The Agreement Session of July 4 (Second Article)

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The agreement debates (Vereinbarungsdebatten) was the name given by Marx and Engels to the debates in the Prussian National Assembly, which met in Berlin in May 1848 to draft a Constitution “by agreement with the Crown” according to the formula proposed by the Hansemann-Camphausen Government. Marx and Engels labelled the Berlin Assembly, which adopted this formula and thereby rejected the principle of popular sovereignty, the “Agreement Assembly” and its deputies “the agreers”.

Cologne, July 9. The series of articles [Ernst Dronke, “Die preussische Pacificirung und Reorganisation Posens”, Neue Rheinische Zeitung Nos. 38-40, July 8-10, 1848] based upon authentic documents, which we started three days ago, clearly show that the appointment of an investigation committee with unrestricted powers is an urgent and necessary act of justice towards the Poles.

The old-Prussian officials, who from the outset assumed a hostile attitude towards the Poles, saw their existence threatened by the promises of reorganisation. They sensed danger in the smallest act of justice towards the Poles. Hence the fanatical fury with which, supported by the unrestrained soldiery, they fell upon the Poles, broke the conventions, maltreated the most harmless people and permitted or sanctioned the greatest infamies merely to force the Poles to a fight in which the Poles were bound to be crushed by vastly superior forces.

The Camphausen Ministry, which was not only weak, perplexed and badly informed but remained deliberately, on principle, inactive, allowed everything to go its own way. The most horrifying barbarities were perpetrated, and Herr Camphausen did not stir.

What reports are now available on the civil war in Posen?

On the one hand there are the biased, slanted reports of the originators of this war: the officials and the officers, and the data, based on their evidence which the Ministry can quote. The Ministry itself is biased as long as it includes Herr Hansemann. These documents are biased, but they are official.

On the other hand there are the facts collected by the Poles, their written complaints to the Ministry, especially the letters of Archbishop Przyluski to the Ministers. [Leon Przyluski, “Die Korrespondenz des Erzbischofs von Posen, Przyluski, mit dem Berliner Kabinett”, Neue Rheinische Zeitung Nos. 5, 7, 10, 14, 38 and 39, June 5, 7, 10 and 14, and July 8 and 9, 1848] These documents for the most part have no official character, but their authors are prepared to prove the truth of their statements.

The two kinds of reports totally contradict each other and the committee is supposed to investigate which side is right.

The committee, except in a few instances, can only do this by travelling to the spot in order to clear up at least the most significant points by the hearing of witnesses. If it is forbidden to do this, its entire activity becomes illusory. It may practise a certain historical-philological criticism and it may declare that one or another report is more trustworthy, but it will not he able to resolve anything.

Thus the entire importance of the committee depends on its authority to question witnesses, hence the eagerness of all the Polonophobes in the Assembly to remove this authority by all sorts of subtle and ingenious arguments, hence also the coup d'état at the end of the session.

Deputy Bloem said in the debate on the 4th [of July]:

“Does one genuinely seek the truth if, as a few amendments want it, the truth is to be derived from documents submitted by the Government? Most certainly not! Whence did the government documents originate? For the most part from the reports of officials. Whence did the officials originate? From the old system. Have these officials vanished? Have new Landräte been appointed through new, popular elections? By no means. Do the officials inform us about the true mood? The old officials report today just as they did formerly. It is, therefore, apparent that a mere examination of ministerial records will lead us nowhere.”

Deputy Richter goes even further. He sees in the behaviour of the Posen officials only the most extreme, but inevitable, result of the preservation of the old system of administration and the old officials in general. Similar conflicts between the duties and the interests of the old officials could also occur at any time in other provinces.

“Since the revolution we have had a new Ministry and even a second one but a Ministry is, of course, only the soul which has to set up a uniform organisation everywhere. In the provinces, however, the old administrative organisation has remained the same everywhere. Do you expect a different picture? One does not pour new wine into old rotten skins. Accordingly we have the most terrible complaints in the Grand Duchy. Should we not therefore form a committee even if only to show how very necessary it is in the other provinces as well as in Posen to replace the old organisation by a new one suited to the times and circumstances?”

Deputy Richter is right. After a revolution, the first necessity is to replace all civil and military officials as well as part of the judiciary, and especially officials in the Public Prosecutor’s Office. Otherwise the best measures of the Central Authority fail through the obstinacy of subordinates. The weakness of the French Provisional Government and the weakness of the Camphausen Ministry are the bitter fruits of just such a situation.

In Prussia, however, where for forty years a thoroughly organised bureaucratic hierarchy has dominated the administration and the military with absolute force, in Prussia where that very same bureaucracy was the chief enemy that was vanquished on March 19, there the complete replacement of all civil and military officials was infinitely more urgent. The Government of mediation, of course, did not feel called upon to carry through revolutionary necessities. It had admittedly the task not to do anything and therefore left the real power for the time being in the hands of its old enemies, the bureaucrats. It “mediated” between the old bureaucracy and the new conditions. In return the bureaucracy through its “mediation” presented the Ministry with the civil war in Posen and the responsibility for barbarities such as have not occurred since the Thirty Years’ War.

As heir to the Camphausen Ministry, the Hansemann Ministry was forced to take over all the assets and liabilities of its testator, that is not only the majority in the Chamber but also the events and officials in Posen. Thus the Ministry had a direct interest in making the committee’s investigation as illusory as possible. The speakers representing the Ministry’s majority, especially the jurists, used their entire stock of casuistry and sophistry to discover a profound, principled reason for prohibiting the committee from questioning witnesses. We would stray too far afield if we allowed ourselves to be involved here in admiring the jurisprudence of a Reichensperger etc. We have to limit ourselves to bringing to light the painstaking disquisition of Minister Kühlwetter.

Herr Kühlwetter, leaving entirely aside the material question, begins with the declaration that the Government would be extremely pleased if such committees were to assist it in performing its difficult task by clarifications etc. Indeed, if Herr Reuter had not had the fortunate idea of proposing such a committee, Herr Kühlwetter himself would undoubtedly have insisted upon it. One should give the committee the most far-reaching tasks (so that it may never finish its business); he entirely agreed that any scrupulous weighing of its actions was unnecessary. Let the committee include the entire past, present and future of the Province of Posen in the scope of its activity; the Ministry would not scrupulously examine the committee’s competence insofar as it was only a question of clarifications. One could, of course, go too far, but he would leave it up to the wisdom of the committee whether it wanted to take into its scope, for example, the question of the dismissal of the Posen officials as well.

So much for the introductory concessions of the Minister which, embellished with a few philistine declamations, were given several vigorous cheers. However the “buts” were to follow.

“But since it has been remarked that the reports about Posen cannot possibly shed accurate light because they came only from officials, and moreover old-time officials, I consider it to be my duty to defend an honourable profession. If it be proved true that individual officials have neglected their duty, then let us punish the individuals who neglect their duty but officialdom as such must never be denigrated just because a few individuals have violated their duty.”

What a bold stand Herr Kühlwetter has taken! To be sure a few individual violations of duty have taken place but on the whole the officials have done their duty honourably.

And, indeed, the mass of Posen officials have done their “duty”, their “duty to their official oath”, to the entire old-Prussian system of bureaucracy and to their own interests which concur with this duty. They have fulfilled their duty by using every means to destroy the 19th of March in Posen. It is exactly for that reason, Herr Kühlwetter, that it is your “duty” to dismiss these officials en masse.

But Herr Kühlwetter speaks of a duty which is determined by pre-revolutionary laws, whereas here it is a matter of an entirely different duty which arises after every revolution and which consists of interpreting correctly the altered conditions and of furthering their development. To ask of the officials to replace the bureaucratic with the constitutional standpoint and to support the revolution in the same way as the new Ministers, that means, according to Herr Kühlwetter, to denigrate an honourable profession.

Herr Kühlwetter also rejects the general accusation that favouritism was shown to party chiefs and that crimes remained unpunished. Specific cases should be cited.

Does Herr Kühlwetter perhaps maintain in all seriousness that even a small part of the brutalities and atrocities committed by the Prussian soldiery, tolerated and supported by the officials and cheered by the German Poles and Jews, have been punished? Herr Kühlwetter states that he has not yet been able to examine the colossal amount of material in all its aspects. Indeed, he seems at the most to have examined it in one aspect alone.

It is now that Herr Kühlwetter takes up “the most difficult and delicate question”, namely the forms in which the committee should transact its business. Herr Kühlwetter would have liked to have this question discussed more thoroughly, for,

“as has been rightly remarked, this question contains a question of principle, the question of the droit denquête [right of investigation]”.'

Herr Kühlwetter now blesses us with a longish discourse about the separation of powers in the state which surely contains much that is new for the Upper Silesian and Pomeranian peasants in the Assembly. To hear in the year of our Lord 1848 a Prussian Minister, and a “Minister of action” at that, solemnly interpreting Montesquieu from the rostrum makes a strange impression.

The separation of powers which Herr Kühlwetter and other great political philosophers regard with the deepest reverence as a sacred and inviolable principle is basically nothing but the profane industrial division of labour applied for purposes of simplification and control to the mechanism of the state. Just like all sacred, eternal and inviolable principles it is only applied as long as it suits existing conditions. Thus, for example, in a constitutional monarchy, the ruler possesses both legislative and executive power; in the Chambers, furthermore, legislative power mingles with control over executive power etc. This indispensable limitation on the division of labour in the state is expressed by political sages of the calibre of a “Minister of action” in the following manner:

“The legislative power, inasmuch as it is exercised by popular representation, has its own organs; the executive power has its own organs, and the judicial power no less so. It is therefore (!) inadmissible for one branch to lay claim to the organs of another unless such power has been transferred to it by a special law.”

A divergence from the separation of powers is inadmissible unless” it is dictated “by a special law”. And the other way round: the application of the dictated separation of powers is similarly inadmissible “unless” it is dictated “by special laws"! What profundity! What revelations!

Herr Kühlwetter does not mention the case of a revolution where the separation of powers comes to an end without “a special law”.

Herr Kühlwetter now argues at great length that the authority of the committee to question witnesses under oath, to summon officials etc., in short, to see with its own eyes, is an infringement upon the separation of powers and must be established by a special law. As an example, the Belgian Constitution is cited, Article 40 of which expressly gives the Chambers the droit denquite.

But, Herr Kilhlwetter, is there in Prussia legally and factually a separation of powers in the sense that you interpret it, i.e. in the constitutional sense? Is not the existing separation of powers the limited, trimmed one which corresponds to the absolute, the bureaucratic monarchy? How then can one use constitutional phrases for it before it has been reformed constitutionally? How can Prussia have an Article 40 of a Constitution as long as this Constitution itself does not yet exist at all?

Let us summarise. According to Herr Kühlwetter the appointment of a committee with unlimited authority is an infringement on the constitutional separation of powers. The constitutional separation of powers does not yet exist at all in Prussia; hence there can also be no infringement upon it.

It is supposed to he introduced, however, and according to Herr Kühlwetter it must be regarded as already existing during the provisional revolutionary state of affairs in which we live. If Herr Kühlwetter were right we would surely also have to presume the existence of constitutional exceptions! And these constitutional exceptions surely include the right of legislative bodies to carry out investigations!

But Herr Kühlwetter is by no means right. On the contrary: the provisional revolutionary state of affairs consists in the fact that the separation of powers has been provisionally abolished and that the legislative authority seizes executive power or that the executive authority seizes legislative power for the time being. It does not make any difference whether the revolutionary dictatorship (and it is a dictatorship no matter how feebly it is enforced) is in the hands of the Crown or of an Assembly or both. French history since 1789 provides plenty of examples of all three cases if Herr Kühlwetter wants them.

The provisional state of affairs to which Herr Kühlwetter appeals actually speaks against him. It gives the Assembly yet other attributes besides the mere right of investigation; it even empowers it, if need be, to transform itself into a court of justice and to judge without laws!

Had Herr Kühlwetter been able to foresee these results, he might perhaps have been more careful in speaking of the “recognition of the revolution”.

But he may rest assured:

Germany, pious nursery,
Is not a Roman cutthroats’ den,
[Heine, “Zur Beruhigung"]

and Messrs. the agreers may sit as long as they like, they will never become a “Long Parliament.

We find, by the way, a significant difference when we compare the bureaucratic doctrinaire of the Government of Action with his doctrinaire predecessor, Herr Camphausen. Herr Camphausen, at any rate, possessed infinitely more originality. He almost approached Guizot whereas Herr Kühlwetter does not even reach the tiny Lord John Russell.

We have sufficiently admired the state philosophical wealth of Kühlwetter’s oration. Let us now examine the purpose, the actual practical reason for this moss-covered wisdom, for this entire separation theory a la Montesquieu.

For Herr Kühlwetter now comes to the results of his theory. The Ministry, by way of exception, is inclined to instruct the authorities to comply with the requirements of the committee. It must, however, oppose the committee giving direct instructions to the authorities, i.e. the committee, which has no direct connection with the authorities and which has no power over them, cannot force them to convey other information to it than they consider appropriate. In addition there is the tedious routine and the endless hierarchy of appeals authorities! It is quite a pretty trick to render the committee illusory under the pretext of the separation of powers!

“It cannot be the intention to transfer to the committee the entire job of the Government! “

As if anybody intended giving the committee the right to govern!

“In addition to the committee, the Government would have to continue its inquiry into the underlying causes of dissension in Posen” (it is exactly because it has already “inquired” for such a long time without finding out anything that there is reason enough to exclude it now altogether from such an inquiry), “and since this purpose would be served by a double road there would often be unnecessary waste of time and effort and conflicts could hardly be avoided.”

According to all hitherto existing precedents, the committee would certainly spend much “unnecessary time and effort” if it were to agree to Herr Kühlwetter’s proposal for the protracted hierarchy of appeals authorities. In this way, conflicts would also occur much , more easily than if the committee were to deal directly with the authorities and could immediately clear up misunderstandings as well as put down bureaucratic obduracy.

“It seems therefore (!) to be in the nature of things that the committee will seek to achieve its purpose in agreement with the Ministry and with its constant co-operation”

It gets better and better! A committee which is supposed to control the Ministry is also supposed to work in agreement with it and with its constant co-operation! Herr Kühlwetter is not at all embarrassed to let it be known that he would find it desirable to have the committee under his control and not the other way round.

“If, on the other hand, the committee should want to assume an isolated position, the question must arise whether the committee wants to and is able to assume the responsibility which rests with the Government. It has already been observed with as much truth as intelligence that the inviolability of the deputies is incompatible with this responsibility.”

The question is not one of administration but merely of establishing facts. The committee is to receive the authority to employ the means necessary for this purpose. That is all. it goes without saying that the committee will be responsible to the Assembly for either the neglect or the excessive use of these means.

The whole matter has as little to do with ministerial responsibility and deputies’ irresponsibility as with “truth” and ,intelligence”.

In short, under the pretext of the separation of powers Herr Kühlwetter warmly recommends these proposals to the agreers for the solution of the conflict without, however, making a precise proposal. The Government of Action feels that it stands on uncertain ground.

We cannot go into the debate which ensued. The results of the voting are known: the defeat of the Government in the roll-call vote and the coup d'état of the Right which adopted a motion after it had already been defeated. We have already reported all that.’ We only add that among the Rhinelanders who voted against giving unlimited authority to the committee we noticed the names of:

Arntz, LL. D., Bauerband, Frencken, Lensing, von Loe, Reichensperger II, Simons and last but not least our Chief Public Prosecutor Zweiffel.