locality where the work was distributed. Because of this last possibility, zealous prosecutors could sometimes force south German defendants to stand trial in north German cities where there was no jury trial, or in more conservative regions where the chances of conviction were thought to be higher.7 In 1899 for example, the defendants charged with lèse majesté in the famous Simplicissimus “Palestine Affair” (see chapter 3) were tried and convicted in Leipzig, where the satirical journal was printed, rather than in Munich, where its editorial offices were located and all the defendants resided. The Simplicissimus staff realized if the journal continued to be printed in Leipzig, they would remain highly vulnerable: “As long as we [publish] in Leipzig, we always face the danger of being destroyed. The gentlemen there can do that, if they want to be stubborn. It would not be hard for them, if they wanted, to lock us all up, one after the other.”8 This was one reason the journal changed printers; after 1899, Simplicissimus was printed in Stuttgart, where Württemberg law, like Bavarian law, required jury trials for all press offenses.
Some south German prosecutors sought to avoid jury trials by charging defendants under a vague and controversial paragraph of the Criminal Code (§360, sect. 11) that levied a fine of up to 150 marks or six weeks imprisonment on anyone “who, in an unseemly manner, creates loud, disturbing noises or commits a public nuisance (grober Unfug).” Originally intended for use against street urchins and malicious mischief makers who harassed passersby, disrupted traffic, released mice in crowded theaters, or otherwise created a public annoyance, some aggressive state prosecutors stretched this statute to cover behavior that caused psychological as well as physical annoyance to the public. In south Germany, where juries were sometimes reluctant to convict defendants charged under the strictly worded laws regarding obscenity, blasphemy, or lèse majesté, and where the government itself sometimes balked at prosecuting writers unless it was confident a jury would convict, frustrated police and prosecutors occasionally charged offensive publications with “public nuisance” instead, since no jury trial was required in such cases. For example, in April 1898 the Munich prosecutor charged Maximilian Harden with public nuisance rather than lèse majesté for an article in which he openly discussed the tragic insanity of the Bavarian King Otto I, a subject considered taboo during the regency of Otto's uncle Prince Luitpold. Harden was quickly sentenced to a fourteen-day jail term.9 And after several unsuccessful efforts in the late 1890s to prosecute Simplicissimus for obscenity, the Munich police tried to confiscate the journal and prosecute its writers and editors for public nuisance instead. Although the state prosecutor had at first resisted such attempts, he eventually relented and in 1903 used that law to ban an offensive Simplicissimus political cartoon and fine the artist and editor thirty marks each.10 In subsequent years, whenever a jury trial seemed unlikely to result in a conviction, enraged conservatives pressured the Bavarian government to apply the public nuisance paragraph against offensive publications like Simplicissimus.11
Finally, to avoid jury trials in press cases where an acquittal was likely, south German prosecutors at times misused the Criminal Code's “impersonal process” (objektive Verfahren) provision, whereby a publication could be permanently banned even if those responsible for it could not be convicted of violating the law. At the turn of the century the Imperial Supreme Court ruled that in press cases where a defendant had been acquitted on grounds of mental incompetence, a second hearing should be held to determine whether the contents of the publication in question was indeed illegal and should be banned by means of an impersonal process. Soon, some unscrupulous prosecutors began encouraging courts to declare defendants incompetent to stand trial, for this was a way to avoid a possible jury acquittal yet leave the door open for a permanent ban of the offending publication. Bavarian authorities, frustrated by their inability to obtain jury convictions against the writers and editors of Simplicissimus, once resorted to this ploy. After police confiscated an issue of the journal in 1904 for satirizing the Bavarian Catholic Center Party and charged Ludwig Thoma and Julius Linnenkogel with blasphemy, at the preliminary court hearing the prosecutor persuaded the presiding judge to dismiss all charges against the two defendants on the grounds their “mental incompetence” absolved them of any legal responsibility for their actions. Thoma, a former lawyer, immediately saw through this scheme: “All this means is that they don't want to bring me before a jury,” he complained; “Perhaps I should be grateful that I have been acquitted?…I'm sorry that I can't appreciate this kind of mercy.”12
In court, defendants were represented by private lawyers who were equals to the state's judges in terms of legal training, preparation, and professional admission requirements. Members of neither the judiciary nor the civil service, defense lawyers were free from any disciplinary oversight from courts or ministries of justice. After the legal reforms of the late 1870s opened admission to the bar to anyone meeting the professional requirements, German lawyers came from increasingly diverse social backgrounds. Compared to the state judiciary, by the later years of the empire the private bar consisted of more sons of middle-class commercial and industrial families and a much higher proportion of Jews. (Before the Weimar republic, Jews were virtually excluded from the judiciary, and women from both the judiciary and the bar.) These lawyers, who in the courtroom enjoyed certain procedural advantages over the prosecution (especially after 1900), often skillfully mounted tenacious defenses of their clients and mobilized public opinion on their behalf. In several literary trials defense attorneys called prominent scholars or writers as expert witnesses to bolster the defendant's case and discredit the prosecutor's interpretation of the work in question. Such testimony was often reported prominently in the press, which regularly covered controversial censorship trials.
Whether because of press reporting of courtroom proceedings, adroit defense by lawyers in private practice, or the impartiality of German judges, attempts by overzealous police and unscrupulous prosecutors to manipulate the law against writers rarely succeeded. The German judiciary generally made an earnest effort to safeguard defendants' rights and courts displayed a surprising independence from, and even resistance to, government efforts to stifle freedom of expression through the printed word. Indeed, after resisting efforts by the state in the 1890s to make the judicial system more repressive, in the years before the war German judges began acquitting a higher percentage of defendants (especially in cases they believed to be politically motivated) and they became increasingly lenient in their sentences (issuing more fines rather than prison sentences, and shorter rather than longer incarceration). Independent jurists frequently revoked confiscations initiated by police or prosecutors, threw out indictments against authors, acquitted defendants, or imposed lighter punishments than prosecutors demanded. For the government the outcome of a censorship trial was unpredictable and frequently disappointing. (Even during the anti-Catholic Kulturkampf and the years of the harsh Anti-Socialist Law, when the Bismarckian state used the most ruthless legal weapons and exceptional laws against its opponents and the judicial system was most politicized, in over two-thirds of all press trials judges imposed significantly lighter sentences than had been requested by the prosecutor and in 20 to 30 percent of all cases they acquitted the defendants completely.) Although police, prosecutors, and even the emperor sometimes railed against such decisions, there is no evidence the administration ever exerted pressure on judges to find defendants guilty; and while judges who freed confiscated material or acquitted indicted authors were occasionally scolded, they could not be punished or disciplined by the state. The evidence is strong, therefore, that throughout most of the imperial era authors who clashed with the law because of their work could generally receive fair treatment in court.
The outbreak of war in 1914 radically altered the legal rights of writers and the press in Germany, as it did in all belligerent nations. State control of printed material expanded enormously during World War I while judicial restraints on censors all but disappeared. On 31 July 1914, Emperor Wilhelm II declared a state of war to exist in the empire and with his constitutional power formally imposed a legal state of siege (Belagerungszustand). As long as the state of siege remained in force, the military enjoyed extraordinary power over civil life: deputy commanding generals assumed executive authority in each of the twenty-five Army Corps districts. Slicing through preexisting state and regional boundaries or lapping over several hitherto
