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(Translation.)

Inclosure 2 in No. 37.

A Legal Exposé of the Macdonald-Möller case.

ON the 12th of September of the current year, the English Captain, Macdonald, was taken into custody at the Bonn Railway Station, and, upon the charge of having assaulted the Station-master, Hoffmann, was submitted to judicial examination.

The preliminary inquiry, in consideration of the confinement of the accused, was restricted to as few examinations as possible, and the case was disposed of as early as the sitting of the tribunal of Correctional Police ("Zuchtpolizei-Gericht") of the 18th of September of the current year. The Court found the accused not so much guilty of an assault upon Hoffmann whilst in the discharge of his duty (which Hoffmann himself does not seem to have considered to have been the case at the time of the occurrence), as guilty of an insult to Hoffmann whilst in the exercise of his functions, and accordingly condemned Macdonald to a fine of 20 thalers, with costs. Macdonald made no appeal against this judgment, but, on the contrary, immediately paid the penalty and costs, and was set at liberty.

Then appeared in the "Bonn Gazette" of the 20th of September, as well as in a number of the "Cologne Gazette" of the same date, a protest inserted by several English residents in Bonn, in which they asserted that the Public Prosecutor Möller had declared, in the public sitting of the 18th of September, that "the English residing or travelling on the Continent were known for their presumption, insolence, and blackguardism (Lümmelei')." It goes on to say that Möller had been led, by his private feelings of hatred, to insult a whole nation, to which the wife of his Royal Highness the Crown Prince belongs, and that he had, by his uncalled-for and cowardly attack on the whole British nation, wished to excite feelings of animosity against the many English families living in Bonn.

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An inquiry, not yet terminated, has been instituted at Bonn by the Procureur-Général (Ober-Procurator) against the persons who signed this advertisement, on the ground of an insult offered to the Public Prosecutor Möller in connection with his public duties.

Meanwhile the Minister of Justice found himself all the more called upon to direct disciplinary proceedings to be taken against Möller, that the occurrence had created a great sensation, and that the most exact exposition of the facts of the case appeared necessary. Accordingly, these proceedings were instituted, in conformity with section 23 of the Disciplinary Law for Officials, not Members of the Judicature, passed on the 21st of July, 1852, under reserve of a further decision, according as the result of the preliminary inquiry turned out, one way or the other, as provided by section 38 of the same Law; and a Member of the Court of appeal of Cologne, of the rank of Judge, was named Commissioner to carry on this inquiry.

It was intimated, partly in the advertisement above alluded to, partly in other quarters, that Macdonald had given no cause for his arrest; that he had been roughly treated during the same; that he had been confined in improper prisons; that the rules laid down by the law, with reference to arrests, had not been observed; and, finally, that Möller had not only, in the public sitting of the Court, expressed himself in the terms above alluded to, but had also previously opposed the provisional release of Captain Macdonald on bail in an improper manner.

As regards these charges, the legal proceedings, in which all the witnesses, as well those who were officially called as those adduced by the persons who signed the protest, were examined on oath, have furnished the following body of information:

Macdonald was travelling by rail on the 12th of September, from Mayence, in a second class carriage, in company with his sister-in-law and her husband, Kuhe, their child and its nurse. In those second class carriages, according to the account given by Station-master Hoffmann, when there is a press of travellers ten persons may be received at intervening stations such as Bonn. As the train stopped at Bonn station Kuhe left the carriage, with the nurse and the child. Macdonald and his sister-in-law were left alone. The witnesses, shopkeeper Josepha Heyden and her forewoman Catharine Niessen, of

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Cologne, came early on the platform, before any disturbance took place, got into the carriage, of which Macdonald and a lady were the only occupants, and saw that the vacant places were covered with travelling effects. However, on their asking whether there were still two places free, it appears that Macdonald civilly made a sign in the affirmative with his hand, and gathered up his travelling effects, in order to make room for the two witnesses. After this, according to their account, Dr. Parow came to the carriage for the purpose of getting in, upon which Macdonald made a simple motion with his hand, in order to show that there were no more places vacant. Parow then retreated from the steps of the carriage, but, on the railway guard warning the passengers to get in, he sat down with his wife in the carriage in question, without any opposition on Macdonald's part, either by word or gestures.

When, however, another gentleman (Buchholtz) had attempted to get in, Macdonald had got up from his seat, and motioned him off with his hand, in a manner which made the impression on the witnesses of his fearing lest the absent portion of his party should find no places. Upon this, Macdonald's brother-in-law got into the carriage, with a child on his arm, and now (as deposed by the witness Heyden) or even on his warning off Buchholtz (as deposed by the witness Niessen), Dr. Parow informed Macdonald, in an excited tone of voice, that he was an insolent fellow (" Flegel"), and called out to the Station-master, who was standing near, "Take this insolent fellow out of the carriage, otherwise I shall not go any further." The Station-master then called into the carriage, "Come out, we will give you another place;" and as Macdonald did not obey these directions, hands from outside laid hold of him, in order to drag him out of the carriage. His sister-in-law endeavoured to retain him in the carriage, but, from the other side, several railway employés rushed into the carriage and violently expelled therefrom Macdonald and the lady. The witnesses further deposed that, as far as they saw, Macdonald was not guilty of any act of violence against the Station-master Hoffmann, and more particularly that they did not see him strike him on the breast. At any rate, they said neither one thing nor the other happened as long as Macdonald was in the carriage. Besides, they had never seen the face of the Stationmaster, but had only concluded that he was present from Dr. Parow calling out to him, and from the answer returned by him. They had remarked no improper conduct against any one on the part of the Englishman. On the departure of the train Dr. Parow had remarked to his wife, "Did he push you also?" to which the latter answered in the negative.

Henrietta Hoevel, formerly shopwoman of the witness Heyden, now residing at Poppelsdorf, was heard in support of Macdonald, and deposed, that she had accompanied the witnesses Heyden and Niessen to the carriage, and had remained on the platform; that it had at first appeared as if there were no places vacant in the carriage, but that Macdonald had made room for both ladies by collecting his luggage that was lying about on the seats. Dr. Parow had got in later, and Macdonald had given him to understand, by gestures with his arms, that the places were taken. She had seen no pushing on the part of Macdonald. One of the ladies whom she accompanied had informed her that Macdonald had merely laid his hand on the shoulders of the lady who was with Dr. Parow, giving her to understand that she must leave the seat. The Stationmaster Hoffmann, had wished to prevent a second Englishman from entering the carriage, and wanted to drag out both Englishmen. Macdonald had on his side struck about him with his arms, and several railway officials had then come from behind and thrown the English out of the carriage. Up to the moment when the railway officials got into the carriage from behind, the witness had not seen that Hoffmann had been struck by Macdonald, although she had watched the affair closely. According to her firm conviction she could only say that he had made gestures with his arms.

In her subsequent examination this witness declared, in correction of her former statement, that she had not been able to remark the single facts, as everything had taken place so rapidly. She had seen no assault on Hoffmann on the part of Macdonald, but that, in the tumult, she had been unable to note whether such had taken place or not.

Another witness for the defence, Doctor of Philosophy Meyer (who could not be examined subsequently, as he had left Bonn), deposed, in the sitting of the 18th of September, that Hoffmann stretched his arms with a certain vehe

mence into the carriage, continually calling out, "Out with him." Railway officials had then dragged several persons out of the carriage. This was done rather roughly. Macdonald was dragged out by 'the feet, so that his head struck the step.

This last statement Macdonald himself declared in Court to be incorrect. Dr. Parow, M.D., of Bonn, and his wife, both deposed that the former had, on Macdonald signifying to him that there was no room in the carriage, the vacant seats being covered with travelling effects, at first left the carriage steps; but on the call "Ready" sounding, and the guard directing him to get in quickly, as there was room enough in the carriage, he got in.

As, however, Mrs. Parow was about to enter, Macdonald took hold of her shoulders to prevent her from doing so. Upon this Parow had called to Macdonald in a loud voice, "Sir, how dare you touch the lady!" and on Macdonald explaining in his own language that he knew no German, Parow had answered, "I know that already; when Englishmen intend to be guilty of some insolence they pretend not to know German." He, Parow, had then called out to the Station-master, " Protect me against this gentleman, who has attacked my wife. I make you responsible for it, and shall go no further with the gentleman." Meanwhile the brother-in-law of Macdonald had come up with the nurse and child, and had got in. Hoffmann tried to induce him to get out, but had received a very severe blow on the chest from Macdonald's two fists. Hereupon Hoffman had, with the assistance of railway officials, who got in at the other side, dragged Macdonald, who struggled violently, out of the carriage.

The Parows explained the contradictory statements of the above witnesses, Heyden, Niessen, and Hoevel, by the fact of those standing outside having been unable to see all that was going on on account of Mrs. Parow's position; while Macdonald's standing up prevented the witnesses, sitting back in the carriage, from seeing.

The cloth manufacturer Buchholtz, of Burtscheid, deposed that he had wanted to get in after the Parows, being directed to do so by the guard, but that he had retreated because Macdonald had got up from his seat and gone up to him warning him off as if he intended to push him back; he had gone at him with both hands, moving them backwards and forwards, and as witness believes with both fists clenched.

The Station-master Hoffmann says that his attention had been drawn to the disturbance in the carriage in question, and that he had been desired by Dr. Parow, who was very indignant, to show either him (Dr. Parow) or Macdonald another place, as the latter had laid hold of his wife. He had also been informed that Macdonald had refused to allow Buchholtz to enter the carriage. Macdonald's brother-in-law, who had come up in the meantime, and who was perfectly quiet, and well acquainted with the German language, had attempted to mediate. He, Hoffmann, had endeavoured to prevent his getting into the carriage, in order to show him and Macdonald into another place. The latter had, however, taken hold of his brother-in-law in order to drag him into the carriage, and had given Hoffmann, who tried to prevent this, a severe blow in the chest with one or both fists. Hereupon Macdonald, who had thrown himself back on the seat, had been turned out of the carriage. This could only be carried into effect forcibly by pulling at his legs. At the same time he had not fallen to the ground during the transaction. Macdonald's sister-inlaw, Mrs. Kuhe, who was well acquainted with the German language, had, on the departure of the train, made use of abusive language in the luggage office, and talked of German coarseness and vulgarity. He, Hoffmann, had given her to understand that he respected the lady in her, and that she could not insult him. No answer was given to him on his asking several times for Macdonald's name, until at last the passport book was tossed on the table to the Police Officer Wirtz, who had been called up, from which Macdonald's name was obtained. He had now demanded 10 thalers deposit-money, as he desired to treat the affair simply as a contravention of the railway police regulations; as, however, upon this, Mrs. Kuhe had declared it to be extortion and robbery, that he intended putting the money into his pocket, his patience had become exhausted, and he had given over the affair to the Police, and brought Macdonald before the Police Commissary.

The judicial acts show that already on the 12th of September, after the

witness Hoffmann had been heard, Macdonald, who had been arrested whilst actually committing the act of which he was charged (" auf frischer That ergriffen ") was examined before the Commissary of Police, as the competent official of the Criminal Police, that his confinement in the arrest-house was ordered, and that a notification of the matter was made to the Procureur du Roi ("Staats-Anwalt"). The latter on the following day moved the examination and committal before the Juge d'Instruction. The examining organ "Untersuchungs-Amt ") examined Macdonald on the same day in the arresthouse, and left him there. The provisions of the law of the 12th of February, 1850, for the protection of personal liberty (the so-called Habeas Corpus Act), were hereby fulfilled. The formal warrant of detention, prescribed additionally to this by the Criminal Code of the Rhine, which authorizes the actual reception ("Aufnahme") into the arrest-house, could only be drawn up and executed on the 15th of September, on account of the absence of the Juge d'Instruction on service, whose place for the purpose of examination had been taken by a Referendary.

It was namely necessary that, as Referendaries cannot on their own authority make out warrants of detention, and as the absence of the Juge d'Instruction was prolonged by the unexpected duration of his official business, the Court at Bonn should by a decree appoint another of its members as a substitute for the Juge d'Instruction.

Macdonald during his detention was confined in a decent room reserved for debtors, and quite separate from the other localities of the prison; during the day time he could spend his time in the room set apart for the judges and lawyers, whilst he obtained his food from one of the best hotels at Bonn.

No application to be set provisionally at liberty or bail was made on behalf of Macdonald. Nevertheless the statement has been put forward that the Procureur du Roi Möller had in an improper manner denied the admissibility of such bail. The English Consul at Cologne, in his evidence given as sworn witness, only deposes to the fact that he had on the third day after the arrest endeavoured to obtain from Möller the release of Macdonald on bail, that Möller had declared that he for his part did not agree to such a step, that an application for this purpose might be brought before the Court, but that he would oppose such an application. With reference to this statement, which does not even maintain that there was an illegal act on the part of Möller, Möller declares that it must in so far be based on a misapprehension that he had in no wise spoken of a personal disinclination to, or of opposition against, the liberation; but only that according to analogous precedents, the application would as he foresaw not be agreed to by the Court, which alone had to decide in the matter, that however he would not dissuade from such an application being made. That in similar cases in which Englishmen have been arrested for ill-behaviour, applications for liberation on bail have been refused by the Court at Bonn, is shown by the acts relative to these cases, more particularly in a case in the year 1857, when the Court opposed the motion of the Procureur du Roi Möller.

Lastly, as regards the expressions which Möller is accused, in the newspaper advertisement above referred to, with having used in the public sitting of the 18th of September, when the affair of Macdonald was being tried, it should be observed that Möller, even before the appointment of the Disciplinary Inquiy, had, in a written declaration which had been required of him, admitted that in the introduction to his speech for the prosecution, moving that fourteen days' imprisonment should be awarded, he had, in connexion with the meaning of the word "gentleman," expressed himself on the spur of the moment to the effect that not all Englishmen had allowed that expression (gentleman) to penetrate into their flesh and blood, inasmuch as experience taught that, as regarded those who came to the Continent, they either did not fully appreciate the meaning of the word, or at least, when abroad, thought they could leave it unattended to, inasmuch as they often rendered themselves conspicuous by their presumption and arrogance, and he regretted to have so to call it, their blackguardism.

He did not mean exactly to apply this to the accused, who, however, as an officer and an educated person, ought to have known that it was his duty to submit to the orders of Police Agents, and that it was not one's business to oppose oneself to such orders by acts of violence and blows with the fist,

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not in his country (the accused's) the respect before the Agent of Police so great, that a single man, armed with a short staff, could menace and hold in order a whole mass?

No results, very materially different from these statements of Möller himself, have been obtained from the depositions of the many witnesses who have been examined in the matter. All the witnesses agree upon this point, that Möller spoke only of the English who travelled on the Continent, and not as the protest declares, of those who reside on the Continent. In the same way it is proved that Möller immediately declared that these words did not apply to the accused.

The depositions of the witnesses only differ from one another in the sense they attribute to the words of Möller, viz., as to whether these words designated only a few travelling Englishmen, or were to be taken in a more general sense, and whether they accidentally could, or necessarily would, when taken in their context, more or less produce the impression that all English travelling on the Continent were meant, and so a whole class of persons, and even the English nation at large, insulted.

The greater majority of the witnesses were unable to give an accurate account of the speech in its general connexion, and principally recollecte the expressions, arrogance, insolence, and more particularly ("Lümmelei ") blackguardism, and did not derive the impression from Möller's speech that he wished to extend those expressions to all English travelling on the Continent, and thereby insult the English nation at large. It should be more particularly noticed, that the President of the Court, President Lamberg, who was called upon to give his special attention to the speech of Möller, and during the time it was going on to take notes, because he had to repeat what had been said to the Interpreter, that it might be translated into English, finds amongst his notes the following entries: Amongst many English, insolent, arrogant, blackguardism (Lümmelei ")," and consequently that he repeated to the Interpreter the speech of Möller in the narrower sense which the speaker himself has attributed to it.

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In opposition to this, Advocate Schöler, the counsel for Macdonald, who was examined as a witness, declares that, owing to the great excitement produced amongst the English who were present, by the observation of Möller-an excitement which he (Schöler) sought to calm to prevent any interruption of the sitting-he had been induced to note the expressions of Möller verbatim, and according to his notes, Möller's ipsissima verba had been, "But the English, those at least who travelled on the Continent, behaved with insolence, arrogance, and I may say, blackguardism. This, however, does not all of it apply to the present accused."

Witness had read out these words, word by word, in his reply, and it had struck him as strange that the President of the Court, when he caused the speech of Möller to be interpreted, had construed the words in the sense that many English behaved themselves improperly." He had, however, had no interest in contradicting this interpretation previously to his reply.

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The English Consul gives the words used by Möller, which he had written down soon after the sitting of the Court, exactly as they had been given by the counsel who defended Captain Macdonald.

The first impression that they had made upon him was that an insult had been offered to the English nation. The reason why he had not held fast to this first impression might be that Möller had, upon the more general expression, "Englishmen," made the words follow, "at least those that travel on the Continent "

The Advocate Hagen, who was present amongst the audience at the sitting of the Court, considered the expressions used by Möller to have been called forth by the antecedent remark of the counsel for the defence, to the effect that in conflicts between Englishmen and Germans, the latter's prejudices were generally against the Englishmen, whereas in the present case the opinion of the public was on the side of the Englishman. Möller's reply, connecting itself with this remark, as it seemed to him (Hagen), had gone to show that though it was certainly the case that the English knew how to designate with one single appropriate word the noble character of the Englishman, nevertheless the English, those at least who travelled on the Continent, made themselves conspicuous by their presumption, insolence, and blackguardism. That he had by no means meant to predicate this of the accused Macdonald, but that it was

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