The Prussian Counter-Revolution and the Prussian Judiciary

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An excerpt from this article was first published in English under the title “The Prussian Counter-Revolution and the judiciary” in the collection: Karl Marx, On Revolution ed. by S. K. Padover, New York, 1971.

Cologne. The chief result of the revolutionary movement of 1848 is not what the peoples won, but what they lost — the loss of their illusions.

June, November and December of 1848 are gigantic milestones on the path to the disenchantment and disintoxication of the minds of the European peoples.

High in the list of the last illusions which keep the German people in chains is its superstitious faith in the judiciary.

The prosaic north wind of the Prussian counter-revolution has blighted also this flower of the people’s imagination, whose true Motherland is Italy — eternal Rome.

The actions and statements of the Rhenish Court of Appeal, of the Supreme Court of Berlin, and of the Courts of Appeal of Münster, Bromberg and Ratibor, against Esser, Waldeck, Temme, Kirchmann and Gierke prove once again that the French Convention is and remains the beacon for all revolutionary epochs. It inaugurated the revolution by means of a decree dismissing all officials. Judges, too, are nothing but officials, as the above-mentioned courts have testified before the whole of Europe. Turkish kadis and Chinese collegiums of mandarins can countersign without qualms the most recent decrees of those “high” courts against their colleagues.

Our readers already know the decrees of the Berlin Supreme Court and of the Ratibor Court of Appeal. Today we are concerned with the Münster Court of Appeal.

First of all, however, a few words more about the Rhenish Court of Appeal, the summus pontifex [supreme pontiff] of Rhenish jurisprudence, which has its scat in Berlin.

As is well known, the Rhenish jurists (with a few honourable exceptions) found nothing more urgent to do in the Prussian Agreement Assembly than to cure the Prussian Government of its old prejudice and old resentment. They proved to that Government in fact that their previous opposition merely signified as much as the opposition of the French parliament before 1789 — the obstinate and would-be liberal assertion of guild interests. Like the liberal members of the French National Assembly of 1789, so the liberal Rhenish jurists in the Prussian National Assembly of 1848 were the worthiest of the worthy in the army of servility. The Rhenish-Prussian prosecuting magistrates outdid the old-Prussian inquisitorial judges in “political fanaticism”. The Rhenish jurists had, of course, to maintain their reputation also after the dissolution of the Agreement Assembly. Thought of the laurels of the old-Prussian Supreme Court prevented the Rhenish-Prussian Court of Appeal from sleeping. Its chief presiding judge Sethe sent to judge of the Supreme Court of Appeal Esser (not to be confused with the “well-meaning” Cologne “Essers”) a letter similar to that of the presiding judge of the Supreme Court Mühler to judge of the Secret Supreme Court Waldeck. But the Rhenish-Prussian court was able to go one better than the old-Prussian court. The presiding judge of the Rhenish Court of Appeal played a trump card against his competitors by committing the treacherous rudeness of informing the Berlin public of the letter to Herr Esser in the Deutsche Reform, before he had communicated it to Herr Esser himself. We are convinced that the entire Rhine Province will reply to Herr Sethe’s letter by a monster address to our worthy veteran countryman, Herr Esser.

Not something is rotten in the “state of Denmark”, but everything.

Now for Münster!

Our readers have already heard of the protest of the Court of Appeal in Münster against the reappointment of its director Temme.

The matter can be summarised as follows:

The Ministry of the counter-revolution had, directly or indirectly, insinuated to the Secret Supreme Court, the Rhenish Court of Appeal, and the Courts of Appeal in Bromberg, Ratibor and Münster, that the King would view with extreme disfavour the return of Waldeck, Esser, Gierke, Kirchmann and Temme to their high judicial posts, because they had continued to attend the Assembly in Berlin and had participated in the decision to refuse to pay taxes. So would those courts Protest against it.

All the high courts (at the outset the Rhenish Court of Appeal vacillated; great artists achieve their successes not by being the first but by being the last to perform) accepted this suggestion and sent protests from and to Berlin. The Münster Court of Appeal was stupid enough to address directly to the King (the so-called constitutional King) a protest against Temme, which states word for word

“that by participation in the illegal sittings of a faction of the adjourned National Assembly he had put himself in open rebellion against His Majesty’s Government and by taking part in voting in favour of the motion on refusing to pay taxes he had taken the path of revolution and tried to hurl the fire-brand of anarchy into the fatherland”,

and which then continues:

“it is contrary to our sense of justice, to the demands of the public for integrity on the part of the director of a provincial collegium of magistrates, and to the responsibilities of the latter concerning the training of young law officers and his position in relation to the junior officials of courts, that after such events the aforesaid Temme should retain his official position in the collegium here. Therefore, Your Majesty, we feel compelled by our consciences most humbly to express the urgent desire to see ourselves freed from official relation to director Temme.”

The address is signed by the whole collegium except for one member, a brother-in-law of Minister of Justice Rintelen.

On December 18, this Minister of justice sent Herr Temme in Münster a copy of this address “for his decision”, after Temme had already resumed his post here without opposition from the cowards.

During the morning of December 19, as the Düsseldorfer Zeitung reports, Temme appeared for the first time in a plenary sitting of the provincial Court of Appeal and took his seat as director beside deputy chief presiding judge von Olfers. As soon as the sitting began, he asked to speak and in brief said approximately the following:

“He had received a rescript from the Minister of Justice with a copied enclosure. This enclosure contained a petition of the ‘high collegium’, to which he now had the honour to belong, protesting against his reinstatement in his post. The Minister of justice had sent him this petition for his information and for him to take a decision accordingly’. The protest of the ‘high collegium’ was obviously based on his political activity; but of this as in general of his political views, he did not intend to speak here, for he did not have to defend them before the ‘high collegium’. Further, as far as his ‘decision’ was concerned, he had already given effect to it by taking his scat here as director, and he could assure the ‘high collegium’ that he would not vacate it until judgment and law compelled him to do so. Moreover, he was not of the opinion that the collegial relationship should be upset by the diversity of political views; for his part at least that would be avoided as far as possible.

The worthiest of the worthy were thunderstruck. They sat there dumb, motionless, like stone figures, as if a Medusa’s head had been hurled into the collegium of mandarins.

The worthy Court of Appeal in Münster! In its professional zeal it has caused numerous people to be questioned and arrested because they wanted the decision of the National Assembly on the refusal to pay taxes to be carried out. By its statement about Herr Temme, which had even been addressed directly to the throne, the worthy provincial Court of Appeal has formed itself into a party and pronounced a prejudiced opinion, and therefore it is impossible for it any longer to play the role of judge in relation to another party.

It will be recalled that the alleged coercion of the Prussian National Assembly by the Berlin mob was used as the pretext for the first coup d'état of the Brandenburg Ministry. In order not to exercise any coercion against the deputies, the Ministry continued the “wild chase" begun against them in Berlin, even after the deputies had returned to their homes!

Minister of justice Rintelen states in his decree, which we reprint further below:

“The illusion deliberately fostered by many persons, that the hitherto existing criminal laws, particularly those concerned with crimes against the state, are no longer valid since March of this year, has greatly contributed to increase anarchy and has perhaps also had a dangerous influence on individual courts.”

Most of the actions of Herr Rintelen and of the courts under his jurisdiction provide further proof that since the forcible dissolution of the National Assembly only one law continues to be valid in Prussia, the arbitrary will of the Berlin camarilla.

On March 29, 1844, the Prussian Government promulgated the notorious disciplinary law against the judges by which, through a mere decision of the Ministry, they could be deprived of their posts, moved or pensioned off. The last United Diet abolished this law and restored the validity of the fundamental principle that judges could be dismissed, moved or pensioned off only by a lawfully delivered judgment. The imposed Constitution confirms this principle. Are not these laws being trampled under foot by the courts which, in accordance with the prescription of the Minister of justice, Rintelen, want by moral compulsion to drive their politically compromised colleagues into giving up their posts? Are not these courts turning themselves into an officer corps which casts out any member whose political views do not suit its royal Prussian “honour"?

And is there not also a law on the non-liability and inviolability of the people’s representatives?

Hot air and empty sound!

If the Prussian Constitution had not annulled itself already by its own articles and the manner of its origin, it would be annulled owing to the simple fact that its ultimate guarantor is the Supreme Court of Berlin. The Constitution is guaranteed by the responsibility of the Ministers, and the non-liability of the Ministers is guaranteed by the court that has been granted to them, which is no other than the Supreme Court in Berlin, the classical representative of which is Herr Mühler.

The most recent rescripts of the Supreme Court, therefore, are neither more nor less than the obvious cessation of the imposed Constitution.

In Austria, owing to the Government’s direct threats to plunder the bank, which the Viennese people left untouched at the time of its greatest and most justified resentment against financial feudalism, the bourgeoisie realises that its betrayal of the proletariat surrendered precisely what this betrayal: was intended to safeguard — bourgeois property. In Prussia, the bourgeoisie sees that, owing to its cowardly trust in the Government and its treacherous distrust of the people, the indispensable guarantee of bourgeois property — bourgeois administration of justice — is threatened.

With the dependent state of the judiciary, the bourgeois administration of justice itself becomes dependent on the Government; that is to say, bourgeois law itself is replaced by the arbitrary action of officials. La bourgeoisie sera punie, par où elle a péché — the bourgeoisie will be punished by that in which it has sinned — by the Government. That the servile statements of the highest Prussian courts are only the first symptoms of the approaching absolutist transformation of the courts, is borne out by the following recent decree of the Ministry of justice:

“By the general ordinance of October 8 of this year, my predecessor in office has already called attention to the fact that it is the prime task of the judicial authorities to maintain respect for the law and its effective action, that they can best serve their country by fulfilling this task, because true freedom can flourish only on the basis of law. Since then, unfortunately, in many places there have occurred very serious outbreaks of an anarchist activity which mocks at law and order; in some parts of the country even violent revolts against the authorities have taken place and have not everywhere been energetically countered. In view of such a regrettable state of affairs, I now, after His Majesty’s Government has taken a decisive step to save the state, which has been brought to the brink of the abyss, I now address myself anew to the judicial authorities and the Public Prosecutors of the whole country, to request them to do their duty everywhere and without regard for persons. Whoever the guilty person may be, he must not escape the legal punishment that has to be brought to bear in the speediest possible way.

“With especially deep regret I have been compelled to note, both from individual reports of the provincial authorities and from official newspapers, that some judicial officials also, unmindful of their special professional duties, have in part let themselves be carried away into committing obviously illegal actions, and in part have not shown the courage and fearlessness through which alone terrorism could be successfully countered. I expect steps to be taken in regard to them also, with establishment of the facts and if necessary the institution of a judicial investigation, without lenience and with the utmost expedition, for officials responsible for the administration of justice, who are entrusted with preserving the prestige of the laws, have by their own violation of the law been doubly at fault; and it is especially necessary to expedite the proceedings against them because the operation of the law must not be allowed to remain in the hands of such officials. If among those guilty there are officials in respect of whom, on the basis of existing regulations, a formal investigation cannot be made, or on whom suspension from office, which must always be considered as a duty in cases of this kind, cannot be imposed without higher authorisation, then steps must be taken to establish the facts in order to justify the investigation without a special instruction, and after that the requisite permission obtained as speedily as possible. With regard to candidate assessors and junior lawyers attending the courts, it must be borne in mind that there are special rules governing their dismissal from state service.

“The illusion deliberately fostered by many persons: that the hitherto existing criminal laws, particularly those concerned with crimes against the state, are no longer valid since March of this year, has greatly contributed to increase anarchy and has perhaps also had a dangerous influence on individual courts. In view of the excellent state of mind of the Prussian judicial officials, which on the whole they still display, it suffices to point to the well-known juridical principle that laws remain in force until annulled or modified through legislation, as well as to the express provision of Article 108 of the constitutional document of the 5th of this month, in order to be assured that the honourable Prussian judicial officials, in their wholehearted interest for true moral and political freedom, will put above everything the prestige of law and order.

“Guided by these principles and scorning all personal dangers, we shall go forward confident of victory over crime, over anarchy. Precisely thereby we shall most essentially contribute to ensure that the Prussian state, previously so brilliant, will once again display its moral strength and will no longer tolerate — to use the words of a brave Frankfurt deputy — that wickedness and gross violence should continue to exist among us.

“The presiding judges of the courts, and also the Prosecutor-General in Cologne, should accordingly instruct the officials of their departments to do what is necessary, and keep me informed in respect of which officials, and for what offences, suspensions are being pronounced and judicial investigations instituted.

Berlin, December 8, 1848
Minister of justice Rintelen”

If one day the revolution in Prussia is victorious, it will not find it necessary, like the February revolution, to abolish the irremovability of the older class of judges by a special decree. It will find this caste has given documentary evidence of the renunciation of its privilege in the authentic declarations of the Rhenish Court of Appeal, the Supreme Court in Berlin, and the Courts of Appeal in Bromberg, Ratibor and Münster.