Making of a German Constitution : a Slow Revolution

Last Bastion • 205the wall. 103 Although dripping with what had become insincere flattery by 1896, inlegal terms, Article 57 of the Einführungsgesetz also did not appear to offer immunityhere: ‘Respecting the Sovereigns and the members of the families of Sovereigns,as well as the members of the princely family of Hohenzollern, the provisions of theCivil Code are only so far applicable, as the House Constitutions or State laws do notprovide others’. 104 It is not likely that there were provisions covering incompetencein age old Familienverträge, and, thus, the BGB provisions would have applied.What is more, there was precedent for removal of an executive from office due to incompetence.In the 1880s, Heilbronn’s mayor, Paul Hegelmaier, ‘had made himselfthe object of hatred because of his strong-arm tactics, and opposition to him fed intoliberal critiques of Württemberg’s anachronistic system of lifelong mayoral appointments’.105 Although there was a public outcry, opponents had him removed fromoffice by having the Württemberg medical board declare him insane. 106Conceivably, thus, the Kaiser was also hemmed in by the fact that Paragraph 6 maywell have offered a means for his removal from office. Certainly, the criticism of theKaiser at the height of the Daily Telegraph Affair was articulated in the language oflegal incompetence at a time when Harden forcefully called for his abdication. 107 Inthe international press, he was seen as a ‘distinctly unreliable member of the internationalbrotherhood of princes’. 108 At home, indignation mounted and there wasthe feeling of ‘inadequate rule at the top’. 109 Even Bülow, before the Reichstag, confirmedsentiments that ‘the Kaiser had acted in a manner damaging to the interestsof the country’. 110 It also did not help that Wilhelm II remained away, or when thespectacle of the chief of the Military Cabinet, Count Dietrich von Hülsen-Haeseler,dressed up as a ballerina and performed pirouettes to distract the Kaiser made it intothe papers. The impression in Berlin was of an ‘irresponsible ruler away enjoyinghimself’, while Bülow had ‘to keep the ship of state afloat’. 111Finally, in addition to the BGB’s impact at the top of German society, the greatmass of the population experienced this Bürgerliche Revolution in their homes, as atransformation of gender relations at the grass roots of society. The political meaningof legislated gender inequality is that it is also one of the significant indicators of theBürgerliche Revolution in 1896. From its earliest beginning, the bürgerliche familywas conceived as a metaphor for the state, and gender relations as a metaphor forpower. ‘The home’, Gierke felt, ‘is still the head of and articulation of the existingunion, the organizational foundation of the social body, the strong pillar of the moraland economic order.’ 112In the first instance, the BGB solidified separation of church and state by confirmingthe primacy of the state in the regulation of civil marriage. ‘The expression êwa, shortenedto êa, which in alterthümliches Deutsch meant law, union (Bund), association’,according to Grimm, was ‘not matrimony’. 113 In his Materialien zum Familienrecht,Planck specifically wrote that ‘only the closing of [civil] marriage’ secures the effectsof marriage, ‘not the consummatio matrimonii’. 114 The new law would effect both rights