were carrying out their professional duties; or to maliciously slander or libel other citizens.1 In the absence of prior press censorship, the government frequently used the Criminal Code to prosecute press opponents, especially for libel. Creative writers on the other hand were most affected by the paragraphs pertaining to lèse majesté (§§94–101), blasphemy (§166), and obscenity (§184). Because literary works dealing with the three sensitive areas of politics, religion, and sex were those most likely to put writers in legal peril, each of these offenses will be examined more closely in subsequent chapters.
Writers violating the Criminal Code could be subject to legal action. Local state prosecutors, either on their own initiative or in response to a citizen's complaint, could, within six months of its appearance, order the immediate confiscation of any publication thought to violate the law. (Only the remaining, undistributed copies could be seized; those already in citizens' hands were beyond the law's reach.) While local police also had authority to confiscate a work, such actions had to be reviewed by the state prosecutor within twelve hours; usually, police simply marked and forwarded to the prosecutor anything they considered actionable. In keeping with the general principle in the empire that administrative actions were subject to judicial review (of which more below), if a publication were confiscated, within five days a local district court had to either uphold the action or release the work for distribution. If the court affirmed the seizure, the prosecutor had two weeks to file criminal charges against those responsible for the offending publication. (Under German law, others involved in the distribution of an illegal publication, such as publishers, printers, editors, or booksellers, were also liable to prosecution.) The fact that a work had been published abroad did not protect a defendant from prosecution or punishment; and if a specific culprit could not be tried—for example, if the identity of the author could not be determined or a defendant fled abroad or died before the trial—the publication could still be permanently prohibited.2
In Prussia and other north German states, depending on the nature of the offense, defendants in criminal cases were tried either before a local district court (Amtsgericht), where a panel of one judge and two lay people heard the case, or by a superior court (Landgericht), where a panel of judges presided. However in Oldenburg and Braunschweig and in the south German states of Bavaria, Württemberg, and Baden, crimes committed in print had to be tried in public before twelve lay jurors (Schwurgericht). (It is perhaps no accident that of the five largest book production centers, two—Munich and Stuttgart—were located in the south.) Some indicted writers thus had the opportunity of being judged by their peers rather than professional jurists, though as we shall see below, for those accused of blasphemy a jury trial in the conservative Catholic south was not necessarily an advantage. If convicted of violating the Criminal Code, a defendant was fined or imprisoned and all remaining unsold copies of the offending publication (as well as the plates used to produce it) were destroyed; if only a portion of the work were judged illegal, only that was proscribed. Courts also could acquit the defendant of any crime yet rule the publication did indeed contain illegal material and must be destroyed. All verdicts, including acquittals, could be appealed to a court of appeal (Oberlandesgericht) and ultimately to the Imperial Supreme Court (Reichsgericht); while the latter occasionally nullified a writer's acquittal and ordered a retrial, it does not appear ever to have struck down a writer's conviction.
Could authors receive fair treatment from the German criminal justice system? Some historians, pointing to the empire's massive disregard of statutory guarantees of equality before the law, have disputed its reputation as a state based on the rule of law (Rechtsstaat). Justice in the imperial era, they argue, was far from impartial; rather, there existed a socially biased, frequently manipulated system of class justice heavily influenced by the partisan interests and ideologies of the ruling classes. Most contemporaries on the other hand saw the empire as a just, liberal state with progressive criminal and civil codes and judicial procedures and as a nation where citizens' rights were protected because administrative power, including police actions, was subject to the rule of law and independent judicial review. A growing body of recent scholarship also supports this view.3
German civil servants and jurists, it is true, were recruited from a narrow social elite and most were conservative supporters of the established order. University students preparing for administrative or legal careers came from elite upper and upper-middle class backgrounds and received a narrow, practical, professional training that, by focusing almost exclusively on law and its application to practical cases, largely insulated them from all “general cultivation” and humanistic subjects, not to mention art and literature. Because the number of law graduates far exceeded the judicial and administrative positions available, the government could be selective, and selection was closely linked to political orientation. The lengthy (and costly) probationary apprenticeship through which all aspiring civil servants and judges had to pass was used as much to screen out social and political undesirables as to assess their professional competence. It is hardly surprising, therefore, that most law graduates and civil servants emerged from their illiberal training as uncritical supporters of the imperial system and its policies.
Yet this same training also produced many nonconformists and even the empire's harshest critics acknowledge the system was a training ground for thousands of liberal attorneys.4 Several authors whose writings later brought them into conflict with the law were, in fact, themselves products of the judicial training system: Ludwig Thoma, Hermann Bahr, Ernst von Wildenbruch, Frank Wedekind, O. E. Hartleben, Max Halbe, Carl Sternheim, and Herbert Eulenberg, for example, were either trained (and sometimes practicing) jurists or one-time legal students. And although candidates who lacked the requisite social background or political outlook had little chance of receiving an administrative post, the criteria were more relaxed for the judicial branch, which was more hospitable to liberals, Catholics, and even Jews. Furthermore, members of the German judiciary enjoyed far more independence and job security than their colleagues in administration. The Imperial Justice Laws of 1877–1879 established a modern, independent, and substantially liberal court system in Germany based on clear, fair, and uniform civil and criminal procedures. Judges were appointed for life with fixed salaries and were well insulated from political pressure. They could not be relieved of office, transferred, or pensioned against their will except by means of a judicial decision and in accordance with the law, and so they were answerable only to their fellow jurists, not to the political administration. Whereas administrative civil servants were fundamentally conservative and staunchly loyal to the monarch and his government, the German judiciary comprised a broader range of political viewpoints, including many moderate liberals; among judges “the separation of professional duty and private conviction was more normal, here there was more pluralism, here [logical] predicates and specialized professional judgments played a greater role.” 5
Within the judicial establishment, state prosecutors were responsible for initiating legal proceedings (although after 1879 in most German states victims of crimes and other citizens could also instigate legal action). In some smaller north German states, prosecutors came from the judiciary and returned to it after leaving the prosecutors office, so were able to act fairly independently. But in Prussia and the larger states they were state officials responsible to the Ministry of Justice and thus subject to political pressure; if they failed to prosecute certain offenses aggressively enough they could be disciplined or removed by the government. Their literary ignorance, a result of their narrow legal training, could sometimes be embarrassing. Ambitious prosecutors sometimes resorted to questionable legal maneuvers and manipulations when dealing with censorship cases. Because most hoped one day to be appointed as judges, they were often eager to compile an impressive record of prosecutions and convictions; frequently this meant finding ways to circumvent the south German requirements that all press offenses be tried before a jury, where cases were about twice as likely to end in acquittal as those tried before a panel of judges.6 One popular tactic involved the principle of “ambulatory venue” (fliegender Gerichtsstand), which, until its use was curtailed after 1902, allowed prosecutors some latitude in deciding where an alleged offense was to be tried. In cases involving a book or periodical for example, a defendant could be made to stand trial either in his or her place of residence, in the place the publication
