Page:The Green Bag (1889–1914), Volume 06.pdf/22

 German ^Jurists and Poets. GERMAN JURISTS AND POETS. I. By Arthur Hermann. THIS sketch was suggested by the Eng lish and American " Anthologies " in recent issues of the GREEN Bag. For reasons presently to be explained it must resolve itself into a conglomeration of short biogra phies of German jurists who have mounted old Pegasus rather than into a collection of their productions. To the American reader the German judiciary is well-nigh a terra incognita. Its study for practical pur poses is little short of being useless, so far as application to our evcry-day practice is concerned. Multifarious reasons tend to show the wide difference between German and American modes of practice. I am not now speaking of the historical aspect of the laws of both countries; their common roots in the civil law and its influence upon our American law being familiar to every law yer. Besides the historical aspect there re main the philosophical, the dogmatic, and the political, from which jurisprudence may be treated. The political aspect alone fur nishes ample material to illustrate the differ ence in practice, and in fact in the spirit, of the laws of both countries. I take a few random examples. Germany has a uniform penal code. Its salient features are: I, Want of casuistry and enumeration and description of cases; 2, Want of scientific theoretical construction of terms; 3. Unusual latitude in the discretion of the judge to determine the measure of the punishment or fine; 4, Absence of regulations for the carrying out of the judicial sentence. This code, modified in 1876, has been in force since its adoption shortly after the union of the German federal states under the Empire in 1871. A com parison of that code with the penal code of New York, or with provisions in our state statutes covering its materia, will readily de

monstrate the difference. The superiority, or at least particularity, of our system in regard to the power of every judge to decide upon the constitutionality of a law, in con tradistinction to other systems where the judge's discretionary powers are limited to the volume of the sentence, is too well known to need elaboration. In Prussia, through Frederick the Great, the independence of judges from the government was conceded. "Es giebt noch Richter in Berlin," ' or, ac cording to another version: " Ja, wenn nur das Kammergericht in Berlin nicht ware!" 3 ejaculated the fearless miller in Sanssouci when commanded by His Majesty to remove the annoying windmill from the precincts of the royal castle. The liberty of the press was vouchsafed by that great reconstructor of the kingdom of Prussia, in a marginal note to a petition : " Man soll die Gazetten nicht geniren." 3 In theorem the king and emperor is still " the first servant of the state," as old Frederick put it; but in praxi the courts are '"There are still judges in Berlin." 2 " Yes, if it were not for the Chancery Court in Berlin." 3 "Don't annoy the Gazettes." This important utter ance of Frederick the Great is contained in a letter which Count Podewitz wrote to the Secretary (Minister) von Thulmeyer, the passage in question being as follows : "Se. Majestat erwiderten aber, dass Gazetten, wenn sic interessant sein sollten, nicht genirt werden miissen." (I. D. E. Preuss. Friedrich der Grosse. Eine Lebensgeschichte, Vol. III., p. 251.) It is worthy of note that the letter dates June 5, 1740, a few days only after that original and great monarch came to the throne. Lord Erskine delivered his great speech in the trial against John Stockdale for libel on the House of Commons (22 State Trials, 237) — generally regarded as the birthday of the liberty of the English press — on Feb ruary 15, 1788. Another historical word of the Prus sian king may here find a place : " In meinem Staate kann jeder nach seiner Facon selig werden " (" With in my kingdom every one may go to heaven after his own fashion.") This was uttered on June 22, 1740, hence over thirty years before the same principle was adopted in our Constitution.