Title-page of the pamphlet Two Political Trials containing Marx’s and Engels’ speeches at the Cologne trials
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 Hebert,
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. (1) 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(2) has already proved to you that without the Prussian law of July 5, 1819,[286] 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.(3) In the motives given for Article 222 (Exposé par M. le conseiller d'état Berlier, séance de février 1810a) it is stated:
"Il ne sera donc ici question que des seuls outrages qui compromettent la paix publique c.àd. 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 translation:
"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 insu ting 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
leur délicatesse, celui qui les aura ainsi outragés sera puni d'un emprisonnement d'un mois à deux ans." ["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.
person when he was insulted. In no other case does a real disturbance of public order take place.
The same presumption is to be found in the whole section concerning "outrages et violences envers les dépositaires de l'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[287] 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 l'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 l'exercice de leurs fonctions", Article 222 adds "à l'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 l'exercice de ses fonctions ou à l'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 l'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: "o l'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 l'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 Zweiffei? When that article was written, Herr Zweiffei was absent; at that time he was living not in Cologne, but in Berlin. When that article was written, Herr Zweiffei was not functioning as Chief Public Prosecutor, but as an agréer.(4) 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:
"Quant aux injures ou aux expressions outrageantes qui ne renfermeraient l'imputation d'aucun fait précis" (in Article 367 on calumny 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".—"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 Zweiffei by saying: Herr Zweiffei is a traitor to the people, Herr Zweiffei has made infamous statements. On the contrary, the article states explicitly: "Herr Zweiffei, 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."(5)
Herr Zweiffei, 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(6) 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 Zweiffei 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 Zweiffei 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 Z weif fei of being a kind of Robespierre.* In its eyes, in the eyes of its party, our article did not expose Herr Zweiffei 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:
"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 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 forbid-den 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 [288] 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.(7) 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 tried to justify himself, but after our reply he kept silent for the simple reason that there was nothing he could say.[289]
Endnotes
[286] The reference is to the Prussian law on punishment for written insults which was promulgated on July 5, 1819, for the Rhine and other provinces where the Code pénal remained in force after 1815 ("Verordnung wegen Bestrafung schriftlicher Beleidigungen in den Provinzen, wo das französische Strafgesetzbuch vorläufig noch gesetzliche Kraft hat").
[287] See Note 158.
[288] See Note 245.
[289] The reference is to three articles in the Neue Rheinische Zeitung denouncing the actions of the prosecuting magistrates against the Cologne democrats, written in connection with the arrest of Julius Wulff (No. 40, July 10, 1848), Falkenheim