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vengeance. It painted the frontier seat bright green
and hung up the notice " Frisch Gestrichen," which
means wet paint. So nobody could sit down,
nobody enjoyed the view, and nobody drank in the
Meiningen inn. When in five days the paint dried,
the seat was given another coat and the wet paint
notice left on. That was in 1900. Since then the
seat, under Act of Legislature, has been painted
every five days ; and the receipts of Meiningen from
drink taxation have fallen off by half.


Oui, si nous n'avions pas de juges a Berlin {Miller of Sattssouci).

HERR GAMRADT says that Germany is
the land of criminals. It is peopled by
innocent ruffians who go daily to gaol,
who when the State Procuror gets more assistants
will go hourly. Not Corsica or the frosty Caucasus
has so many men in conflict with the law. Learned
statisticians write books to prove that the only
Germans who keep out of prison are forgers, wife-
beaters, and warders. Some exaggerate. The
competent Herr Dr. Finkelnburg, Governor of
Moabit Gaol, brings things to proportion in a book
which shows that one in twelve of his countrymen
has been punished for breaking the criminal law.
Still, that is adequate ; for Herr Finkelnburg counts
only breakers of laws of the Empire ; and he excludes
the thousands sentenced by minor courts for mis-
demeanours, the hundreds sentenced by court
martial, and the millions fined or imprisoned for
breach of police prohibitions and decrees. Of first-
class criminals — persons arraigned and punished



for genuine, honest crime — Germany has barely
3,869,000. Every sixth adult man, every twenty-
fifth adult woman is a criminal. Innocent children
do their share. Of boys aged under eighteen, one
out of forty-three, says Herr Finkelnburg, has been
punished for crime.

This plethoric state has concerned the Reichstag,
the Landtag, Ministers of Justice, and abusive
newspapers. Ignoring the circumstance, made clear
by Herr Dr. Finkelnburg, that the State's high
aim is to multiply criminals, some are displeased.
The newspapers (part of the Reichstag too) wail
that Germany has too many laws ; that the
machinery of Justice has grown to be an end in
itself ; that it measures its success by the activity
of Moabit Court. Each year new laws are made ;
and subtler, sterner tests of legality imposed ; so
that when tying your boot-strings, or cutting your
finger-nails, or friends, you are always in dread of
violating a clause of the R.S.G.B. But that was
always so. " It is impossible," said Bismarck, " to
get out of bed and walk to the window without
transgressing a Prussian law."

From the standpoint of the chastising State, things
since Bismarck's day have improved. For instance,
in 1887 only 345,710 criminals received sentence,
while in 1907 there were 521,435. This increase
much exceeds the growth of population ; and it


compares favourably with the increase of trade,
though not, perhaps, with the increase of the Fleet.
Still the State does its best, in applying its innumer-
able devices for keeping figures up. For instance,
the State Procurors have usually no discretion as to
whether they indict or not. This circumstance acts
fruitfully. Men must be tried for cancelling a
cheque-stamp with a " 6," when they ought to have
written " June " ; fools who sign others' names in
joke on the ist of April are arraigned as forgers ;
and Christians who heap coals of fire on their
enemies' heads get penal servitude for arson. Herr
Dr. Finkelnburg makes a specious pretence that he
does not approve of the high aims of the State ; he
condemns its punitive zeal. But more enlightened
men have praise. They say that in such ways crime
is eradicated. The ugly distinction of being criminal
is beneficially obscured in the public mind ; and it
will soon be as lower-middle-class and stupid to get
five years' penal servitude as it is to get the fifth
class of the Order of the Prussian Crown.

The State furthers its aim by providing a juris-
prudence of rare comprehensiveness and refinement.
No case is too tenuous to be tried before judges and
jury ; and happily no wrong is too trivial for legal
redress. German jurists condemn the levity of the
London beak who bids a plaintiff not waste the
Court's time with silly complaints. They say that it


is the highest function of Justice to determine
dehcate questions. *' Anyone," I quote Herr Dr.
Ing. Gamradt, " can hang a murderer, or say who
owns a million."

Hence every day some case of aetherial tenuity is
tried by a civil or a mihtary court. The commonest
motive is " offence " or '* insult " — Beleidigimg !
By etymology this word implies injury ; but it
needs no injury to make it a crime. Lawyers may
find in the words subjective injury, which means
that the villain in the dock did not mean to insult
you, but that you took his words as an insult. If
Herr Troschel calls you a hen, you may lodge
criminal information ; and even if he swears the
sense was complimentary, for you resemble a flying
man, you may get him into gaol by swearing you don't
want to fly. " Offence " is the richest chapter in
legal literature. Jurists of repute expound in
volumes why a man went to gaol for writing :
" Herr State-Minister Beckmann, like Cincinnatus,
has returned to his right place before the plough " ;
because these words " improperly reflect on the
minister's official competence and therefore impugn
his honour," though the prosecution failed against
Herr Stockbroker Blind, who shouted *' Imperial
canary-bird " at a red-haired deputy dressed in
yellow nankeen.

Trial for " offence " replaces our civil and


criminal trials for libel, slander, abuse, and assault.
Even, it seems, it may replace the crim. con. case ;
for a Court once sent a seducer to gaol on the ground
that his conduct was an insult to the husband.
Where a libelled Briton sues for a thousand damages,
the libelled German lodges information with the
Procuror, who always prosecutes. When not
physical, " offence " is punished with a maximum
imprisonment for one year, or £30 fine ; and when
it is made by print or picture, with a maximum two
years in gaol, or a fine of £75. The practice is to
inflict small fines ; and you can charge your neigh-
bour with child-torture, or even call him a turkey-
cock, for the choice of a Chesterfield sofa.

The consequence is that gross libel and slander
flourish. A badly defamed man finds it not worth
while to enter Court : he gets neither stern vengeance
nor compensatory damages. So newspapers are
reckless. Herr Schmidt, arrested on suspicion, is at
once " The Murderer Schmidt." The Court does
not punish such contempt ; and Herr Schmidt when
released as innocent never thinks of an " offence "
process. This at first sight seems to foil the State's
high aim of increasing crime. But in compensation,
minor " offence " trials for offences worth less than
£30 take place every hour. Herr Pohceman Schindler
is prosecuted for calling a citizen a " fellow " — a
Kerl. The citizen is in a motor-car smash ; and


insufferable Herr Schindler says : ** Take down this
fellow's name ! " The case goes through three
instances. Sheep's-head costs £12 los. — for that sum
in cheap England you could . . . But prices under
Protection . . . These judgments strike by their
refinement of reasoning. A Darmstadt Court decides
that " old boot " is not criminal, " because under
no normal circumstances could a veterinary surgeon
of Hesse be confused with a boot." The epithet
" Englishman " strained the best juristic brains of
Hannover. When Herr Dr. Eissel from Budweis
beat Herr Schwendy at chess, Herr Schwendy
hurled at his conqueror the unexampled epithet
" Engliinder." In Court Herr Dr. Eissel qualified
the epithet as " serious," because he was not an
Englishman and had never been in England. He
was a temperate Austrian Anglophile who wore
English clothes and had a son at Rugby. The Court
convicted. " The epithet ' Englishman,' " it ruled,
" is not always or even customarily cause of offence ;
objectively the word is no more vituperative than
' German,' ' Spaniard,' or ' American ' ; subjec-
tively, to the sensibihty of a hypothetical English-
man who felt proud of his nationality, it might be
qualified even as complimentary. But in the
particular case in question, in view of the circum-
stance that the accused man showed other signs of
resentment on his defeat by the prosecutor at chess,


it is plain that * Englishman ' was uttered with
conscious aim to cause deep moral suffering ; and
therefore constitutes Offence within the meaning of
Paragraph 195 of the R.S.G.B."

By administering rigidly an equally refined and
comprehensive system of " Railwaypenal jurispru-
dence" (Eisenhahnstrafrechtswissenschaft) a decent
addition is made to the total of condemned. Rail-
waypenal jurisprudence hangs Damocles-sword- wise
over your head through life, from the hour when,
having been born in a D. -train, you are fined six
marks for travelling without a ticket, to the merciful
hour when a locomotive severs your neck. The
railway servants are sworn constables ; and it
seems are also judges and baihffs, for they not only
arrest and indict you, but fine you and collect the
fine on the spot. For not having a ticket (" being
born in a D. -train." Par. 384 of the R.S.G.B.) you
pay six shillings ; for taking a seat in the train
without intent to travel, another six shillings ; for
invading the platform without a ticket, one shilling ;
for muddying a seat, one shiUing. For entering a
train in motion you are fiercely chastised ; and even
summary conviction and execution by the loco-
motive do not stay proceedings against your
mangled corpse. After the footboard has lined you
a leg, at your first practice crutch-limp around the
hospital yard a constable brings you a " fine-man-


date " "for unauthorisedly and to the Staterailway-
regulations contrarywise, a train in motion enter-
ing." For this offence a Russian who had alread}^
paid five fingers to a carriage door had later to pay
five marks. The only conqueror of railwaypenal-
jurisprudence is Herr Prof. Dr. Haeckel of Jena.
Herr Haeckel raised in court, firstly, the meta-
physical problem, is motion an objective reality ?
and secondly, the physical problem : at what
infinitesimal fraction of time do trains cease to
stand still ? " From Archimedes to Poincare," he
said, " authorities differ." Cultured German Justice
has an enlightened tolerance for quarrels of science ;
and, in the clash of expert witnesses, each proving
his colleagues hopeless dunces, Dr. Haeckel got off.
And many other trivial but effective factors help
the State in its aim of filling the gaols. Justice, for
instance, in defending the meek and lowly against
oppression, punishes with proper severity abuses
of power. Four judicial instances are kept at
sweating work merely to decide the limits of police
competence in injunction and prohibition. The
great are cast down : Herr Police-President Jagow
is proved to be wrong about theatre hats ; and Herr
Maitrank, commandant of the Pirmasens Gen-
darmery, is utterly overthrown by the barmaid
Heinze. Commandant Maitrank sent an underling
to bring him a pint of beer. Commandant Maitrank


found that the top three-fourths of the tankard
were treacherous froth ; and that only in inacces-
sible gulfs beneath did there lurk thin ripples of
beer. He sent his underling back to fetch the unjust
maid. She declined. He sent the underling again.
She came. The Commandant read her a homity,
saying : " For only two offences men go to hell ;
the first is joining the Socialists ; the second is
giving short beer." The barmaid wept. A fortnight
later the Commandant was court martialled for false
imprisonment. The court martial sent the matter
to the civil court. Herr Maitrank was acquitted.
The Procuror appealed. A higher court confirmed.
But then Justice triumphed. At Leipzig's Imperial
Court, the Empire's highest instance, former deci-
sions were overruled, and the arbitrary gendarme
went to three months' gaol.

Even the rural commissary — the Landrat —
mightiest official, uncrowned king of Prussia, is
fought by his subjects. The feud of the Com-
missary of Kohlow and the sweep of Wiistenheim
long busied the Press. The Commissary forbade
the sweep to pursue his trade in one commune of
Kohlow. The sweep appealed. The quarrel came
before the provincial assembly. While seven experts
were putting forth overwhelming arguments. Nature
set the Commissary's chimney ablaze. There was
no sweep except Wiistenheim 's ; and the Com-


missary's wife had to send for him. He came, put
out the fire, and sent the houseowner a bill for forty
marks. The Commissary challenged this ; a sweep's
extreme fee, he said, is five marks. Quite so, said
the sweep, but Your Highwellbornness knows that
that is the fee for practising in one's own commune,
and Your Highwellbornness has just proved that
this is not my commune. I'll split the difference, and
take thirty-nine marks fifty. The trial went through
three instances ; and the Commissary won. When
he got home from the Appeal Court there lay a
summons against him for letting his chimney catch
fire. The sweep had lodged information. The
Commissary was fined six marks fifty. As he re-
turned via Wiistenheim he drove over the sweep's
duck. The sweep proceeded for damages ; the
Commissary said that the sweep had tied the duck
in the roadway. The sweep prosecuted the Com-
missary for offence ; the Commissary informed on
the sweep for obstructing traffic. All these cases
went through several instances ; and some of them
went to the Imperial Court at Leipzig, for there is
no criminal judgment, however mild, against which
you cannot appeal to the Supreme Court. The
litigation lasted from spring, 1907, till winter, 1912.
The sweep was fined a total of £14 ; the Commissary
was fined £12 los., and paid the sweep five marks
for chimney - sweeping ; and the sweep spent


three days in gaol for calling the Commissary a

Fullness of jurisprudence and zeal to fill the gaols
are not confined to Prussia. They go wherever you
hear the German tongue. The celebrated Tyrol art
prosecution shows you that. It happened appro-
priately in the soaring Alps ; the heroes were the
distinguished painter, Herr Gottlob Tauschleim, the
admirable mountain-guides, Herr Josef Besser and
Herr Pantz, and Herr Besser 's mountain sweet-
heart, Fraulein Myrtha Bock, the milkmaid.

Herr Tauschleim dwells in Munich by the incom-
parable Isar ; Herr Besser dwells in Kufstein by the
incomparable Inn. Herr Tauschleim engaged Herr
Besser to guide him to the aerial Grotthiitte, the
shelter of the Austro-German Alpine League. Herr
Besser guided him so brilliantly that grateful Herr
Tauschleim promised to draw his portrait. But as he
carried neither crayon nor paper he seized a lump
of coal, dashed off Herr Besser's profile on the shelter
wall, and superscribed it " Josef Besser."

Herr Besser was pleased and flattered. He did not
notice that Herr Tauschleim, light of the Seces-
sionist-Post-Futurist-Aorist-Imperative School, had
drawn his nose four millimetres too long. Herr
Pantz, his sharp-eyed rival in love and climbing,
arrived ten minutes later and did notice it. He
whirled back to Kufstein and reported that the


Grotthiitte wall bore Besser's caricature with a
nose as big as your fist. It was the work of the
famous artist Tauschleim. Before nightfall the
story had improved, and all Kufstein knew that
the famous artist Tauschleim had drawn Guide
Josef with a nose a metre long.

Fraulein Myrtha Bock awoke to the fact that her
youthful Josef had become Kufstein 's laughing-
stock ; and she resolved to see the Bergeracian nose,
and know the worst. As milkmaids are used to lush
pastures, she could not climb, so she implored her
amorous Herr Josef and his equally amorous rival
Herr Pantz to bear her to the summit. When she
reached the shelter she was so primed with evil
presages that though the nose was in reality only
a trifle exaggerated, it seemed to her to project
down the whole Inn Valley and cast shadows on
Vorarlberg. And when she awoke from the indis-
pensable swoon she adjured Herr Josef to erase the
nose. " Otherwise," she menaced, " our bridal day
will never dawn. I shall die a virgin."

The awful thought that Myrtha might die a virgin

caused Herr Josef to waver. He took from his

pocket the " Municipal Instructions for Kufstein

Guides," and declaimed Par. 99 C. : " Guides are

required to protect the property of the Alpine

League. ..." Thereupon he refused to extirpate

the insulting snout. Fraulein Myrtha screamed.


She vowed that Kuf stein's ridicule made her Hfe a
burden, and she begged Herr Josef and Herr Pantz
to drag her to the Devil's Precipice and drop her
into the abyss. Herr Besser again wavered ; shut
his eyes ; and, raising high his ice-axe, hacked the
hideous image into the unreturning past.

Such was the crime of Herr Besser. In indifferent
Britain it would have led to sniffy leaderettes on
Saxon vandalism. The Germanic states are serious.
It was held proper to indict Herr Besser for " mali-
cious destruction of a work of art." The Court
acquitted, reasoning that though a drawing in coal
is a work of art, an unlettered hillman could not
know that. The Procuror appealed. But in vain.
Again Herr Besser was acquitted, this time on the
ground that a sketch in coal is not a work of art.
The Procuror appealed. He appealed to the highest
instance — and costs amounted to £300. Herr Besser
was again acquitted ; this time on the ground that
though a drawing in coal is a work of art, and even
an unlettered hillman must know that, there failed
evidence of malice.

That was the end of Herr Besser's luck. Though
his shame on the storm-girt Grotthiitte was effaced
for ever, a reporter, unknown to him, wickedly copied
the sketch, and it appeared duly in the Kufstein
Meineidzeitung. Only, instead of the nose, as in
Herr Tauschleim's sketch, being four millimetres too


long, it appeared a whole centimetre too short.
And Kufstein roared with such laughter that
humiliated Myrtha married Herr Rival Pantz. Law-
suits began again. The case of Herr Josef's nose —
a suit for return of presents, a suit for slander, and
a suit for a suit (bought for Herr Besser's wedding)
occupied Austria's courts from 1900 to 1906 ; and
before they ended Herr Besser, Herr Pantz, Frau
Myrtha — in fact everyone except the vicious cause,
Herr Tauschleim — spent short periods in gaol.

Naturally the abundance of suits exalts the
dignity of law ; and ensures far more gravity, meti-
culousness, and psycho-criminological penetration
than obtains in frivolous England. Judges do not
comment or joke, and if they need a gloss upon
" a pony both ways " they send for an expert.
In part, this dryness comes from newspaper in-
difference to law. Trials of sensation are reported,
though more briefly than with us ; divorces are not
mentioned ; and civil actions are described only
when they involve questions of law. There is no
police-court wit, for there is no police-court. When
you whistle, drop eggs off balconies, or neglect to
register your death you are summoned to the police-
station. The police treat you courteously, they
inscribe the facts of your birth, the birthplace of
your father, the maiden name of your mother, the
number of your children, and the essential points


of your defence ; and they send the paper to the
District Court — the Amfsgericht. A month later you
get a " fine-mandate " stating fine and costs, and
giving a week for appeal ; if no appeal, another
week to pay. There is no trial. Many put up with
unjust convictions rather than trouble to appeal ;
but the system is good ; it saves working-men from
losing their day's wage ; and idle men from wasting
their precious time ; and it furthers, since publicity
and trouble are avoided, the State's high aim of
multiplying convictions.

Such conviction without evidence seems no hard-
ship ; for experience shows that evidence is useful
mainly to cloud the truth. In German trials, the wit-
ness who says what he likes, and the expert witness,
who says what he's paid to say, hamper more than
they help. The Court practice is elastic. A witness
swears not only what he saw and knows, but also
useful things he has heard and even things somebody
else might have heard if he'd taken the trouble to
listen. " Did the accused shoot at his grand-
mother ? " asks the Judge. " He looked as if he'd
been shooting at someone," says the witness. " In
what way did he look ? " "I didn't see him ; his
brother admitted he was in his shirt-sleeves."
" What has that to do with the shooting ? "
" Nothing, Your Highwellbornness ; but I'm sure
he shot his grandmother." On top of this come


forty experts (Sachverstdndige) — all professors. No
criminal trial takes place without professorial
psychiatrists, who swear that the accused is psycho-
pathically inclined, that he is " hereditarily burdened, ' '
that he is perfectly normal, and a practised malin-
gerer. And civil trials need swearing experts. When
Herr Gum-Manufacturer Breit sues in the Com-
mercial Court Herr Cork-Manufacturer Ott for
overcharges for bad corks, the views of Herr Expert
Prof. Gerndt, author of Substitutes for Corks in
Accadia and Sumeria, probably decide the case.
Once in a bootlace trial after twenty experts had
given evidence on both sides, a little unknown man
raised his hand. " Keep quiet," said the Judge,
"I'll hear no more bootlace experts." ** I'm not a
bootlace expert," said the stranger. " I'm an expert
of experts. Herr Prof. Dr. Damitz ! If you want an
opinion on the relative values of any experts in
Prussia ..." And by swearing the defendant's
experts were all notoriously inexpert he won the
plaintiff's case. Except by these experts, perjury
is rare ; and few escape by untruth. But every-
where among Germans useful casuistry obtains on
the distinction between literal and moral truth ; and
the case of Bertha Schwemme, of Cabaret Venus,
Friedrichstrasse, is worth record.

Bertha Schwemme abominated lies. In one other
way she resembled General Washington. The


general slew a host of tiresome Britons and Bertha
(so deluded Justice reasoned) slew Herr Thunicht.
Herr Thunicht was Bertha's friend. Otherwise there
was nothing to prove his taste ; and friends opined
that his hasty death was a blow to morals in Hell.

Still, you must murder thieves and souteneurs
secretively. Not that Bertha could possibly have
killed this thief and souteneur. Such small waist,
such sky-deep saucer eyes, such rosebud mouthlet,
such dizzy terraces of golden hair — resembling sun-
rise on Everest — these were no murderess's charms.
The trouble was that the Court, from Judge Herr
Gerichtsrat Schmuehl, down to pert Referendar
Klippe, believed that Bertha was guilty ; and before
a word had been heard in defence treated her as a
monster with blood on her hands.

Indeed, evidence ran black. Bertha's toy pistol
(bought at Pfeil's, in the Behrenstrasse) fitted the
bullet found in Herr Thunicht 's neck ; Herr Juggler
Koss swore to Bertha's repeated "I'll do for
Thunicht " ; and house-porter Schiff told how at
8.25 on June 13 (within ten minutes of Thunicht 's
death) an excited woman ran down the stairs of the
Taubenstrasse house in which Thunicht lodged.
Herr Schiff identified Bertha. Cross-examined by
defending counsel Herr Dr. Juris Gulch-Bremer,
whose wife watched admiringly from the back of the
court, he said he'd noticed her big eyes and brooch.


^ He did not, he added, remember her hair, but he
admitted his impression that the excited woman's
hair was less striking than Bertha's.

Despite this flaw, conviction was almost certain.
The jurymen's minds were made up. They would
grant extenuating circumstances. Bertha's youth,
beauty, temptations, the wasting cabaret life, and
the utter reprobation of Herr Thunicht, all these
were in some measure condonation. " Besides,"
said the carpenter, who was chairman, to the jury-

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Online LibraryEdward EdgeworthHuman German → online text (page 9 of 20)