Page:The Green Bag (1889–1914), Volume 06.pdf/23

 Rh

ever and anon kept busy with prosecutions of " offences against the majesty," ' and the inveterate German patriot deems it a poor freedom where under our government every bootblack may call with impunity the head of the government an ass. With the exception of a few southern states, the nature of a government libel in Germany is deter mined by a bench of five judges without a jury. The judges being appointed and pro moted by the government, the radical dif ference between the liberty of our press — sometimes, indeed, verging on wantonness — and that of Germany is obvious. Blackstone complains that " every man of superior fortune thinks himself bom a legislator," 2 and Mr. v. Hoist thinks that with us " the equality of all men became so perverted, in the minds of the masses, into the equal capacity of all men to decide on political questions of every kind"; s yet it strikes me that the American would justly resent the outright denial of his capability to judge in high matters of the state. In Germany this right, or rather fitness, was plainly denied in an answer by the Prussian minister Von Rochow upon a petition protesting against the arbitrary repeal of the constitution of Hanover by its king in 1837. The peti tioner was instructed that " it does not be hoove the subject to measure the actions of His Majesty by the narrow conceptions of his (the subject's) views." 4 Only a few years ago a large daily in Berlin, the Berliner Volksaeitung, was sus pended without " due process of law." It might be said that this was done by virtue of a power vested in the police through laws passed by the Reichstag. But that is not the question. The construction of that 1 Not exactly a " erimen majestatis," but technically called a " Majestatsbeleidigung." 2 Blackstone, Commentaries, Book I., p. 9. 3 Von Hoist, Constitutional History of the United States, vol. I., p. 74. des Staatsoherhauptesan den Massstab seiner beschrankten Kinsicht anzulegen." (Buchmann, Gefliigelte Worte, 17. Auflage, p. 433.)
 * " Es ziemt dem Unterthanen nicht, die Handlungen

law and its immediate enforcement were left to the police, and not to the courts. Post-mor tem apology even cannot resuscitate the dead. Add to the incapacity of the judge to pass on the constitutionality of a law, the fact that in Germany every judge holds his office at the pleasure of the government — grounds for removal of obstinate judges from their offices or from posts of greater responsibility have never been wanting — and the dif ference between our present judicial system and that of modern Germany becomes more striking. The promotion of judges, finally, depends on Anciennetat, i. e. the time of ser vice. Little room is left for distinction and reward, except when coupled with long ser vice. An incident such as Mr. Hornblower's nomination to the Supreme bench of this country would be simply impossible in Ger many. The great freedom and possibility of locomotion in the United States, its varied and in many instances unparalleled enter prises, in contrast to the " conservative prog ress " of the Germans, lend to the material brought before the respective courts a very different character. Again, the great body of men serving in the German army is out side the pale of the civil law, solely amenable to the Militdrstrafgesetz. Judge John F. Dillon has much to say of the excellence of the municipal government in Prussia," and Mr. Brice depicts for our detestation the municipal corruption of our large cities.2 But there is one phase of " self government" Mr. Dillon has not touched upon. The choice of a Burgermcister in Prussia is left to the city council, the government reserving the right der Bestdtigung (approval of the choice). A case came under the writer's observation, where a city council selected a man whose political affiliations were not in concert with those of the government. The choice was rejected. A re-election led to the same result. Finally the government ap pointed a " Commissarius" to take charge 1 Dillon, Municipal Corporations, vol. I., p. 14. ' Brice, American Commonwealth, vol. II., p. 158.