction precisely delineated in Art. 375. After “slander” has been discussed, it states here:

« Quant aux injures ou aux expressions outrageantes qui ne renfermeraient l’imputation d’aucun fait précis (in the slander 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 … by a fine of sixteen to five hundred francs.” Art. 376 continues: “All other injuries or insulting expressions … shall entail a simple police penalty.”

What, then, constitutes slander? Defamations that charge the defamed person with a specific deed. What constitutes insult? The accusation of a specific vice and generally conceived insulting expressions. If I say: You have stolen a silver spoon, I slander you in the sense of the Code pénal. If, on the other hand, I say: You are a thief, you have thievish desires, I insult you.

The article of the Neue Rheinische Zeitung, however, by no means reproaches Herr Zweiffel with: Herr Zweiffel is a traitor to the people, Herr Zweiffel has made infamous utterances. The article, rather, expressly says: “Herr Zweiffel is moreover said to have declared that within eight days he would put an end to the 19th of March, to the clubs and the freedom of the press and to other excrescences of the evil year 1848 in Cologne on the Rhine.”

A wholly specific utterance is thus imputed to Herr Zweiffel. Hence, if one of the two articles, 222 and 367, were applicable, it could not be Art. 222, the insult article, but only Art. 367, the slander article.

Why has the public prosecutor applied Art. 222 to us instead of Art. 367?

Because Art. 222 is far more indeterminate, and allows a conviction to be slipped through far more easily once the decision to convict has been taken. 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? This depends purely on the individual with whom I am dealing, on his level of education, on his prejudices, on his imaginings. There remains no other measure than the noli me tangere of a swaggering, incomparably self-conceited official vanity.

But the slander article, Art. 367, is also not applicable to the article of the Neue Rheinische Zeitung.

Art. 367 requires a « fait précis », a specific fact, « un fait, qui peut exister », a fact that 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 utterance is laid to his charge. Art. 367, however, requires 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 at least to the contempt or hatred of the citizens.”

A mere utterance, however, to do this or that, exposes me neither to criminal nor to correctional police prosecution. One cannot even say that it necessarily exposes one to the hatred or contempt of the citizens. An utterance may indeed be the expression of a highly vile, hateful, contemptible sentiment. But may I not, in a state of excitement, give vent to an utterance that threatens actions of which I am incapable? Only the deed proves that I am in earnest with an utterance.

And the Neue Rheinische Zeitung says: “Herr Zweiffel is said to have declared.” In order to slander someone, I must not call my own assertion into question, as is done here with the word “said to”, I must make it 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 Art. 367 in order to constitute a slander, these citoyens, these citizens, no longer exist at all in political matters. There exist only party adherents. 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 kind 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 upon this remark—not for the pending case, but for all cases where an attempt might be made by the public prosecutor’s office to apply Art. 367 to political polemic.

In general, gentlemen of the jury, if you wish to apply the slander article, Art. 367, to the press in the sense of the public prosecutor, then you abolish the freedom of the press through the penal legislation, while you have recognised it through a constitution and fought for it through a revolution. You then sanction every arbitrariness of the officials, you permit every official infamy, you punish only the denunciation of infamy. To what purpose then still 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 your

It is for you to step between the dead precepts of the law and the living demands of society. Then it is for you to anticipate legislation until it learns to accommodate itself to social needs. That is the noblest attribute of juries. In the present case, gentlemen, this task is made easier for you by the letter of the law itself. You have only to interpret it in the spirit 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 his duties, obliged to reveal 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. Under Napoleon, as is well known, there was no freedom of the press. If, then, you are 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 spirit of our time, and so let the press also benefit from this concluding passage of Art. 367.

Art. 367, taken in the narrow sense of the public prosecutor’s office, excludes proof of truth and permits denunciation only when it is based on public documents or already existing judicial verdicts. Why should the press denounce post festum, after sentence has been passed? By its calling it is the public watchdog, the tireless denouncer of those in power, the omnipresent eye, the omnipresent mouth of the popular spirit jealously guarding its freedom. If you interpret Art. 367 in this sense, and you must so interpret it unless you wish to confiscate freedom of the press in the interest of governmental power, then the Code at the same time offers you a lever against outrages by the press. According to Art. 372, in the case of a denunciation, during the investigation of the facts the proceedings and decision on the offence of slander shall be stayed. According to Art. 373, the denunciation that proves to be slanderous shall be punished.

Gentlemen! Only a glance at the incriminated article is needed to convince you that the Neue Rheinische Zeitung, far removed from any intention of insult and slander, merely fulfilled its duty to denounce when it attacked the local parquet and the gendarmes. The examination of witnesses has proved to you that, with regard to the gendarmes, we merely reported the actual facts.

The point of the whole article, however, is the prediction of the counter-revolution that was later carried out, is an attack on the Hansemann ministry, which began its entry with the peculiar assertion that the larger the police personnel, the freer the state. This ministry imagined that the aristocracy was defeated; that it had only one task left, to rob the people of their revolutionary conquests in the interests of a class, the bourgeoisie. It thus prepared the way for the feudal counter-revolution. What we denounced in the incriminated article was nothing more, nothing less than a palpable phenomenon, torn from our immediate surroundings, of the systematic counter-revolutionary drive 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 contrary, one has only to cast a fleeting glance at the contemporary history of that time. Shortly before, the press persecutions in Berlin, based on the old paragraphs of the Prussian Common Law. A few days later, on 8 July, J. Wulff, President of the Düsseldorf People’s Club, was arrested, 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 received the sanction of the jury. On that same 8 July, officers, officials, and accessists were forbidden to take part in popular assemblies in Munich. On 9 July, Falkenhain, president of the “Germania” association in Breslau, was arrested. On 15 July, Chief Public Prosecutor Schnaase delivered a formal accusatory speech against the People’s Club in the Citizens’ Association in Düsseldorf, the club whose president had been arrested on the 8th at his request. Here you have an example of the sublime impartiality of the parquet, an example of how the chief public prosecutor appeared simultaneously as party man and the party man simultaneously as chief public prosecutor. Undeterred by the prosecution for our attack on Zweiffel, we denounced Schnaase at the time. He took good care not to reply. 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 thereafter in Württemberg and Bavaria. And we should have kept silent in the face of this palpable conspiracy against the people by all the German governments? The Prussian government did not then dare to do what the Baden, the Württemberg, the Bavarian government dared to do. It did not dare, because the Prussian National Assembly was just beginning to sense the counter-revolutionary conspiracy and to rise up against the Hansemann ministry.

But, gentlemen of the jury, I say it bluntly, with the firmest conviction: if the Prussian counter-revolution does not soon founder on a Prussian popular revolution, the freedom of association and the freedom of the press will also be completely destroyed in Prussia. They have already been partially killed off 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 which obliged us to monitor every movement of the government with the utmost mistrust, and to denounce aloud 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 3 unlawful arrests. The first two times the public prosecutor Hecker kept silent; the third time he sought to justify himself, but fell silent at our reply for the simple reason that there was nothing to be said.

And under these circumstances the public prosecutor’s office dares to assert that what we have here is not a denunciation but a petty-malicious calumny? This view rests on a misunderstanding of its own. I, for my part, assure you, gentlemen, I prefer to follow the great world events, I prefer to analyse the course of history, rather than to tangle with local idols, with gendarmes and parquets. However great these gentlemen may fancy themselves in their own imagination, they are nothing, absolutely nothing, in the gigantic struggles of the present day. I regard it as a true sacrifice when we resolve to break a lance with these opponents. But, firstly, it is the duty of the press to stand up for the oppressed in its immediate vicinity. And then, gentlemen, the edifice of bondage finds its most proper support in the subordinate political and social powers that directly confront private life, the person, the living individual. It is not enough to combat the general conditions and the highest powers. The press must resolve to step into the lists against this gendarme, this public prosecutor, this Landrat.

Wherefore did the March revolution fail? It reformed only the highest political summit, it left untouched all the foundations of this summit, the old bureaucracy, the old army, the old parquets, the old judges born, bred, and grown grey in the service of absolutism. The first duty of the press is now to undermine all the foundations of the existing political situation.