The persons and institutions of our judicial system with which I was in the first instance concerned gave my youthful conceptions more material for criticism than for respect. The practical education of the Auscultator began with keeping the minutes of the Criminal Courts, and to this post I was promoted out of my proper turn by the Rath, Herr von Brauchitsch, under whom I worked, because in those days I wrote a more than usually quick and legible hand. On the examinations, as criminal proceedings in the inquisitorial method of that day were called, the one that has made the most lasting impression upon me related to a widely ramifying association in Berlin for the purpose of unnatural vice. The club arrangements of the accomplices, the agenda books, the levelling effect through all classes of a common pursuit of the forbidden—all this, even in 1835, pointed to a demoralization in no whit less than that evidenced by the proceedings against the Heinzes, husband and wife, in October, 1891. The ramifications of this society extended even into the highest circles. It was ascribed to the influence of Prince Wittgenstein that the reports of the case were demanded from the Ministry of Justice, and were never returned—at least, during the time I served on the tribunal.
After I had been keeping the records for four months, I was transferred to the City Court, before which civil causes are tried, and was suddenly promoted from the mechanical occupation of writing from dictation to an independent post, which, having regard to my inexperience and my sentiments, made my position difficult. The first stage in which the legal novice was called to a more independent sphere of activity was in connection with divorce proceedings. Obviously regarded as the least important, they were entrusted to the most incapable Rath, Prätorius by name, and under him were left to the tender mercies of unfledged Auscultators, who had to make upon this corpus vile their first experiments in the part of judges—of course, under the nominal responsibility of Herr Prätorius, who nevertheless took no part in their proceedings. By way of indicating this gentleman's character, it was told to us young people that when, in the course of a sitting, he was roused from a light slumber to give his vote, he used to say, "I vote with my colleague Tempelhof"—whereupon it was sometimes necessary to point out to him that Herr Tempelhof was not present.
On one occasion I represented to him my embarrassment at having, though only a few months more than twenty years old, to undertake the attempt at a reconciliation between an agitated couple: a matter crowned, according to my view, with a certain ecclesiastical and moral "nimbus," with which in my state of mind I did not feel able to cope. I found Prätorius in the irritable mood of an old man awakened at an untimely moment, who had besides all the aversion of an old bureaucrat to a young man of birth. He said, with a contemptuous smile, "It is very annoying, Herr Referendarius, when a man can do nothing for himself; I will show you how to do it." I returned with him into the judge's room. The case was one in which the husband wanted a divorce and the wife not. The husband accused her of adultery; the wife, tearful and declamatory, asserted her innocence; and, despite all manner of ill-treatment from the man, wanted to remain with him. Prätorius, with his peculiar clicking lisp, thus addressed the woman: "But, my good woman, don't be so stupid. What good will it do you? When you get home, your husband will give you a jacketing until you can stand no more. Come now, simply say 'yes,' and then you will be quit of the sot." To which the wife, crying hysterically, replied: "I am an honest woman! I will not have that indignity put upon me! I don't want to be divorced!" After manifold retorts and rejoinders in this tone, Prätorius turned to me with the words: "As she will not listen to reason, write as follows, Herr Referendarius," and dictated to me some words which, owing to the deep impression they made upon me, I remember to this day. "Inasmuch as the attempt at reconciliation has been made, and arguments drawn from the sphere of religion and morality have proved fruitless, further proceedings were taken as follows." My chief then rose and said, "Now, you see how it is done, and in future leave me in peace about such things." I accompanied him to the door, and went on with the case. The Divorce Court stage of my career lasted, so far as I can remember, from four to six weeks; a reconciliation case never came before me again. There was a certain necessity for the ordinance respecting proceedings in divorce cases, to which Frederick William IV. was obliged to confine himself after his attempts to introduce a law for the substantial alteration of the Marriage Law had foundered upon the opposition of the Council of State. With regard to this matter it may be mentioned that, as a result of this ordinance, the Attorney-General was first introduced into those provinces in which the old Prussian common law prevailed as defensor matrimonii, and to prevent collusion between the parties.
More inviting was the subsequent stage of petty cases, where the untrained young jurist at least acquired practice in listening to pleadings and examining witnesses, but where more use was made of him as a drudge than was met by the resulting benefit to his instruction. The locality and the procedure partook somewhat of the restless bustle of a railway manager's work. The space in which the leading Rath and the three or four Auscultators sat with their backs to the public was surrounded by a wooden screen, and round about the four-cornered recess formed thereby surged an ever-changing and more or less noisy mob of parties to the suits.
My impression of institutions and persons was not essentially modified when I had been transferred to the Administration. In order to abbreviate the détour to diplomacy, I applied to a Rhenish government, that of Aachen, where the course could be gone through in two years, whereas in the "old" provinces at least three years were required.[29]
I can well imagine that in making the appointments to the Rhenish Governing Board in 1816 the same procedure was adopted as at the organization of Elsass-Lothringen in 1871. The authorities who had to contribute a portion of their staff would not be likely to respond to the call of state requirements by putting their best foot foremost to accomplish the difficult task of assimilating a newly acquired population, but would have chosen those members of their offices whose departure was desired by their superiors or wished by themselves; in the board were to be found former secretaries of prefectures and other relics of the French administration. The personnel did not all correspond to the ideal which floated unwarrantably enough before my eyes at twenty-one, and still less was this the case with the details of the current business. I recollect that, what with the many differences of opinion between officials and governed, or with internal differences of opinion among each of these two categories, whose polemics for many years considerably swelled the bulk of the records, my habitual impression was, "Well, yes, that is one way of doing it"; and that questions, the decision of which one way or the other was not worth the paper wasted upon them, created a mass of business which a single prefect could have disposed of with the fourth part of the energy bestowed upon them. Nevertheless, except for the subordinate officials, the day's work was slight; as regards heads of departments especially, a mere sinecure.
I quitted Aachen with a very poor opinion of our bureaucracy, in detail and collectively, with the exception of the gifted President, Count Arnim-Boitzenburg. My opinion of the detail became more favorable owing to my next subsequent experience in the government at Potsdam, to which I got transferred in the year 1837; because there, unlike the arrangement in other provinces, the indirect taxes were at the disposal of the government, and it was just these that were important to me if I wanted to make customs-policy the basis of my future.
The members of the board made a better impression upon me than those at Aachen; but yet, taking them as a whole, it was an impression of pigtail and periwig, in which category my youthful presumption also placed the paternal dignified President-in-Chief, von Bassewitz; while the President of the Aachen Government, Count Arnim, wore the generic wig of the state service, it is true, but no intellectual pigtail. When therefore I quitted the service of the State for a country life, I imported into the relations which as a landed proprietor I had with the officials an opinion, which I now see to have been too mean, of the value of our bureaucracy, and perhaps too great an inclination to criticize them. I remember that as substitute provincial president I had to give my verdict on a plan for abolishing the election of those officials; I expressed myself to the effect that the bureaucracy, as it ascended from the provincial president, sank in the general esteem; it had preserved it only in the person of the provincial president, who wore a Janus head, one face turned towards the bureaucracy, the other towards the country.
The tendency to interference in the most various relations of life was, under the paternal government of those days, perhaps greater than now; but the instruments of such interference were less numerous, and, as regards culture and breeding, stood much higher than do some of those of today. The officials of the right worshipful royal Prussian government were honest, well-read and well-bred officials; but their benevolent activity did not always meet with recognition, because from want of local experience they went to pieces on matters of detail, in regard to which the views of the learned citizen at the green table were not always superior to the healthy common-sense criticism of the peasant intelligence. The members of the Governing Boards had in those days multa, not multum, to do; and the lack of higher duties resulted in their not finding a sufficient quantity of important business, and led them in their zeal for duty to go beyond the needs of the governed, into a tendency to over-regulation—in a word, into what the Swiss calls Befehlerle.[30] To glance at a comparison with present conditions, it had been hoped that the state authorities would have been relieved of business and of officials by the introduction of the local self-government of today; but, on the contrary, the number of the officials and their load of business have been very considerably increased by correspondence, and friction with the machinery of self-government, from the provincial councillor down to the rural parish administration. Sooner or later the flaw must be reached, and we shall be crushed by the burden of clerkdom, especially in the subordinate bureaucracy.
Moreover, bureaucratic pressure upon private life is intensified by the mode in which self-government works in practice and encroaches more sharply than before on the rural parishes. Formerly the provincial president, who stood in as close relations with the people as with the State, formed the lowest step in the State bureaucracy. Below him were local authorities, who were no doubt subject to control, but not in the same measure as nowadays to the disciplinary powers of the district, or the ministerial, bureaucracy. The rural population enjoys today, by virtue of the measure of self-government conceded to it, an autonomy, not perhaps similar to that which the towns had long ago; but it has received, in the shape of the official commissioner, a chief who is kept in disciplinary check by superior instructions proceeding from the provincial resident, under the threat of penalties, and compelled to burden his fellow-citizens in his district with lists, notifications, and inquisitions as the political hierarchy thinks good. The governed contribuens plebs no longer possess, in the court of the provincial president, that guarantee against blundering encroachment which, at an earlier period was to be found in the circumstance that people resident in the district who became provincial presidents as a rule resolved to remain so in their own districts all their life long, and sympathized with the joys and sorrows of the district. Today the post of provincial president is the lowest step in the ladder of the higher administration, sought after by young "assessors" who have a justifiable ambition to make a career. To obtain it they have more need of ministerial favor than of the goodwill of the local population, and they attempt to win this favor by conspicuous zeal, and by "taking it out of" the official commissioners of the so-called local administration, or by carrying out valueless bureaucratic experiments. Therein lies for the most part the inducement to overburden their subordinates in the local self-government system. Thus self-government means the aggravation of bureaucracy, increase in the number of officials, and of their powers and interference in private life.