Appendix No. 11., June 4, 1851

Appendix No. 11.

Prussian law relating to the state of siege, dated June 4, 1851.

We, Frederick William, by the grace of God, King of Prussia, &c, &c, hereby ordain, with the approval of the chambers, as follows:

§ 1.

In case of war, every commandant of a fortress is authorized to declare the fortress under his command, with the district belonging thereto, in provinces threatened or partially occupied by the enemy, to be in a state of siege for purposes of defense, and a commanding general is authorized to do the same as regards the district of the army corps or single portions thereof.

§ 2.

Also in case of a tumult or riot, when the public safety is in imminent danger, a state of siege may be declared, either in time of war or peace.

The declaration of a state of siege shall be made by the ministry of state, but, in urgent cases, it may be made for special districts, provisionally and subject to the immediate confirmation or disapproval of said ministry, by the principal military commandant in the same, at the suggestion of the principal executive officer of the provincial subdistrict; but, when there is danger in delay, even without such suggestion.

In fortresses, a provisional declaration of a state of siege shall be issue! by the commanding officer of the fortress.

§ 3.

The declaration of a state of siege shall be announced, without delay, by the sound of drum or trumpet, and also by notifying the authorities of the commune, by handbills posted in public places, and by publication in the newspapers. The raising of the state of siege shall be brought to public notice by informing the communal authorities and by advertising in the newspapers.

§ 4.

When a state of siege is declared the executive power goes into the hands of the military commandant. Civil and communal authorities must obey the orders and injunctions of the military commandant.

Military commandants shall be personally responsible for their orders.

§ 5.

If, when a state of siege is declared, it is thought advisable to declare articles 5, 6, 7, 27, 23, 29, 30, and 36, of the constitution, or any part thereof, to be not in force for any time and in any district, the provisions of such suspension of force must be expressly stated in the proclamation which declares a state of siege to exist, or it must be announced in a special order, to be promulgated in the same form (§ 3).

The suspension of the aforesaid articles, or one of the same, is only admissible for the district which is declared to be in a state of siege and only for the duration of the state of siege.

§ 7.

Military persons, during a state of siege, are subject to the laws issued for such state. Sections 8 and 9 of this ordinance are also applicable to them.

§ 7.

In the places or districts declared to be in a state of siege the commanding officer of the garrison (in fortresses the commandant) shall have military jurisdiction over all military persons belonging to the garrison. He shall also have the right to confirm sentences pronounced against such persons by court-martial. Only sentences of death in time of peace are an exception to this; such sentences must be confirmed by the commanding general of the province.

With regard to the execution of lower jurisdiction, the provisions of the military penal code remain unchanged.

§ 8.

Any person who is guilty of an intentional arson, or of intentionally causing an inundation, or of attacking or resisting the armed force or representatives of the civil or military authorities with open force and with arms or dangerous instruments, shall be punished with death. If there are any mitigating circumstances, the guilty party may be sentenced to imprisonment for ten or twenty years, instead of to death.

§ 9.

Any person guilty of the following offenses in a place or district declared to be in a state of siege shall be punished with imprisonment for a term not exceeding one year, provided the existing laws do not fix a longer period.

• Spreading false reports as to the number, line of march, or alleged victories of the enemy or of the rioters, when such reports are calculated to mislead the civil or military authorities; or
• Violating any order issued in the interest of public safety on the declaration of a state of siege or during the same, or inciting to such violation; or
• Inciting to riot, to resistance by force, to the liberation of a prisoner, or to other offenses provided for in § 8, even if unsuccessfully; or
• Seeking to persuade soldiers to commit acts of insubordination or offenses against military discipline and order.

§ 10.

If courts-martial are formed during the suspension of article 7 of the constitution, they shall have jurisdiction in cases of high treason, treason, murder, riot, forcible resistance, destruction of railways and telegraphs, rescue of prisoners, mutiny, robbery, pillage, extortion, tampering with soldiers, and the crimes and offenses provided for in sections 8 and 9, if all the aforesaid crimes and offenses have been committed subsequently to the declaration and promulgation of the state of siege, or are continued thereafter.

Crimes and offenses against the internal and external safety of the state (articles 75 to 108 of the Rhenish penal code) are to be considered as high treason and treason-felony within the jurisdiction of the Rhenish court of appeals at Cologne, until the adoption of a penal code for the entire monarchy.

In case article 7 of the constitution has not been declared suspended by the ministry of state, the execution of the sentence, in cases tried by court-martial shall be postponed in time of peace until the suspension has been approved by the ministry of state.

§ 11.

Courts-martial shall consist of five members, two of which shall be civil judicial officers, designated by the president of the civil court of the place, and three shall be officers appointed by the military commandant of the place. The rank of the officers shall be at least that of captain; if there are not enough officers of so high a grade, the number shall be made up from officers of the next grade.

If there is not a sufficient number of civil judicial officers in a fortress surrounded by the enemy, such number shall be completed by the military commandant from the members of the parish representation (Gemeindevertretung). If there is no civil judicial officer in the fortress, an auditor shall always be a civil member of the court-martial.

The number of courts-martial shall be in proportion to the requirements when an entire province, or a part thereof, has been declared to be in a state of siege, and the jurisdiction of each of these courts shall be fixed in such cases by the commanding general.

§ 12.

A judicial officer shall preside over the sessions of the courts-martial.

The presiding officer shall, before the court begins its business, administer an oath to the officers designated as members, and to those civil members, if any, who have no judicial character, whereby they shall bind themselves to fulfill the duties of their office conscientiously and impartially, according to law.

The military commander who appoints the military members of the court-martial shall appoint an associate judge, or, in default thereof, an officer, as reporter. It shall be the duty of the reporter to see that the law be properly executed, and to promote the elicitation of the truth. He shall have no vote.

A civil officer shall be appointed by the presiding officer of the court-martial to keep the minutes of its proceedings, and the oath shall be administered to him by said presiding officer.

§ 13.

The following provisions are to regulate the proceedings before the courts-martial:

1. The proceedings shall be conducted orally and publicly; but, if the court deems that it is required by the public welfare, they may be conducted in private; the court, in this case, to announce its decision by public proclamation.

2. The accused may have the benefit of counsel. If he selects none one must be appointed for him by the presiding officer of the court, provided crimes or offenses are here concerned, for which, according to the common penal law, a severer punishment is inflicted than imprisonment not exceeding one year.

3. The reporter shall state, in presence of the accused, the crimes with which he is charged.

The accused shall be summoned to give an account of the same, and further evidence shall then be taken.

The reporter shall then be heard concerning the results of the depositions and the enforcement of the law, and finally the accused and his counsel shall be heard.

The sentence shall be pronounced after immediate secret deliberation of the court, a majority agreeing, and immediately made known to the accused.

4. The court shall determine the legal punishment to be inflicted, or shall acquit the accused, or shall refer his case to the ordinary judge.

The accused, if acquitted, shall be at once released. The case shall be referred to the ordinary judge when the court-martial does not consider itself competent; it shall in that case issue in its sentence special provisions as to the continuance or discontinuance of the arrest.

5. The sentence, which shall mention the day on which the proceedings take place, and shall contain the names of the judges, the statement of the accused regarding his accusation, mention of the taking of the evidence and the decision concerning the question of fact and the point of law, as also the law upon which the sentence is based, shall be signed by all the judges and the clerk of the court.

6. From the sentences of a court-martial there is no appeal. Sentences of death, however, require the confirmation of the military commandant referred to in 7, and, in time of peace, that of the commanding general of the province.

7. All punishments, excepting the death penalty, shall take effect within twenty-four hours after the announcement of the sentence, and when the penalty is death it shall be executed within the same space of time after the confirmation of the sentence.

8. Death shall be inflicted by shooting. If any sentences of death shall remain unexecuted when the state of siege is at an end, this penalty shall be changed by the ordinary judge into that which, had the state of siege not existed, would have been the lawful consequence of the offense of which the prisoner shall have been convicted by the court-martial.

§ 14.

The authority of courts-martial shall cease simultaneously with the close of the state of siege.

§ 15.

When the state of siege is at an end all the sentences pronounced by the court-martial, together with the statements of the grounds therefor and minutes of proceedings, and likewise the cases still pending, shall be handed over to the ordinary courts. These shall pronounce sentence according to the ordinary penal laws in the cases which have not yet been decided by the court-martial, and only in the cases of $ 9 shall they decide according to the penal provisions therein contained.

§ 16.

Even when a state of siege has not been declared articles 5, 6, 27, 28, 29, 30, and 36 of the constitution, or any one of the same, may, in case of war or riot, when danger to the public safety is imminent, be declared not in force by the ministry of state.

§ 17.

With regard to the declaration of a state of siege, as likewise of every suspension occurring, either together with the same or in the case of the suspension provided for in § 16, even of one of the articles of the constitution mentioned in sections 5 and 16, a report must be made to the chambers immediately or at their next meeting.

§ 18.

All provisions at variance with this law are hereby repealed.

This law shall take the place of the ordinance of May 10, 1849, and of the declaration of July 4, 1849. (Laws, pp. 165 and 250.)