Making of a German Constitution : a Slow Revolution

198 • The Making of a German Constitutionunder the chancellery, became the self-standing Reichsjustizamt in 1876 just priorto the introduction of the procedural reforms in 1879. 53 This was a vital development,because not only did it place ordinary citizens beyond the immediate arbitraryreach of the government, it also meant that the courts were in a position to exercisea checking and balancing function on the government, especially the imperialbranch. The more laws that were passed through the Bundesrat and the Reichstag,the broader the reach and power of the courts. This also meant that the governmentscandals, certainly by the 1890s, quite often played out in the public courts with thefull attention of the free press.The courts, therefore, also provided an excellent measure of the political pulseof German society in the critical political years between 1888 and 1914 and in andaround the enactment of the BGB. Cases of Majestätsbeleidigung offer a good example.Upon the accession of Wilhelm II, there was a marked increase in requeststo the Berlin police to investigate libel against the Kaiser. While there had beenonly 18 requests in 1887, that number jumped to 60 in 1888. Whereas the averagehad been 10.2 cases annually from 1882 to 1887, it jumped to 82.5 for the years1889–1899. As Hett’s examination shows, judges and juries alike rejected politicallydriven prosecutions, and, we might add, so long as they were driven by governmentforces. Rates of acquittal in trials involving Majestätsbeleidigung were highand increased significantly. In 17.9 percent of cases, defendants were acquitted inGermany as a whole in 1882. In 1888, with the accession of Wilhelm II, that numberrose to 20.9 percent, and by 1890 shot up to 26 percent and then leveled off at about25 percent to 1900. In Berlin, convictions for libel against the Kaiser fell from 24 in1898 to 14 in 1899, down to 4 in 1900 and hovered between 0 and 2 after 1904.These trends were at the same time punctuated by high-profile acquittals. The ‘gadflyjournalist’ Maximillian Harden, who regularly broke the news of scandals in theKaiser’s entourage, was acquitted by a Berlin court in 1893. He walked again in 1907and 1909, and attempts to convict other journalist and editors also failed. The casesconfirmed the principles of freedom of the press and speech. What is more, bills,such as the Umsturzvorlage (Sedition Bill) and Zuchthausvorlage (Hard Labor Billfor strikers and advocates of a strike), which tried to exploit the courts for politicalends, failed in the Reichstag in the late 1890s, or, like the moral legislation of the lexHeinze, emerged in such watered-down form that they were but a useless shadow ofwhat Wilhelm hoped for. 54 These matters, not to mention the fact that members ofWilhelm’s entourage faced convictions in the courts, give a sense of how severelythe Kaiser was hemmed in by law and legal structures on the eve of the BGB.The Kaiser’s prestige, on which he was dependent to sustain the monarchy, alsowas wanting. This was evident in the fact that prominent members of the Europeannobility, many of whom were his blood relatives, increasingly pushed him aside.Despite what he thought was a close friendship, he did not attend the funeral ofAlexander III of Russia in 1894, feeling ‘cut by [his] rude comments which Bismarckvindictively revealed to him’. 55 In 1896, Nicholas II declined his official invitations,