“A Most Peculiar Crime”

On the afternoon of 4 July 1882, the Viennese police responded to a report of a disturbing event. At lunchtime on that day, two men had assaulted and robbed a master shoemaker in his shop on Zieglergasse in the city's seventh district. The victim, Josef Merstallinger, had been rendered unconscious, and not until the evening of the fourth could he provide an account of the robbery. His testimony was rather confused and required subsequent revision; indeed, Merstallinger proved to be an unreliable witness to the attack he had suffered.

Variously described as a shoe manufacturer (Schuhwarenfabrikant) or master shoemaker (Schuhmachermeister), Merstallinger—divorced, fifty-five years of age—had a questionable reputation in several respects. Although his initial confusion was understandable, his subsequent inconsistencies in reports on the crime led the police to doubt his reliability as a witness and to consider him rather slow-witted (trägen Geistes).Footnote ⁹ Having divorced his wife in 1869 in favor of a younger woman with whom he now cohabited, he aroused some enmity for his personal life and was regarded as well-off, but tightfisted, by his neighbors.Footnote ¹⁰ His business practices may also have aroused resentment. In his shop on Zieglergasse, where he also resided, Merstallinger employed a housekeeper, two female workers, and a journeyman cobbler (Zuschneider), Franz Kramleiter. Outside his shop Merstallinger employed a further eight cobblers, who presumably worked at home. The practice suggests that Merstallinger engaged in a form of mass production by which artisans produced goods on a piecework basis for a wealthier manufacturer or master. The practice was expanding in late nineteenth-century Vienna and was widely resented for diminishing the status and wages of skilled artisans.Footnote ¹¹ To what extent his somewhat unsavory character contributed to his victimization remained to be seen.

A clear narrative of the crime emerged only after a few days, but Merstallinger's story was immediately provocative for its violence, drama, and brutal calculation. As the victim reported, two “elegantly dressed” men, who arrived in a horse-drawn taxi, knocked at his shop door after he had closed for the midday pause and his employees had left for lunch. The normally suspicious Merstallinger admitted them because of their trustworthy appearance. Presenting themselves as wholesale buyers interested in placing a large order for shoes, the strangers inquired into special prices that Merstallinger sometimes offered favored customers. The master shoemaker was struck by the inquiry, for the availability of these prices was known only to himself and to Kramleiter. When Merstallinger asked how the new customers knew his business so well, he received no answer. Nonetheless, he stepped into his living room for his account book. On his return to the shop, one of the men, described as tall and blond, grabbed Merstallinger by his left hand. The other stranger, small and dark-haired, took hold of the victim's right hand and produced a small, moist sponge that reeked strongly of an unidentified substance. Realizing he was under attack, Merstallinger screamed and thrashed with his fist and feet, but the small, dark man held the sponge to his nose until he lost consciousness.Footnote ¹²

On her return to work shortly after one o'clock, one of Merstallinger's female employees found the front door open and her boss unconscious on the floor next to the sponge. Finding that a locked box and a suitcase had been broken open, she immediately reported the attack to the district police. The robbers’ well-focused attack on his premises convinced Merstallinger, and indeed the police, that his assailants had attained a description of his shop and living quarters from someone with intimate knowledge of his business. The attack was clearly well planned and executed. The ruthlessness of the assault should not be underestimated. Merstallinger suffered injuries to his arms, legs, and head from the struggle, and, more seriously, had been administered a strong dose of anesthetic. According to a physician who examined the victim on 6 July, he suffered from blood poisoning and would have had more serious injury had he not vomited up the substance used to incapacitate him, which was determined to be chloroform.Footnote ¹³

Merstallinger's account included several inconsistencies and details that were never confirmed. He initially reported a loss of approximately nine hundred gulden in cash, including four new one-hundred-gulden notes and the rest in silver coins, as well as jewelry and valuables worth approximately 570 gulden. In a subsequent police interview, on 15 July, he increased the loss of cash to 1,150 gulden. Further, in the later interview, after the cab driver had reported carrying only one passenger to Zieglergasse that day, Merstallinger stated that only the large, blond man had alighted from the carriage and entered the shop before the arrival of the second assailant. Merstallinger's description of the men was vague. The blond man was approximately thirty years old and had a moustache; the small, dark man was older. Oddly, Merstallinger included the misleading detail that the robbers had soft hands, not the rough hands of workmen. He further felt the need to revise his description of the men's appearance to “well-dressed” rather than elegantly dressed.Footnote ¹⁴

After the arrest and subsequent release of Kramleiter and some of his friends, the case took a dramatic turn when the police announced the arrest of several suspects in the robbery in late August.Footnote ¹⁵ Those held under arrest included the suspected robbers, the journeyman carpenters Joseph Engel and Franz Pfleger, whom the Neue Freie Presse described as a prominent speaker at meetings of the radical workers party; Wilhelm Berndt, a master carpenter described by the police as a dangerous party leader, who had received and distributed stolen goods; and Josef Peukert, the editor of the radical newspaper Zukunft.Footnote ¹⁶ In a 27 August report to the interior minister, Vienna police chief Karl Krticzka von Jaden asserted the police had long suspected that radicals intended to turn to common crime to further their cause. Immediately after the crime the police had observed “a certain shy behavior” among radical leaders, and the explanation lay without doubt in their involvement in the planning of the robbery. Based on the evidence collected, eleven persons had been arrested; the proximate motive for the act was an urgent request for funds to support Johann Most's anarchist newspaper Freiheit, published in London.Footnote ¹⁷

The police based their alarming analysis on the interrogation of the principal suspects in the robbery. On 24 August, Berndt, after a few hours in custody, had announced that “for the sake of his children,” he would reveal the “whole truth” of the affair. On that day and at succeeding interrogation sessions, Berndt reported that he had been approached by leaders of the radical movement, including Peukert, with instructions to hold and distribute money stolen from Merstallinger. The instructions suggested to Berndt the full knowledge and involvement of these men in the affair, which had been undertaken in support of the underground radical movement. This organization, based on the Mazzinian cellular model, ultimately took direction from Most's anarchist center in London. The ultimate aim was “general revolution and the overthrow of all that was established in Europe.”Footnote ¹⁸ In the meantime, Austrian radicals met in secret clubs to spread propaganda and organize workers in revolutionary sects. These clubs, led by trustees secretly elected by more public workers’ organizations, culminated in an agitation committee that corresponded with Most's organization.Footnote ¹⁹ Berndt thus alluded to a complex web of internal and international activists that worked toward general revolution under the cover of more benign social organizations. His narrative inspired the imaginations of police and magistrates in uncovering a broad network of conspiracy through further arrests and interrogation of labor activists.

Although responses in the press to the communiqué included sensationalist speculation on the extent of the radical threat, editorial comments were initially skeptical of the police interpretation. Amid reports on the emerging details of the case, the Neue Freie Presse asserted that the correspondence seized in the course of the investigation suggested that the Merstallinger robbery was not merely the act of two criminals, “but rather had to do with the first terrorist efforts of a radical workers’ group in our monarchy.” Nonetheless, the degree to which this interpretation was true was yet unclear.Footnote ²⁰

In a lengthy lead editorial, the Neues Wiener Tagblatt subjected the police communiqué to extensive evaluation. If true, the police analysis suggested that Vienna “stood on a volcano, that the earth beneath our feet is undermined by socialism,” and that socialists would resort to any means, including criminal acts, in pursuit of their ends. The founders of modern socialism had laudable motives and sought to ground their beliefs in scientific study and high principle, but the socialist cause seemed to have sunk to low, despicable actions. Had the political violence associated with Bakunin and the Russian nihilists found acceptance in Vienna? “According to the police manifesto, we have nihilism in our midst, a nihilism that, even worse than Russian nihilism, directs its attacks directly against citizens’ security and property.” In any case, the socialist movement had gained great strength, and the doctrine of anarchism “had cast its shadow on Austria and Hungary.” Nonetheless, the editors were reluctant to believe that Austrian socialists were capable of such muddled brutality. The Austrian people were too peacefully disposed to accept such violent thinking; if danger existed, it must have originated abroad. Moreover, the editors found that in connecting the crime to the editor of the radical paper Die Zukunft the police may have gone too far. In their feverish excitement over the case, the officials may have exaggerated the extent of socialist involvement in the crime. Socialism, concluded the Neues Wiener Tagblatt, should be resisted by all legal means, but repression and wild accusations could only serve to exacerbate social divisions.Footnote ²¹

Newspapers of varied political associations expressed similar reservations on the police communiqué and its ramifications. The left liberal Konstitutionelle Vorstadt-Zeitung believed the police announcement was intended to prepare the public for harsh measures against the social democrats. If the socialist connection to the robbery were proved, the editors were prepared to accept repressive acts, but much remained to be clarified. The paper pointed out that the anarchist Most preached violence against the wealthy and powerful, not the robbery of artisans.Footnote ²² The conservative Vaterland was more dismissive of the police case and expressed confidence in the Austrian workers and the social reform efforts of the government. The editors expressed their conviction that the case involved no more than “the criminal ravings of a few extreme and despairing minds.” Rather, in recent times the Austrian labor movement had increasingly rejected radical influences in favor of legal means.Footnote ²³ Even the semiofficial Fremdenblatt cast doubt on the police assertion that the robbery was connected to leaders of the socialist movement. As other papers also suggested, greed and confused thinking may have motivated a few men associated with the socialist cause to act on their own in attacking Merstallinger.Footnote ²⁴

The robbery of Josef Merstallinger had taken on several possible meanings. Had Merstallinger been the victim of common criminals motivated by greed or of addle-brained radicals acting out of confused frustration? Although disturbing in its details and symptomatic of brazen urban criminality, such interpretation preserved a view of an action within the boundaries of criminal behavior. A more fundamentally challenging and frightening perspective suggested the robbery was a manifestation of cold-blooded calculation by radical activists operating in secret and with international support. Such a crime constituted a threat to social and political values as well as a brazen act of violence. Of course, a few individuals operating in secret could not pose a serious danger to the social order of Austria and Europe as a whole. The crime could, however, be connected to general concerns over social inequality and the resulting discontent of the poor or, to use the shorthand of the late nineteenth century, “the social question.”

For the Neue Freie Presse the case made clear that, despite former Interior Minister Karl Giskra's famous remark that “the social question ends at Bodenbach” (on the Austrian frontier with the German empire), the labor movement was active in Austria, and the government needed to confront labor demands through either repression or concession. The editors hoped officials had learned from the example of the German empire that repression of workers’ political activity was impractical, and that reform measures to ensure a minimum standard of well-being would be pursued instead.Footnote ²⁵

In an attempt at a more fundamental analysis, the editors of Neues Wiener Tagblatt sought to define the terms under discussion as well as explain the causes of social antagonism. Blaming the conservative critique of liberal economic policies and of free trade for fanning the resentments of the poor, the editors maintained that the eternal problems of poverty and discontent could only be alleviated by economic progress. The dignity and material incentives provided by economic opportunity would undercut the appeal of socialist ideas. Neues Wiener Tagblatt maintained, moreover, that within the current public discussions, even the terms of debate were poorly understood. “Socialism” meant only a dissatisfaction with the existing economic order and the desire to improve the lot of workers. Though misguided, the ideology did not imply the abandonment of basic values and morality. Similarly, “radical” generally connoted a fundamental commitment to a cause, but it had been misinterpreted by some to mean the abandonment of all morals in pursuit of anarchist desire to destroy all order in the name of unlimited self-assertion.Footnote ²⁶

The articles suggest several integral elements of the social question as understood by contemporary observers: poverty, political agitation, a challenge to the capitalist economy, the threat to the established order, and the fading hope that Austria might be spared the social antagonism seen in the industrialized European states. The articles also suggest the vague general understanding of problems that were both eternal and pressingly new. The issue comprised several constituent, interrelated problems: the misery of the poor, especially the urban poor; the ramifications of the alteration of work and productivity related to the emergence of the factory system and industrial labor force; the political implications of the emergence of a proletariat with the potential to disrupt the order of government and society; and the rise of radical political organizations, whose activist leaders proposed more or less well-understood agendas for dramatic political and economic change. Together, these concerns amounted to whether and at what cost the emerging huge urban centers could be sustained as viable political and economic metropolises.

The association of poverty with familial decay and low moral comportment had appeared in the early days of Vienna's industrial development in the Vormärz. At that time observers accused the laboring classes of lassitude, drunkenness, violence, dishonesty, insubordination, promiscuity, and casual prostitution.Footnote ²⁷ The revolutionary year of 1848 witnessed the emergence of labor activism as an acute political issue. Representatives of the laboring classes presented demands for comprehensive reforms of working conditions, and the imperial government for the first time undertook efforts to regulate factory work and to provide full employment.Footnote ²⁸ The revolution also, of course, made clear the crass division of class interests. For liberals, the events of the revolution, especially in Vienna, demonstrated the political recklessness and latent brutality of the working masses. In their presentation of the revolution, liberal historians expressed horror at the violence of events such as the murder of Minster of War Theodor von Latour as well as disgust at the general unreasonableness of the poor's demands. After the success of the March uprising, according to Anton Springer, liberal leaders, more wise than bold, ceded direction over popular initiatives to radical elements, who demonstrated that no program was too unrealistic, no demagoguery too outlandish to lose the support of the masses. Instruments of reactionary political forces, the radicalized poor contributed to crushing the short-lived freedom the liberals had achieved.Footnote ²⁹ Springer further ridiculed efforts to provide public employment to the poor, who, predictably, thoroughly abused these projects:

Despite the hopes of liberal reformers that middle-class familial values could gradually be instilled among the urban poor, the moral turpitude of workers remained a theme of discourse on the social question into the late nineteenth century. In 1883 a socialist witness before a parliamentary enquête into factory conditions assumed that widespread alcohol abuse and the decline of familial solidarity entailed an unavoidable social catastrophe in the future.Footnote ³¹ Writing in 1880, the left liberal economist Wilhelm Neurath painted an alarming picture of lower-class depravity. Lacking in traditional guidance and poorly integrated into modern society, “the working masses have become the soil in which the negative and decaying impulses of a fermenting age can sprout most profusely and ripen to a destructive crop.” In their tendencies toward criminality, immorality, and rebelliousness, the urban poor posed a danger that extended beyond their impoverished districts. “In all times mass poverty already in itself provides the well of poison for the entire life of society, but in our time even greater dangers have emerged.” Beyond the metaphorical dangers of infested gardens and poisoned wells, Neurath found a general threat to social health: “a large, important part of the social body has taken sick and is more than threatened with moral poisoning.”Footnote ³²

The Austrian governmental response to social unrest included judicial prosecutions and efforts to divert workers from leftist politics through social reform legislation. Beginning in the 1870s, prosecutors brought socialist leaders to trial on charges of high treason, assembling without permit, and membership in secret societies. As will be discussed in the following, several prominent socialists were prosecuted for high treason in Vienna in 1870. Having declared the Neudörfl socialist party program illegal in 1874, the authorities prosecuted party leader Hippolyt Tauschinski in Graz in 1874 and 1875. Prosecutions continued under the Taaffe ministry in the 1880s.Footnote ³³ In spring of 1882 Taaffe responded to a wave of strikes among miners in Bohemia and Moravia by calling for a state of emergency in the affected districts. The dissolution of the shoemakers union in fall 1882 gave rise to several nights of violent confrontation in the Neubau district in Vienna. In response to protests against the order dissolving the union, the authorities imposed order with mass arrests and military intervention, including cavalry charges with drawn sabers.Footnote ³⁴ Alongside these punitive efforts, Taaffe's government also introduced measures to detract from support for the labor movement by protecting workers from exploitation, including factory inspections, restrictions on child labor, and state-sponsored health and accident insurance programs.Footnote ³⁵

In their dire interpretation of the significance of the Merstallinger case, the police and prosecutors could thus draw on long-accumulated distrust of laborers and their concerns, which could be portrayed as challenges to fundamental civilizational values, as well as on previous judicial efforts to repress labor activism. The case thereby appeared to be a manifestation of social unrest, first perceived in the first half of the nineteenth century and a continuing problem since the rise of constitutional government in Austria.

“The Deed, Bloody Revolution Is the Goal of His Efforts”

Among the most prominent targets of the Austrian government's concern was the radical activist Johann Most. A participant in the German and Austrian socialist movements, Most was born in Augsburg, spent some time in Vienna, where he gained notoriety as an effective public speaker and propagandist, and was arrested and tried on a charge of high treason along with other socialists in 1870. The trial marked an effort by the Austrian government, at the time headed by Taaffe as minister president, to suppress workers’ political activity and discredit the labor movement before the general public. Although Most and his associates were convicted, they were pardoned a few months later, in part because of a negative public response to the conviction.Footnote ³⁶ After his release from prison in 1871, Most was permanently expelled from Austria and returned to Germany, where he was elected to the Reichstag as a Social Democrat. He broke with the party in 1879 over what he regarded as an overly timid response to Bismarck's antisocialist laws. After his expulsion from Germany, he resided in London, where he was imprisoned after his conviction for violating the Offense against the Person Act for his exuberant response to the news of the assassination of Tsar Alexander II, and in 1882 he moved to New York.Footnote ³⁷

Most's writings constituted the core ideas that the authorities associated with defendants in the Merstallinger case. Most's views, propagated at this time in the newspaper he edited, Freiheit, and in the lengthy pamphlet “Taktik” contra “Freiheit”: Ein Wort zum Angriff und zur Abwehr, were commonly designated as “anarchist” or “social revolutionary” as opposed to the positions put forward by social democrats. In the main, his ideas were distinguished by an utter rejection of parliamentary activity and of the struggle for universal suffrage, a prominent goal of the social democratic wing of the labor movement. In their place he advocated an unbending commitment to revolutionary principles and the application of violent means against the repression perpetrated by the constituted authorities against working people.Footnote ³⁸ Deprived of legal means of organization by state restrictions, socialists should organize into secret groups to disseminate propaganda and coordinate agitation. In a manner strikingly similar to Prime Minister Taaffe, Most did not believe the mass of workers could comprehend their political and social plight; instead, a minority of conscious radicals would defeat the governing elite.Footnote ³⁹ He foresaw no future in efforts to achieve concessions for workers through legal methods or even to introduce a socialist system through democratic means. “Revolutions are not made with the permission of higher authorities; the socialist idea cannot be realized within the existing state; socialism must overthrow the state in order to come to life.”Footnote ⁴⁰ In words that found disturbed resonance among the Austrian authorities, Most called on his followers to prepare for decisive rebellion: “and to this end we must organize and prepare in small groups, not large masses but reliable men. The great cities are the battlefields of the social revolution.”Footnote ⁴¹

Apart from the violent rhetoric and harsh tone, Most's views were not distinguished by clear guidance toward a socialist future or any discussion of the nature of a socialist community or economy. Rather, he and his supporters simply advocated “communism” or “anarcho-communism.”Footnote ⁴² Instead of projecting a precise image of a socialist alternative to modern capitalism, Most identified the enemies to be attacked to bring down the existing system. They were “throne, altar, and money bags” or, more concretely, ministers, officials, policemen, judges, the clergy, military men, merchants, and manufacturers, all of whom faced ruthless people's justice with no hope of amnesty. “The dead,” as was stated in Freiheit, “can no longer seize the rudder.”Footnote ⁴³ Most promoted the use of terrorist means to revolutionary ends. He also defended criminal acts of theft or violence as violations of a legal order that served only the interests of despotism and wealth. In fact, the appropriation of material goods that was now considered theft would no doubt become a self-evident aspect of postrevolutionary life.Footnote ⁴⁴

Although international in scope, Most's publications included specific references to Austria. He claimed to be in regular contact with an “agitation committee” in Vienna that undertook the organization of workers in a revolutionary direction. More threateningly, a brief report in Freiheit on the state of labor activism in Austria found that “the Austrian bourgeoisie will not recognize the existence of the social question until their heads begin to roll with its solution.”Footnote ⁴⁵ Though crude and vague, Most's threats suggest the tension between complacency and anxiety of Austrian attitudes toward the social question in general and the Merstallinger case in particular. The latent volatility that Most hoped to exploit was manifest in underground societies and in the activities of radical activists.

Among these activists was Josef Peukert, a figure of outstanding prominence and a source of great concern to the police. A native of Albrechtsdorf in northern Bohemia, Peukert spent several years traveling in Western Europe and practicing his trade as a house painter. According to his memoir, he decided to return to Austria in 1881 after taking part in an international meeting of anarchists in London. At the congress, delegates committed themselves to propagating the ideals of an “anarcho-communist society” and to employ the propaganda of the deed to that end.Footnote ⁴⁶ As a self-appointed emissary of Most's message, Peukert traveled from Bregenz across the Austrian countryside and visited Innsbruck, Trieste, and Graz before arriving in Vienna in December 1881. Peukert's memoir documents his commitment to propagating a revolutionary ideology as well as his disdain for the authorities and for the pious conservatism of Austrian farmers and burghers. In Vienna he became editor of the radical socialist newspaper Zukunft and was a conspicuous speaker at socialist assemblies.Footnote ⁴⁷ Peukert's activities were carefully noted by the police, who regarded him as a leading figure in the radical movement. A directive from the governor of Lower Austria to district officials cited Peukert as “undoubtedly the most dangerous of the itinerant speakers.”Footnote ⁴⁸

The efforts of Peukert and other activists included the distribution of both legal and illegal literature and agitation through both open and secret workers’ associations. In addition to open craft unions and educational societies associated with the labor movement, radical socialists organized networks of secret clubs of roughly ten members each. The existence and activities of these clubs stood at the center of the charges raised against socialists in the Merstallinger case. Based on the cell model and employing tactics including secret codes, the clubs engaged in the smuggling, production, and distribution of forbidden, seditious literature.Footnote ⁴⁹

Peukert's skill and commitment enhanced the appeal of the radical workers’ movement. In the early 1880s Austrian labor organizers divided into radical and moderate factions. The division resulted largely from the methods favored in furthering the socialist cause. Whereas moderates focused on public agitation for the expansion of the franchise to include working people, radicals favored direct action and included underground organization in their activities. By 1882 the radical faction appeared to predominate among workers’ organizations in Vienna, especially among carpenters. These differences did not at the time extend to the ultimate goals of the labor organizers, which remained a general commitment to a transformation from a capitalist to a collectivist society. In fact, according to Czech socialist Gustav Habrmann, the efforts of the radicals in their clubs extended only to endeavors to educate and enlighten workers, not to violent revolution.Footnote ⁵⁰

A summary of information gathered on underground radical activities provided the foundation for a narrative that linked the Merstallinger robbery to an international revolutionary conspiracy. In a report to Prime Minister Taaffe dated 24 September 1882, by which time twenty-five persons were in custody in connection with the robbery, Krticzka von Jaden provided an analysis of information derived from the interrogation of suspects and broader police investigation that underlay the prosecution of radical activists. The Vienna police chief presented a story of urgent danger posed by revolutionary socialists. He began his narrative with recent high treason trials conducted in the German empire that demonstrated the danger posed by adherents of Most's anarchist agitation, which was uncompromising, destructive, and violent. In assessing the character of this movement in Germany and Austria-Hungary, Krticzka von Jaden asserted that “Most moreover desires the complete destruction of society and all existing authority. The deed, bloody revolution is the goal of his efforts.”Footnote ⁵¹

The aim of the revolutionary movement was to incite all possible forms of action to bring on revolt and a desperate struggle to destroy existing society. By establishing secret cells, Most's emissaries carried out illegal agitation aimed at arousing hatred against the state, its officials, religion, property, and the aristocracy. Alarmingly, the police had discovered all such activities underway in Austria-Hungary, with Vienna as the center of the movement. Since 1880, Most's anarchist coworkers had been distributing propaganda in the empire's workshops and factories and had found fruitful soil, especially among shoemakers and carpenters. The center of this movement in Vienna was the editorial board of Zukunft, and Krticzka von Jaden identified specific leaders, including Berndt and especially Peukert, as the “the soul of the entire movement.” Together with radical leader Heinrich Hotze, who had fled to New York and whose wife's, Jakobine's, confession had first revealed the radical connections to the Merstallinger robbery, these men developed the scheme to rob Merstallinger to raise money for an underground printing press. Despite the difficulties of investigating a secret organization, the interrogations of Engel, Pfleger, and other suspects had uncovered a nest of radicals committed to anarchist politics and deeply connected to the London organization. The plot, Krticzka von Jaden asserted, extended beyond the robbery of Merstallinger, which the culprits hoped would bring in one-half million gulden, to a planned crime spree that perhaps included an attack on the person of the emperor. All this activity, extending to approximately twenty cells in Krticzka von Jaden's estimation, presented the Austro-Hungarian branch of an international conspiracy bent on general European revolution. The Merstallinger robbery thus constituted the logical conclusion of a narrative of an extensive anarchist organization whose machinations had found resonance among dissatisfied laborers in Vienna.Footnote ⁵²

Trial by Jury

The resolution of the Merstallinger affair lay in a public jury trial held from 8 March to 21 March 1883. A goal of liberal jurists, the introduction of trial by jury was among the first initiatives of the constitutional reform era. Conservative resistance to jury trials delayed reform of the code of criminal procedure to 1873. Whereas conservatives argued that popular participation in judicial decisions would undermine the sovereign authority of the emperor as the source of justice, liberals maintained that jury trials would enhance state authority.Footnote ⁵³ In the view of Julius Glaser, primary author of the reform legislation and minister of justice at the time of its passage, participation in the judicial process would serve to educate the public and promote respect for the law: “whoever precisely observes contemporary conditions in Europe, including Austria, will find it high time that the people again regard the implementation of the law as something in their interest, not as something that stands opposed to them but rather as something with which they must cooperate, with which they have an interest and a right to cooperate.”Footnote ⁵⁴ To ensure the requisite powers of judgment and civic responsibility, the liberal reforms placed approximately the same criteria for jury service as those for suffrage under the February Patent of 1861. Jury lists were drawn from literate men of at least thirty years of age who paid at least ten gulden per year in direct taxes, held doctoral degrees, or practiced the professions of attorney, notary, university professor, or secondary school teacher. The code of criminal procedure further limited jury service to people of sound reputation and in good standing with judicial authorities. In each district, jury pools were chosen by commissions of judges and trustees (Vertrauensmänner).Footnote ⁵⁵ Consonant with the liberal understanding of the necessity of property and education to participation in public affairs, the jury trial was intended to enhance proper authority by incorporating enlightened, loyal members of the public into judicial service. Both a symbiosis of public and state authority and a check on official abuse of power, juries represented the liberal synthesis of citizens’ rights and duties and social hierarchy.Footnote ⁵⁶

Thus, based on Krticzka von Jaden's understanding of the case, prosecuting attorney Karl von Pelser brought twenty-nine people to trial before a jury of propertied Viennese citizens. Charges included robbery and accessory to robbery; high treason, brought under the criminal statute that forbade efforts aimed at a violent change in the form of government or efforts to arouse revolt through open or secret agitation by speech, print, or image; as well as accessory to high treason through failure to report knowledge of such activities.Footnote ⁵⁷ Von Pelser's presentation of the case expanded on Krticzka von Jaden's narrative of an internationally organized and utterly destructive network of anarchist cells under Most's leadership. Von Pelser argued that Most had made particular efforts to gain followers in Austria through “mole-like activity” aimed at the “overthrow of state authority, violent destruction of private property, the elimination of the distinctions of class or property, and the extermination of the nobility and clergy.” These clearly treasonous efforts “placed in question the state, education, and morals, the achievements of centuries.”Footnote ⁵⁸ The primary evidence provided for these charges were statements made by the accused during pretrial investigation as well as extensive readings from Most's Freiheit that purported to establish the extreme goals of the anarchists and the direction of their efforts in Austria.

In the course of the eleven-day trial, defendants denied participating in secret, revolutionary meetings and retracted any pretrial confessions to that effect. Although charges against four defendants were dropped for lack of evidence, von Pelser nonetheless maintained his general interpretation of the crime in his summation. He situated the Merstallinger case in the context of recent anarchist crimes in England, Russia, Spain, and France, which together indicated efforts to prepare for revolution. He positively asserted the existence of revolutionary workers’ organizations in Austria and identified Peukert as the outstanding figure in that group. Peukert stood out from other activists through his intelligence, energy, and dedication to the cause, but even more for his foreign connections through experience in Switzerland and Paris. According to von Pelser, Peukert held the position of chairman of the secret central committee that the prosecutor believed maintained contact with foreign revolutionaries and directed the underground club organization in Austria. In Von Pelser's presentation, the attack on Merstallinger presented the next logical progression following years of radical agitation in the empire. Indeed, although the robbery constituted a revolutionary action, Engel and Pfleger were rather tools of the anarchist party, whose enmity to the state and social order far transcended the chloroform attack on a master shoemaker.Footnote ⁵⁹

Presiding judge Count Eduard Lamezan raised a similar theme in his summation of the case for the jury's instruction. The jurors, he asserted, needed to adjudicate the confrontation between state authorities and the revolutionary passions of which the defendants were accused. He placed the case in the context of the history of social radicalism witnessed in the French Revolution, the Revolution of 1848, the Paris Commune, and the thought of Karl Marx. All the more acute with the rise of factory production and the attending problems of the working class, the social question was a central issue of the era, the solution of which could not include the participation of the great mass of people, who lacked the education to understand such complex matters. If the leaders of a social movement attempted to convince the “common man” that violence provided “the key to the gate of paradise,” then the resulting assault on public order and freedom must be forestalled. In their examination of the charge of high treason against the defendants, the jurors were thus instructed to interpret the relationship between the accused and the incendiary writings of Most in the context of the social revolutionary movements of nineteenth-century Europe.Footnote ⁶⁰

“A Commendable Quiet and Restraint”

The narrative advanced by Krticzka von Jaden and von Pelser found resonance in the Vienna press. Neues Wiener Tagblatt reported that the prosecution had demonstrated the connection between the present case and a worldwide socialist conspiracy that kept the citizens of all states in “worry and unrest.” The concerted denials of the defendants indeed manifested a “terrible earnestness, an iron unity” to protect the central organization of a movement that sought to return humanity to a primitive state “on the border of cannibalism and promiscuity.”Footnote ⁶¹ Other press reports, however, evinced skepticism of the official interpretation of the case and of the character of the socialist movement. The democratically oriented Konstitutionelle Vorstadt Zeitung presented an alternative narrative of the workers’ movement in Austria and regarded the trial as an opportunity for public examination of labor activism. In an article tracing the history of the labor movement on the eve of the trial, the paper's editors identified tensions that had arisen between the social democratic faction, which aimed at universal suffrage and factory reform, and anarchists, who rejected such moderate methods. In recent years, repressive measures and government inaction on political reform resulted in moderates losing ground among workers to radicals. Indeed, the antisocialist laws in Germany had given rise to the anarchist movement in Central Europe, evidence that official inaction beyond repression encouraged labor radicalism. Expressing great sympathy for the workers’ cause but revulsion for anarchism, the paper regarded the Merstallinger trial as a test of whether Most's propaganda had established roots in Austria.Footnote ⁶²

In the courtroom, the defendants and their attorneys presented a coherent counternarrative to the claims of the prosecution. The alternative narrative comprised three central elements: the defendants were idealistic but confused actors who had no connection to a violent conspiracy; the police had acted improperly in their investigation and thereby violated the defendants’ civil rights; and Austria, in contrast to other European states, enjoyed general social harmony and a patient, if ill-treated, working class. Under examination in court, several of the accused withdrew their confessions to having belonged to secret clubs or received instructions from a central organization in London.Footnote ⁶³ Moreover, the prosecution, according to defense attorneys, had provided no convincing proof of the secrecy or nefarious intentions of the workers’ clubs, which met in public places such as restaurants or beer halls.Footnote ⁶⁴ Suborned into crime by Hotze, Engel and Pfleger had acted out of noble motives in service of their cause, but they were confused, mentally limited, and unable to fully comprehend the revolutionary anarchist designs of Most. In his testimony before the jury, Pfleger's attempts to explain his political views appeared “incomprehensible.” When asked to explain the promise of social revolutionary ideas, he replied “if everyone gave all they had to the state, no one could lose anything.” Engel was described in court as a “harmless fool,” incapable of “independent will.”Footnote ⁶⁵ Under examination Peukert resisted judge Lamezan's persistent efforts to extract his political goals but denied both the equation of revolutionary sentiments with violent methods and any strict adherence of the defendants to Most's ideas.Footnote ⁶⁶

Rather than acting to destroy Austrian society, defense attorneys argued, their clients had been victims of serious procedural abuse by the police. Whereas the code of criminal procedure required the police to turn suspects overs to judicial authorities within forty-eight hours of arrest, defendants had been held in police custody for as long as six days, and policemen continued to participate in interrogations well after the case had been taken over by investigating magistrates. Further, defendants, including Peukert and Berndt, accused the police of applying threats and coercion to attain incriminating statements. Beyond police abuse, the defense found the prosecutor's method of reading passages from anarchist periodicals to the court to be a violation of freedom of thought. The defendants could not properly be tried for their opinions alone, and, moreover, subscription to a periodical did not prove full acceptance of the views promoted therein. Indeed, by compromising the civil rights of the defendants and creating public fears of radical disturbance, the police threatened “all of our citizens’ rights and liberties.”Footnote ⁶⁷ In his closing address to the jury, attorney Alfred Mittler called on the civic pride of the Viennese, “who cannot be guided by threats or flattery, by exaggerated fear or pessimism, and whose verdict will be rather the product of that modest and yet proud citizens’ consciousness that has shaped and maintained our current state and that especially has characterized the citizens of Vienna in good times and bad.”Footnote ⁶⁸ The defense contrasted the social solidarity embodied in the representative bodies of the liberal state to the overreaching efforts of state executive officials. The defense narrative thus called on a public identity that accepted the possibility of official abuse of citizens and rejected the notion of a widespread underground conspiracy.Footnote ⁶⁹

In this view, social harmony set Austria apart from other European states. Although the search for social justice was noble, eternal, and therefore present in Austria, the empire was so far spared the violent excesses that marked social conflict elsewhere. Whereas, for example, the treatment of the Irish by the British government and the emergence of nihilism in Russia had given rise to violence in those countries, the Austrian labor movement remained peaceful, and Austrian laborers insulated from anarchist propaganda. The efforts to organize Austrian labor were rather a reasonable response to present social conditions, and “healthy and uninfected remains the attitude of Austrian workers.” Indeed, argued attorney Heinrich Glaser, the goal of the labor movement for the past fifteen years had been the fulfilment of the stipulation of the fundamental laws that “all citizens are equal before the law.”Footnote ⁷⁰ In fact, the incendiary passages from Most's writings that the prosecution had read to the jury had been directed at the German empire, not Austria, where, “thank God, nothing of the sort is to be found.”Footnote ⁷¹

The assertions of relative Austrian innocence of divisive social conflict conformed to general views that the social question had emerged in other parts of Europe, especially Great Britain and France, in a much more threatening way than in the Habsburg lands. The supposed reasons for this phenomenon remained unclear. Observers of the economy pointed to the relatively slow development of industry in the empire compared to the rapid modernization of Great Britain.Footnote ⁷² Others pointed to the general good humor and affability of the Austrian workers, perhaps rooted in Catholicism. Under examination in court, defendant Alois Treibenreif declared that socialist thought had made little progress among a people that purchased saints’ images. Further, when asked why the workers’ clubs favored the restaurant Drei Bindern for their meetings, Treibenreif replied that they came for “the large portions and a halfway decent gulash,” an answer that evoked condescending delight from the Neue Freie Presse. The trial, noted the paper's editors, provided evidence that as a Western city Vienna could not be spared radical social activism, but “how pleasant, how pleasant are our anarchists.” Whereas Russian radicals lurked in darkness to produce bombs and secret printing presses, the Austrians gathered in public to talk nonsense over beer. “My heavens, what lunacy must be prattled there.” Although the radical poison was present, its adherents were childish and disorganized, and they found little response among the open, honest, and pleasure-loving people of Austria.Footnote ⁷³

Newspapers representing a spectrum of political opinion joined the Neue Freie Presse in greeting the verdict in the case. All defendants were acquitted of the treason charges, and only the principals, Engel, Pfleger, and Berndt, were convicted of robbery or accessory to robbery. For the Neue Freie Presse, the outcome of the case represented the triumph of liberal values of freedom of thought, even in the face of pernicious, foolish views. The public trial and rational verdict demonstrated that “the Rechtstaat was the highest form of political development.”Footnote ⁷⁴ The more democratically oriented Konstitutionelle Vorstadt Zeitung took a more critical stance toward the authorities’ actions. Although with their public communiqué the police had sought to shake the public's confidence in their property and security, “the steadfast men of the people who sat in the jury box” rejected the connection between the robbery and the socialist views of Viennese workers. The fault for what extremism existed lay with the failure of workers to attain redress by legal means; to relieve the poverty and ignorance that were the source of terrorist agitation, the state needed to enhance the workers’ buying power, establish a rational policy for industrial expansion, and improve education.Footnote ⁷⁵ Alongside the Neue Freie Presse and Konstitutionelle Vorstadt Zeitung, the editors of Fremdenblatt, who described their paper as representing the “imperial idea” and “reason of state,” expressed faith in the jury's ability to judge the political ramifications of the case. Although state officials properly extended the prosecution beyond the robbery, the jury had found no broader political responsibility for the case or evidence that Viennese workers were widely affected by radical socialist agitation. The senses of justice and morality were too strong among Austrians to accept the dangerous thought that threatened other European states. Fremdenblatt further evinced a personal sympathy for the defendants and their supporters. The paper reported on the “commendable quiet and restraint” with which party comrades in the court received the verdict and further noted the warm reception one of the newly freed defendants received from his fiancée, a “right cute anarchist bride.”Footnote ⁷⁶ Fremdenblatt thus expressed great relief and full confidence in the ability of both bureaucratic and representative state institutions to evaluate the threat posed by the social question.

Similar in content but more ominous in tone was the response of the conservative Vaterland to the verdict. Showing great sympathy for workers’ efforts to achieve social reform, the paper expressed satisfaction that the jury had “judicially proven” that the robbers had no connection to the supposed anarchist party. Vaterland provided an antisemitic interpretation of the case, by which the “capitalist Jewish press” had sought to mislead the public by manufacturing a radical threat and by twisting loyal efforts at social improvement into a drastic alternative between “the most radical anarchism” and “capitalist Jewish rule.” The editors hoped the trial would not embitter workers and deter them from pursing social peace and justice through the cooperation between classes pursued by Christian, conservative leaders such as the Liechtenstein brothers.Footnote ⁷⁷

The trial verdict, the apparent product of Viennese citizens’ civic virtue and social solidarity, thus seemed to confirm the isolation of Merstallinger's assailants from the workers’ movement as well from the great mass of Austrian working people. Defense attorneys and journalists further found in the trial exoneration of the labor movement from criminal tendencies as well as evidence, albeit for various reasons, of the exceptional class amity of the empire. The jury's verdict and the gratified response of the press suggest that the defense's narrative of social harmony and executive overreach appeared plausible to the Austrian public. The trial had thus rendered an apparent resolution to public concerns regarding the radical threat and thereby created a new political consensus of social peace and unity. Seen in this light, the Merstallinger case, somewhat ironically in view of the exceptionalism proposed by the defense, represented the method of public argument and exposition that modern societies employ to mediate conflict.Footnote ⁷⁸

In the context of Austrian government and politics of the 1880s, the Merstallinger trial further affirmed the authority of a representative institution, in this case the jury, to examine and regulate a crucial issue of public security, as well as the transition to broader social participation in politics that marked the last decades of the nineteenth century. This validation of the precedence of a popular institution over executive power was equivocal, however, because only a few months later, in response to anarchist violence including several murders, the government placed Vienna under a state of emergency that suspended jury trials. In 1886, the Reichsrat passed legislation that removed trials of anarchists from the authority of juries until 1890.Footnote ⁷⁹ The tension over how best to adjudicate the problems revealed in the Merstallinger trial thus remained unresolved. Indeed, the case continued to lend itself to conflicting narratives in its aftermath. Despite the jury's verdict, the Taaffe ministry cited the affair as evidence of the danger socialist agitation posed to public safety. In its proposal for the legislation removing trials of socialists from the authority of juries, the ministry cited the robbery of Merstallinger among socialist provocations that necessitated the law.Footnote ⁸⁰ However, socialist analysts of the case held that the public trial and exoneration of radical leaders strengthened their position in competition with moderates, at least in the short term. Habrmann argued that the trial had provided the radicals an unwonted public platform for their views and enhanced their notoriety.Footnote ⁸¹

In one regard, however, the trial presented a clear consensus among Austria's governing classes. Whereas the prosecution sought to draw the jurors’ attention to objectionable anarchist ideology by presenting readings from Freiheit and other extremist publications, the defense shifted the narrative focus to civil liberties by stressing the defendants’ ideological incoherence, the abuse of procedure by the police, and the exceptionalism of Austrian social relations. Neither of the dominant narratives enunciated in the trial recognized the validity of the views of the accused radical socialists, notwithstanding the murkiness of their expression. By unspoken consensus, whether met by repression or bemused toleration, radical social ideology did not belong to legitimate political discourse in the empire.

The liberals who introduced the reformed criminal procedure in the 1870s intended jury trials as a means to educate the public in civic consciousness and disseminate respect for the rule of law among the general public. For Austrian liberals, jury trials relied on a symbiosis between public representation and state authorities.Footnote ⁸² The Merstallinger case suggests not only shared commitment to social hierarchy as a basis for that symbiosis but also the distinction in commitments to civil liberties between state officials and the politically empowered members of the public. In this instance, the prosecution's effort to expose and discredit the radical socialists “backfired.” To achieve their intended aim, as Mark Cornwall has argued, treason trials needed to generate broad support by convincing the public of the threat posed by the defendants to communal peace.Footnote ⁸³ Here, the prosecution's narrative failed to achieve this end. Instead, the verdict and subsequent press reports suggest that the public viewed the charges as heavy handed; the radicals’ activities did not rise to the level of high treason. Further, the counternarrative of the defendants’ naiveté and police misconduct appeared convincing to members of Vienna's propertied public. When encountered in the public forum of the trial, the radical leaders did not appear sufficiently threatening. Characteristically, the Taaffe ministry did not abandon its approach but rather acted to remove public participation from such cases. Although the suspension of jury trials for cases involving social radicals expired in 1890, Austrian governments repeatedly made use of their power to dispense with juries in regions experiencing social or national unrest in the coming decades.Footnote ⁸⁴ Official reactions to labor protest continued to include repressive measures, and jury trials at times appeared to be instruments of the authorities and propertied classes against laboring people. Nonetheless, in the decades following the Merstallinger trial, Austrian labor leaders continued to regard the courts as an embodiment of the rule of law and to seek legal redress for grievances.Footnote ⁸⁵ The function of jury courts in adjudicating issues arising from the social question remained contested. The Merstallinger case illustrated that public examination of serious issues necessitated an open exposition of social discontent that allowed for conflicting narratives and could not be confined to official expectations.