Making of a German Constitution : a Slow Revolution

158 • The Making of a German ConstitutionBismarck in 1867. Well before the founding of the Deutsche Reich in 1871, Bismarckasked Leonhardt to prepare legislation on the organization of the courts. After the motionpassed the Bundesrat, a commission was set up to begin work on a code of civilprocedure. In reality, however, the commission had been sitting under Leonhardt’sleadership since 1861, when a commission was set up to begin work on civil procedurelegislation for all of Germany. Under the pretext of organizing the courts, liberalstook what was a yard and made it a mile. The Civilprozeßordnung of 1879 was promulgatedas one of the Reichsjustizgesetze, which included three other codes. Thesewere the Gerichtsverfassungsgesetz ( Law on the Constitution of the Courts), a newStrafprozeßordnung (Code of Criminal Procedure) and the Konkursordnung ( BankruptcyCode). All became effective on 1 January 1879. The Reichsjustizgesetze didaway with the courts in the several states and created the court structure of presentdayGermany, including the Reichsgericht seated at Leipzig. The legislation was anexpansion of Hanover’s liberal Code of Civil Procedure of 1850.The Gerichtsverfassungsgesetz was particularly important, because it went a longway toward nullifying noble privilege and establishing basic rights that were missingin the Constitution of 1871. It revolutionized the courts in Germany, institutedliberalism in this sphere, and undermined Prussian bureaucratic absolutism. Both theSchöffengericht and the Geschworenengericht were instituted in the Reich. Again,while the right to trial by jury was not a feature of the 1871 Constitution, it hadbeen a core liberal demand that was incorporated into the constitutional document of1849. Paragraph 30 of the Gerichtsverfassungsgesetz gave lay judges equal votingpower with judges. 188 Paragraph 31 specifically stated that ‘the office of the Schöffenis an office of honor’, to which only Germans could be appointed. 189 The institutionof bürgerliche privileges was evident in not only the law’s definition of who couldserve as Schöffen, but who could not.Here two categories of persons emerged. In the first instance, the law denied thosepersons who were likely to be conservative the right to serve as Schöffen. UnderParagraph 34, amongst others, persons who were in imperial, state, religious or militaryservice were barred from the Schöffen. 190 The same standards applied for the Geschworenengericht.191 The oath of office was not sworn to the Kaiser, but rather theSchöffen were read the words: ‘Do you swear before Almighty and All Knowing Godto faithfully perform the duty as a Schöffe and according to the depth of your conscienceand knowledge’. Then he had to respond: ‘I swear it, so help me God.’ 192While these provisions transformed the court system in Germany into the systemliberals had long imagined and worked to obtain, socially regressive tendencieswere evident in procedural reform as well. Under Paragraph 32, persons who hadcommitted even misdemeanors were barred from service as Schöffen or jurors, alongwith those who were ‘limited in the power of disposal over their wealth’, whichhit women especially hard. 193 Under Paragraph 33, a person could not be called ifthey were under age thirty, ‘had sought public relief for themselves or their families’,were ‘spiritually or bodily defective’, or in domestic service. 194 These provisionsensured that society’s lower orders would not have equal access to courts.