Banned in Berlin. Gary D. Stark

a narrow, practical, professional training that, by focusing almost exclusively on law and its application to practical cases, largely insulated them from all “general cultivation” and humanistic subjects, not to mention art and literature. Because the number of law graduates far exceeded the judicial and administrative positions available, the government could be selective, and selection was closely linked to political orientation. The lengthy (and costly) probationary apprenticeship through which all aspiring civil servants and judges had to pass was used as much to screen out social and political undesirables as to assess their professional competence. It is hardly surprising, therefore, that most law graduates and civil servants emerged from their illiberal training as uncritical supporters of the imperial system and its policies.

      Yet this same training also produced many nonconformists and even the empire's harshest critics acknowledge the system was a training ground for thousands of liberal attorneys.⁴ Several authors whose writings later brought them into conflict with the law were, in fact, themselves products of the judicial training system: Ludwig Thoma, Hermann Bahr, Ernst von Wildenbruch, Frank Wedekind, O. E. Hartleben, Max Halbe, Carl Sternheim, and Herbert Eulenberg, for example, were either trained (and sometimes practicing) jurists or one-time legal students. And although candidates who lacked the requisite social background or political outlook had little chance of receiving an administrative post, the criteria were more relaxed for the judicial branch, which was more hospitable to liberals, Catholics, and even Jews. Furthermore, members of the German judiciary enjoyed far more independence and job security than their colleagues in administration. The Imperial Justice Laws of 1877–1879 established a modern, independent, and substantially liberal court system in Germany based on clear, fair, and uniform civil and criminal procedures. Judges were appointed for life with fixed salaries and were well insulated from political pressure. They could not be relieved of office, transferred, or pensioned against their will except by means of a judicial decision and in accordance with the law, and so they were answerable only to their fellow jurists, not to the political administration. Whereas administrative civil servants were fundamentally conservative and staunchly loyal to the monarch and his government, the German judiciary comprised a broader range of political viewpoints, including many moderate liberals; among judges “the separation of professional duty and private conviction was more normal, here there was more pluralism, here [logical] predicates and specialized professional judgments played a greater role.” ⁵

      Within the judicial establishment, state prosecutors were responsible for initiating legal proceedings (although after 1879 in most German states victims of crimes and other citizens could also instigate legal action). In some smaller north German states, prosecutors came from the judiciary and returned to it after leaving the prosecutors office, so were able to act fairly independently. But in Prussia and the larger states they were state officials responsible to the Ministry of Justice and thus subject to political pressure; if they failed to prosecute certain offenses aggressively enough they could be disciplined or removed by the government. Their literary ignorance, a result of their narrow legal training, could sometimes be embarrassing. Ambitious prosecutors sometimes resorted to questionable legal maneuvers and manipulations when dealing with censorship cases. Because most hoped one day to be appointed as judges, they were often eager to compile an impressive record of prosecutions and convictions; frequently this meant finding ways to circumvent the south German requirements that all press offenses be tried before a jury, where cases were about twice as likely to end in acquittal as those tried before a panel of judges.⁶ One popular tactic involved the principle of “ambulatory venue” (fliegender Gerichtsstand), which, until its use was curtailed after 1902, allowed prosecutors some latitude in deciding where an alleged offense was to be tried. In cases involving a book or periodical for example, a defendant could be made to stand trial either in his or her place of residence, in the place the publication in question was edited or printed, or in any locality where the work was distributed. Because of this last possibility, zealous prosecutors could sometimes force south German defendants to stand trial in north German cities where there was no jury trial, or in more conservative regions where the chances of conviction were thought to be higher.⁷ In 1899 for example, the defendants charged with lèse majesté in the famous Simplicissimus “Palestine Affair” (see chapter 3) were tried and convicted in Leipzig, where the satirical journal was printed, rather than in Munich, where its editorial offices were located and all the defendants resided. The Simplicissimus staff realized if the journal continued to be printed in Leipzig, they would remain highly vulnerable: “As long as we [publish] in Leipzig, we always face the danger of being destroyed. The gentlemen there can do that, if they want to be stubborn. It would not be hard for them, if they wanted, to lock us all up, one after the other.”⁸ This was one reason the journal changed printers; after 1899, Simplicissimus was printed in Stuttgart, where Württemberg law, like Bavarian law, required jury trials for all press offenses.

      Some south German prosecutors sought to avoid jury trials by charging defendants under a vague and controversial paragraph of the Criminal Code (§360, sect. 11) that levied a fine of up to 150 marks or six weeks imprisonment on anyone “who, in an unseemly manner, creates loud, disturbing noises or commits a public nuisance (grober Unfug).” Originally intended for use against street urchins and malicious mischief makers who harassed passersby, disrupted traffic, released mice in crowded theaters, or otherwise created a public annoyance, some aggressive state prosecutors stretched this statute to cover behavior that caused psychological as well as physical annoyance to the public. In south Germany, where juries were sometimes reluctant to convict defendants charged under the strictly worded laws regarding obscenity, blasphemy, or lèse majesté, and where the government itself sometimes balked at prosecuting writers unless it was confident a jury would convict, frustrated police and prosecutors occasionally charged offensive publications with “public nuisance” instead, since no jury trial was required in such cases. For example, in April 1898 the Munich prosecutor charged Maximilian Harden with public nuisance rather than lèse majesté for an article in which he openly discussed the tragic insanity of the Bavarian King Otto I, a subject considered taboo during the regency of Otto's uncle Prince Luitpold. Harden was quickly sentenced to a fourteen-day jail term.⁹ And after several unsuccessful efforts in the late 1890s to prosecute Simplicissimus for obscenity, the Munich police tried to confiscate the journal and prosecute its writers and editors for public nuisance instead. Although the state prosecutor had at first resisted such attempts, he eventually relented and in 1903 used that law to ban an offensive Simplicissimus political cartoon and fine the artist and editor thirty marks each.¹⁰ In subsequent years, whenever a jury trial seemed unlikely to result in a conviction, enraged conservatives pressured the Bavarian government to apply the public nuisance paragraph against offensive publications like Simplicissimus.11

      Finally, to avoid jury trials in press cases where an acquittal was likely, south German prosecutors at times misused the Criminal Code's “impersonal process” (objektive Verfahren) provision, whereby a publication could be permanently banned even if those responsible for it could not be convicted of violating the law. At the turn of the century the Imperial Supreme Court ruled that in press cases where a defendant had been acquitted on grounds of mental incompetence, a second hearing should be held to determine whether the contents of the publication in question was indeed illegal and should be banned by means of an impersonal process. Soon, some unscrupulous prosecutors began encouraging courts to declare defendants incompetent to stand trial, for this was a way to avoid a possible jury acquittal yet leave the door open for a permanent ban of the offending publication. Bavarian authorities, frustrated by their inability to obtain jury convictions against the writers and editors of Simplicissimus, once resorted to this ploy. After police confiscated an issue of the journal in 1904 for satirizing the Bavarian Catholic Center Party and charged Ludwig Thoma and Julius Linnenkogel with blasphemy, at the preliminary court hearing the prosecutor persuaded the presiding judge to dismiss all charges against the two defendants on the grounds their “mental incompetence” absolved them of any legal responsibility for their actions. Thoma, a former lawyer, immediately saw through this scheme: “All this means is that they don't want to bring me before a jury,” he complained; “Perhaps I should be grateful that I have been acquitted?…I'm sorry that I can't appreciate this kind of mercy.”¹²