Engels in Neue Rheinische Zeitung May 1849
Source: MECW Volume 9, p. 383;
Written: by Engels on May 2, 1849;
First published: in the Neue Rheinische Zeitung No. 288, May 3, 1849.
Cologne, May 2. Yesterday we promised to return to the indictment against Lassalle.
Lassalle is charged with a “crime under Articles 87 and 102 of the Criminal Code”.
Article 87 is directed against an “attempt or a plot the aim of which is to incite (exciter) the citizens or inhabitants to take up arms against the imperial power”.
Article 102 imposes the punishments (mainly the death penalty) laid down in the preceding Articles of the section (which includes Article 87) on all those who by speeches in public places or at public meetings, or by the display of posters, incite (excitent) the citizens to commit these crimes. Only in the event of the incitement being unsuccessful is the penalty mitigated to exile.
Of what is Lassalle being accused?
Since under a single charge he is alleged to have sinned against Article 87 and simultaneously against Article 102, he can only be accused:
of having called for the commission of crimes listed in Article 87 in the manner of Article 102, i.e.
of having incited the citizens to prepare an attempt or a plot the aim of which is an incitement to take up arms against the royal power, i.e.
of having incited the citizens to incitement to take up arms!
To the ordinary human mind, that is fairly obvious nonsense. But that is how the Public Prosecutor’s office and the indictment board wanted it!
The point is that Article 102, which makes incitement to commit the crimes envisaged in Articles 86-101 equivalent to the commission of the crime itself, is, if the incitement is successful, quite properly applicable to all of these Articles. It applies even to the remaining items of this same Article 87. For all these Articles are directed against definite actions, to the commission of which instigation is possible. Article 87, for example, which is directed against commission of an attempt or a plot, speaks also about an attempt or plot against the life and person of the Emperor, and about an attempt or plot aimed at altering or destroying the form of government or the order of succession to the throne. All these are things to which one can “incite” people. Incitement to regicide, or to a revolution, is a possible fact; incitement to a plot the aim of which is regicide or a revolution can also occur. But “incitement to prepare an attempt or plot for the purpose of inciting people to take up arms against the royal power”, in short, incitement to incitement is a crime as impossible and as absurd as “an attempt at a remote attempt at high treason”, which in the good old times of Prussian Law  cost many an unfortunate member of a students’ association ten years imprisonment in a fortress, or as the notorious suspect de suspicion dincivisme (suspected of suspicion of lack of civic sense), which people wearing legitimist spectacles claim to have found in the prison lists of the time of the Terror in 1793.
Alternatively, if the “incitement to incitement to take up arms” is really a crime that is logically and juridically possible, then for Lassalle to come simultaneously under the passage in question of Article 87 and under Article 102, he should have been indicted not for the speech in Neuss, but for the address to the National Assembly, which states: “We beseech the National Assembly: Issue a call to arms!” 
Here is the “incitement to incitement to take up arms”. But it has not even occurred to this ne plus ultra of an indictment to see a crime in these words.
How did it happen that, out of the long series of Articles in the section in question, the Public Prosecutor’s office selected and combined with Article 102 precisely the passage to which Article 102 does not apply at all?
Quite simply. The crime envisaged by Article 87 involves the death penalty. But in the whole of the Rhine Province no jury could be found that would assist in condemning Lassalle to death. The prosecution therefore preferred to include Article 102 as well, which prescribes mitigation of the punishment to exile in cases where the incitement to “crime” is unsuccessful. It was thought that a jury prepared to do this could be found.
Hence, in order to get rid of Lassalle, the prosecution invented an impossible crime and combined two passages of the law which in combination are sheer nonsense.
Therefore, either Lassalle is guilty of having violated Article 87, and then one should have the courage to condemn him to death outright, or he is not guilty of having violated Article 87, and then he has not violated Article 102 either, and must certainly be acquitted. But to violate Article 87 in the passage quoted and Article 102 at the same time is an impossibility.
Note the craftiness of the prosecution. The charge against Lassalle really comes under Article 87 (death penalty). But they do not dare to bring that charge against him; so he is charged under Article 87 in combination with Article 102 (exile). And if that does not succeed, if the jury acquits him, he will be brought before the police court and charged under Articles 209 and 217 (six days’ to one year’s imprisonment). And all this for one and the same fact, for his activity as an agitator during the movement to refuse payment of taxes!
Let us now look at the actual corpus delicti — the speech in Neuss on November 21.
Lassalle is charged with having directly incited the people to take up arms against the royal power.
According to the statements of the three witnesses referred to in the indictment, Lassalle did directly incite the inhabitants of Neuss to arm themselves, to procure ammunition, to safeguard by force of arms the liberties they had won, to support the National Assembly by effective action etc. However incitement to take up arms in general is by no means an offence, and still less a crime, most certainly not since the revolution and the law of April 6, 1848 which guarantees to every Prussian the right to bear arms. According to the Code pénal, incitement to take up arms is punishable only if the arming is directed against individual officials (revolt) or against the royal power, or against another section of the citizens (riot). The present case relates especially to incitement, and indeed to direct incitement to take up arms against the royal power.
In all three statements of the witnesses, however, there is not a single word about taking up arms against the royal power, they mention only taking up arms to protect the National Assembly. But the National Assembly was a legally constituted, legally existing body, an essential part of the legislative authority, and here indeed an essential part even of the constituent authority. Just as the constituent authority stands high above the executive authority, so the National Assembly stood above the “royal Government”. To call for the universal arming of the people for the protection of this body, which alongside the King is the supreme legislative authority in the country, is regarded by our Public Prosecutors as a serious crime!
The only passage in which the sensitive nose of a Public Prosecutor could discover a remote reference to the “royal Government” was that concerning the gun-batteries in Neuss. But did Lassalle incite the people of Neuss to arm themselves in order to seize the batteries on the left bank of the Rhine, and in particular did he do so “directly”, as is asserted in the résumé of the indictment and as is required for a conviction?
On the contrary! Neither “directly” nor indirectly did he incite them to do so. He merely said that the people of Düsseldorf were expecting that the people of Neuss would seize these batteries. And this mere expression of an “expectation” is, in the opinion of the worthy Public Prosecutors, an excitation directe, a direct incitement to take up arms against the royal power!
Thus, in the quite real arming of Düsseldorf, openly organised for the protection of the National Assembly and clearly directed against none other than the Prussian troops, i.e. against the royal Government (le gouvernement de l'empereur), there is no crime at all, there is merely the offence of resistance to individual officials; but in that mere statement, in those few words, there is a serious crime!
For what Lassalle did, they do not dare to accuse him; but what he said is supposed to be a serious crime. And what did he say? That it was expected that the people of Neuss would seize the batteries. And who did he say was expecting it? Was it perhaps Lassalle himself? On the contrary, it was the people of Düsseldorf!
Lassalle said that third persons expect you to do such and such, and according to the logic of the public prosecution that is a “direct appeal” to you actually to do what is expected.
In Berlin, the Ministers have now dissolved the Chamber and are preparing for further dictatorial measures. Let us suppose that today universal suffrage were to be arbitrarily abolished, the right of association suppressed, freedom of the press destroyed. If we say: We expect that the people will reply to this disgraceful perfidy by erecting barricades — then, according to the Public Prosecutors, we have “directly incited” the citizens of Berlin to arm themselves against the royal power. And if things turn out as the Public Prosecutors desire, we would be sentenced either to death or exile, depending on the circumstances!
The secret of the whole court action against Lassalle consists in its being an arbitrary trial of a troublesome agitator. In a concealed form it is a trial on a charge of “stirring up discontent" such as prior to the March days we, too, had the pleasure of enjoying here on the Rhine. In the same way, the trial instituted against Weyers is in a concealed form a trial on a charge of lèse-majesté. Weyers said: “death to the King” and “the King ought not to be allowed to have the crown a quarter of an hour longer”. And these few words, quite innocent from the point of view of the Code pénal, are similarly alleged to contain a “direct incitement to take up arms"!
And even if Lassalle had actually called for arming against the royal power, what would this mean? Let us adopt the constitutional standpoint and speak in accordance with constitutional ideas. At that time, in November, was it not the duty of every citizen not only to “call for arming”, but to take up arms himself in defence of the constitutional representatives of the people against a perfidious “royal Government” which, with the aid of soldiers, drove the Assembly of people’s representatives from one building to another, dispersed their sittings, allowed soldiers to use their official documents as spills and for lighting stoves, and finally sent the representatives packing? According to the decisions of the United Diet, and according to Herr Camphausen’s famous “legal basis”, not to mention the achievements of March 19, was not the Assembly an entity on a footing of “equality” with the Crown? And should one not be allowed to defend such an Assembly against encroachments by the so-called “royal Government"?
Moreover, we have seen that it has become second nature for the “royal Government” to bestow kicks on the people’s representatives. Hardly two months after the convocation of the imposed Chambers this same “royal Government” disperses them at the first objectionable decision — disperses the very Chambers which were supposed to revise the Constitution! The Chambers have now recognised the validity of the imposed Constitution, and now we know still less whether we have a Constitution or not. Who knows what will be imposed on us tomorrow?
And the people who foresaw all that and acted accordingly, who strove energetically to oppose these violent activities of an arrogant camarilla, and who, according to the views of all constitutional countries and especially England, kept completely to a legal basis, these people are arrested on orders from Manteuffel, Simons and Co., held for six months in prison and are finally brought before the Assize Court charged with incitement to riot!