Making of a German Constitution : a Slow Revolution

156 • The Making of a German Constitutionbut one has to wonder about the probability of success for such a policy, particularlywhen legal reformation is factored into the equation. A host of measures werepassed or in production by 1871, and most of these were derived from the Hanoverlegislation of the mid century. The Strafgesetzbuch of 1870, which was introduced inthe North German Confederation, became the law for the whole Reich in 1871. Workon German-wide civil procedure legislation began in Hanover, in 1861. Leonhardt,Planck and Bennigsen all sat on this strategic planning commission and its work,ultimately, was absorbed into the North German Confederation in 1866 and, again,once procedural reform was approved by the Reichstag in 1871. Under the auspicesof the practical needs of the nation, liberals were slowly, but surely in the process ofintroducing significant legal reforms.Over the course of the last three decades of the nineteenth century, despite Bismarck’sspecial laws, liberals increasingly obtained basic rights through legislation.The success of conservatism, particularly Bismarck’s policy of compromise, mustbe reconsidered in this regard. Between 1849 and 1874, his position on civil marriagechanged by 180 degrees. Compulsory civil marriage had already been adoptedin the Rhineland, by Frankfurt in 1850 and by Baden in 1869. It was closely alliedwith liberalism and seen as a means to secure the separation of church and state. Asa consequence of annexation, Prussia found itself in possession of a large Catholicpopulation with suspect loyalties to the pope. Bismarck’s change in position was partof his struggle against a perceived threat of ultramontanism, and his suspicion of aCatholic conspiracy sometimes clouded his political judgement. 176 This was apparentlywhat led him to change his position on civil marriage.Indeed, Bismarck sponsored the Gesetz über die Beurkundung des Personenstandesund die Eheschließung that was first introduced in Prussia in 1874 and then forall of Germany in 1875. Bismarck’s reversal drew heavy criticism from conservatives,who made the connection between annexation and the increased pressure to promulgateliberal law. They rightfully feared the long-term effect this would have on theirposition. Indeed, the basic right to marry, reflected in the demand for the institution ofcivil marriage, was a prominent feature of the constitutional document of 1849. This inturn was tied to liberal demands for the separation of church and state and the earlierChristian faith proviso of the BGBS was abrogated. Article 150 read: ‘The validity ofmarriage in civil law is only dependent on the completion of the civil registration. Achurch wedding may take place only after the completion of the civil registration [and]adherence to a different religious faith is no obstacle to civil marriage.’ 177 ‘Marriageregisters,’ according to Article 151, ‘shall be kept by the civil authorities’. 178During the revolutionary years of 1848 and 1849, Bismarck originally opposedthe introduction of civil marriage, but his position changed radically after unification.In his ‘Civil Marriage and the Reich Chancellor’, Leopold von Gerlach describedthe legislation as the ‘considerable work of the Reichskanzler’ at the height his of‘national and church politics’, pointing to Bismarck’s recent change of policy. 179 In1849, the government struggled against the revolutionary tendency and ‘in this sense,