THE KAISER, THE WILHELMINE STATE AND LESE-MAJESTE

NOWHRRE in Wdhelmine Germany was the absolutist nature of the Kaiser’s rule more evident than in the identification of the workings of the law with the interests of the state, a precept which is perhaps best epitomised in the words Wilhelm I1 himself wrote in the Golden Book of Munich in September 1891: suprema lex regis voluntas. Such a clear embodiment of personal rule and legal authority, underpinned by a highly complex but often deliberately nebulous penal code (Reichstruf esetzbuch), came increasingly to be representative of the new Germany, iading Friedrich Naumann to remark that “no monarch of absolutist times ever had so much real power as the Kaiser has today”’. The protection of such dangerous and damaging criticism rested in the Saafgesetzbuch, of which S 95, dealing I?se-mujesth, was the most frequently invoked. This legal provision threatened with an unlimited prison sentence of not less than two months anyone whose spoken or written words could be construed as intending an insult to the Kaiser’s majestyz. Its chief merit as a potential instrument of repression lay in the complete absence of any clear definition of the term-itself a direct parallel with the nimen Iuesue mujestatis in the last days of the Roman Empire -together with the opportunities h provided for acting against fiee critical opinion in the press. In various judgments of the highest appeal court, the Reichsgerichp, the Kaiser was accorded complete protection from any criticism against his person or his actions, even in cases where such criticism might a pear to be ‘ustified. Since the state recognised no interests as being

actions. In effect, this placed the crime of ltse-majest6 in the category of offences against the state, reinforcing those sections which dealt with sedition and high treason. By elevating § 95 to its position of eminence in the complex of legal restrictions against’free speech and comment, a considerable burden came to rest on the shoulders of local police authorities and the local state prosecutor (Staatsanwalt). In Prussia the police had long been accustomed to acting in the interests of the state4, but in 1871 individual state laws in other parts of Germany were supplemented by the more sweeping provisions of the Reicksstru gesetzbuch, which did not require the permission of a higher authority be ore the state prosecutor could initiate proceedings. In fact, the law of I&e-mujestd was applied with greater vigour in Prussia than elsewhere; of the 597 persons convicted of the offence in 1895, 395 came &om that states. The most spectadar year for prosecutions was 1878, the year of the two attempts on the life of Kaiser Wilhelm I, which yielded 1994 individual cases, of which 521 alone were heard between June and August6. Although

higher $an those o f‘ the Kaiser, no court was deemed competent to judge his

I02 THE KAISER, THI WILHELMINE STATE AND LkSE-MAJESTi

95 continued to be invoked thro hout the period of the anti-socialist ! egislation (Ausnahmegesetz), it gaine an added importance in the 1890s as part of the barrage of legal regulations directed against the SPD’. Whereas the average number of annual convictions in the years 1882-1888 stood at 439, the comparable figure for the period 18891895 was 551, including a high peak of 622 in 1894. Between 1889 and 1893 a total of 1239 years imprisonment was dealt out by the courts, an average of 175 days for each convicted persona. In 1890 alone, lbe-majestt took third place in a total of 381,450 convictions for offences against the Strafgesetzzbuch9. Indeed, through- out the 1890s there was a high rate of prosecution and conviction. At the end of the century, if one disregarded Sundays and holidays, one person was still being convicted of I2se-rnajesd for every working day in the calendarlo, and individual areas continued to produce their own headlines: in a single week in October 1899, five inhabitants of Upper Silesia were sentenced to a total of 82 months imprisonment’’. Since there were always people ready to denounce others, even friends and relations, for contravening § gs-and hearsay evidence was usually sdcient to convict-great care had to be exercised in daily intercourse. In a speech to the Reichsta August Bebell?

reigns of Tiberius and Caligula, where no man could consider himself safe from the possibility of denunciation. Moreover, it was the vagueness of the actual law which resulted in great conhion and uncertainty; as Bebel observed 13, no one in the German Reich was able to say exactly what a ‘Majestatsbeleidigung’ was.

In no other field was thts uncertainty used to greater advantage than in the control of the press and, most particularly, in the control of the opposition press. Hardest hit were invariably the or ans of the SPD, both in the fre-

ten years of the existence of the Hannoverscher Volkswille, etween 1890 and 1900, the paper faced no fewer than 28 cases14. Similarly, the editor of the Hamburger Echo, Gustav Wabersky, received a total of 27 convictions between March 1897 and October 1906, nearly all for instances of ‘Beleidigung’ (§ 185) or ‘Majestatsbeleidigung’. As a result, he spent some two years of his life in prison or custody and paid out almost 3000 marks in fines15. Because of the size and growin importance of the social-democratic press, the hazard of

of the law, moreover, merely succeeded in completing a vicious circle, which resulted in further prosecution. To understand the circumstances under which 95 assumed its unique importance in the government’s struggle for a monopoly view, depends on an awareness of the legal re- strictions to which publications were invariably subjected. Although censorship of the press did not exist as such-its freedom had actually been

compared conditions in Germany with those described t y Tacitus in the

pb quency of prosecution and the severity o B the sentencing olicy. In the first

§ 95 was not often s aced with equanimity. Attempts to criticise the operation

THE KAISER, THB WILHELMINE STATE AND L~E-MA JEST^ 103 ~ ~~

proclaimed in 5 I of the Press Law of 1874 (Reichspressegesetz)-alternative measures designed to curb ress criticism had been in existence in Prussia

(Zeugniszwang), which was invoked on 14 separate occasions between 1874 and 1903. Attempts to remove t h s suppression of liberty failed in the Reichstag in 1895 and it was not until 1 9 8 that a bill provided for the legitimate withholding of information except-and this was an important exception-where the nature of the printed matter itself constituted an offence16. More serious was the existence of the ‘fliegender Gerichtsstand der Presse’, which ofien resulted in a pa er printed and published in different

distributed. Since all persons connected with the production and distribution of a paper were criminally liable, it was perfectly ossible for a large number

single article”. The task of keeping watch over possible transgressions by the press was made inh te ly easier by § 9 of the 1874 Press Law, which stated

of every newspaper or periodical (Pflichtexemplar) had to be delivered that a “OPX ee of charge to the local police authorities’8. Failure to observe this provision or responsibility for a late delivery could result in a fine or a period of custody. Other forms of press circumscription included S I 10 of the Strafgeesetzbuch, which threatened stiff penalties for calling upon a section of the population to resist a particular law, as well as a relic of earlier press repression, § 360 xi, which related to offences against the public order (grober Unfug), commonly termed a ‘Kautschukparagraph’ by the SPD press because of its legal elasticity, enabling it to cover a variety of different offences’g. It is hardly surprising, thadore, that Bebel shrugged off the complaints of Victor Adler about the restriction of the press in Austria with the comment, ‘In this respect you enjoy almost ideal conditions. If your paper [a reference to the socialist paper Adler edited in Vienna] were to appear here in the same tone and with the same content, it would s d e r daily at least six court cases and your editors would populate the prisons until the ends of their days’”. Because of the requirement that newspapers were compelled to print corrections (Berichti rgszwang)21 , a provision which ensured that any news that was print , at least in the opposition press, never strayed very far from the facts, it was more often than not the very unpalatability of the truth which occasioned prosecutions under 95. On the

the opportunities it offered for manipulation of public opinion, led the government to set up its own office of press information in 1894 under Otto Hammann22.

As a result of the vigorous use of § 95 against it, the SPD press grew increasingly adept at avoiding the possibility of direct criticism, by either

since the 1850s. These inclu B ed a law compelling journalists to give evidence

places facing court proceedings in a 8. istant location where it had also been

of people in different centres of distribution to P ace charges arising from a

other hand, the recognition of the tremendous importance of 2 e press and

I04 THE KAISER, THE WILKUMINE STATE AND GSE-MA JEST^

inferring or suggesting conclusions or presenting comment in generalised form. At inter-ministerial discussions in 1 9 0 6 ~ ~ , complaints were loudly voiced that it was proving difficult to secure convictions under the existing law. Both the Prussian Minister-President and Finance Minister urged at a meeting of the Ministry of State in the same year24 that state prosecutors be instructed to proceed with renewed vigour against journalists who might be charged under 95. This tendency to restrict free critical expression had been a hallmark o f t ! e operation of the law since the 1 8 9 s . In order to provide guidance and appropriate points of reference for local authorities instructed to proceed against the social-democratic press, a general register was kept of confiscated SPD literature, together with details of successful convictions2 5 .

In addition, the local prefects (Landrate) played a key part in extending the arm of the law into smaller localities. A report submitted by the Landrat of Gottingen in February 1 8 9 8 ~ ~ refers to the action he undertook in securing the prosecution of a painter from Hannover, whose comments at a public meeting constituted a I&-rnajesth. Such repression, especially in the I 890s. yielded convincing results: the Landrat of Ilfeld reported in 1897 that local SPD agitation had died down, owing to the fact that the troublemakers were either behmd bars or had been dnven from the area27. This close co-operation between bureaucracy and the law rovided the government with a highly-

intervened on a number of occasions to influence the outcome of verdicts. In August 1896 he sent a telegram to the president of the Prussian Constitutional Court, which was hearing a disciplinary case against a mayor who had made a rneeting-hall available to the SPD, in which the vituperative tone of his comments left no doubt as to the verdict the All-Highest expected29. Such actions were often dictated by a real and potent fear of revolution and a determination to use the full aparatus of the law in controlling the growth of the SPD organi~ation~~.

One of the most subtly-veiled attacks on the Kaiser was containcd in an article published by a young historian named Ludwig Quidde3’ in the magazine, Die Geselkchufr, in April 1894. It received scarcely any attention at first, until it was reviewed in the ultra-conservative Kreuzzeitung in May of that year. An immediate storm broke after the recognition that the Roman emperor who was the subject of Quidde’s study, Caligula, was none other than the Kaiser himself, depicted in orgies of megalomania and delusions of grandeur. Virtually every foible attributed to Caligula seemcd to characterise Wilhelm 11, from his mania for building and desire to control the seas to his delight in military manoeuvres. The article rapidly achieved considerable notoriety, entering history as one of those sensations, such as the ‘Hauptmann von KBpenick’ affair, which seemed to fill the Wilhelmine period. In pamphlet form it sold well over 150,000 copies. Although Quidde’s satire

selective and effective method o P control2*. The Kaiser himself actively

THE KAISER, THE WILHELMINE STATE AND L~SE-MAJEST; 10s -

escaped legal retribution, it was not long before the law secured its revenge. In January 1896, Quidde was unwise enough to take part in a public meeting sponsored by the SPD, at which he made some not exactly flattering remarks about the Kaiser, for which temerity he was charged under 9s and sentenced to three months imprisonment. From the comments o the state prosecutor at his trial, echoed in the judgment of the C O U T ~ ~ ~ . , it was clear that Quidde’s authorship of Caligulu was taken as overriding proof of his intention to insult the Kaiser.

Amongst those publications which developed a sinlilar style of veiled comment were the many satirical magazines-including Sirnplicissimus, Klua’deradatsch and Siidderrtscher Postillon-which relied for their effects on humorous anecdotes and the work of gifted cartoonists. The special brand of pointed criticism purveyed by Maximilian Harden’s Die Zukunfr was not immune fiom the possibility of prosecution either, and indeed Harden faced three mals for IJse-mujestl in 1893, 1898 and rgoo, which resulted in one acquittal and two sentences of custodia honest~32. In much the same way, an item commenting on the visit of the Kaiser to Palestine occasioned a case against the Sirnplicissimus in 1898. The offending issue was confiscated-the co-founders Albert Langen and Frank Wedekind both fled to Zurich, where the former remained in exile until 1~3-and the editor-in-chief, Theodor Thomas Heine, received a sentence of six months custodia honestu33.

The campaign a ainst the SPD press was, however, an altogether different

the ultra-conservative industrialist, Freiherr von Stumm-Halberg, who declared in a speech to the Reichstag that the word ‘Social-Democracy’ was itself the incarnation of a ‘Majestatsbeleidigung’34. Faced with a perpetually hostile establishment and a stream of abusive speeches by the Kaiser, the SPD press often allowed itself to be provoked into returning the compliments, and Bebel himself remarked35 that his party’s newspapers were often driven into committing Itse-mujestt!, if only to answer repeated attacks on them. Reaction by the SPD to the Kaiser’s ‘Sedan’ speech in September 1 8 9 ~ ~ ~ , in which he described the party as ‘a rabble . . . unworthy of being called German’ brought forth a spate of legal prosecutions. The editorial offices of the Hannoverscher Volkswille were searched, all available copies of the offending number confiscated and the editor taken into immediate custody. H i s ma1 the following month was held in camera and ended in a sentence of four months imprisonment37. Similar trials took place after criticism of other ‘Kaiserreden’ and the expedition to China in IF. Even though an article criticising the behaviour of German troops in the Orient might contain no reference to the Kaiser, the initiative for the expedition was an imperial one and the intention to insult the Kaiser’s majesty was therefore apparenP.

Such forms of indirect criticism rarely failed to escape the eyes of the

story, as the rate o B prosecution and sharper sentencing policy showed. It was

I06 m KAISER, THE WILHELMINE STATE AND AE-MA JEST^ authorities. Friedrich Stampfer, who became editor of the Vorwirts during the First World War, recalls his apprenticeship with Bruno Schonlank on the staff of the Leipriger Volkszeitunfg. Schonlank had often talked privately of the Kaiser’s propensity for large quantities of liquor and the effect this had on his mental processes, and once published the text of one of the Kaiser’s speeches without comment, adding as a final sentence, ‘But to return to more sober matters’. As a result, Schonlank was duly hauled over the judicial coals, convicted and sent to prison. This tendency to use an association of ideas to secure a conviction under § 95 came increasingly to be emplo ed in court proceedings against Social-Democrats and in the judgments o r the Reichs- gericht. Described by the Prussian Minister of Justice, Schonstedt, as an old legal term, the dolus eventualis was nothing if not a device designed to impute motives and intentions stretching far beyond the available evidence40. It first aroused attention in 1895, at the ma1 of Wilhelm Liebknecht, whose opening speech to the SPD party conference in Breslau in October of that year was held to contravene § 95, although no mention had been made of the Kaiser. This was in effect a legal revenge for the failure to indict Liebknecht for remaining seated during a ‘Kaiserhoch’ in 1894, despite the efforts of the Berlin state prosecutor and Chancellor Hohenlohe to substantiate a charge. It was one of those trials which did much to tarnish thc alrcady sullied reputa- tion of German justice, unleashing a wave of critical reaction outsidc the country and furnishing the SPD with added propaganda. Surprisingly, perhaps, the courts continued to make use of this legal ploy, often securing a conviction at the second hearing of a case4I. The absurdity of the logic often employed was neatly characterised by the leading SPD satirical weekly, Wahrer Jakob42, which published a fictitious report in which the editorial offices of a magazine aptly named ‘The Beacon’ were searched and a sheaf of blank manuscript paper confiscated, on the grounds that it could not be ruled out that the editor would one day hit upon the idea of committing a l h e - mujesth on the unused paper.

It was Kurt Eisner who first stated unequivocally that the sections relating to he-mujestk were nothing more than a disguised anti-socialist la f l3 . Eisner’s true identity was discovered and his home in Marburg searched by police, who also ordered searches to be conducted in the editorial offices of the journal, the home of its publisher and in the printing-rooms. In April 1897, Eisner was found guilty and sentenced to nine months im- prisonment44. Equally severe was the treatment of the editor of the Magde- burger Volksstimme, August Muller, who was sentenced to the incredible term of 49 months imprisonment in January 1899, for publishing an anecdotal story from the Middle East, which-pace Quidde’s Caligula-was treated as I2se-mujesrk and a libel on Prince Eitel Fritz of Prussia. Muller protested his complete innocence, since he had been absent on holiday when the offending

THE KAISER, THE WILHELMINE STATE AND L ~ S E - M A J E S T ~ 107

issue appeared, but it was not until after his conviction that Albert S c h d t , a member of the Reichstag who had deputised as editor for Miiller, came forward and claimed responsibility for the article. At the end of January, S c h d t was sentenced to three years imprisonment and deprived of his seats in the Reichsta and on the local city council, but it took a further nine

1899 was he acquitted at a re-trial45. Even more effective than keeping journalists behind bars was to deprive them altogether of the means of earning a living. In March 1894, an article had appeared in the Elsass- Lothringer Volkszeitung, the leading SPD paper for Alsace-Lorraine, which had passed some unflattering remarks on Kaiser Wilhelm I. The then Under-Secretary of State at the Ministry of the Interior, von Kiiller, made use of the special ‘Diktaturparagraph‘ in the constitutional arrangement between Prussia and the ‘Reichsland’ to suppress the paper on 24 March, three days after the publication of the article. In the following four years, the authorities in Strassburg were to frustrate every attempt to re-found the paper under a new name and it was not until August 1898 that the 1874 Press Law was introduced into Alsace-Lorraine, thus permitting a successor publication to emerge46.

But it was the stuff of daily life that provided most of the opportunities for invoking 95. Any incautious comment was likely to lead into troubled waters. Thus the description by the Vowirts of the church consecrated in Berlin in 1895 in memory of Kaiser Wilhelm I as the ‘Aegir-Kir~he’~~, was sufficient to send its editor to prison for six months. Petty offences also loomed large: a woman in the Ruhr district was given a sentence of three months for making a gesture whilst singing a popular song, which the court interpreted as an intended insult to the Kaiser“8, and a worker in Berlin received nine months for poking his tongue out at the Kaiser’s yellow motor- car‘9. Equally symptomatic of the rigorous application of the law was the sentencing of a 13-year old Polish schoolboy to a term of three months50. Great care had always to be exercised in reprinting literature or details of court cases: publishing the text of Heinrich Heine’s ‘Weberlied’ in March 1891 landed the editor of the Mugdeburger Volksstimme with a sentence of six months and the editor of the party newspaper in Hannover was convicted in 1896, for quoting the comments of a man who had already been sent to prison for I2~e-rnujestk~~. Despite the known dangers, the SPD press was not always successful in disguising its intentions. The Hamburger Echo, for instance faced a number of charges just after the turn of the century for printing material whose satirical edge was all too obvious. Thus the police detected in some verses of doggerel published in March 1903 an intended reference to the Kaiser. The piece was concerned with one of the princes of Babylon, ‘who worshipped himself and demanded self-worship from his subjects’ and whose

months before MU 1H er was released &om custody and only in November

10s THE KAISER, THE WILHELMINE STATE AND GSE-MAJEST; ~~

habit ofcombing his moustaches upwards brought somewhat more meaning- ful associations to mind52. Similar references could also be read into an imaginary telephone conversation between Chancellor Bulow and an unnamed voice, whose identity, judging from the short, staccato answers and expletives, together with the fancifd scheme to undertake a naval expedition to Venezuela, was hardly in doubt53. In 1904, the editors of five different newspapers were convicted of lt?se-mujestC, afier re-printing an item whch had originally appeared in the Viennese paper Zeit, itself taken from that city’s official Polizei-Korrespondenr. The item consisted of a few lines recording the fact that a stepbrother of the Kaiser had just ended his days as a country pedlar. In one of these cases a conviction was only obtained after the Reichsgericht had pointed to the application of the dolus e~entualis5~.

Perhaps the clearest example of the strong line taken by the authorities in restricting comment in the SPD press was the remarkable case brought against Reinhold Stenzel, who was editor of the Hamburger Echo in 1896. On 13 December, his paper published an attack on King Leopold I1 of the Belgians, which referred not only to his colonial exploits, but also to his weakness for roulette and his frequent trips to the Paris Opera to meet a certain Clto de Merode. None of the facts contained in the article was new: the rumours had been going the rounds in Brussels for some time and reports had appeared not only in Belgian but also in non-SPD German papers. However, the editorial offices of the Echo were raided by the police and all remaining copies of the offending issue confiscated; Stenzel himself was charged under § 103 of the Strafgesetzbuch55. The repercussions of this single affair continued to recur in editorial comment for the best part of a year, until Stenzel’s trial in October 1897. Of especial concern to the SPD press were the origin of the initiative for bringing the prosecution and the failure to serve writs on any non-SPD publications. It was the Brussels correspondent of the liberal Berliner Tap- blatt56, who first publicly claimed that the prosecution was initiated not by the Belgian government-Leopold I1 apparently knew nothing of the case- but at the express wish of the German government. In fact, it is quite clear from correspondence between the Polizeidirektor, Dr. Roscher, and the Belgian Consulate-General in Hamburg57 that the German authorities took the initiative in bringing the Echo article to the attention of Belgian officials and advising them of their right to prosecute. A leading Catholic Centre Party newspaper, the Kolnische Zeitung58, even hnted at collusion between officials of the German Foreign Ministry and the Belgian court, which prompted the Vorwiirt~5~ to complain bitterly that the German diplomatic corps was functioning as an extension of the police department. After the verdict and sentence4ght months imprisonment-were made known, the leading SPD newspaper devoted a stinging editorial60 to what it described as the operation of a system of ‘political justice’, paralleled only by the experi-

THE KAISER, THE WILHELMINE STATE AND L ~ E - M A J E S T ~ Iog

ence of the Court of the Star Chamber. Since this verdict coincided with the rejection of Liebknecht‘s appeal against conviction for 1 t?se-ma’estt!, the Vorwiirts could claim with some justification that the restriction o 4 the press was beginning to outstrip in severity the measures undertaken against it by Mettemich and Bismarck. The comments in the report prepared by Polizei- direktor Roscher61 indicate that the intention was clearly to serve as an exam le to Stenzel and his successors. This convenient manipulation of the

Minister of Justice in the Reichstag: ‘si duo idem faciunt, non est idem’62. Thus the offence assumed a greater magnitude whenever it was perpetrated in the columns of the SPD press. In spite of the reciprocal agreement, no move was undertaken by the German authorities when reports were carried in the Belgian press63, at the time of the Stenzel mal, of the mysterious circumstances surrounding the death of Lieutenant W e on board the Kaiser’s yacht ‘Hohenzollern’.

As if to underline in triplicate the extent of legal repression, the socid- democratic Frankfurter Volksstimrne published in September 1903 what purported to be a secret memorandum from the Prussian Office of ustice to

followed against all SPD newspapers which fell foul of S 95, including a recommendation that an application be made to hold an accused in custody, even in those cases where escape was considered unlikely. Coupled with the absence of an equivalent of the Habeas Corpus Act and the powers of unlimited custody conferred by § 112 of the code of criminal procedure (Strafprozessordnung), this represented a further tightening of the xrewb5. Even if the document was not authentic, it seemed as though the authorities were indeed acting according to its precepts : in the same month the Hamburger Echo66 could report that the editors of SPD papers in Mainz, Hamburg, Breslau, Dresden, Leipzig and Berlin were serving terms of imprisonment for It!se-majesrt!, and that in addition the editors of party newspa ers in Eel,

law P ound its plainest expression in the dictum uttered by the Prussian

various state prosecutors64. This laid down a more determined PO i! ‘cy to be

Konigsber and Rostock were also facing court proceedings I ) or the same offence. 0 f the cases occurring at this time, that against the T‘onvirts provoked

middle of one of the Ber P in lakes, in the event of an outbreak of revolution.

the most attention. In August 1903, the paper claimed to have received fiom court sources details of a lan for the Kaiser to retreat to a fortification in the

Its editor, k i d , was first interrogated by the police on 27 August and four days later the responsible court had already received a copy of the charge- sheet prepared by the local prosecuting office, which ran to some 57 pages. As if to emphasise the speed with which the processes of the law could operate when required, k i d and his deputy were both taken into custody and within 24 hours of making a formal protest, they had received a signed and fully- documented reply from the ~0ur t67 . At the ensuing ma1 in October, their

B GLL

~~

I10 THE KAISER, THE WILHELMINE STATE AND L~E-MAJEST~~

defence was undertaken by Karl Liebknecht, Max Levy and Hugo Haase, whose argument was that the article was directed more at the fanciful schemes of the ‘Hoflramarilla’ than at the Kaiser himself. A large number of important witnesses were called, who either denied all knowledge of the matter or completely refused to answer questions put by Liebknecht on grounds of state security. The evidence of Kurt Eisner, himself a member of the editorial stag was not admitted by the court because of alleged complicity in the affair. Friedrich Stampfer68 was convinced of the authenticity of the material the Vortuurts had received, but since all documents had been burnt along with other ‘incriminating’ evidence-this was standard practice in the editorial offices of the social-democratic press-the defence case could not be substantiated. As a result, k i d received nine months and was deprived of his seat on the city council and his deputy, Kaliski, was sentenced to four months under § 185.

The SPD parliamentary party made a number of attempts to delete from the Strafgesetzbuch those sections relating to Ihse-majesth. In May 1897 they succeeded in initiating a major debate on the sub’ect in the Reichstag69.

in Germany and that the law on Ihse-majesd had killed all semblance of fieedom of the press. He compared himself to Papageno, with a padlock before his mouth70. Despite the grumblings of a few individuals about the dubious value of so many tendentious cases, the Reichstag as a whole remained unconvinced of the need to alter the law71: speaking for the Progressives (Freisinnige), Eugen Richter declared that his party would not vote for the SPD motion and the Conservatives went so far as to urge stiffer penalties to reverse the upward trend in offences. The law remained com- pletely unchanged until, on the occasion of his birthday in January 1907, the Kaiser issued a decree which formed the basis of a bill laid before the Reichstag in April of that year. In the previous year, there had been only I I I convictions in Prussia under § 95 and the roposed revision was loudly hailed in the

earlier intransigence. In fact, the decree did contain one major improvement: it cut from five years to six months the period of limitation under which a charge could be made (Verjahrungsfrist). It also contained a clear-cut statement that henceforth the Kaiser wished a prosecution to be undertaken only in cases of remeditation and ‘malevolent intent’. The SPD was quick

whose political persuasion set them apart from the interests of the establish- ment. In the debate on the h r d reading of the bill in November 190773, Wolfgang Heine argued that the judiciary would become more and more an instrument of political favour, distinguishing between those of a benevolent and those of a malevolent disposition. Nieberding, the State Secretary in the

Wilhelm Liebknicht declared unequivocally that pu 6 lic life still did not exist

establishment press72 as a sign o P the Kaiser’s good-will and a moderation of

to seize on the P act that the law could now be directed solely against those

THE KAISER, THE WILHELMINE STATE AND L ~ S E - M A J E S T ~

Reich Justice Office, claimed that the effect of the new measure would be to free the courts from petty offences, which, as the vor~Urt~74 had pointed out, was tantamount to providing monarchists with immunity against prosecu- tion. Legal opinion tended to confirm this interpretation. Writing in the Deursc~e]urisrenzeitung75, Prof. van Calker discerned a clear intention in the new proposals to equate the ersonal dignity of the Kaiser with the legal

attack the state itself. In the opinion of the Leipziger Volhzeitung76, the very existence of such laws brought Germany down to the level of Tsarist Russia.

As far as the SPD in general was concerned, very little seemed to have changed for the better. On 21 September 1907, the Konigsberger Volkszeitung published an editorial commenting on the erection in Memel of a monument symbolising 100 years of the resurgence of the Prussian state. It was this paper’s description of the monument as a pillory (Schandsaule), which led to charges being brought against the editor for contravening § 95. As so often in the past, the editorial had not even referred to the Kaiser, and it was only after a denunciation by the (sic) liberal Konigsberger Hartungsche Zeitung that the local state prosecutor took action77. The sentence maintained the tradition of severe penalties in such show trials-fifteen months imprisonment. Such judgments had a habit of coinciding with sentences in trials in which Social-Democrats were not involved: Die neue Zeit78 brought the verdict in the Memel case into conjunction with the outcome of the Moltke-Harden proceedings, and observed tartly that the system of ‘Klassenjustiz’ had again emerged mumphant79. In the years immediately before the First World War, the use of 95 and other resmctive measures against the SPD press

April 1911 SPD journalists received over six years in prison sentences and were fined in excess of 30,000 marks80. In February 1912 fifteen cases were heard against SPD editors; in February 1913 there were no fewer than eighteen cases. Just before the outbreak of war, in July 1914, the editor of the Vonuurts was convicted under § 95, in a trial from which the public was excluded. That such a policy of repression was politically inspired cannot now be in doubt. Even as late as November 1910, the Ministry of the Interior*’ was concerned to instruct the heads of the Oberprasidien in Prussia to liaise more closely with the local prosecuting offices, in order to maintain a high rate of successhl prosecutions.

This degree of importance attached to the function of the law in Wil- helmine Germany was certainly part of the general apparatus of absolutist power, but it also reflected a particular view of the organisation of the state. As Ernst Fraenkel has put it, ‘The state, which took its ruison d’itre from the concept of the law had itself become a justification of the law. The more powerful the Reich became, the more respect Germany appeared to gain, so

I11

authority of the state. To o 2 end against the Kaiser’s majesty was thus to

continued to pro 1 uce a steady stream of court cases. Between April 1910 and

I I2 THE KAISER, THE WILHELMINE STATE AND L~E-MAJEST;

the more one tended to identify the concept of the existing state with the concept of the state per se’82. It is undoubtedly true that at a time of rapidly changing economic circumstances and the awareness of its growing political strength, Wilhelmine Gennany still retained in its internal organisation the imprint of archaic legal ideas. German law was weighted down by an inheritance-the ReichstraJgesetzbuch of I 871 was closely modelled on its Prussian counterpart of 1851, sections of which dated back as far as 1550- which made it adrmrably suited to reinforce the personal structure of monarchical power. Other counmes-the Netherlands in 1881, Italy in 1889, Norway in Iwoa-had recognised the need to adapt their own cumbersome legal machinery to modem times, and an indication that the lesson was not entirely lost on Wilhelmine Germany came with the govern- ment’s decision in 1 9 2 to set up a commission83 to prepare the groundwork for a revision of the Shafgesetxbuch. Except that in h s particular case the proposals did little to alter the structural importance of the law within the state. Indeed, on the basis of many of the proposals published84, its r61e in actions of the state against olitical malcontents actually seems to have been

perhapsnot so surprising that the SPD still clung to its revolutionary ideology, still reserved a special place for its martyred heroes and still continued to devote a considerable part of its energies to exposing the worst abuses of the system.

strengthened. In the face o P this fierce assertion of the power of the law, it is

NOTES

1 Quoted in J.C.G. Rohl, Grmutzy without Bismarck. Berkeley C Los Angeles 1967. p. 279. 1 Justus Ohhausen. in his Kommcnfar zum Strojgesctzbuch jur &s Deutschc Reich (8th edition, Berlin

1909) deals pp. 401-406 with t h i s legal paragraph. An alternative to a sentence of imprisonment, in cases of mitigating circumstances to be decided by the court alone, was a term ofcustodio honesto (Festungshafi) from two months up to five years. In addition, all persons convicted of this offence could be deprived of any publicly elected office. The remaining articles in this section ( $ 5 94-103) provided similar legal cover for members of the Kaiser’s family, as well as for the members of the ruling houxs in the individual German states.

3 Quoted in E.P. Oberholrrer. Die &ziehungn auischm dcm Stout utzd der Zeiturigspresse im Destzchert Riich, Berlin 1895, pp. 35/36.

4 According to a police regulation of March 1850. all actions of the police were undertaken in the name of the Prussian king. For a comment on the implications of the rCle of the police, see Kurt Wolzcndorff, Der Polizeigedanke des modrrnm Studs, Breslau 1918. p. 131.

5 Hamburger fiho. 22 December 1897.

7 See my article in the Hisforicoljournol, September 1974. Die tieue Zeit. 1891 /92.1. No 25; Bremer Hiirgerzeitutig. 25 November 1907.

These and other statisticr were drawn up by the social-democratic Skhsische Arbeiferzeitutix and appeared in Echo, 22 December 1897 and Eisetibahti-Zcitung (Lubeck). 5 February 18y8. Much valuable information for this article was taken from the 6les on lbc-majest6 kept by the political policc in Hamburg. See Sfoutsorchiv Homburg (StA HH) S 7300 Bd 1-3.

Echo. 11 February 1893. 10 Berliner Volkszcifung, 3 January [goo. 11 Echo. 19 October 18199. l 2 Reichsfog. Stmographisck Btrichte, Bd 150. p. 5860. 13 Ibid.. p. 5862. 14 Friedrich Feldmann. Gschichte des Orfsvereiiis Hantiover der SPD vom Criitidungrjohr 1864 bis 1933,

Hannover 1952, p. 65.

-

THE KAISER, THE WILHELMINE STATE AND L~SE-MA JEST^ 1 1 3 ~~ ~~~~~

15 S t A H H , S 5930. 16 See Hans Badewitz. Der Zeugnkxwanggegm die Presse, Munich 1952, pp. 24/25. For the strictures of

an SPD lawyer on this state of affairs, xc Arthur Sudthagcn’s speech in Reichstag, Sfen. Berichre, Bd 147,

17 Thus, for example, the editor of the SPD Thiiringer Tribune was sentenced to a year’s imprisonment for lkse-majestt, contained in the re-print of a humorous item which had originally appeared in the Siiddcutscher Postillon. Eho, 20 September I ~ C I O .

1*The Hambrugn General-Anzcigcr, 2 October 1900. reported that in Hamburg alone the police received 183 different papers, reading 17,520 cditions and making 54,395 cuttings each year.

19 A court in Niirenberg was unable to secure the conviction under § 95 of an artist who was heard to make untlattering remarks about the relationship between Ludwig I of Bavaria and Lola Montez, but succeeded instead in invoking $5 360 xi. Vorwarfs, 7 June 1905.

80 Bebel’s letter to Adler of 5 June I 897, in Victor Adler, Bripfivcrhsel mif Augusf &be/ und Karl Kaufsky, Vienna 1954. p. 231.

2l Sce Peter J. Flies. Freedom o j f h e Ress in the German Republic 1918-33, Baton Rouge 1955, p. 18. 22 See Gudrun Jag, Der m e f i r s in der deufsrhnt Pressepolitik 1890-1914, Diss. Vienna 1959. In his

memoirs, Baron von Eckardstein (quoted on p. 31) referred to the deliberate attempts to deceive public opinion and present a false picture of reality, for which Hammann’s office was responsible.

23 See Leo Stem (ed.), Archivalisrhe Forsthungen xur Ceschichte der deufschm Arkiferbewegung, Berlin 1956, vol. 2/11, p. 1g0K 24 Op. cit., p. 220 ff. 25 See circular x n t out by the Berlin police department in February 1891, Staatsarchiv Brcmen (StA

HB) 4.14-xII c. 2. ba. A revised register was sent out at quarterly intervals, extending even beyond the outbreak of war in 1914.

P. 3346 ff.

26 Staatsarchiv Hannover (StA Hann), Hann Des 80, Hild 11, I, No 547, Br 213 /214. 27 Ibid, BI 38/39. 28 For a dcscription of the extreme conservatism which characterixd the judiciary and iducnccd

the broad range of legal pronouncements, sce the essay by Eckart Kehr on the Prussian bureaucracy in E. Kehr, Der Primat &r Innmpolitik (ed. H.-U. Welder) (Berlin 1970). p. 48 ff.

29 Quoted in Heinrich Hannover & Elisabeth Hannover-Druck. Politische Jusfiz 191 8-33. Frankfurt 1966, P. 24.

30 Gerhard A. Ritter, in his Die Arbeiterbewegwig im wilhelminischen Reith, Berlin 1959, p. 27, points to the way in which the Kaiser’s political thinking was reflected in the measures undertaken against the SPD.

31Ludwig Quidde (1858-1941) worked for some years in Rome before completing his study of Caligula. In i8g0 he had founded, as a liberal counterweight to the Hisforische Zeifschnif, edited by Sybel, his own Deursche Zeitschni j u r Cesthichtswissefisrhcrjr. After the publication of Caligula. Eine Studie iiber C&a-twahnsinn, he was increasingly ostracised by his own colleagues and his journal ignored by the academic world, so that in 1898 it was forced to cease publication. Quidde increasingly turned his attention to the world of practical politics and became the second German to receive the Nobel Peace Prize in 1927. The best introduction to this little-known figure in German history is by Utz-Friedebert Taube, Ludwig Quidde (Miitzchener Historische Studien) Kallmiinz Opf. 1963. For further comment on the ‘Caligula’ affair, see also Hans Bemd Gisevius, Der AnJbng vom €tide, Zurich 1971, p. 223 ff.

31a Taube, op. cit., p. 102. 32 See Harry F. Young, Maximilian Harden, The Hague 1959. pp. 5g-62. 33 Eugen Roth (ed.), Simplirissimus. Hannover 1954, p. 18 and Helmuth Rogge, Fingiertc Bride als

Miffe l polifkcher Satire, Munich 1g66, p. 197. 34 Reichstag, Sfen. Berichre, Bd 143, p. gg. 35 Ibid., p. 94. 86 The speech is printed in Wilhclm Schrodcr, Dac pns6nliche Regiment, Munich 1907. p. 7. 37 See Fcldmann. pp. 61 /62. In an editorial, Die neue Z i t , 1894/95,1I, N o 51. obxrved that the authori-

ties were intent on ‘scaling up the mouth of the rabble’. Not only the rabble, however, since a young academic, Friedrich Wilhelm Focrster, who remarked in the journal he edited, Efhische KuLur, that no one should expect patriotism from the SPD until a country had been created of which that party could be proud, was duly convicted under $ 95 and sentenced to three months cutrodia honcsta. As a result, he could no longer continue his academic career in Germany and was forced to seek his fortune in Switzer- land. Foerster, Erlebte Weltgeschichte 1869-1953, Niircnberg 1953. p. 115 K

38 See the editorial in Echo, z November IW. Leaflets distributed in the Hamburg area fell into the same category. StA HH, S 1365 Bd 22.

40 See Schonstcdt’s comments in the Reichstag on 12 December 1895. 41 The editor of the socialdemocratic Mecklenburger Volkszcitung had been acquitted of a charge of

insulting the Grand Duke of Meckknburg-Schwerin, after printing an article criticising an extensive

Stampfer, Egahrungen und Erkenntnissc, Cologne 1957, p. 57.

~~ ~ ~

114 THE KAISER, THE WILHELMINE STATE AND L~SE-MA JEST^ and elaborate court function. O n the appeal of the local state prosecutor, the Reichsgericht invoked the dolus cuentualis and a conviction was secured at the re-hearing. k l i r i e r Volksxeitung, 19 November 1go6. A year later, the editor of the same paper was sentenced to six months imprisonment for a similar offence. Rcrlitrer Volkrreitrorg, 14 March 1908.

42 Wahrer Jakob. 12 July 1904. 43 Writing under his pseudonym of Tat-Twani in the journal D i e Kritik. I January 1897. 44 This incidcrit is described in Allan Mitchell. Rruolutiorr in Bavaria 1918-19, Princeton 1965, pp. 47 /48.

See also Echo, 19 February 1897. For Eisner’s own recollections, see hs Taggeist (Berlin 1901). p. 2x1. 45 As reported in Echo, 11 January, I & 2s October 1899. Stampfer. p. 62, recalls this incident, adding

that its effect on the SPD press signalixd ‘the writing on the wall’. After xrving his sentence, Schmidt sufTered a nervous breakdown and threw himself in front of an oncoming express train.

48 See H. D. Soell, Die sozialdrmokratische Arbeiterbeuqpng im Reirhsland Elsass-Lothringen 1871-1918. Diss. Heidelberg 1 9 6 3 , p. 87 ff.

47 The mania for building churches had become a standing joke. Between 1 8 9 and 1896, no fewer than 3 0 were completed in Berlin alone, with 5 in a state of completion and another 4 in the planning stage, for whch a sum of 15 million marks had already been expended. It was well known that the Kaiser’s penchant for the Nordic name ‘Aegir’ manifested itself in his own literary odes and the naming of ships.

48 Echo, 27 July 1894: D i e netit Zci t 1895 / 9 6 , I. No 6. 49 Echo, 22 May 1907. A large number of similar absurdities was quoted by Wolfgang Heine in a

speech to the Reichstag, SIPLI. k i c h f e . Bd 229, p. 1740 ff. 50 Berliner Volkszxeifung, 6 November 1904. 5 ’ Feldmann. op. cit., p. 64; StA Ham, H ~ M 80 Ha 11, No 702. 52 Echo, 27 May 1 9 0 3 . 53 Published in Echo. 14 December 1902. 54 See press cuttings in StA HH. S 1365 Bd 26. 55This extension of § 95 provided similar cover for monarchs of friendly countries, which had

concluded similar agreements with Germany. Offences could be punished by terms of imprisonment or custodia horrtsta from one week to two years.

56 Quoted in Erho. 21 & 2 3 October 1897. 57 StA HH, S 2170 Ud 11 UA I . The entire file is devoted to the Stenzel affair. 58 Quoted in Hornburger Frem&nblaff, 1 1 August 1897. 59 Vorwirts. 12 August 1897. The Hatirrosersrher Courier, 14 October 1897, referred to the affair as a

60 Vorwcirts. 1 5 October 1897. See also editorial in Die ncue Zei t , 18971~8. I , No 4. The editor of an

6’ Report dated 21 October 1897 in StA HH. S 2170 Bd 1 1 UA I. e.2 Schonstedt’s speech of 12 December 1895, quoted in E i m b a h n - Z e i t u q (Liibeck), I I AuRust 1000. 83 See esp. Lc Soir (Bruucls), 2 3 October 1897, quoted in 2 h o 26 October 1897. 64 See esp. Berlitrer Togeblatt. 8 September 1903 and Die neue Z e i f , 1902/03. 11. No 50. 65 Dic neuc Zeit , 1906/07,II, N o 37. observed that a single judge in Berlin issued annually some 5000

66 Echo, 12 September 1903. 87 See amcle by Karl Liebknecht on the ‘Kaiserinselprozess’ in Die rleue Z e i f . 1 9 0 3 /04, I, N o 5 . For a

full account of the case, see Hugo Friedlinder. biteressotrte Krimitial-Proresse uoti kulfurhistorikhcr Bedeu- furig. Berlin 1922. Bd. 6, p. 82 ff.

68 Stampfer. p. IOI ff. I t is certainly possible, as Stampfer suggests. that the case may have been a deliberate plot against the Vorrudrts.

69 Rtichsfag. SIPII. Berichre, Bd. 150. p. 5859 tf. 7 0 Ibid, p. 5879. 7‘ Hans Delbriick, in PIeussisrhe Jahrbucher. Bd. 82, p. 3 8 0 & p. 560, echoed the view that the victims

of such cases invariably ended up as martyrs, and observed that the sharpness of the sentencing policy did not appear to find a favourable response in the population at large.

test case for the freedom of the German press.

SPD paper in Silaia was also convicted under 1 0 3 after printing a similar article.

seaarate orders for custody.

72 See for example, Hamburger Narkrichten, 22 January 1907. 79 Reirhstag, Sten. Ekrichte. Bd. 229, p. 1729 ff. 74 Vorwdrfs. 27 April I ~ W . 75 D~fsche~uristetiieituflg, N o 10, IS May 1 9 ~ . p. 553 ff. 76 Lcipziger Volksreiturg. 28 January 1907. 77 The circumstances surrounding this trial are described in Echo, 5 January 1908, and Sozioldcmo-

krotisrhe PartPi-ConespondPnx, 20 June 1908. 78 Die MIU Zci t , I g 4 / d l . I, No I S . 79 For Karl Licbknccht’s assessment, see Hunnovn G Hamover-Dnick. op. cit.. p. 23. 8oBerlin police report for 1911, in StA HB, 4 14-XIII c. a. ba.

THE KAISER, THE WILHELMINE STATE AND L ~ E - M A J B S T ~ 115

81 Staatsarchiv Marburg. Bestand 150. No 2 0 5 5 , B1. 14. 82 Ernst Fraenkel, Zur Soziologie der KlassEnjustiz, Darmstadt 1968, p. 7. 83 The work of this ‘Snafprozcureformkommission’ was completed in the summer of 1907. In April

1911 the government set up a drafting commission, which met until the o u t b i d of war in the Reich Jutice Office.

84 See especially the articles by Siegfried Weinberg in D i e neue Zeit, x ~ / r o . 1. No u) and 191 I /rz. I, No 12. The counter-propod of a group of profeuon--indu&g List, Lilienthal & Goldschmidt- advocated much higher penalties for IPse-mojrstC and ‘Beleidigung’ (libel & dander).

GERMAN EXILE PUBLISHING: THE MALIK-AURORA VERLAG OF WIELAND HERZFELDE

BY JAMES H. FRASER

THE classified section of the New York Times of June 13, 1948 carried the following advertisement:

This modest announcement and the subsequent selling of the advertised shop marked the end’ of one of this century’s most influential partisan publishmg f m , Malik Verlag and its exile extension, the Aurora. During its thirty-one years of activity, Wieland Herzfelde, the firm’s founder, published over three hundred titles and initiated several periodicals. He did so while operating nearly half of the three decades in exile because of his political commitment.

Official Germany in 1916 was already aware that fighting a war on several fionts was costing considerably more in material and lives than had been anticipated. Dissatisfaction with the war among the intellectuals was increasing. From the beginning, a few socialists as members of the Reichstag had opposed the war vocally as well as in articles in the socialist press. Radical socialist publications agitating against the government and the war were banned and the publishers and authors sent to prison. Non-aligned protestors were jailed or sent for military service to the front lines. It was under these conditions that the twenty-year old Herzfelde and his brother, John Heartfieldz, acquired in 1916 a licensed periodical, the Neue jugend, and continued its publication with the July, 1916 issueJ. Under Herzfelde’s direction, the emphasis of the periodical was almost entirely anti-regime and anti-war. The first issue carried contributions from George Grosz, Richard Huelsenbeck, Else Lasker-Schuler, Rainer Maria m e , Johanna R. Becher, and others, most of whom had had some contact with the war4.