Drigalski — Legislator, Citizen and Communist
|Written||24 November 1848|
First published: in Neue Rheinische Zeitung No. 153, November 26, 1848.
Cologne, November 24. Düsseldorf has been declared in a state of siege; the Brandenburg-Wrangel Ministry has found worthy representatives in Herren Spiegel-Drigalski. The first of these gentlemen is a simple Regierungspräsident, but the second combines various qualities. He is not only a lieutenant-general and commander of a division — as such he figures in the army lists and as “supreme” legislator of the city and entire municipality of Düsseldorf — he is also an author and says of himself that he is at the same time a “citizen” and — a communist, and all that with God for King and Fatherland. [words from Frederick William III’s 1813 decree, on organising the army reserve] These two gentlemen, the simple as well as the multicoloured one, have discovered that the state of law in Düsseldorf can only be maintained by extraordinary measures; hence they have found themselves “compelled” to declare the entire municipality of Düsseldorf in a state of siege “for the protection of law and order”.
We have known for a long time that the Brandenburg Government can only preserve itself by extraordinary means; we know that its existence would have come to an end long ago if the country were not in a state of siege. The state of siege is the state of law of the Brandenburg Government.
“A state of siege, gentlemen, means a state of war,” declared Prime Minister von Pfuel at the agreement sitting [sitting of the Prussian National Assembly held to draw up a constitution by agreement with the Crown] of September 29. At that time the matter concerned the city and fortress of Cologne, at that time it was a question of an uprising, the decisions of the courts could not be carried out, the lawful force — the civic militia — could not ensure tranquillity, barricades had been erected; force could only be opposed by force. Such was the assertion at least of those who defended the state of siege, at least they still made an effort to save external appearances by relying on allegedly established facts. Now, however, the matter is regarded much more lightly; Düsseldorf is not in revolt, the activity of the courts has not been prevented for a single moment, the civic militia has always been ready to execute lawful orders; indeed one cannot appeal even to the obsolete instructions of the year 1809, on which the main stress was laid at that time, for Düsseldorf is not a fortress. But Düsseldorf with rare energy has declared itself in favour of the tax refusal; that sufficed for the two supporters of Brandenburg to establish the state of law, that is to say, to declare the city outside the law.
We shall not go into the accusations which are intended to serve as a pretext for proclaiming the state of siege; we recommend them to the attention of the judicial authorities as being false accusations, for nowhere has legal proof been adduced to support them; they are calumnies which come under Articles 367 et seq. of the Penal Code. We desire here merely to set out the illegalities of which Herren Spiegel and Drigalski have made themselves guilty for the purpose of protecting law and order.
After these two gentlemen had proclaimed the state of siege and “thereby supreme power passed to the military authorities”, “communist and citizen” Drigalski issued the following decrees:
1. The legally existing authorities remain in office and will be given the most energetic support in the measures undertaken by them.
That means that the legally existing authorities, insofar as they have a legal basis of existence, are dismissed, but they remain in office in order to support Herr von Drigalski.
“I expect,” says Drigalski to his “co-citizens”, “that all well-intentioned inhabitants will facilitate the application of the laws for me, and that the authorities will support me in this with complete determination.”
Herr Drigalski not merely makes the laws, he also applies them; the legally existing authorities are his henchmen. And the “independent” judges of the Düsseldorf district court and the Chief Public Prosecutor and his colleagues calmly put up with all that! They see no violation of the law in their being removed from office, they pay homage to the legislator Drigalski and rejoice at being allowed at this price to continue to draw their salaries. Fie! Are you not ashamed, gentlemen, under the rule of the sword, to issue orders for arrests and institute criminal proceedings? Or perhaps the arrest of Herr Lassalle, who, trusting unfortunately all too boldly in his good right and the protection of the judicial authorities, did not want to evade the state of siege, is only an act of private revenge on the part of Herr Drigalski? Perhaps proceedings against this man and his helpers based on Articles 114, 123 and 124 have already been instituted secretly and are in process?
The second law of Herr Drigalski states:
“All associations having political and social aims are abolished.”
What does Herr Drigalski care about the law of April 6, Paragraph 4! If, in accordance with that law, “all Prussians are entitled without previous police permission to unite in societies for purposes which do not contravene the existing laws”, that is obviously one of those “achievements” which must be annulled as quickly as possible, that is to say, are incompatible with Drigalski’s legislation.
Third and fourth laws. Herr von Drigalski controls street traffic and business hours of public houses. As if Düsseldorf had become Paris, he issues a law against attroupements. [gatherings] But he is not merely a big figure as policeman, he betrays also special talent as a nightwatchman: he imposes a curfew.
“In view of its impending reorganisation, the civic militia is disbanded and must surrender its arms as from today.”
This law is a complex of illegalities. We distinguish the following:
a) The civic militia is disbanded. According to the ordinary laws, specifically the Civic Militia Law of October 17, the militia can be disbanded only by a royal Cabinet Order. Has Herr von Drigalski perhaps a secret Cabinet Order in petto? Well then, why does he not publish it, as he published the statement of the Chief Postmaster, Maurenbrecher?  Of course, this statement was at once repudiated as a lie by the Düsseldorf militia. Herr von Drigalski has no Cabinet Order, he acts on his own assumption of plenipotentiary powers and assumes royal prerogatives, although he is a royal-minded “citizen and communist”.
b) The civic militia is not merely removed from its duties. Herr von Drigalski is not satisfied with merely seizing for himself the official power of the Regierungspräsident. As far as illegality is concerned, he would have already done quite enough by merely removing the militia from its duties. Paragraph 4 of the law of October 17 states:
“If the civic militia of a municipality or district refuses to obey the orders of the authorities or interferes in the activities of municipal, administrative or judicial authorities, then the administrative head of the governmental area may provisionally remove it from its duties, provided he gives the grounds for so doing.”
Hence removal from duties could be pronounced only by the Regierungspräsident, but not by a lieutenant-general or divisional commander, nor by a citizen, nor finally by a communist, even a “royal Prussian communist”.
But Herr Drigalski has his own good reasons for at once acting as royalty without regard for the regular instances. If he had dealt with the militia merely as a Regierungspräsident he could not have disarmed it. But
c) “the civic militia must surrender its arms as from today”. Mere removal from duties in no way justifies the taking away of arms. Otherwise officers who have been suspended would also have to give up their swords. But Herr Drigalski is right; if the militia had been allowed to keep its arms, it would probably not have allowed itself to be removed from duties by him; it would have fulfilled its function as Paragraph 1 of the law prescribes.
d) Herr von Drigalski orders the arms to be handed over to him. Since he feels himself called upon to act as if he were royalty, he is not concerned about the royal order on compliance with the law on the institution of the civic militia. Here Paragraph 3 states:
“The arms supplied by the state to the municipalities remain in the possession of the latter in any case until the time indicated above.”
The “city administration and Municipal Council” of Düsseldorf raise no objection to this order. Instead of protesting against this illegality and standing up for the rights of the municipality, they exhort the citizens to adopt a “calm, legal attitude” towards their new dictator.
“Anyone found engaging in open and armed resistance to the orders of the legal authorities, or who exposes the troops to danger or disadvantage by treacherous behaviour, shall be brought before a military tribunal.”
According to the law safeguarding personal freedom,  no one may be brought before any judge other than the one designated by the law. Special courts and extraordinary commissions are inadmissible. No punishment can be threatened or imposed other than in accordance with the law. According to the same law, this provision can never be suspended for any time or area, even in case of war or insurrection. For even then, according to Paragraph 8, only Paragraphs 1 and 6 can be suspended, but only by decision and under the responsibility of the Ministry of State. Yet Herr von Drigalski decrees that civilians are to be tried by a military tribunal. It can no longer be a matter for surprise that he orders arrests to be made and for this purpose violates the sanctity of the home. These provisions can at least still be suspended, although not by Herr von Drigalski. For the rest, it is a matter of indifference whether one believes the assertion of the Düsseldorfer Zeitung that Lassalle’s arrest was carried out in a wholly irregular manner or the assurance given by the Kölnische Zeitung that the arrest occurred by order of the examining magistrate. The Kölnische Zeitung, of course, takes the side of the military commandant in order to put the blame on the examining magistrate. In any case, the arrest is illegal; for in an illegal situation no legal actions can be undertaken. In a state of war, civil justice ceases to be operative. If the examining magistrate continues to function, he assumes the position of a member of a military tribunal; the articles of war become his code of law. The Düsseldorf Public Prosecutor’s office is well aware of its new situation; for if it still considered its competence to be that laid down in the Rhenish Penal Code it would have intervened long ago, if only on the basis of Paragraph 9 of the Habeas Corpus Act, which states:
“No preliminary permission of the authorities is necessary for taking legal action against public officials, civil or military, for violating the above-mentioned provisions by exceeding their official powers.”
In order to become fully acquainted with the power of our Rhenish institutions, the question still remains whether the Prosecutor-General, Herr Nicolovius, under whose supervision are all officials of the judicial police, even the examining magistrates, will approve the attitude of the Düsseldorf Public Prosecutor’s office. To a deputation which visited him yesterday in order to demand that he should exercise his official powers in relation to the Düsseldorf events, Herr Nicolovius is said to have replied that he did not have at his disposal any legal provisions on the basis of which he could intervene. We say only that Herr Nicolovius is said to have made that reply, although this utterance was communicated to us in a most trustworthy way. Nevertheless we cannot believe it, for otherwise we would have to assume that Herr Nicolovius has completely forgotten the Code pénal together with all the laws that have been promulgated since March of this year.
- The state of siege in Düsseldorf was declared on November 22, 1848, the order of Spiegel and Drigalski to that effect being published in the Kölnische Zeitung No. 314 (second edition), November 23, 1848
- Pfuel’s speech in the Prussian National Assembly on September 29, 1848, was connected with the declaration of a state of siege in Cologne on September 26. The Cologne authorities had been scared by the growing revolutionary-democratic movement and the campaign of protest against the Prussian-Danish armistice concluded in Malmö and ratified by the Frankfurt Assembly. Pfuel tried to justify this measure, but general indignation against the actions of the Cologne authorities and their condemnation by the Left deputies in the Assembly compelled the Government to issue an order lifting the state of siege in Cologne as of November 2, 1848
- The Penal Code (Code pénal), adopted in France in 1810 and introduced into the regions of West and South-West Germany conquered by the French, remained in effect in the Rhine Province even after its incorporation into Prussia in 1815. The Prussian Government attempted to reduce the sphere of its application and by a whole series of laws and orders to reintroduce in this province Prussian Law designed to guarantee feudal privileges. These measures, which met with great opposition in the Rhine Province, were annulled after the March revolution by the decree of April 15, 1848
- The law of April 6 — “Decision on Some Principles of the Future Prussian. Constitution” (“Verordnung über einige Grundlagen der künftigen Preussischen Verlassung”) — was adopted by the Second United Diet an assembly of representatives from the eight provincial diets of Prussia. Like the provincial diets, the United Diet was based on the estate principle. It sanctioned new taxes and loans, discussed new Bills and had the right to petition the King. The First United Diet opened on April 11, 1847, but was dissolved in June because it refused to grant a new loan. The Second United Diet met on April 2, 1848, after the revolution of March 18-19 in Prussia. It adopted decrees, decisions and a law on the elections to the Prussian National Assembly, and sanctioned the loan, following which its session was closed
- The Civic Militia Law was adopted on the basis of the Bill introduced in mid-July of 1848 by the Auerswald-Hansemann Ministry. It reflected the desire of the Prussian liberals to prevent the masses from joining the civic militia formed after the March revolution in Prussia, and to convert it into a purely bourgeois military organisation. (For the criticism of it by the Neue Rheinische Zeitung see the article “The Civic Militia Bill”) The law in effect abolished the militia as an autonomous armed organisation and subordinated it to the King and the Minister of the Interior. This dependence of the civic militia on the Government was utilised by the counter-revolutionary forces during the coup d'état in Prussia
- The reference is to a statement made by the Düsseldorf Chief Postmaster (Oberpostdirector) Maurenbrecher on November 21, 1848, and published in the Kölnische Zeitung No. 314 (second edition) on November 23. This statement accused a group of officers of the Düsseldorf civic militia of “sacrilegiously” violating the secrecy of the postal service and correspondence because they tried to find out at the post-office whether postal orders for large sums of money had arrived from the Regierungspräsident
- The reference is to the law safeguarding personal freedom passed by the Prussian National Assembly on August 28, 1848, and signed by the King on September 24.
It was called the Habeas Corpus Act by analogy with the English Writ of Habeas Corpus. The law was published in the Preussischer Staats-Anzeiger No. 148, September 29, 1848.
A Writ of Habeas Corpus is the name given in English judicial procedure to a document enjoining the relevant authorities to present an arrested person before a court on the demand of persons interested to check the legitimacy of the arrest. Having considered the reasons for the arrest, the court either frees the person arrested, sends him back to prison or releases him on bail or guarantee. The procedure, laid down by an Act of Parliament of 1679, does not apply to persons accused of high treason and can be suspended by decision of Parliament.
Below Marx quotes Paragraph 9 of this law