Neue Rheinische Zeitung No. 221 February 1849
Source: MECW Volume 8, p. 304;
Delivered: on February 7, 1849;
First published: in Neue Rheinische Zeitung No. 221, February 14, 1849, and also in the pamphlet Zwei politische Prozesse, Köln, 1849, Verlag der Expedition der Neuen Rheinischen Zeitung
Gentlemen of the jury! The proceedings today have a certain importance because Articles 222 and 367 of the Code pénal invoked in the indictment against the Neue Rheinische Zeitung are the only ones from Rhenish legislation available to the state authorities, unless there is direct incitement to revolt.
You are all aware of the very special predilection of the prosecuting magistrates for taking legal action against the Neue Rheinische Zeitung. In spite of all their diligence, however, up to now they have not succeeded in accusing us of any other offences than those envisaged in Articles 222 and 367. In the interests of the press, therefore, I consider it necessary to make a closer examination of these articles.
But before I enter into a legal analysis, allow me to make a personal observation. The Public Prosecutor has described as a vilification the passage in the incriminated article which states: “Is Herr Zweiffel perhaps combining the executive with the legislative power? Are the laurels of Chief Public Prosecutor supposed to cover the weak points of the people’s representative?” Gentlemen, it is quite possible for someone to be a very good Chief Public Prosecutor and at the same time a bad people’s representative. He is perhaps a good Chief Public Prosecutor only because he is a bad people’s representative. The prosecution seems to be little versed in parliamentary history. What underlies the question of incompatibility, which takes up so much space in the proceedings of the constitutional Chambers? The distrust of executive officials, the suspicion that an executive official will readily sacrifice the interests of society to the interests of the existing Government and is therefore fitted to be anything rather than a people’s representative. And now consider in particular the situation of a Public Prosecutor. In what country would it not be considered incompatible with the high post of people’s representative? I remind you of the attacks on Hébert, Plougoulm and Bavay in the French and Belgian press, and in the French and Belgian Chambers, attacks aimed precisely against the contradictory combination of the qualities of a Prosecutor-General and a parliamentary deputy in the same person. These attacks never resulted in the institution of court proceedings, not even under Guizot, and the France of Louis Philippe and the Belgium of Leopold ranked as model constitutional states. In England, it is true, matters are different with the Attorney-General and Solicitor-General. But their position is also essentially different from that of a procureur du roi. They are indeed more or less judicial officials. We, gentlemen, are not constitutionalists, but we take up the standpoint of the gentlemen who are accusing us in order to beat them on their own ground with their own weapons. Hence we appeal to constitutional usage.
The Public Prosecutor would like to wipe out a large period of parliamentary history — by means of a moral platitude. I decisively reject his charge of vilification, and I explain it as due to his ignorance.
I pass now to a discussion of the juridical question.
My defence counsel has already proved to you that without the Prussian law of July 5, 1819,  the indictment on the charge of insulting Chief Public Prosecutor Zweiffel would have been invalid from the outset. Article 222 of the Code pénal speaks only of “outrages par paroles”, of oral insults, not of written or printed ones. The Prussian law of 1819, however, was intended to supplement Article 222, not to abolish it. The Prussian law can extend to written insults the punishment prescribed in Article 222 only where the Code would impose it if the insults were in oral form. Written insults must occur under the same circumstances and conditions as envisaged by Article 222 for oral insults. It is therefore necessary to define exactly the meaning of Article 222.*
* Article 222 reads textually as follows: “If one or more officials of the administrative or judicial system during the exercise of their functions or on the occasion of such exercise have been subjected to insult by words tending to impugn their honour or delicacy, the person who has insulted them in this way will be punished by imprisonment from one month to two years.” — Note by Marx.
In the motives given for Article 222 (Exposé par M. le conseiller d'état Berlier, séance de février 1810) it is stated:
“It will therefore be a question here only of insults which violate public order, public peace, that is to say, therefore, insults directed against officials or public agents during the exercise of or in connection with the exercise of their functions; in this case it is no longer a private person, it is public order which is harmed.... In this case the political hierarchy will be taken into consideration: one who indulges in insults or acts of violence directed against a ministerial official is undoubtedly guilty, but he causes a lesser scandal than when he insults a judge.”
From these motives, gentlemen, you see what the legislator intended by Article 222. Article 222 is “only” applicable to insults directed against officials which violate, put at risk, public order, public peace. When is public order, la paix publique, violated? Only when a revolt for the purpose of overthrowing the laws is attempted or when the implementation of the existing laws is prevented, i.e. when resistance is exercised against the official who is executing the law, when the performance of his office by a functioning official is interrupted or impaired. The resistance can be confined to mere grumbling, to insulting language; it can go as far as acts of violence, forcible insubordination. Outrage, insult, is merely the lowest degree of violence, of insubordination, of violent resistance. Hence in the motivation there is mention of “outrages ou violences”, “insults or acts of violence”. The concept is the same in both; violence, act of violence, is only an aggravation of outrage, of insult against the functioning official.
In these motives, therefore, it is presumed: 1) that the official was insulted during the exercise of his office; 2) that he was present in person when he was insulted. In no other case does a real disturbance of public order take place.
The same presumption is to he found in the whole section concerning “outrages et violences envers les dépositaires de 1'autorité et de la force publique”, i.e. “insults and acts of violence against those who are entrusted with public power and public authority”. The various articles of this section present the following gradations of acts of resistance: facial expressions, words, threats, acts of violence; the last-named in their turn are graded according to their gravity. Finally, in all these articles provision is made for more severe punishment in cases where these various forms of insubordination occur in a court of law. Here the greatest “scandal” is caused and there is the most blatant hindrance to the execution of the laws and violation of the paix publique.
Article 222, therefore, is applicable to written insults against officials only when they occur 1) in the presence in person of the official, 2) during the performance of his office. My defence counsel, gentlemen, has cited such an example for you. He himself would have come under Article 222 if, for example, now during the assizes proceedings he had insulted the presiding judge in a written proposal or something of that sort. On the other hand, under no circumstances can this article of the Code pénal be applied to a newspaper article which “insults” in the absence of the functioning official and long after the performance of his official duty.
This interpretation of Article 222 gives you the explanation for what appears to be a defect, an inconsistency, of the Code pénal. Why am I permitted to insult the King, whereas I am not permitted to insult the Chief Public Prosecutor? Why does the Code not prescribe any punishment for lèse-majesté as Prussian Law does?
Because the King himself ‘never performs the functions of an official, but always causes them to be performed by someone else, because the King never acts towards me in a personal way, but always only through his representatives. The despotism of the Code pénal deriving from the French Revolution is immensely different from the patriarchal-schoolmasterly despotism of Prussian Law. The Napoleonic despotism strikes me down as soon as I actually obstruct state power, even if it is only by insulting an official who, during the performance of his office, exercises state power in relation to me. On the other hand, outside the performance of his office, the official becomes an ordinary member of civil society, without privileges, without special protection. Prussian despotism, on the other hand, confronts me in the shape of an official with a superior, sacrosanct being. His official character is as integral part of his personality as consecration is of a Catholic priest. For Prussian laymen, i.e. those who are not officials, the Prussian official always remains a priest. To insult such a priest, even one who is not functioning, who is not present, and who is back in private life, remains a profanation of religion, a desecration. The higher the official the more serious the profanation of religion. The highest degree of insult to a state priest is therefore an insult offered to the King, lèse-majesté, which according to the Code pénal is a criminal impossibility.
But it will be said that if Article 222 of the Code pénal speaks only of outrages against officials “dans 1'exercice de leurs fonctions”, of insults against officials during the exercise of their functions, then there would be no need to prove that the presence in person of the official is presumed by the legislator and is the necessary condition for any insult coming under Article 222. But to the words “dans 1'exercice de leurs fonctions”, Article 222 adds “à 1'occasion de cet exercice”.
The public prosecution translates this: “with relation to their office”. I shall prove to you, gentlemen, that this translation is incorrect and is directly contrary to the intention of the legislator. Take a look at Article 228 of the same section. It states: Anyone who strikes an official “dans 1'exercice de ses fonctions ou à 1'occasion de cet exercice” will be punished by imprisonment for two to five years. Can this be translated: “with relation to his office"? Can one deal relative blows? Is the presumption of the presence in person of the official abandoned here? Can I thrash one who is not present? It is obvious that this must be translated: “Anyone who strikes an official on the occasion of the performance of his official duty”. The phrase in Article 228 is word for word the same as in Article 222. The words “à 1'occasion de cet exercice” have obviously the same meaning in both. Far from excluding the condition of the presence in person of the official, therefore, this addition on the contrary presupposes it.
The history of French legislation offers you a further striking proof. You will recall that in France in the first period of the Restoration, the parties were inexorably opposed to one another — in parliament, in the courts of justice; in Southern France they were literally at daggers drawn. The assize courts at that time were nothing but martial-law tribunals of the victorious party against the defeated party. The opposition press lashed out mercilessly at the verdicts of the juries. Article 222 was no weapon against this hateful polemic because this article could only be applied to insults against jurymen while they were in session and present in person. Hence in 1819 a new law was concocted which punishes any attack on the chose jugée, on a verdict which has been pronounced. The Code pénal knows nothing of this inviolability of a judicial verdict. Would it have been supplemented by a new law if Article 222 dealt with insults “with relation to” the performance of an office?
What then is the meaning of the phrase: “à 1'occasion de cet exercice"? It is intended to do no more than safeguard an official from attacks shortly before or after the performance of his office. If Article 222 spoke only of “insults and acts of violence” against an official during the actual duration of the performance of his office, I could throw a court bailiff down the stairs after the execution of his warrant and maintain that I had not insulted him until he had ceased. To confront me in the official capacity of a court bailiff. I could attack and thrash a justice of the peace while he was on the way to my home to carry out his judicial police function and could avoid the punishment envisaged in Article 228 by maintaining that I had maltreated him not during but prior to his performance of his office.
The phrase “ à 1'occasion de cet exercice “, on the occasion of the performance of an office, is intended therefore to ensure the safety of an official performing his official function. It concerns insults or acts of violence which take place, it is true, not directly during the performance of an official duty, but shortly before or after it, and — what is the essential thing — are vitally connected with the performance of the office, and therefore under all circumstances presuppose the presence in person of the maltreated official.
Is any further proof needed that Article 222 is not applicable to our newspaper article, even if by it we insulted Herr Zweiffel? When that article was written, Herr Zweiffel was absent; at that time he was living not in Cologne, but in Berlin. When that article was written, Herr Zweiffel was not functioning as Chief Public Prosecutor, but as an agreer [i.e. a deputy of the Prussian National Assembly, called upon to work out a Constitution by agreement with the Crown]. Hence he could not be insulted or abused as functioning Chief Public Prosecutor.
Apart from all that I have said so far, there is another way in which it can be shown that Article 222 is not applicable to the incriminated Neue Rheinische Zeitung article.
This follows from the distinction which the Code pénal draws between insult and calumny. You will find this distinction precisely defined in Article 375. After speaking of “calumny”, it states here:
“ Defamations or insulting expressions which do not contain the imputation of a definite fact, but certainly the imputation of a definite vice, will ... be punished by a fine of sixteen to five hundred francs.”
Article 376 states further:
“All other defamations or insulting expressions ... entail a simple police punishment.”
What, therefore, does calumny involve? Defamations which charge the one defamed with a definite fact. And what does insult involve? The imputation of a definite vice and insulting expressions in general terms. If I say: you have stolen a silver spoon, that is a calumny against you in the sense of the Code pénal. If, on the other hand, I say: you are a thief, you have thievish desires, then I am insulting you.
But the article in the Neue Rheinische Zeitung by no means reproaches Herr Zweiffel by saying: Herr Zweiffel is a traitor to the people, Herr Zweiffel has made infamous statements. On the contrary, the article states explicitly: “Herr Zweiffel, moreover, is said to have declared that he would within a week put an end to March 19, the clubs, freedom of the press and other outrages of the evil year 1848 at Cologne on the Rhine”.
Herr Zweiffel, therefore, is charged with having made a quite definite statement. Hence if one of the two Articles 222 and 367 were applicable in this case, it would not be Article 222, which deals with insults, but only Article 367, which is concerned with calumny.
Why has the public prosecution applied Article 222 to us instead of Article 367?
Because Article 222 is much more indefinite and makes it much easier to smuggle in a conviction once it is intended that there shall be a conviction. Violation of “délicatesse et honneur”, of delicacy and honour, admits of no exact measurement. What is honour, what is delicacy? What is the violation of them? It depends purely on the individual with whom I am dealing, on his degree of education, on his prejudices, on his imagination. There is no other measuring rod for it than the noli me tangere [not to be touched] of the pretentious vanity of an official who imagines himself to be incomparable.
But Article 367, too, which concerns calumny, is inapplicable to the article in the Neue Rheinische Zeitung.
Article 367 demands a “fait précis”, a definite fact, “un fait qui peut exister”, a fact which can be a real fact. But Herr Zweiffel is not charged with having abolished freedom of the press, with having closed down the clubs and destroyed the March gains in some place or other. It is a mere statement that is laid to his charge. Article 367, however, calls for the imputation of definite facts,
“which, if they were real facts, would expose the one to blame for them to criminal or police court proceedings or even merely to the contempt or hatred of the citizens”.
The mere statement about doing something or other does not expose me to either criminal or police court proceedings. It cannot even be said that it necessarily exposes me to the hatred or contempt of the citizens. A statement can, it is true, be the expression of a very base, hateful and contemptible frame of mind. Nevertheless, is it not possible that in my excitement I may utter a statement which threatens actions that I am incapable of carrying out? Only an act proves whether my statement is seriously meant.
Moreover, the Neue Rheinische Zeitung says: “Herr Zweiffel is said to have declared.” In order to calumniate someone I must not cast doubt on my own assertion as occurs here with the use of the “is said”; I must express myself categorically.
Finally, gentlemen of the jury, the “citoyens”, the citizens, whose hatred or contempt, according to Article 367, must be evoked by my imputation of a fact for it to be a calumny, these citoyens, these citizens no longer exist at all in political matters. There are only party adherents. What earns me hatred and contempt among the members of one party earns me love and honour among 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 I did not expose Herr Zweiffel to hatred and contempt, but freed him from the burden of hatred and contempt which he had been made to bear.
It is of very great interest to attach weight to this remark, not so much for the pending case as for all cases where an attempt may be made by the public prosecution to apply Article 367 to political polemics.
In general, gentlemen of the jury, if you want to apply to the press Article 367 on calumny as interpreted by the public prosecution, then you abolish freedom of the press by means of the Penal Code, whereas you have recognised this freedom by a Constitution and won it by a revolution. You sanction every arbitrary action of the officials, you permit every official villainous action, you punish only the denunciation of villainy. What then is the use of the hypocrisy of a free press? If existing laws enter into open contradiction to a newly achieved stage of social development, then it is up to you, gentlemen of the jury, to come between the dead behests of the law and the living demands of society. It is up to you then to anticipate legislation until it knows how to comply with social needs. This is the noblest attribute of the assize court. In the present case, gentlemen, this task is facilitated for you by the letter of the law itself. You have only to interpret it in the sense of our time, our political rights, and our social needs.
Article 367 concludes with the following words:
“The present provision is not applicable to facts which the law permits to be made public, nor to those which, owing to the nature of his office or his duty, the author of the imputation was bound to reveal or prevent.”
There is no doubt, gentlemen, that the legislator was not thinking of the free press when he spoke of the duty of denunciation. But neither did he think that this article would ever be applied to the free press. It is well known that under Napoleon there was no freedom of the press. Hence if you want to apply the law to a stage of political and social development for which it was not intended, then apply it fully, expound it in the spirit of our time, let the press have the benefit also of this concluding sentence of Article 367.
Article 367, taken in the narrow sense of the public prosecution, excludes proof of truth and only permits denunciation when it is supported by public documents or already available judicial verdicts. Why should the press post festum, after a judgment has been pronounced, still make its denunciation? It is by profession the public watchdog, the tireless denouncer of those in power, the omnipresent eye, the omnipresent mouthpiece of the people’s spirit that jealously guards its freedom. If you interpret Article 367 in this sense, and that is how you must interpret it if you do not want to take away the freedom of the press in the interests of governmental power, the Code offers you at the same time a means of dealing with encroachments of the press. According to Article 372, in a case of denunciation, the proceedings and decision regarding the offence of calumny should be suspended during the investigation of the facts. According to Article 373, a denunciation which proves to be a calumny is punishable.
Gentlemen, you need only to glance at the incriminated article to convince yourselves that the Neue Rheinische Zeitung far from having any intention of insult or calumny, merely fulfilled its duty of denunciation when it attacked the local prosecuting magistrates and police. The hearing of the witnesses has proved to you that in regard to the police we have reported only the real facts.
The point of the whole article, however, lies in the prophecy of the subsequently carried out counter-revolution; it is an attack on the Hansemann Ministry, which marked its entry by the peculiar assertion that the greater the police force, the freer the state. This Ministry imagined that the aristocracy had been defeated and that only one task remained for it to accomplish: to rob the people of their revolutionary achievements in the interests of a particular class, the bourgeoisie. Thus it paved the way for the feudal counter-revolution. What we denounced in the incriminated article was nothing more and nothing less than the obvious phenomenon, from the evidence of our most immediate surroundings, of systematic counter-revolutionary activity on the part of the Hansemann Ministry and the German governments in general.
It is impossible to regard the arrests in Cologne as an isolated occurrence. To be convinced of the contrary, one has only to cast a fleeting glance at the history of the period. Shortly before there was the prosecution of the press in Berlin, based on the provisions of the old Prussian Law. A few days later, on July 8, J. Wulff, President of the Düsseldorf People’s Club, was arrested, and house searches were carried out among many committee members of this club. Wulff was subsequently acquitted by the jury, as indeed at that time no political trial received the sanction of the jury. On the same date, July 8, in Munich, officers, officials and supernumerary officials were forbidden to take part in public meetings. On July 9, Falkenheim, President of the “Germania” Association in Breslau, was arrested. On July 15, in the Citizens’ Association  in Düsseldorf, Chief Public Prosecutor Schnaase delivered a speech containing a formal indictment of the People’s Club, the President of which had been arrested on July 8 by his order. There you have an example of the lofty impartiality of the prosecuting magistrates, an example of how the Chief Public Prosecutor acts at the same time as adherent of a party, and the party adherent as Chief Public Prosecutor. Undeterred by the legal proceedings taken against us because of our attack on Zweiffel, we then denounced Schnaase. He took care not to reply to us. On the same day that Chief Public Prosecutor Schnaase delivered his philippic against the Düsseldorf People’s Club, the Democratic District Association in Stuttgart was closed down by a royal ordinance. On July 19, the Democratic Students’ Association in Heidelberg was dissolved, as also on July 27 all democratic associations in Baden and shortly afterwards all those in Württemberg and Bavaria. And ought we to have remained silent about this obvious conspiracy of treason against the people on the part of all the German governments? The Prussian Government at that time did not dare to do what the governments of Baden, Württemberg and Bavaria did. It did not dare because the Prussian National Assembly had just begun to get an inkling of the counter-revolutionary conspiracy and to show fight against the Hansemann Ministry. But, gentlemen of the jury, I tell you frankly, with the utmost conviction: if the Prussian counter-revolution is not smashed soon by a Prussian people’s revolution, freedom of association and freedom of the press will be completely destroyed in Prussia as well. They have already been partially done away with by the states of siege. In Düsseldorf and in some Silesian regions the authorities have even dared to re-introduce censorship.
However, it is not merely the general state of affairs in Germany, but the general Prussian state of affairs that obliged us to view with extreme distrust every action of the Government and to denounce to the people the slightest symptoms of its system. The prosecuting magistrates here in Cologne have given us quite special grounds for exposing them before public opinion as a counter-revolutionary tool. In July alone, we had to denounce three illegal arrests. On the first two occasions Public Prosecutor Hecker remained silent, on the third occasion he tiled to justify himself, but after our reply he kept silent for the simple reason that there was nothing he could say.
And under these circumstances the public prosecution dares to assert that it is not a question of a denunciation, but of a petty malicious calumny? This view is based on a peculiar misunderstanding. As far as I am concerned, I assure you, gentlemen, that I prefer to follow the great events of the world, to analyse the course of history, than to occupy myself with local bosses, with the police and prosecuting magistrates. However great these gentlemen may imagine themselves in their own fancy, they are nothing, absolutely nothing, in the gigantic battles of the present time. I consider we are making a real sacrifice when we decide to break a lance with these opponents. But, firstly, it is the duty of the press to come forward on behalf of the oppressed in its immediate neighbourhood. And furthermore, gentlemen, the edifice of servitude has its most specific support in the subordinate political and social powers which directly confront the private life of an individual, of a living person. It is not sufficient to fight against general relationships and the highest authorities. The press must decide to enter the lists against a specific police officer, a specific Public Prosecutor, a specific Landrat. What caused the defeat of the March revolution? It reformed only the highest political summit, it left all the groundwork of this summit intact — the old bureaucracy, the old army, the old boards of prosecuting magistrates, the old judiciary which had been created, had developed and grown grey in the service of absolutism. The first duty of the press now is to undermine all the foundations of the existing political state of affairs. (Applause in the hall.)
Gentlemen of the jury, the previous speaker has been concerned mainly with the charge of insulting the Chief Public Prosecutor, Herr Zweiffel. Permit me now to draw your attention to the accusation of calumniating the police. It is primarily a matter of the legal provisions on which the indictment is based.
Article 367 of the Penal Code states:
“A person is guilty of the offence of calumny who in public places or in public meetings, or in an authentic and public document or in a printed or unprinted writing which has been exhibited, sold or distributed, accuses anyone of such facts which, if they were true, would expose the one to blame for them to criminal or police court proceedings or even merely to the contempt or hatred of the citizens.”
Article 370 adds:
“If through process of law the fact constituting the object of the accusation is proved to be true, the author of the accusation is free from all punishment.... Only proof which arises from a judicial verdict or some other authentic document is regarded as legal proof.
Gentlemen, the public prosecution has given you its interpretation of these provisions of the law and on that basis has asked you to pronounce us guilty. Your attention has already been drawn to the fact that these laws were promulgated at a time when the press was under censorship and political relationships were quite different from what they are now, and on these grounds my defence counsel has expressed the opinion that you should no longer consider these obsolete laws as binding upon you. The public prosecution has concurred with this view, at least as regards Article 370. It made a statement to the following effect: “For you, gentlemen of the jury, it will be mainly a question of whether the truth of the facts in question has been proved” — and I thank the prosecution for this admission.
But even if you should not be of the opinion that at least Article 370 in its limitation of the proof of truth is obsolete, you will certainly think that the articles cited must have a different interpretation from that which the public prosecution tries to give them. It is precisely the privilege of the jury to interpret the laws, independently of all traditional judicial practice, as their common sense and conscience dictate. We are indicted under Article 367 for having accused the police officers in question of actions which, if they were true, would expose them to the contempt and hatred of the citizens. If you interpret these words “hatred and contempt” in the sense that the prosecution would like to give them, then, so long as the provisions of Article 370 remain in force, all freedom of the press ceases to exist. In that case, how can the press fulfil its primary duty, the duty of protecting the citizens against excesses committed by officials? As soon as it denounces such an excess to public opinion, it will be brought before the assize court and — if things turn out as the prosecution would like — will be sentenced to imprisonment, a fine and loss of civil rights; unless it is able to adduce a judicial verdict, i.e. unless it publishes its denunciation only when it no longer serves any purpose!
How little appropriate to present-day conditions are the passages of the laws that have been cited, at least in the interpretation that the prosecution would like to give them, is proved by a comparison with Article 369. This states:
“With regard to calumnies which have been given currency by means of foreign newspapers, legal proceedings can be taken against those who sent the articles to the newspapers ... or who helped towards the import and circulation of these newspapers within the country.”
According to this article, gentlemen, it would be the duty of the public prosecution daily and hourly to institute proceedings against the royal Prussian postal officials. For is there even a single one of the three hundred and sixty-five days of the year on which the Prussian postal service by the conveyance and delivery of some foreign newspaper or other does not help towards “the import and circulation” of calumnies in the sense of the prosecution? Nevertheless, it does not occur to the public prosecutors to institute proceedings against the postal service.
Furthermore, bear in mind, gentlemen, that these articles of the law were written at a time when the censorship made it impossible to calumniate officials through the press. According to the legislator’s intention, therefore, those articles could only serve the purpose of protecting private persons, but not officials, from calumny, and in that way only have they any meaning. But owing to the fact that since the winning of freedom of the press the actions of officials also can be placed before the forum of public opinion, the point of view is essentially altered. And it is precisely here, where there are such contradictions between old legislation and new political and social conditions, it is precisely here that the jury has to intervene and by a new interpretation adapt the old law to the new conditions.
But, as already stated: the prosecution itself has recognised that, despite Article 370, for you, gentlemen, it is mainly a question of whether the truth has been proved. The prosecution has therefore attempted to invalidate the proof of truth as we placed it before you by the evidence of witnesses. Let us therefore look at the newspaper article in question to test whether the accusations have in fact been proved and whether, at the same time, they really constitute a calumny. At the beginning of the article, it is stated:
“Six to seven policemen entered Anneke’s residence between 6 and 7 in the morning, immediately maltreated the maid in the hall” etc.
Gentlemen, you have heard Anneke’s evidence on this point. You will recall that I wanted to question the witness Anneke again about the maltreatment of the servant girl and that the presiding judge declared this interrogation superfluous since the matter had been sufficiently established. I ask you now: have we calumniated the police in this matter?
Further: “Once they found themselves in the anteroom, the urging turned into assault during which one of the policemen smashed a glass door. Anneke was pushed down the stairs.” Gentlemen, you heard the evidence of the witness Anneke; you will recall that the witness Esser told how the policemen came out of the house with Anneke “at full speed” and bundled him into the van. I ask you again, gentlemen, have we committed any calumny here?
Finally, there is a passage in the article the correctness of which has not been proved with literal exactitude. It is as follows: “One of these four pillars of justice was already at this early hour somewhat unsteady, being filled with ‘spirit’, the true fluid of life: firewater.”
I admit, gentlemen, that all that has been established here by what Anneke expressly stated is as follows: “Judging by their behaviour, the policemen could very well have been drunk”, that it has only been established that the policemen behaved as if they were drunk. But, gentlemen, compare what we said two days later in reply to the rejoinder of Public Prosecutor Hecker. “The insult could only refer to one of the policemen of whom it was said that he was unsteady at an early hour for more or less spiritual or spirituous reasons. If the investigation, however, as we do not doubt for one moment, should prove the correctness of the evidence, namely the brutalities committed by the agents of the public authority, then we believe that we shall have only acted in the interests of the gentlemen accused by us by carefully emphasising, with the complete impartiality becoming the press, the only extenuating circumstance. And this affable statement of the only extenuating circumstance is transformed into an insult by the Public Prosecutor.”
You see from this, gentlemen, that we ourselves called for an investigation of the facts in question. It is not our fault that the investigation did not take place. Moreover, as far as the reproach of drunkenness is concerned, I ask you of what importance can it be for a royal Prussian policeman if it is said that he has drunk a glass too much? As to whether that can be regarded as a calumny, I appeal to public opinion throughout the Rhine Province.
And how can the prosecution speak of calumny when the alleged victims of calumny are not named, not even precisely indicated? There is the mention of “six to seven policemen”. Who are they? Where are they? Have you heard, gentlemen, of any particular policeman who has been exposed to “the hatred and contempt of the citizens” as a result of this article? The law expressly demands that the calumniated individual must be precisely indicated. In the passage of the article in question no particular policeman but at most the royal Prussian police as a whole can find that it has been defamed. It can feel insulted by newspapers making public the fact that illegal and brutal acts are committed by members of this corps with impunity. But, gentlemen, it is no crime to accuse the royal Prussian police in general of brutal behaviour. I challenge the public prosecution to show me the passage in the law which makes it punishable to insult, defame or calumniate the royal Prussian corps of policemen, if indeed there can be any talk of calumny here.
In general, the public prosecution has regarded the article in question as merely proof of an unbridled passion for calumniation. Gentlemen, the article has been read to you. Did you find in it that we considered in isolation the more or less unimportant illegalities which occurred at the time in Cologne, that we exploited them and exaggerated them in order to satisfy our alleged rancour against the lower officials? Did we not, on the contrary, put these facts in their Place as a link in the great chain of attempts on the part of reaction which were taking place at the time throughout Germany? Did we confine ourselves to the police and the prosecuting magistrates in Cologne, or did we go into the matter more thoroughly and trace its causes a s far back as the secret Ministry of State in Berlin? But, of course, it is less dangerous to attack the great secret Ministry of State in Berlin than the little Public Prosecutor’s office in Cologne — and as a proof of this we stand here before you today.
Look at the end of the article. It states: “Those are the actions of the Government of Action, the Government of the Left Centre, the Government of transition to an old aristocratic, old bureaucratic and old Prussian Government. As soon as Herr Hansemann has fulfilled his transitory function, he will be dismissed.”
You will remember, gentlemen, what happened in August of last year: how Hansemann was “dismissed” as superfluous, of course under the more decent form of voluntary resignation, and how the Pfuel-Eichmann-Kisker-Ladenberg Ministry, literally an “old aristocratic, old bureaucratic, old Prussian Ministry”, immediately succeeded him.
The article says further: “The Berlin Left, however, must realise that the old regime is willing to let it keep its small parliamentary victories and large constitutional designs as long as the old regime in the meantime is able to seize all the really important positions. It can confidently recognise the revolution of March 19 inside the Chamber provided the revolution can be disarmed outside of it.”
I certainly need waste no words in proving how correct this view of the situation was. You yourselves know that in proportion as the power of the Left in the Chamber increased, the power of the people’s party outside the Chamber was destroyed. Do I need to enumerate for you the unpunished brutal actions of the Prussian soldiery in innumerable cities, the increasing imposition of states of siege, the many cases of disarming the civic militia, and finally Wrangel’s heroic expedition against Berlin, in order to show how the revolution was actually disarmed and how in actual fact the old power seized all decisive positions.
And then at the end is the remarkable prophecy: “Some fine day the Left may find that its parliamentary victory coincides with its real defeat.”
How literally this came to pass! The very day on which the Left at last achieved a majority in the Chamber was the day of their real defeat. It was precisely the parliamentary victories of the Left that led to the coup d'état of November 9, to the removal and adjournment of the National Assembly, and finally to its dissolution and the imposing of a Constitution. The parliamentary victory of the Left directly coincided with its complete defeat outside parliament.
This political forecast which has so literally come true, gentlemen, is therefore the result, the summing up, the conclusion that we drew from the acts of violence which had taken place throughout Germany, including Cologne. And yet there has been talk of a blind passion for calumniation. In actual fact, does it not look as if we have been brought before you today, gentlemen, in order to answer for the crime that we correctly reported correct facts and drew the correct conclusions from them?
To sum up: You, gentlemen of the jury, have at the present moment to decide about freedom of the press in the Rhine Province. If the press is to be forbidden to report what occurs before its very eyes; if in every complicated case it has to wait until a judicial verdict has been passed on it; if it must first ask every official, from the Minister down to the policeman, whether he would feel his honour or delicacy impugned by the facts of the case being mentioned, irrespective of whether these facts are true or not; if the press is faced with the alternative of either falsifying events or remaining completely silent — then, gentlemen, freedom of the press is at an end, and if that is what you want, then pronounce us “guilty"!