Karl Marx Before the Cologne Jury

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Note from Marx-Engels Collected Works

Note from vol. 8

The trial of the Rhenish District Committee of Democrats took place on February 8, 1849. Karl Marx, Karl Schapper and the lawyer Schneider II were summoned to the Cologne jury court, accused of incitement to revolt in connection with the Committee’s appeal of November 18, 1848, on the refusal to pay taxes. They were acquitted.

One of the responses to the trial in the revolutionary press was Marx’s article published in the Neue Rheinische Zeitung on February 10.

Marx’s speech was included in the general account of the trial published in the Neue Rheinische Zeitung Nos. 226 and 231-33 at the end of February 1848; the account also contained the incriminated appeal of November 18, the report of the speech of Public Prosecutor Bölling, and speeches of the other defendants.

In the spring of 1849 this account was published as a separate pamphlet, which also included the account of the trial of February 7 against the Neue Rheinische Zeitung. It was not reprinted in Marx’s lifetime. In 1885 it was published as a pamphlet, Karl Marx von den Kölner Geschwornen Prozess gegen den Ausschuss der Rheinischen Demokraten wegen Aufrufs zum bewaffneten Widerstand, Hottingen, Zürich. with a preface by Engels, in the “Social-Democratic Library” series, and reprinted with the other pamphlets of the series in 1887. It was also put out in 1895 in Berlin.

Marx’s speech in abridged form or extracts from it were published in Social-Democratic periodicals of the time (Der Socialdemokrat Nos. 24 and 26, June 1 1 and 23, 1885; the Polish journal Walka klas No. 517, I-III, 1886) and as a supplement to the Russian edition of The Poverty of Philosophy issued in Geneva.

An English translation of Marx’s speech was first published in the collection: Karl Marx and Friedrich Engels, Articles from the “Neue Rheinische Zeitung”. 1848-49, Progress Publishers, Moscow, 1972.

Published also in a separate pamphlet entitled Zwei politische Prozesse, Koln, 1849, Verlag der Expedition der Neuen Rheinischen Zeitung.

Note from vol. 26

The pamphlet, Karl Marx vor den Kölner Geschwornen. Prozeß gegen den Ausschuß der rheinischen Demokraten wegen Aufrufs zum bewaffneten Widerstand, appeared early in October 1885 as the second instalment of the “Social-Democratic Library” published in German, first in Zurich, and later in London (1885-90). The pamphlet reprinted the newspaper reports on the trial from the Neue Rheinische Zeitung, Nos. 226 and 231-33 of February 19, 25, 27 and 28, 1849.

Engels' preface

For a better understanding of the proceedings presented here it will suffice to summarise the chief events leading up to them. The cowardice of the German bourgeoisie had given the feudal, bureaucratic, absolutist reaction a breathing space in which to recover from the shattering blows of March 1848 to such an extent that a second decisive struggle became imminent as early as the end of October. The fall of Vienna, after a long, heroic resistance, emboldened the Prussian camarilla to attempt a coup d’Etat. The tame Berlin “National Assembly” was still too wild for it. It would have to be dissolved and an end put to the revolution.

On November 8, 1848 the Brandenburg-Manteuffel Ministry was formed. On the 9th it transferred the seat of the Assembly from Berlin to Brandenburg so that it might “freely” deliberate under the protection of bayonets, undisturbed by the revolutionary influences of Berlin. The Assembly refused to leave: the civic militia refused to take action against the Assembly. The Ministry dissolved the civic militia, disarmed it without encountering any resistance and declared Berlin in a state of siege. The Assembly replied on November 13, indicting the Ministry for high treason. The Ministry chased the Assembly from one meeting place in Berlin to the next. On the 15th the Assembly resolved that the Brandenburg Ministry had no right to dispose of government money and to levy taxes as long as it, the Assembly, could not freely continue meeting in Berlin.

This resolution to block taxation could only become effective if the people resisted the collecting of taxes by force of arms. And at that time there was no shortage of arms in the hands of the civic militia. Nevertheless, hardly anyone ventured beyond passive resistance. Only in few places were any preparations made to meet force with force. The boldest call to do just that came from the Committee of the democratic associations of the Rhine Province which had its seat in Cologne and consisted of Marx, Schapper and Schneider.

The Committee did not delude itself by imagining that the victorious coup d’état in Berlin could be successfully reversed by any campaign on the Rhine. The Rhine Province had five fortresses; about a third of the entire Prussian army including a large number of regiments from the Eastern provinces was stationed in it, in Westphalia, Mainz, Frankfurt and Luxemburg alone. In Cologne and other cities the civic militia had already been disbanded and disarmed. But the intention was not to achieve an immediate victory in Cologne where a state of siege had only been lifted a few weeks before. The point was to set the other provinces an example and thus to rescue the revolutionary honour of the Rhine Province. And that had been done.

The Prussian bourgeoisie had surrendered one stronghold after another to the government for fear of what were at that time the still half-dreaming convulsions of the proletariat. It already long regretted its earlier hankerings for power and ever since March it had been so crazed with fear that it did not know which way to turn, confronted as it was by the double threat of the forces of the old society grouped around the absolute power, on the one side, and the fledgling proletariat with its dawning consciousness of its class position, on the other. The Prussian bourgeoisie did what it always did in moments of decision—it backed down. And the workers were not so stupid as to fight for the bourgeoisie without the aid of the bourgeoisie. Moreover, in their eyes—particularly on the Rhine—Prussian issues were purely local issues; if they were ever to go into the firing line on behalf of the bourgeoisie, then it would have to be in and for Germany as a whole. It was a significant portent that even at that time, the idea of “Prussian leadership” had absolutely no attraction for the workers.

In short, the government was victorious. One month later, on December 5, it was in a position to dissolve once and for all the Berlin Assembly, which had managed to prolong a rather shabby existence until then and to impose a new constitution, which however only became effective once it had been reduced to a mere constitutional farce.

On November 20, the day after the Committee launched its appeal, the three signatories were summoned to appear before the examining magistrate and proceedings for rebellion were instituted against them. At the time there was no mention of arrests, even in Cologne. On February 7, the Neue Rheinische Zeitung had to submit to its first press trial; Marx, myself and Korff, the responsible publisher, appeared before a jury and were acquitted. On the following day the case against the Committee was heard. The people had already reached its own verdict, having two weeks previously elected one of the defendants, Schneider, deputy for Cologne.

Marx’s speech for the defence was obviously the highpoint of the proceedings. It is especially interesting in two respects: Firstly, because it needed a communist to make clear to the bourgeois jury that the actions he had taken and for the sake of which he was now standing accused before them, were of a kind which in reality it was the duty and obligation of their class, of the bourgeoisie, not simply to perform, but to carry through to their uttermost implications. This fact alone suffices to throw light on the attitude of the German, and above all the Prussian, bourgeoisie during the revolutionary period. At stake was the question: who was to rule—the forces of society and the state that rallied around the absolute monarchy: the big feudal landowners, the army, the bureaucracy, the clergy, or the bourgeoisie? The only interest of the still emerging proletariat in these struggles lay in the extent to which the victory of the bourgeoisie would provide it with enough light and air to further its own development, with elbow-room on the battlefield where one day it will triumph over all other classes. But the bourgeoisie, and the petty bourgeoisie along with it, refused to make a move when the hostile government attacked the seat of their power, dispersed their parliament, disarmed their civic militia and even placed them under a state of siege. It was then that the communists stepped into the breach and called on them to do their damned duty. Both of them, the bourgeoisie and the proletariat, constituted the new society and stood together in one camp against the old feudal society. Of course, the appeal went unheeded and by an irony of history this self-same bourgeoisie was now to sit in judgment over the revolutionary proletarian Communists, on the one hand, and over the counter-revolutionary government, on the other. Secondly, however—and this gives the speech its specific significance, even for our time—in the face of the government’s hypocritical legality it preserves a revolutionary standpoint from which many could take an example even today.—Did we call on the people to take up arms against the government? Indeed we did, and it was our duty to do so. Did we break the law and depart from the foundations of law? Very well, but the laws we broke had already been torn up by the government and trampled upon before the eyes of the people. As for legal foundations, they no longer exist. As vanquished enemies we can be eliminated, but no one has the right to condemn us.

The official parties, from the Kreuz-Zeitung to the Frankfurter, reproach the Social Democratic Workers’ Party with being a revolutionary party, with refusing to recognise the legal foundations established in 1866 and 1871, and thereby—at least this is the refrain of everyone right down to the National Liberals— with putting itself beyond the limits of common law. I shall ignore the monstrous insinuation here that anyone can place himself beyond the bounds of common law simply by expressing an opinion. That is the police state pure and simple, which one should better practise on the quiet, while preaching the constitutional state out loud. But what are then the legal foundations of 1866, if not revolutionary? The Federal Constitution is violated and war declared on the confederates. Not at all, says Bismarck, it was the others who violated the treaty. The answer to which is that a revolutionary party would have to be simple-minded in the extreme if it proved unable to find at least as convincing grounds for any uprising as those put forward by Bismarck for his in 1866.— So a civil war is provoked for that was what the war of 1866 amounted to. But every civil war is a revolutionary war. The war is conducted by revolutionary means. Alliances are concluded with foreign powers against Germans. Italian troops and ships are brought into the battle, Bonaparte is enticed with prospects of acquiring German territory on the Rhine. A Hungarian legion is formed to fight against its hereditary sovereign for revolutionary goals. Reliance is placed on Klapka in Hungary, and Garibaldi in Italy. Victory is won and—three crowns existing by divine right are swallowed up: Hanover, the Electorate of Hesse and Nassau — each of which was just as legitimate, just as “hereditary” and existed just as much “by divine right” as did the crown of Prussia. Finally, a constitution is imposed on the remaining confederates, which in Saxony, for example, was accepted just as freely as Prussia had accepted the Peace of Tilsit at one time.

Do I complain about all this? Not at all. There is no point in complaining about historical events. On the contrary, the problem is to comprehend their causes and hence also their effects, which are by no means exhausted. But we do have the right to demand that people who have done all these things should refrain from accusing others of being revolutionaries. The German Empire was created by revolution—admittedly, a revolution of a particular kind, but no less a revolution for all that. What is sauce for the goose is sauce for the gander. A revolution is a revolution, regardless of whether it was made by the Prussian crown or a tinker. If the government of the day makes use of the existing laws to rid itself of its opponents, then it acts like every government. But if it imagines that it can strike them an even more violent blow by thundering the expletive “Revolutionary!” at them—then at best only the philistines will take fright. “Revolutionary yourself!” will be the cry that echoes back from every corner of Europe.

But the preposterous demand that anyone should cast aside his revolutionary nature, a thing which arises inevitably from historical circumstances, becomes utterly comic when it is applied to a party which is first placed outside the confines of common law, i.e. beyond the law itself, and which is then confronted with the demand that it should recognise the foundations of that very law which has been specifically abolished for it.

The fact that people have to waste time even discussing such a matter provides yet further evidence of the politically backward state of Germany. In the rest of the world everyone knows that all existing political systems are the product of nothing but revolutions. France, Spain, Switzerland and Italy—there are as many governments existing by right of revolution as there are countries. In England even the Whig Macaulay acknowledges that the present legal order is based on one revolution after another (REVOLUTIONS HEAPED UPON REVOLUTIONS). For the last hundred years America has celebrated its revolution on every 4th of July. In the majority of these countries there are parties which will only continue to abide by the existing legal order as long as the latter can force them to do so. But if anyone in France, for example, were to accuse the Royalists or Bonapartists of being revolutionary, he would simply be laughed to scorn.

Only in Germany, where politically nothing is ever dealt with thoroughly (for otherwise it would not be torn into two parts, Austria and Germany so-called) and where for that very reason the memories of past, but only half digested ages continue to vegetate eternally in people’s minds (which is why the Germans call themselves a nation of thinkers)—only in Germany can anyone possibly require a party to be bound by the existing so-called legal order not only in fact but also morally. A party must promise in advance that, come what may, it will not overthrow the legal order it is fighting against, even if it is able to do so. In other words, it must commit itself to upholding the existing political order for all eternity. This and this alone is what is meant when people demand that German Social Democracy should cease to be “revolutionary”.

But the German philistine—and his opinion is still German public opinion—is a special sort of person. He has never made a revolution. The revolution of 1848 was made for him by the workers—to his horror. But all the more has he had to suffer revolutions. For the people who have made revolutions in the last three hundred years in Germany—and they showed it—were the princes. Their very rank, and ultimately their sovereignty, was the fruit of rebellions against the Emperor. Prussia set an example to them all. Prussia was only able to become a kingdom after the “Great Elector” had conducted a successful uprising against his feudal overlord, the crown of Poland, thus securing the independence of the Duchy of Prussia from Poland. Ever since Frederick II, Prussia’s rebellion against the German Empire had been made into a system; Frederick “spat” upon the Imperial constitution in quite a different manner than our worthy Bracke upon the Anti-Socialist Law. Then came the French Revolution and both the princes and the philistines suffered it with tears and sighs. In 1803, by decision of the Imperial Deputation, the German Empire was distributed among the German princes by the French and the Russians in a highly revolutionary manner, because the princes could not agree on how to divide it up themselves. Then came Napoleon and permitted his very special protégés, the rulers of Baden, Bavaria and Württemberg to take possession of all counties, baronies and cities which had been subject only to the Emperor, and which lay in or between their territories. Immediately after this the same three traitors carried out the last successful rebellion against their Emperor, and, with Napoleon’s assistance, they established their own sovereignty and thereby finally tore apart the old German Empire. After that, Napoleon, the de facto German Emperor, redistributed Germany about every three years among his loyal retainers, the German princes and others. Finally, there came the glorious liberation from foreign domination and as a reward Germany was treated as a universal source of compensation for princes down on their luck and was divided up and sold off by the Congress of Vienna, i.e. by Russia, France and England. And the German philistines, scattered like so many sheep in around 2,000 separate scraps of territory, were shared out among the various 36 sovereigns, for the majority of whom they would even today “most humbly lay down their lives”, as if for their hereditary sovereigns. And none of this is supposed to have been revolutionary—how right Schnapphahnski-Lichnowski was when he exclaimed in the Frankfurt Parliament, “With regard to historical right there does not exist no date!”179 The fact is that it never had one!

Thus what the German philistine shamefacedly demands from the German Social-Democratic Workers’ Party can only have one meaning: that this party should become as philistine as he. It should on no account take part in revolutions, but should suffer them instead. And if the government which has come to power by counter-revolution and revolution puts the same preposterous demand, this only means that revolution is good as long as it is made by Bismarck for Bismarck & Co., but reprehensible when it is made against Bismarck & Co.

London, July 1, 1885

Frederick Engels

The trial

[Speech of Karl Marx]

Gentlemen of the jury, if this action had been brought before December 5, I could have understood the charge made by the public prosecutor. Now, after the 5th of December, I do not understand how he dares to invoke against us laws which the Crown itself has trampled in the dirt.

On what does the public prosecutor base his criticism of the National Assembly and the resolution not to pay taxes? On the laws of April 6 and 8, 1848. And what did the government do on December 5, when it arbitrarily imposed a constitution and a new electoral law on the country? It tore up the laws of April 6 and 8, 1848. These laws are no longer valid for the supporters of the government, so why should they still be valid for the opponents of the government? On December 5 the government took its stand on a revolutionary basis, namely, on a counter- revolutionary basis. It is now confronted only by revolutionaries or accomplices. Even the mass of citizens who act on the basis of the existing law, who uphold the existing law in face of infringements of that law, have been turned into rebels by this government. Before December 5 opinion concerning the removal of the National Assembly, its dispersal and the introduction of a state of siege in Berlin could have been divided. After December 5 ' it is a well-established fact that these measures were intended to usher in the counterrevolution and that therefore every means could be used against a group that itself no longer recognized the conditions under which it governed and consequently could no longer be recognized as a government by the country. Gentlemen, the Crown could have preserved at least the semblance of legality, but it has not deigned to do so. It could have dispersed the National Assembly and then let the cabinet come forward and tell the country: "We have dared to carry out a coup d'etat — circumstances have forced us to do it. We have disregarded the convention of the law, but there are moments of crisis when the very existence of the state is at stake. At such moments there is only one inviolable law-the existence of the state. There was no valid constitution when we dispersed the Assembly. Therefore no constitution could be infringed. But there existed two organic laws — those of April 6 and 8, 1848. Actually there is only one organic law, the electoral law. We ask the country to carry through elections in accordance with this law. We, the responsible government, will then appear before the Assembly that has emerged from these primary elections. This Assembly, we trust, will recognize that the coup d'etat was an act of deliverance necessitated by circumstances. It will subsequently sanction the coup d'etat. It will declare that we infringed a legal form in order to save the country. Let it pass judgment on us.

If the cabinet had done this, it would have had a semblance of right to arraign us. The Crown would have kept a semblance of legality, but it could not or would not do it.

The March revolution, as seen by the Crown, was a harsh fact. One harsh fact can be erased only by another harsh fact. By rejecting new elections on the basis of the law of April 1848, the cabinet renounced its own responsibilities, thereby repudiating also the bar towards which it was responsible. At the very outset it turned the appeal of the National Assembly to the people into a mere pretense, a fiction, a deception. By inventing a first Chamber based on the property qualification as an integral part of the Legislative Assembly, the cabinet tore up the organic laws, departed from the legal basis, falsified the elections and prevented the people from passing any judgment on the "act of deliverance" of the Crown.

And so, gentlemen, the fact cannot be denied, and no future historian will deny it — the Crown has made a revolution, it has overthrown the existing legal system, it cannot appeal to the laws it has itself so scandalously annulled. After successfully carrying out a revolution one can hang one's opponents, but one cannot convict them. Defeated enemies can be put out of the way, but they cannot be arraigned as criminals. After a revolution or counter-revolution has been consummated the invalidated laws cannot be used against the defenders of these laws. This would be a cowardly pretense of legality which you, gentlemen, will not sanctify by your verdict.

I have already told you, gentlemen, that the government has falsified the sentence which the people passed on the "act of deliverance of the Crown". The people nevertheless has already decided against the Crown and for the National Assembly. The elections to the second Chamber are the only lawful elections because they alone were based on the law of April 8, 1848. Practically all the deputies who were for the refusal to pay taxes were re-elected to the second Chamber, many of them even two or three times. Schneider 11, my codefendant, is himself deputy for Cologne. Thus, the question of the National Assembly's right to vote for the refusal to pay taxes has virtually been decided already by the people.

But quite irrespective of this most authoritative judgment, you will agree with me, gentlemen, that in the present case no crime in the ordinary sense of the word has been committed, in this case no infringement of the law falling within your jurisdiction has occurred at all. Under ordinary conditions the existing laws are enforced by the public authorities; whoever infringes these laws or prevents the public authorities from enforcing them is a criminal. In the present case one public authority has infringed the law, another public authority, it makes no difference which, has upheld it. The struggle between these two political powers lies neither within the sphere of civil law, nor within the sphere of criminal law. The question of who was in the right, the Crown or the National Assembly, is a matter for history. All the juries, all the courts of Prussia cannot decide it. Only one power can supply the answer — history. I do not understand, therefore, how, on the basis of the Code penal, we could be placed in the dock.

That this was a struggle between two powers, and only power can decide between two powers — that, gentlemen, has been declared by both the revolutionary and the counterrevolutionary press. This was proclaimed even by the organ of the government a short time before the struggle was decided. The Neue Preussische Zeitung, the organ of the present government, clearly realized this. A few days before the crisis it said approximately the following: It is no longer a question of right but of power, and the old monarchy by the grace of God will show that it still has this power. The Neue Preussische Zeitung correctly understood the situation. Power against power. Victory would decide for one or the other. The counter-revolution carried the day but we have seen only the first act of the drama. The struggle in England lasted over twenty years. Charles I came out on top several times and ended up on the scaffold. Who, gentlemen, can guarantee to you that the present cabinet and the officials who acted and continue to act as its tools will not be convicted of high treason by this Chamber or its successors?

Gentlemen, the public prosecutor has tried to base his accusation on the laws of April 6 and 8. I have been compelled here to demonstrate to you that it is these laws which acquit us. But I make no secret of the fact that I have never recognized these laws and never will. They never had any validity for the deputies elected by the people, still less could they prescribe the course of the March revolution.

How did the laws of April 6 and 8 come into being? By agreement between the government and the United Provincial Diet. It was an attempt to maintain continuity with the old legal system and to play down the revolution which had done away with that system. Men like Camphausen thought it important to preserve a semblance of legal continuity. And how did they preserve this semblance? By a series of obvious and absurd contradictions. Let us for a moment adopt the old legal point of view. Was not the very existence of Minister Camphausen, a responsible minister, a minister who had not climbed the bureaucratic ladder, unlawful? The position of Camphausen, the responsible Prime Minister, was unlawful. This officer, who does not exist in law, convenes the United Provincial Diet to have it pass laws it was not legally competent to pass. This inconsistent and self-contradictory playing with formalities was called legal advance, or maintenance of the legal basis!

But let us leave aside the form, gentlemen. What was the United Provincial Diet? It represented old decaying social relations. It was against these relations that the revolution was directed. And the representatives of the vanquished society are asked to endorse organic laws designed to recognize, guide and organize the revolution against this old society. What an absurd contradiction! The Diet was overthrown together with the old monarchy.

On this occasion we are confronted by the so-called legal basis. It is the more necessary for me to deal with this point since we are justly regarded as opponents of the legal basis, and since the laws of April 6 and 8 owe their existence to the formal recognition of the legal basis.

The Diet represented primarily big landed property. Big landed property was indeed the foundation of medieval, feudal society. Modern bourgeois society, our own society, is however based on industry and commerce. Landed property itself has lost all its former conditions of existence, it has become dependent on commerce and industry. Agriculture, therefore, is carried on nowadays on industrial lines, and the old feudal lords have now become producers of cattle, wool, corn, Beatrice, spirits, etc., i.e., people who trade in industrial products just as any other merchant. However much they may cling to their old prejudices, they are in fact being turned into bourgeois, who manufacture as much as possible and as cheaply as possible, who buy where they can get goods at the lowest price and sell where they can obtain the highest price. The mode of living, production and income of these gentlemen therefore gives the lie to their traditional pompous notions. Landed property, as the predominant social factor, presupposes a medieval mode of production and commerce. The United Provincial Diet represented this medieval mode of production and commerce which had long since ceased to exist, and whose protagonists, though they clung to the old privileges, likewise enjoyed and exploited the advantages of the new society. The new bourgeois society, grounded on an entirely different foundation, on a changed mode of production, was bound to seize also political power, which had to be wrenched from the hands of those who represented the interests of a declining society, a political power, whose whole structure had been built up on the soil of entirely different material conditions of society. Hence the revolution. The revolution was consequently directed as much against the absolute monarchy, the supreme political expression of the old society, as against the representatives of the estates, who stood for a social system that had been long ago destroyed by modern industry or, at most, for the presumptuous ruins of the dissolved estates which bourgeois society was overtaking and pushing into the background more and more every day. How then was the idea conceived to allow the United Provincial Diet, the representative of the old society, to dictate laws to the new society which asserted its rights through the revolution?

Allegedly in order to maintain the legal basis. But what do you understand by maintaining the legal basis? To maintain laws belonging to a bygone social era and framed by representatives of vanished or vanishing social interests, who consequently give the force of law only to these interests, which run counter to the public needs. Society is not founded upon the law; this is a legal fiction. On the contrary, the law must be founded upon society, it must express the common interests and needs of society — as distinct from the caprice of the individuals — which arise from the material mode of production prevailing at the given time. This Code Napoleon, which I am holding in my hand, has not created modern bourgeois society. On the contrary, bourgeois society, which emerged in the eighteenth century and developed further in the nineteenth, merely finds its legal expression in this Code. As soon as it ceases to fit the social conditions, it becomes simply a bundle of paper. You cannot make the old laws the foundation of the new social development, any more than these old laws created the old social conditions.

They were engendered by the old conditions of society and must perish with them. They are bound to change with the changing conditions of life. To maintain the old laws in face of the new needs and demandsof social development is essentially the same as hypocritically upholding the out-of-date particular interests of a minority in face of the up-to-date interests of the community. This maintenance of the legal basis aims at asserting minority interests as if they were the predominant interests, when they are no longer dominant; it aims at imposing on society laws which have been condemned by the conditions of life in this society, by the way the members of this society earn their living, by their commerce and their material production; it aims at retaining legislators who are concerned only with their particular interests; it seeks to misuse political power in order forcibly to place the interests of a minority above the interests of the majority. The maintenance of the legal basis is therefore in constant conflict with the existing needs, it hampers commerce and industry, it prepares the way for social crises, which erupt in political revolutions.

That is what adherence to the legal basis and the maintenance of the legal basis really mean. Relying on these phrases about the legal basis, which arise either from conscious deceit or unconscious self- deception, the United Provincial Diet was convoked, and this Diet was made to frame organic laws for the National Assembly the need for which was created by the revolution and which owed its existence to the revolution. And on the strength of these laws the National Assembly is to be judged!

The National Assembly represented modern bourgeois society as against feudal society, which is represented in the United Provincial Diet. It was elected by the people for the purpose of independently enacting a constitution to fit the conditions of life, which had come into conflict with the old political organization and laws. It was thus from the very beginning a sovereign, constituent assembly. The fact that it nevertheless condescended to the views of the conciliators, was mere formal courtesy towards the Crown, mere ceremony. I need not here go into the question whether the Assembly — as far as the people are concerned — had the right to take a stand for conciliation. It considered that a collision with the Crown should be averted by a display of goodwill on both sides.

One thing is certain, however — that the laws of April 6 and 8, which were agreed with the United Provincial Diet, were formally invalid. The only material significance they have is that they state and lay down the conditions under which the National Assembly could really express the sovereign will of the people. The laws passed by the United Provincial Diet were merely a formula by which the Crown was saved the humiliation of having to proclaim: I have been defeated!

Now, gentlemen of the jury, I shall examine more closely the speech of the public prosecutor.

He says:

"The Crown ceded part of the power which had been wholly in its hands. Even in the ordinary course of things a deed of renunciation does not go beyond what is clearly stated in the words of renunciation. The law of April 8, 1848, neither grants the National Assembly the right to refuse to vote taxes, nor stipulates that Berlin must necessarily be the seat of the National Assembly."

Gentlemen, power lay broken in the hands of the Crown, and the Crown gave up power in order to save the fragments. You will remember that immediately after his accession to the throne, the King formally pledged his word of honor at Konigsberg and Berlin not to concede constitutional government. You will remember that when opening the United Provincial Diet in 1847 the King solemnly swore that he would not allow a piece of paper to come between him and his people. After the March events of 1848, and even in the imposed constitution, the King proclaimed himself a constitutional monarch. He has put this paper, this piece of abstract, outlandish flummery, between himself and his people. Will the public prosecutor dare to assert that in conceding the agreement or the constitution, the King voluntarily contradicted in so manifest a way his own solemn declarations, that in the eyes of the whole of Europe he voluntarily committed so glaring an inconsistency! The King made the concessions which the revolution compelled him to make. Neither more nor less.

The popular analogy which the public prosecutor has made unfortunately proves nothing. It is true, that if I renounce anything, I renounce only what I have expressly renounced. If I made you a gift, it would indeed be impudent if, on the basis of the deed of gift, you tried to compel me to undertake further obligations. But after the March events it was the people that made the gift and the Crown which received it. Obviously, the nature of the gift must be interpreted in accordance with the intentions of the giver and not those of the receiver, i.e., in accordance with the intentions of the people and not those of the Crown.

The absolute power of the Crown was shattered. The people had won the day. The two sides concluded a truce and the people was cheated. The public prosecutor himself has taken pains to demonstrate at some length that the people was deceived. To challenge the right of the National Assembly to refuse to vote taxes, the public prosecutor has explained to you in detail that if there was something of this kind in the law of April 6, 1848, it was certainly no longer to be found in the law of April 8, 1848. The interval of two days was thus used to deprive the representatives of the people of the rights which had been conceded to them two days earlier. Could the public prosecutor have more strikingly compromised the honesty of the Crown, could he have more irrefutably proved the intention to deceive the people?

The public prosecutor says further:

"The right to adjourn and prorogue the National Assembly is a prerogative of the executive power recognized in all constitutional countries."

As to the right of the executive to transfer the meeting place of the legislative chambers, I would like to ask the public prosecutor to cite even a single law or example in support of his claim. In England, for instance, under an old historical privilege, the King could convoke Parliament anywhere he pleased. There is no law stating that London is the legal seat of Parliament. As you know, gentlemen, in England the most important political liberties are generally sanctioned not by Statute Law but by Common Law; such, for instance, is the case with the freedom of the press. But should an English ministry take it into its head to transfer Parliament from London to Windsor or Richmond, it is sufficient to put the idea into words to realize how impossible it is.

True, in countries that have a constitutional government, the Crown has the right to prorogue Parliament. But it must not be forgotten that on the other hand all constitutions specify for how long the chambers can be prorogued and when they have to be summoned again. — Prussia has no constitution, one still has to be drafted; no legal time-limit for summoning a prorogued chamber exists, consequently no prorogation right of the Crown exists. — Otherwise the Crown could prorogue the Chamber for ten days, for ten years, or for ever. How could one be sure that the chambers would ever be summoned or allowed to meet for any length of time? The existence of the chambers juxtaposed with the Crown would be left to the discretion of the Crown, the legislative power — if one could speak of legislative power in this context — would have become a sham.

Gentlemen, this example shows where any attempt to compare the conflict between the Prussian Crown and the Prussian National Assembly with the conditions obtaining in constitutional countries leads to. It leads to the maintenance of the absolute monarchy. On the one hand, the rights of a constitutional executive power are conferred upon the Crown, on the other, there is no law, no tradition, no organic institutions able to impose on it the restrictions proper to a constitutional executive power. The representatives of the people are expected to play the role of a constitutional chamber in relation to an absolute monarchy!

Is there any need to explain that in the case under consideration it was not a matter of an executive power vis-a-vis a legislative power, that the constitutional division of powers cannot be applied to the Prussian National Assembly and the Prussian Crown? Let us disregard the revolution and consider only the official theory of agreement. Even according to this theory two sovereign powers confronted each other. That is beyond any doubt. One of these two powers was bound to break the other. Two sovereign powers cannot function simultaneously, side by side, in one state. This is an absurdity, like the squaring of the circle. Material force had to decide the issue between the two sovereign powers. But it is not our task here to go into the question of whether agreement was possible or impossible. It is sufficient that two powers entered into relations with each other in order to conclude an agreement. Camphausen himself admitted that agreement might not be achieved. From the rostrum he spoke to the advocates of agreement of the danger that faced the country if they did not come to terms. The danger was implied in the initial relationship between the conciliatory National Assembly and the Crown, and afterwards an attempt is made to hold the National Assembly responsible for this danger by denying this initial relationship and by turning the Assembly into a constitutional chamber! It is an attempt to overcome a difficulty by abstracting from it.

Gentlemen, I think I have shown you that the Crown had no right either to adjourn or to prorogue the Assembly of conciliators.

But the public prosecutor did not confine himself to examining whether the Crown had the right to adjourn the National Assembly; he has tried to prove that this adjournment was expedient. "Would it not have been expedient," he exclaims, "if the National Assembly had obeyed the Crown and moved to Brandenburg?" According to the public prosecutor, the expediency of such an act was due to the position of the Chamber itself. The Chamber was not free in Berlin, and so forth.

But is it not obvious what purpose the Crown pursued in ordering this removal? Had not the Crown itself divested all officially advanced reasons for the removal of any semblance of veracity? It was not a question of freedom of deliberation, but of whether the Assembly be dissolved and a constitution imposed, or whether a spurious Assembly be created by summoning more docile representatives. When, - unexpectedly, a sufficient number of deputies arrived in Brandenburg to form a quorum, the pretense was abandoned and the National Assembly was dissolved.

Incidentally, it goes without saying that the Crown had no right to declare the National Assembly either free or unfree. No one but the National Assembly itself could decide whether it had the necessary freedom of deliberation or not.

It would be most convenient for the Crown if it could declare that the National Assembly was not free, that it was irresponsible and to ban it, whenever the Assembly passed resolutions the Crown disliked.

The public prosecutor has also spoken about the government's duty to protect the dignity of the National Assembly against the terrorism of the Berlin populace.

This argument sounds like a satire on the government. I will not speak here of its treatment of individuals, of men who, after all, were the elected representatives of the people. It sought to humiliate them in every possible way, they were prosecuted in a most infamous way and a sort of wild chase was organized against them. But let us leave aside individuals. How was the dignity of the National Assembly and of its work maintained? -Its archives were given over to the military who used the documents comprised in the various departments, the royal messages, draft laws and preliminary studies, as spills to light pipes with, burned them in stoves, and trampled on them.

Not even the formalities of a legal warrant were observed; the archives were seized without even an inventory being drawn up.

It was part of a plan to destroy this work so dear to the people, in order to make it easier to vilify the National Assembly and to quash the planned reforms which were abhorrent to the government and aristocracy. Is it not simply ridiculous to assert after all this that the government transferred the National Assembly from Berlin to Brandenburg out of tender concern for its dignity?

Now I come to the statement of the public prosecutor regarding the formal validity of the resolution to refuse payment of taxes.

The public prosecutor says that in order to make the resolution on the tax refusal formally valid, the Assembly should have submitted it to the Crown for sanctioning.

But, gentlemen, the Crown itself did not face the Assembly, it was represented by the Brandenburg cabinet. Consequently, according to the absurd claim of the public prosecutor, the Assembly should have reached an agreement with the Brandenburg cabinet to proclaim that cabinet guilty of high treason and to prevent it from collecting taxes. What meaning can this demand have other than that the National Assembly should submit unconditionally to every request of the Brandenburg cabinet?

Another reason why the tax refusal resolution was formally invalid, says the public prosecutor, was that a motion can become law only after the second reading.

On the one hand, when dealing with the !national Assembly they ignored important forms of procedure which ought to have been binding and, on the other, they expected the National Assembly to observe even the most unimportant formalities. As simple as that! A bill objectionable to the Crown is passed in the first reading, after which the second reading is prevented by force of arms, and the Bill remains invalid because there was no second reading. The public prosecutor does not take into considerationthe exceptional state of affairs that obtained when, threatened with bayonets in their meeting hall, the deputies passed this resolution. The government commits one arbitrary act after another. It flagrantly violates the principal laws, the Habeas Corpus Act, and the Civil Guard Law. [162] It arbitrarily establishes an unlimited military despotism under the guise of martial law. It sends the deputies to the devil, and while on the one hand impudently infringing all laws, it, on the other hand, demands the most punctilious observation of even the rules of procedure.

Gentlemen, I do not know whether it is deliberate misrepresentation — I am far from assuming this on the part of the public prosecutor — or merely ignorance when he says: "The National Assembly did not want any negotiations" and it "did not seek any negotiations".

If the people blame the Berlin National Assembly for anything, it is for its desire for negotiations. If the deputies themselves regret anything, it is their desire for reconciliation. It was this desire for reconciliation which gradually alienated the Assembly from the people, caused it to lose all its positions, and finally, when it was not backed by the nation, exposed it to the attacks of the Crown. When at last it wanted to make a stand it found itself alone and powerless, precisely because it had not made that stand and asserted itself at the right time. It first manifested this desire for reconciliation when it renounced the revolution and sanctioned the theory of agreement, when it degraded itself by turning from a revolutionary National Assembly into a dubious society of conciliators. It carried the weakness for negotiation to extremes when it accepted Pfuel's pseudo-recognition of Stein's army order as valid. The publication of this army order was itself a farce, since it could only be regarded as a comical echo of Wrangel's army order. Nevertheless, instead of going beyond it, the Assembly snatched at the attenuated interpretation of the Pfuel cabinet, which made the order meaningless. To avoid any serious conflict with the Crown, the Assembly accepted the feeble semblance of a demonstration against the old reactionary army as a real demonstration. It seriously pretended to regard what was not even a pseudo-solution of the conflict as the real solution of the conflict. So little did the Assembly want to fight, so keen was it on negotiations — and the public prosecutor describes it as pugnacious and quarrelsome.

Need I mention another symptom showing the conciliatory nature of this Chamber? You will remember the agreement between the National Assembly and Pfuel about the law suspending commutations. If the Assembly was unable to destroy the enemy in the army, then it was above all necessary to win a friend in the peasantry. But it refrained from attempting even this. To negotiate, to avoid a conflict with the Crown, to avoid it at any cost-that was the Assembly's chief concern, which it placed above even its own self-preservation. And this Assembly is blamed for not wanting to negotiate, not attempting to negotiate!

It tried to negotiate even when the conflict had broken out. You know the pamphlet by Unruh, [163] a man of the Centre. You will have seen from it that every attempt was made to avoid a clash; that deputations were sent to the Crown and were turned away; that some deputies tried to argue with the ministers and were superciliously and arrogantly rebuffed; that the Assembly offered to make concessions and that these were derided. Even at the time when it could only be a matter of Preparing for war, the Assembly still wanted to make peace. And the public prosecutor accuses this Assembly of not wanting to negotiate and not attempting to negotiate!

The Berlin National Assembly clearly nursed extravagant illusions and did not understand its own position and its conditions of existence, when before the conflict and even during the conflict it believed that an amicable arrangement and reconciliation with the Crown was still possible and worked towards it.

The Crown did not want and could not want reconciliation. Gentlemen of the jury, let us not deceive ourselves concerning the nature of the struggle which began in March and was later waged between the National Assembly and the Crown. It was not an ordinary conflict between a cabinet and a parliamentary opposition, it was not a conflict between men who were ministers and men who wanted to become ministers, it was not a struggle between two political parties in a legislative chamber. It is quite possible that members of the National Assembly belonging to the minority or the majority believed that this was so. The decisive factor, however, is not the opinion of the deputies, but the real historical position of the National Assembly as it emerged both from the European revolution and the March revolution it engendered. What took place here was not a political conflict between two parties within the framework of one society, but a conflict between two societies, a social conflict, which assumed a political form; it was the struggle of the old feudal bureaucratic society with modern bourgeois society, a struggle between the society of free competition and the society of the guilds, between the society of landownership and the industrial society, between a religious society and a scientific society. The political expression corresponding to the old society was the Crown by the grace of God, the bullying bureaucracy and the independent army. The social foundation corresponding to this old political power consisted of privileged aristocratic landownership with its enthralled or partially enthralled peasants, the small patriarchal or guild industries, the strictly separated estates, the sharp contradiction between town and country and, above all, the domination of the countryside over the town. The old political power — the Crown by the grace of God, the bullying bureaucracy, the independent army — realized that its essential material basis would disappear from under its feet, as soon as any change was made in the basis of the old society, privileged aristocratic landownership, the aristocracy itself, the domination of the countryside over the town, the dependent position of the rural population and the laws corresponding to these conditions of life, such as the parish regulations, the criminal law. The National Assembly made such an attempt. On the other hand that old society realized that political power would be wrenched from its hands, as soon as the Crown, the bureaucracy and the army lost their feudal privileges. The National Assembly wanted to abolish these privileges. It is not surprising, therefore, that the army, the bureaucracy and the nobility joined forces in urging the Crown to effect a coup de main, and it is not surprising that the Crown, knowing that its own interests were closely interlinked with those of the old feudal bureaucratic society, allowed itself to be impelled to a coup d'etat. For the Crown represented feudal aristocratic society, just as the national Assembly represented modern bourgeois society. The conditions of existence in modern bourgeois society require that the bureaucracy and the army, which controlled commerce and industry, should become their tools, be reduced to mere organs of bourgeois intercourse. This society cannot tolerate that restrictions are placed on agriculture by feudal privileges and on industry by bureaucratic tutelage. This is contrary to free competition, the vital principle of this society. It cannot tolerate that foreign trade relations should be determined by considerations of the palace's international policies instead of by the interests of national production. It must subordinate fiscal policy to the needs of production, whereas the old state has to subordinate production to the needs of the Crown by the grace of God and the patching up of the monarchical walls, the social pillars of this Crown. Just as modern industry is indeed a leveller, so modern society must break down all legal and political barriers between town and country. Modern society still has classes, but no longer estates. Its development lies in the struggle between these classes, but the latter stand united against the estates and their monarchy by the grace of God.

The monarchy by the grace of God, the supreme political expression, the supreme political representative of the old feudal bureaucratic society, is consequently unable to make any sincere concessions to modern bourgeois society. Its own instinct of self-preservation, and the society which backs it and on which it leans will constantly impel it to retract the concessions it has made, to maintain its feudal character and to risk a counter-revolution. Counter-revolution is a constantly recurrent condition of existence for the Crown after every revolution.

On the other hand, modern society, too, cannot rest until it has shattered and abolished the political power, the traditional official power, by which the old society is forcibly preserved. For the rule of the Crown by the grace of God is the rule of antiquated social strata.

Hence no peace is possible between these two societies. Their material interests and needs bring them into mortal combat. One side must win, the other must lose. That is the only possible reconciliation between them. Neither can there be peace between the supreme political representatives of these two societies, between the Crown and the representatives of the people. Thus, the National Assembly had only the choice of either yielding to the old society or standing up to the Crown as an independent force.

Gentlemen, the public prosecutor has described the refusal to Pay taxes as a measure "which shakes the foundations of society". The refusal to pay taxes has nothing to do with the foundations of society.

Generally speaking, why do taxes, the granting or the refusal of taxes, play such an important role in the history of constitutionalism? The reason is very simple. Just as serfs purchased privileges from the feudal lords with ready money, so did entire nations purchase privileges from feudal monarchs with ready money. Monarchs needed money for their wars with foreign nations and especially for their struggle against the feudal lords. The more trade and industry developed the greater grew their need for money. But the third estate, the middle classes, grew to the same extent and disposed of increasing financial resources; and in the same degree they purchased liberties from the monarchs by means of taxes. To make sure of these liberties they retained the right at definite intervals to renew the monetary obligations, i.e., the right to vote or to refuse to vote taxes. You can trace the details of this development especially well in English history.

In medieval society, therefore, taxes were the only bond between the emerging bourgeois society and the ruling feudal state, a bond which compelled the state to make concessions to bourgeois society, to meet its needs and adjust itself to its growth. In modern states this right to grant and refuse taxes has been turned by bourgeois society into a means of controlling the government, the body administering its common interests.

You will find therefore that partial tax refusal is an integral part of every constitutional mechanism. This type of tax refusal operates whenever a budget is rejected. The current budget is voted only for a definite period; moreover after being prorogued the chambers must be reconvened after a very short interval. It is thus impossible for the Crown to make itself independent. Rejection of a budget means a definite tax refusal if the cabinet does not win a majority in the new chamber or if the Crown does not nominate a cabinet in accordance with the wishes of the new chamber. The rejection of a budget is therefore the parliamentary form of a refusal to pay taxes. This form could not be employed in the conflict under consideration because a constitution did not yet exist, but had first to be produced.

But a refusal to pay taxes as it occurred here, a refusal which not only rejects a new budget but prohibits even the payment of current taxes, is by no means exceptional. It happened very frequently in the Middle Ages. Even the old German Imperial Diet and the old feudal Diets of Brandenburg passed resolutions refusing to pay taxes. Nor is there any lack of examples in modern constitutional states. The refusal to pay taxes led in Britain in 1832 to the downfall of Wellington's cabinet. And in Britain it was not Parliament which decided to refuse taxes, but the people which proclaimed and carried out this decision on its own authority. Britain, however, is the historic land of constitutionalism.

Far be it from me to deny that the English revolution, which brought Charles I to the scaffold, began with a refusal to pay taxes or that the North American revolution, which ended with the Declaration of Independence from Britain, started with a refusal to pay taxes. The refusal to pay taxes can be the harbinger of unpleasant events in Prussia too. It was not John Hampden, however, who brought Charles I to the scaffold, but only the latter's own obstinacy, his dependence on the feudal estates, and his presumptuous attempt to use force to suppress the urgent demands of the emerging society. The refusal to pay taxes is merely a sign of the dissidence that exists between the Crown and the people, merely evidence that the conflict between the government and the people has reached a menacing degree of tensity. It is not the cause of the discord or the conflict, it is merely an expression of this fact. At the worst, it leads to the overthrow of the existing government, the existing political system. The foundations of society are not affected by this. In the present case, moreover, the refusal to pay taxes was a means of society's self-defense against a government which threatened its foundations.

Finally, the public prosecutor accuses us of having gone further in the incriminating document than the National Assembly itself. He says, "For one thing, the National Assembly did not publish its resolution." Gentlemen, am I to give a serious reply to the accusation that the decision not to pay taxes was not even published in the Statute Book?

Furthermore, unlike us, the National Assembly did not incite to the use of force and in general did not take a revolutionary stand, but wanted to remain on the basis of the law.

The public prosecutor previously described the National Assembly as unlawful, now he considers it lawful — in each case to present us as criminals. But if the collection of taxes is declared unlawful, am I not obliged to resist by force the exercise by force of this unlawful action? Even from this standpoint, therefore, we were entitled to repel force by force. Incidentally, it is quite correct that the National Assembly wanted to act on a purely legal basis, by resorting to passive resistance. Two roads were open to it, the revolutionary road — it did not take it, those gentlemen did not want to risk their necks — or the refusal to pay taxes which did not go beyond passive resistance. It took the second road. But to give effect to its refusal to pay taxes the people would have had to take a revolutionary stand. The conduct of the National Assembly could by no means serve as a criterion for the people. The National Assembly, as such, has no rights; the people has merely entrusted it with the defense of its own rights. If the Assembly does not act in accordance with the mandate it has received, then this mandate lapses. The people then takes the stage itself and acts on its own authority. If, for example, a national assembly were to sell itself to a treacherous government, the people would have to kick them out, both the government and the assembly. If the Crown makes a counter-revolution, the people has the right to reply with a revolution. It does not require the sanction of a national assembly to do this. The fact that the Prussian government is attempting a treasonable assault has been stated by the National Assembly itself.

Gentlemen of the jury, to sum up briefly, the public prosecutor cannot charge us under the laws of April 6 and 8, 1848, when these laws have been torn up by the Crown. These laws by themselves are not decisive, as they were arbitrarily concocted by the United Provincial Diet. The resolution of the National Assembly regarding the refusal to pay taxes had the force of law both formally and materially. We went further than the National Assembly in our appeal. This was our right and our duty.

In conclusion, I repeat that we have seen only the first act of the drama. The struggle between the two societies, the medieval and the bourgeois society, will again be waged in political forms. As soon as the Assembly meets, the same conflicts will arise again. The Neue Preussische Zeitung, the organ of the government, already prophesies — the same people have voted again, that means the Assembly will have to be dispersed a second time.

Whatever new path the new National Assembly may choose, the inevitable result will be — either complete victory of the counter-revolution or a new successful revolution. It may be that the victory of the revolution is possible only after the counter-revolution is consummated.

[Speech of Karl Schapper]

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[Speech of Karl Schneider II]

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