[Footnote 269: Speaking strictly, a borough is an urban district, and something more.]

[Footnote 270: Ashley, Local and Central Government, 45.]

*197. Boroughs and "Cities."*—The standard type of municipal unit is the borough. Among boroughs there is a certain amount of variation, but the differences which exist are those rather of historic development and of nomenclature than of governmental forms or functions. There are "municipal" boroughs, "county" boroughs, and cities. Any non-rural area upon which has been conferred a charter stipulating rights of local self-government is a borough. Areas of the sort which have been withdrawn from the jurisdiction of the administrative counties in which they are situated are county boroughs; those not so withdrawn are municipal boroughs. The term "city" was once employed to designate exclusively places which were or had been the seat of a bishop. Nowadays the title is borne not only by places of this nature but also by places, as Sheffield and Leeds, upon which it has been conferred by royal patent. Save, however, in the case of the city of London, where alone in England ancient municipal institutions have been generally preserved, the term possesses no political significance.[271] The governments of the cities are identical with those of the non-city boroughs. It is to be observed, further, that whereas formerly the borough as organized for municipal purposes coincided with the borough as constituted for purposes of representation in Parliament, there is now no necessary connection between the two. An addition to a municipal borough does not alter the parliamentary constituency.

[Footnote 271: See p. 190.]

*198. Kinds of Boroughs.*—The Municipal Corporations Act of 1835 made provision for 178 boroughs in England and Wales and stipulated conditions under which the number might be increased from time to time by royal charter. In not a few instances the charters of boroughs at the time existing were of mediaeval origin. Since 1875 new charters (p. 188) have been conferred until the number of boroughs has been brought up to approximately 350. For the obtaining of a borough charter no fixed requirement of population is laid down. Each application is considered upon its merits, and while the size and importance of an urban community weigh heavily in the decision other factors not infrequently are influential, with the consequence that some boroughs are very small while some urban centers of size are not yet boroughs. Of the present number of boroughs, seventy-four, or about one-fifth, are county boroughs. By the act of 1888 it was provided that every borough which had or should attain a population of 50,000 should be deemed, for purposes of administration, a separate county, and should therefore be exempt from the supervision exercised over the affairs of the municipal boroughs by the authorities of the administrative counties. Any borough with a population exceeding the figure named may be created a county borough by simple order of the Local Government Board. Unlike the ordinary municipal borough, the county borough is not represented in the council of the county in which the borough lies; on the contrary, the council of the borough exercises substantially an equivalent of the powers exercised normally by the county council, and it is, to all intents and purposes, a council of that variety. Much the larger portion of the English boroughs are, however, simple municipal boroughs, whose activities are subject to a supervision more or less constant upon the part of the county authorities.

*199. The Borough Authorities.*—The difference between county and municipal boroughs is thus one of degree of local autonomy, not one of forms or agencies of government. The charters of all boroughs have been brought into substantial agreement and the organs of borough control are everywhere the same. The governing authority is the borough council, which consists of councillors, aldermen, and a mayor, sitting as a single body. The councillors, varying in number from nine to upwards of one hundred, are elected by the voters of the borough, either at large or by wards, for three years, and one-third retire annually. The aldermen, equal in number to one-third of the councillors, are chosen by the entire council for six years, and are selected usually from among the councillors of most prolonged experience. The mayor is elected annually by the councillors and aldermen, frequently from their own number. In boroughs of lesser size re-elections are not uncommon. Service in all of the capacities mentioned is unpaid. The council determines its own rules of procedure, and its work is accomplished in large measure through the agency of committees, some of which are required by statute, others of which are created as occasion demands; but, unlike the county (p. 189) council, the council of the borough cannot delegate any of its powers, save those relating to education, to these committees. The mayor presides over the council meetings, serves commonly as an ex-officio member of committees, and represents the municipality upon ceremonial occasions. The office is not one of power, although it is possible for an aggressive and tactful mayor to wield real influence. The permanent officers of the council include a clerk, a treasurer, a medical official, a secretary for education, and a variable number of inspectors and heads of administrative departments.

*200. The Borough Council.*—In the capacity of representative authority of the municipality the council controls corporation property, adopts and executes measures relative to police and education, levies rates, and not infrequently administers waterways, tramways, gas and electric plants, and a variety of other public utilities. The enormously increased activity of the town and urban district councils in respect to "municipal trading" within the past two score years has aroused widespread controversy. The purposes involved have been, in the main, two—to avert the evils of private monopoly and to obtain from remunerative services something to set against the heavy unremunerative expenditures rendered necessary by existing sanitary legislation. And, although opposed by reason of the outlays which it requires and the invasion of the domain of private enterprise which it constitutes, the device of municipal ownership is being ever more widely adopted, as in truth it is also in Germany and other European countries.[272] Aside from its general functions, the borough councils is in particular a sanitary authority, and among its most important tasks is the execution of regulations concerning drainage, housing, markets, hospitals, and indeed the entire category of matters provided for in the long series of Public Health acts. The expenditures of the council as a municipal authority are met from a fund made up of fees, fines, and other proceeds of administration, together with the income from a borough rate, which is levied on the same basis as the poor rate; its expenditures as a sanitary authority are met from a fund raised by a general district rate. To assist in the administration of education, sanitation, and police, grants are made regularly by Parliament.[273]

[Footnote 272: Ashley, Local and Central Government, 42.]

[Footnote 273: The best of existing works upon the general subject of English local government is J. Redlich, and F. W. Hirst, Local Government in England, 2 vols. (London, 1903). There are several convenient manuals, of which the most useful are P. Ashley, English Local Government (London, 1905); W. B. Odgers, Local Government (London, 1899), based on the older work of M. D. Chalmers; E. Jenks, An Outline of English Local Government (2d ed., London, 1907); R, S. Wright and H. Hobhouse, An Outline of Local Government and Local Taxation in England and Wales (3d ed., London, 1906); and R. C. Maxwell, English Local Government (London, 1900), in Temple Primer Series. The subject is treated admirably in Lowell, Government of England, II., Chaps. 38-46, and a portion of it in W. B. Munro, The Government of European Cities (New York, 1909), Chap. 3 (full bibliography, pp. 395-402). There are good sketches in Ashley, Local and Central Government, Chaps. 1 and 5, and Marriott, English Political Institutions, Chap. 13. A valuable group of papers read at the First International Congress of the Administrative Sciences, held at Brussels in July, 1910, is printed in G. M. Harris, Problems of Local Government (London, 1911). A useful compendium of laws relating to city government is C. Rawlinson, Municipal Corporation Acts, and Other Enactments (9th ed., London, 1903). Two appreciative surveys by American writers are A. Shaw, Municipal Government in Great Britain (New York, 1898) and F. Howe, The British City (New York, 1907). On the subject of municipal trading the reader may be referred to Lowell, Government of England, II., Chap. 44; Lord Avebury, Municipal and National Trading (London, 1907); L. Darwin, Municipal Ownership in Great Britain (New York, 1906); G. B. Shaw, The Common Sense of Municipal Trading (London, 1904); and C. Hugo, Staedteverwaltung und Municipal-Socialismus in England (Stuttgart, 1897). Among works on poor-law administration may be mentioned T. A. Mackay, History of the English Poor Law from 1834 to the Present Time (New York, 1900); P. T. Aschrott and H. P. Thomas, The English Poor Law System, Past and Present (2d ed., London, 1902); and S. and B. Webb, English Poor Law Policy (London, 1910). The best treatise on educational administration is G. Balfour, The Educational Systems of Great Britain and Ireland (2d ed., London, 1904). Finally must be mentioned C. Gross, Bibliography of British Municipal History (New York, 1897), an invaluable guide to the voluminous literature of an intricate subject.]

*201. The Government of London.*—The unique governmental (p. 190) arrangements of London are the product in part of historical survival and in part of special and comparatively recent legislation. Technically, the "city" of London is still what it has been through centuries, i.e., an area with a government of its own comprising but a single square mile on the left bank of the Thames. By a series of measures covering a period of somewhat more than fifty years, however, the entire region occupied by the densely populated metropolis has been drawn into a closely co-ordinated scheme of local administration. London was untouched by the Municipal Corporations Act of 1835 and the changes by which the governmental system of the present day was brought into being began to be introduced only with the adoption of the Metropolis Management Act of 1855. The government of the city was left unchanged, but the surrounding parishes, hitherto governed independently by their vestries, were at this time brought for certain purposes under the control of a central authority known as the Metropolitan Board of Works. The Local Government Act of 1888 carried the task of organization a stage further. The Board of Works was abolished, extra-city London was transformed into an administrative county of some 120 square miles, and upon the newly created London (p. 191) County Council (elected by the rate-payers) was conferred a varied and highly important group of powers. Finally, in 1899 the London Government Act simplified the situation by sweeping away a mass of surviving authorities and jurisdictions and by creating twenty-eight metropolitan boroughs, each with mayor, aldermen, and councillors such as any provincial borough possesses, though with powers specially defined and, on the side of finance, somewhat restricted. Within each borough are urban parishes, each with its own vestry.

At the center of the metropolitan area stands still the historic City, with its lord mayor, its life aldermen, and its annually elected councillors, organized after a fashion which has hardly changed in four and a half centuries. Within the administrative county the county council acts as a central authority, the borough councils and the parish vestries serve as local authorities. While areas of common administration still very much larger than the county comprise, among others, the districts of the Metropolitan Water Board and of the Metropolitan Police. The jurisdiction of the Metropolitan Police extends over all parishes within fifteen miles of Charing Cross, an area of almost 700 square miles.[274]

[Footnote 274: For excellent descriptions of the government of London see Munro, Government of European Cities, 339-379 (bibliography, 395-402), and Lowell, Government of England, II., 202-232. Valuable works are G. L. Gomme, Governance of London: Studies on the Place occupied by London in English Institutions (London, 1907); ibid., The London County Council: its Duties and Powers according to the Local Government Act of 1888 (London, 1888); A. MacMorran, The London Government Act (London, 1899); A. B. Hopkins, Boroughs of the Metropolis (London, 1900); and J. R. Seager, Government of London under the London Government Act (London, 1904). A suggestive article is G. L. Fox, The London County Council, in Yale Review, May, 1895.]



PART II.—GERMANY (p. 193)



CHAPTER IX

THE EMPIRE AND ITS CONSTITUTION

I. POLITICAL DEVELOPMENT PRIOR TO 1848

*202. Napoleonic Transformations.*—Among the political achievements of the past hundred years few exceed in importance, and none surpass in interest, the creation of the present German Empire. The task of German unification may be regarded as having been brought formally to completion upon the occasion of the memorable ceremony of January 18, 1871, when, in the presence of a brilliant concourse of princes and generals gathered in the Hall of Mirrors in the palace of the French kings at Versailles, William I., king of Prussia, was proclaimed German Emperor. Back of the dramatic episode at Versailles, however, lay a long course of nationalizing development, of which the proclamation of an Imperial sovereign was but the culminating event. The beginnings of the making of the German Empire of to-day are to be traced from a period at least as remote as that of Napoleon.

Germany in 1814 was still disunited and comparatively backward, but it was by no means the Germany of the seventeenth and eighteenth centuries. The transformations wrought to the east of the Rhine during the period of the Napoleonic ascendancy were three-fold. In the first place, after more than a thousand years of existence, the Holy Roman Empire was, in 1806, brought to an end, and Germany, never theretofore since the days of barbarism entirely devoid of political unity, was left without even the semblance or name of nationality. In the second place, there was within the period a far-reaching readjustment of the political structure of the German world, involving (1) the reducing of the total number of German states—kingdoms, duchies, principalities, ecclesiastical dominions, and knights' holdings—from above three hundred to two score; (2) the augmenting of the importance of Austria by the acquisition of a separate imperial title,[275] and the (p. 194) raising of Saxony, Bavaria, and Wuerttemberg from duchies to kingdoms; and (3) the bringing into existence of certain new and more or less artificial political aggregates, namely, the kingdom of Westphalia, the grand-duchy of Warsaw, and the Confederation of the Rhine, for the purpose of facilitating the Napoleonic dominance of north-central Europe. Finally, in several of the states, notably Prussia, the overturn occasioned by the Napoleonic conquests prompted systematic attempts at reform, with the consequence of a revolutionizing modernization of social and economic conditions altogether comparable with that which within the generation had been achieved in France.

[Footnote 275: In anticipation of the prospective abolition of the dignity of Emperor of the Holy Roman Empire, the Emperor Francis II., in 1804, assumed the title of Emperor of Austria, under the name Francis I.]

The simple reduction of the German states in number, noteworthy though it was, did not mean necessarily the realization of a larger measure of national unity, for the rivalries of the states which survived tended but to be accentuated. But if the vertical cleavages by which the country was divided were deepened, those of a horizontal character, arising from social and economic privilege, were in this period largely done away. Serfdom was abolished; the knights as a political force disappeared; the free cities were reduced to four; and such distinctions of caste as survived rapidly declined in political importance. By an appreciable levelling of society the way was prepared for co-ordinated national development, while by the extinction of a variety of republican and aristocratic sovereignties monarchy as a form of government acquired new powers of unification and leadership.[276]

[Footnote 276: On Germany during the Napoleonic period see Cambridge Modern History, IX., Chap. 11; J. H. Rose, Life of Napoleon I., 2 vols. (new ed., New York, 1910), II., Chaps. 24-25; A. Fournier, Napoleon I., a Biography, trans, by A. E. Adams, 2 vols, (New York, 1911), I., Chaps. 11-12; J. R. Seeley, Life and Times of Stein; or Germany and Prussia in the Napoleonic Age, 3 vols. (Cambridge, 1878); H. A. L. Fisher, Studies in Napoleonic Statesmanship, Germany (Oxford, 1903).]

*203. The Congress of Vienna and the Confederation of 1815.*—The collapse of the dominion of Napoleon was followed in Germany by rather less of a return to earlier arrangements than might have been expected. Indeed, it can hardly be said to have involved any such return at all. The Confederation of the Rhine was dissolved, and both the grand-duchy of Warsaw and the kingdom of Westphalia ceased, as such, to be. But the Holy Roman Empire was not revived; the newly acquired dignities of the sovereigns of Saxony, Bavaria, and other states were perpetuated; despite the clamors of the mediatized princes, the scores of German states which during the decade had been swallowed up by their more powerful neighbors, or had been otherwise blotted out, were not re-established; and—most important of all—the social and economic changes by which the period had been given (p. 195) distinction were, in large part, not undone.

As has been pointed out, the close of the Napoleonic period found Germany entirely devoid of political unity, in both name and fact. By the governments which were chiefly influential in the reconstruction of Europe in 1814-1815, it was deemed expedient that there be re-established some degree of German unity, though on the part of most of them, both German and non-German, there was no desire that there be called into existence a united German nation of substantial independence and power. In the Final Act of the Congress of Vienna, promulgated under date of June 9, 1815, there was included the draft of a constitution, prepared by a committee of the Congress under the presidency of Count Metternich, in which was laid down the fundamental law of an entirely new German union. Within Germany proper there were recognized to be, when the Congress had completed its work of readjustment, thirty-eight states, of widely varying size, importance, and condition. Under authorization of the Congress, these states were now organized, not into an empire with a common sovereign, but into a Bund, or Confederation, whose sole central organ was a Bundestag, or Diet, sitting at Frankfort-on-the-Main and composed of delegates commissioned by the sovereigns of the affiliated states and serving under their immediate and absolute direction. Save only in respect to certain matters pertaining to foreign relations and war, each of the thirty-eight states retained its autonomy unimpaired.[277]

[Footnote 277: In 1817 the number was brought up to 39 by the adding of Hesse-Homburg, unintentionally omitted when the original list was made up. By successive changes the number was reduced to 33 before the dissolution of the Confederation in 1866.]

*204. The Diet.*—The Diet was in no proper sense a parliamentary body, but was rather a congress of sovereign states. Nominally, its powers were large. They included both the regulation of the fundamental law and the performance of the functions of ordinary legislation. But, in practice, the authority of the body was meager and exercise of discretion was absolutely precluded. The members, as delegates of the princes, spoke and voted only as they were instructed. Questions relating to the fundamental laws and the organic institutions of the Confederation and "other arrangements of common interest" were required to be decided by the Diet as a whole (in Plenum), with voting power distributed among the states, in rough proportion to their importance. Of the total of 69 votes, six of the principal states possessed four each. The preparation of measures for discussion in Plenum was intrusted to the "ordinary assembly," a smaller (p. 196) gathering in which Austria, Prussia, and nine other states had each one vote, and six curiae, comprising the remaining states in groups had likewise each a single vote. The presidency of the two assemblies was vested permanently in Austria, and the Austrian delegation possessed in each a casting vote. Proposals were carried in the smaller body by simple majority, but in Plenum only by a two-thirds vote. For the enactment of fundamental laws, the modification of organic institutions, the amendment of individual rights, and the regulation of religious affairs, it was declared by the Federal Act that a majority vote should be insufficient, and, although it was not expressly so stipulated, the intent was that in such cases unanimity should be required. Early in the Diet's history, indeed, the president was instructed solemnly to announce that the fundamental law of the Confederation, far from being subject to revision, was to be regarded as absolutely final.

The Confederation was, and was intended to be, only the loosest sort of a league of sovereign powers. The party of German unity, represented by Stein and the Liberals generally, began by assuming it to be a Bundesstaat, or true federal state; but at the opening of the first session of the Diet (November 5, 1816) the Austrian authorities formally pronounced it a Staatenbund, or federation of states, and from this ruling, according strictly with both the facts of the situation and the intent of the founders, there was no possible escape. The powers and functions which were vested in the Confederation were exercised exclusively through and upon states, and with the private individual it had no sort of direct relation, being, in these respects, essentially similar to the federal government of the United States under the Articles of Confederation. The function of the Diet, in effect, came to be little more than that of registering and promulgating the decrees of the authorities at Vienna.

*205. Constitutional Progress, 1815-1848.*—Notwithstanding these facts, the decade which terminates with the creation of the Confederation of 1815 contributed enormously to the clearing of the way for the establishment of modern German unity and of vigorous and efficient national government. Among large numbers of the German people there had been engendered a genuine desire, not only for constitutionalism in government, but for a substantial unification of the German-speaking world; and the increased homogeneity and prosperity of the kingdom of Prussia pointed already to the eventual realization of these aspirations under the leadership of that powerful state. The history of Germany during the period from 1815 to 1848 is a story largely of the growth of these twin ideas of constitutionalism and nationality, and of (p. 197) the relentless combat which was waged between their exponents and the entrenched forces of autocracy and particularism. Gradually the results of this conflict found expression through two developments, (1) the promulgation of liberalizing constitutions in a majority of the states and (2) the building of the Zollverein, or customs union.

The original draft of the Federal Act of 1815 pledged every member of the Confederation to establish a constitution within a year. In the final form of the instrument, however, the time limit was omitted and what had been a specific injunction became but a general promise. The sovereigns of the two preponderating states, Austria and Prussia, delayed and eventually evaded the obligation altogether. But in a large number of the lesser states the promise that had been made was fulfilled with despatch. In the south the ground had been cleared by the Napoleonic domination, and the influence of French political experimentation was more generally felt, so that, very naturally, the progress of constitutionalism was most rapid in that quarter. The new era of constitution-making was inaugurated by the promulgation of the fundamental law of Schwarzburg-Rudolstadt, January 8, 1816. In rapid succession followed similar grants in Schaumburg-Lippe, January 15, 1816; Waldeck, April 19, 1816; the grand-duchy of Saxe-Weimar-Eisenach, May 5, 1816; Saxe-Hildburghausen, March 19, 1818; Bavaria, May 26, 1818; Baden, August 22, 1818; Lichtenstein, November 9, 1818; Wuerttemberg, September 25, 1819; Hanover, December 7, 1819; Brunswick, April 25, 1820, and the grand-duchy of Hesse, December 17, 1820. Instruments promulgated later during the period under review include those of Saxe-Meiningen, in 1829; Hesse-Cassel, Saxe-Altenburg, and Saxony, in 1831; Hohenzollern-Sigmaringen, in 1833; Lippe, in 1836; and Luebeck, in 1846. In a number of the states mentioned, including Bavaria, Baden, Wuerttemberg, and Saxony, the constitutions at this time granted are still in operation. Many of them were, and some of them remain, highly illiberal. But, in the aggregate, the ground gained in behalf of constitutional and enlightened government through their promulgation was enormous.

The spread of constitutionalism was paralleled by the gradual creation, after 1818, of the Zollverein. This was a customs union, taking its origin in the establishment of free trade throughout the kingdom of Prussia, and extended from state to state until by 1842 the whole of Germany had been included save the Hanseatic towns, Mecklenburg, Hanover, and Austria. The union was maintained for purposes that were primarily commercial, but by accustoming the people to concerted effort and by emphasizing constantly their common interests it must be regarded as having contributed in a very (p. 198) important way to the growth of national consciousness and solidarity. Under its agency the lesser states were schooled deliberately in independence of Austria and in reliance upon Prussian leadership.

II. THE CREATION OF THE EMPIRE

*206. The Revolution of 1848.*—From 1815 onwards the Liberals advocated, in season and out, the conversion of the Confederation into a more substantial union under a constitutional style of government. Aside from the promulgation of a number of new state constitutions, the effects of the revolutionary movements of 1830 were, in Germany, of little consequence. But during the period 1830-1848 conditions so developed that only the stimulus of a near-by liberal demonstration was required to precipitate to the east of the Rhine a popular uprising of revolutionary proportions. In the constitutional history of the German countries of central Europe few periods are to be assigned larger importance than the years 1848-1849. Taking advantage of the interest created by the contemporary revolution in France, the Liberal leaders began by convening at Heidelberg, March 31, 1848, a Vorparlament, or preliminary meeting, by which arrangements were effected for the election, by manhood suffrage, of a national assembly of some six hundred members whose business it should be to draw up a constitution for a united German nation. This assembly, reluctantly authorized by the Diet, convened May 18 in the free city of Frankfort. The task to be accomplished was formidable and much valuable time was consumed in learned but irrelevant disputation. In the end it was decided that not the whole of Austria, but only the German portions, should be admitted to the new union; that there should be established a full-fledged parliamentary system, with a responsible ministry; and that the parliament should consist of two chambers, the lower to be chosen by direct manhood suffrage, the upper to be made up half of members appointed by the princes and half of members elected for six years by the legislative bodies of the several states. As an executive some desired a directory of three princes and some wanted a single president; but the majority voted at length to establish the dignity of German Emperor and to offer it to Frederick William IV., king of Prussia.

*207. The Reaction.*—The refusal of the Prussian monarch to accept the proffered title, save upon the impossible condition that all of his brother princes in Germany should give their assent to his so doing, blasted the hopes of the patriots. In May, 1849, the Frankfort assembly broke up. Not long thereafter Prussia, Saxony, and (p. 199) Hanover agreed upon a constitution substantially like that which the Frankfort meeting had proposed. Other states accepted it, and March 20, 1850, a parliament was convened under it at Erfurt. By reason of the recovery of Austria, however, and the subsidence of the revolutionary movement generally throughout Germany the experiment promptly collapsed. The conception of a German empire had been formulated with some definiteness, but for its realization the day had not yet arrived. The old Confederation, under Austrian domination, kept the field. After an upheaval which involved the enforced promulgation of a constitution, the accession of a new emperor (the present Francis Joseph), and the threatened loss of Hungary, Bohemia, and the Italian dependencies, the Austrian monarchy recovered its balance and inaugurated a fresh era of reaction, during the course of which there was revoked not only the constitution conceded at Vienna but also that of almost every one of the German states.[278]

[Footnote 278: See pp. 454-456.]

In Prussia the outcome was more fortunate. In January, 1850, Frederick William IV, granted a constitution which established a national legislative assembly and admitted a portion of the Prussian people to an active participation in the government. Although the instrument proved a disappointment to the Liberals, it has survived, with some modifications, to the present day as the fundamental law of the Prussian kingdom; and the fact that Prussia had become fixedly a constitutional state, together with the hopeless deadlock which arose between Prussia and Austria in the attempted readjustments of 1848-1849, emphasized the conclusion that the future of Germany lay with Prussia rather than with Austria, and that, indeed, there could be no adequate unification of the German people until one of the two great rival states should have been definitely ejected.[279]

[Footnote 279: On the revolution of 1848 in Germany see Cambridge Modern History, XI., Chaps. 3, 6, 7; H. von Sybel, The Founding of the German Empire trans. by M. L. Perrin, 7 vols. (New York, 1890-1898), I., 145-243; H. Blum, Die deutsche Revolution, 1848-1849 (Florence and Leipzig, 1897); P. Matter, La Prusse et la revolution de 1848 (Paris, 1903).]

*208. The War of 1866.*—With the elevation of Count von Bismarck, September 23, 1862, to the presidency of the Prussian ministry, affairs began to move rapidly toward the inevitable conclusion. A month prior to Bismarck's appointment there had been held at Frankfort a conference—the so-called Fuerstentag—whose object was the proposal of a plan for the reconstitution of the Confederation. The scheme suggested contemplated the establishment of a directory, an assembly composed of delegates from the various diets, and a federal court of appeal. The conference was held at the instigation of (p. 200) Austria, and it was intended primarily to promote an alignment of the liberal forces against Prussia. The last-mentioned state refused, naturally, to have part in the proceedings, and the enterprise came to naught. A brief interlude in the fast developing contest was afforded by the Austro-Prussian alliance against Denmark in 1864; but the net result of this episode was only to supply the occasion for war which Bismarck desired. In 1866 Prussia came forward with a project for the reorganization of the Confederation (in reality, a counter-bid for popular support), the more noteworthy features of which were the total exclusion of Austria from the league and the establishment of a parliament elected by manhood suffrage. As was inevitable, the Diet rejected the scheme; whereupon, with the object of forcing Austria into helpless isolation, Bismarck and his royal master, William I., in June, 1866, proclaimed the Confederation to be dissolved and plunged the whole of Germany in civil war.

*209. The North German Bund, 1867.*—The conflict was short and sharp. Its outcome was the crushing defeat of Austria, and in the treaty of Prague (August 23, 1866) the proud Hapsburg monarchy was compelled to assent to a reconstitution of the German federation in which Austria should have no part. A number of lesser states which had supported Austria—Hanover, Nassau, Hesse-Cassel, and Frankfort—were forthwith incorporated by Prussia, by decree of September 20, 1866,[280] and among the group of surviving powers the preponderance of Prussia was more than ever indisputable. Realizing, however, that the states of the south—Bavaria, Baden, Wuerttemberg, and Hesse-Darmstadt—were not as yet ready to be incorporated under a centralized administration, Prussia contented herself for the moment with setting up a North German Bund, comprising the states to the north of the river Main, twenty-two in all. February 24, 1867, there was brought together in Berlin a constitutional diet, representing all of the affiliated states and elected by manhood suffrage and secret ballot. A constitution, drafted previously by a committee of plenipotentiaries, was debated from March 9 to April 16 and was adopted by a vote of 230 to 53. After having been ratified by the legislative bodies of the various states, the instrument was put in operation, July 1. The principal organs of government for which it made provision were three in number: (1) the Praesidium, or President, of the Confederation, the dignity being hereditary and vested in the king of Prussia; (2) the Bundesrath, or Federal Council, representing the various governments; and (3) the Bundestag, or Diet, composed of deputies elected directly by manhood suffrage. For all practical purposes (p. 201) the German Empire, under the hegemony of Prussia, was a reality.

[Footnote 280: The disputed districts of Schleswig-Holstein were annexed at the same time.]

*210. Establishment of the Empire, 1871.*—For the time being the states to the south of the Main were left to their own devices, though the constitution of the Bund was shaped purposely to permit, and even to encourage, the accession of new members. Very soon these southern states entered the new customs union of 1867, maintained by the northern states, and ere long they were concluding with Prussia treaties of both offensive and defensive alliance. The patriotic fervor engendered by the war with France in 1870-1871 sufficed to complete the work. Contrary to the expectation of Napoleon III., the states of the south contributed troops and otherwise co-operated vigorously with the Prussians throughout the contest, and before its close they let it be known that they were ready to become full-fledged members of the Confederation. On the basis of treaty arrangements, concluded in November, 1870, it was agreed that the North German Confederation should be replaced by a German Empire, and that for the title of President, borne by the Prussian sovereign, should be substituted that of Deutscher Kaiser, German Emperor. January 18, 1871, at Versailles, William, king of Prussia and President of the Confederation, was formally proclaimed German Emperor. The siege of Paris was at the time still in progress, and the treaty of Frankfort, by which peace with France was concluded, was not signed until the following May.[281]

[Footnote 281: For brief accounts of the founding of the Empire see B. E. Howard, The German Empire (New York, 1906), Chap. 1; E. Henderson, Short History of Germany (New York, 1906). Chaps. 8-10; Cambridge Modern History, XI., Chaps. 15-17, XII., Chap. 6; and Lavisse et Rambaud, Histoire Generale, XI., Chap. 8. A very good book is G. B. Malleson, The Refounding of the German Empire, 1848-1871 (2d ed., London, 1904). More extended presentation of German history in the period 1815-1871 will be found in A. Stern, Geschichte Europas seit den Vertraegen von 1815 bis zum Frankfurter Frieden von 1871, 6 vols. (Berlin, 1894-1911), extending at present to 1848; C. F. H. Bulle, Geschichte der neuesten Zeit, 4 vols. (Leipzig, 1886-1887), covering the years 1815-1885; H. G. Treitschke, Deutsche Geschichte im Neunzehnten Jahrhundert, 5 vols. (Leipzig, 1879-1894), covering the period to 1848; H. von Sybel, Die Begruendung des deutschen Reiches durch Wilhelm I. (Munich and Leipzig, 1890), and in English translation under title of The Founding of the German Empire (New York, 1890); H. von Zwiedeneck-Sudenhorst, Deutsche Geschichte von der Aufloesung d. alten bis zur Errichtung d. neuen Kaiserreichs (Stuttgart, 1903-1905); and M. L. Van Deventer, Cinquante annees de l'histoire federale de l'Allemagne (Brussels, 1870). A book of some value is A. Malet, The Overthrow of the Germanic Confederation by Prussia in 1866 (London, 1870). P. Bigelow, History of the German Struggle for Liberty (New York, 1905) is readable, but not wholly reliable. An excellent biography of Bismarck is that by Headlam (New York, 1899). For full bibliography see Cambridge Modern History, X., 826-832; XI., 879-886, 893-898; XII., 869-875.]

III. THE CONSTITUTION: NATURE OF THE EMPIRE (p. 202)

*211. The Constitution Framed.*—As ordained in the treaties of November, 1870, ratified subsequently by the Bundesrath and the Bundestag of the North German Confederation, and by the legislative assemblies of the four incoming states, the German Empire came legally into existence January 1, 1871. It consisted fundamentally of the Confederation, which in the process of expansion did not lose its corporate identity, together with the four states, whose treaties bound them severally to it. The Bund was conceived of technically, not as replaced by, but rather as perpetuated in, the new Empire. The accession of the four southern states, however, involved of necessity a considerable modification of the original character of the affiliation; and the innovations that were introduced called for a general reconstitution of the fundamental law upon which the enlarged structure was to be grounded.

The elements at hand for the construction of the constitution of the Empire were four: (1) the constitution of the North German Confederation, in operation since 1867; (2) the treaties of November 15, 1870, between the Confederation, on the one hand, and the grand-duchies of Baden and Hesse on the other; (3) the treaty of November 23, 1870, by which was arranged the adhesion of the kingdom of Bavaria; and (4) the treaty of November 25, 1870, between the Bund, Baden, and Hesse, on the one side, and the kingdom of Wuerttemberg on the other. Each of these treaties stipulated the precise conditions under which the new affiliation should be maintained, these stipulations comprising, in effect, so many projected amendments of the original constitution of the Bund.[282] At the initiative of the Emperor there was prepared, early in 1871, a revised draft of this constitution, and in it were incorporated such modifications as were rendered necessary by the adhesion of the southern states and the creation of the Imperial title. March 31 the Reichstag was convened in Berlin and before it was laid forthwith the constitutional projet, to which the Bundesrath had already given its assent. April 14 the instrument was approved by the popular chamber, and two days later it was promulgated as the supreme law of the land.

[Footnote 282: The first three of these treaties were concluded at Versailles; the fourth was signed at Berlin.]

*212. Contents of the Instrument.*—As it came from the hands of its framers, the new constitution comprised a judicious amalgamation of the various fundamental documents that have been mentioned, i.e., the constitution of the Confederation and the treaties. Within the (p. 203) scope of its seventy-eight articles most subjects which are dealt with ordinarily in such instruments find ample place: the nature and extent of the legislative power; the composition, organization, and procedure of the legislative chambers; the privileges and powers of the executive; the adjustment of disputes and the punishment of offenses against the national authority; the process of constitutional amendment. It is a peculiarity of the German constitution, however, that it contains elaborate provisions relating to a variety of things concerning which constitutions, as a rule, are silent. There is an extended section upon customs and commerce; another upon railways; another upon posts and telegraphs; another upon navigation; another upon finance; and an especially detailed one relating to the military organization of the realm. In part, the elaboration of these essentially legislative subjects within the constitution was determined by the peculiarly federal character of the Empire, by which was entailed the necessity of a minute enumeration of powers. In a greater measure, however, it arose from the underlying purpose of Bismarck and of William I. to smooth the way for the conversion of Germany into the premier militant power of Europe. Beyond a guarantee of a common citizenship for all Germany and of equal protection for all citizens as against foreign powers, the constitution contains little that relates to the status or privileges of the individual. There is in it no bill of rights, and it makes no mention of abstract principles. Among instruments of its kind, none is of a more thoroughly practical character.[283]

[Footnote 283: The text of the constitution, in German, is printed in A. L. Lowell, Governments and Parties in Continental Europe, 2 vols. (Boston, 1896), II., 355-377, and in Laband, Deutsches Reichsstaatsrecht, 411-428; in English, in W. F. Dodd, Modern Constitutions, 2 vols. (Chicago, 1909), I., 325-351, and in Howard, The German Empire, 403-435. Carefully edited German texts are: L. von Roenne, Verfassung des deutschen Reiches (8th ed., Berlin, 1899); A. Arndt, Verfassung des deutschen Reiches (Berlin, 1902). On the formation of the Imperial constitution see A. Lebon, Les origines de la constitution allemande, in Annales de l'Ecole Libre des Sciences Politiques, July, 1888; ibid., Etudes sur l'Allemagne politique (Paris, 1890).]

*213. Federal Character of the Empire.*—The political system of Germany to-day is the product of centuries of particularistic statecraft, capped, in 1871, by a partial centralization of sovereign organs and powers. The Empire is composed of twenty-five states: the four kingdoms of Prussia, Bavaria, Saxony, and Wuerttemberg; the six grand-duchies of Baden, Hesse, Mecklenburg-Schwerin, Saxe-Weimar, Mecklenburg-Strelitz, and Oldenburg; the five duchies of Brunswick, Saxe-Meiningen, Saxe-Altenburg, Saxe-Coburg-Gotha, and Anhalt; the seven (p. 204) principalities of Schwarzburg-Sonderhausen, Schwarzburg-Rudolstadt, Waldeck, Reuss Aelterer Linie, Reuss Juengerer Linie, Lippe, and Schaumburg-Lippe; and the three free cities of Hamburg, Bremen, and Luebeck. These states vary in size from Prussia, with 134,616 square miles, to Bremen, with 99; and in population, from Prussia, with 40,163,333, to Schaumburg-Lippe, with 46,650. There is, in addition, the Reichsland, or Imperial domain, of Alsace-Lorraine, whose status until 1911 was that of a purely dependent territory, but which by act of the year mentioned was elevated to a condition of quasi-statehood.[284]

[Footnote 284: See p. 285.]

Prior to the formation in 1867, of the North German Confederation, each of the twenty-five states was sovereign and essentially independent. Each had its own governmental establishment, and in many instances the existing political system was of considerable antiquity. With the organization of the Bund, those states which were identified with the federation yielded their independence, and presumably their sovereignty; and with the establishment of the Empire, all gave up whatever claim they as yet maintained to absolute autonomy. Both the Bund and the Empire were creations, strictly speaking, of the states, not of the people; and, to this day, as one writer has put it, the Empire is "not a juristic person composed of fifty-six million members, but of twenty-five members."[285] At the same time, it is not what the old Confederation of 1815 was, i.e., a league of princes. It is a state established by, and composed of, states.[286]

[Footnote 285: P. Laband, Das Staatsrecht des deutschen Reiches, I., 91.]

[Footnote 286: On the more purely juristic aspects of the Empire the best work in English is Howard, The German Empire (Chap. 2, on "The Empire and the Individual States"). A very useful volume covering the governments of Empire and states is Combes de Lestrade, Les monarchies de l'Empire allemand (Paris, 1904). The monumental German treatise is P. Laband, Das Staatsrecht des deutschen Reiches (4th ed., Tuebingen, 1901), in four volumes. There is a six-volume French translation of this work, Le droit public de L'Empire allemand (Paris, 1900-1904). Other German works of value are: O. Mayer, Deutsches Verwaltungsrecht (Leipzig, 1895-1896); P. Zorn, Das Staatsrecht des deutschen Reiches (2d ed., Berlin, 1895-1897); and A. Arndt, Das Staatsrecht des deutschen Reiches (Berlin, 1901). There is a four-volume French translation of Mayer's important work, under the title Le droit administratif allemand (Paris, 1903-1906). Two excellent brief German treatises are: P. Laband, Deutsches Reichsstaatsrecht (3d ed., Tuebingen, 1907), and Hue de Grais, Handbuch der Verfassung und Verwaltung in Preussen und dem deutschen Reiche (18th ed., Berlin, 1907). The most recent work upon the subject is F. Fleiner, Institutionen des deutschen Verwaltungsrechts (Tuebingen, 1911). A suggestive monograph is J. du Buy, Two Aspects of the German Constitution (New Haven, 1894).]

IV. THE EMPIRE AND THE STATES (p. 205)

*214. Sovereignty and the Division of Powers.*—The Germans are not themselves altogether agreed concerning the nature and precise location of sovereignty within the Empire, but it is reasonably clear that sovereignty, in the ultimate meaning of that much misused term, is vested in the government of the Empire, and not in that of any state. The embodiment of that sovereignty, as will appear subsequently, is not the national parliament, nor yet the Emperor, but the Bundesrath, which represents the "totality" of the affiliated governments.[287] As in the United States, Switzerland, and federal nations generally, there is a division of powers of government between the central governmental establishment and the states. The powers of the Imperial government, it is important to observe, are specifically enumerated; those of the states are residual. It is within the competence of the Imperial government to bring about an enlargement of the powers that have been confided to it; but until it does so in any particular direction the power of the state governments in that direction is unlimited. On the one hand, there is a considerable field of legislative activity—in respect to citizenship, tariffs, weights, measures, coinage, patents, military and naval establishment of the Empire, etc.—in which the Empire, by virtue of constitutional stipulation, possesses exclusive power to act.[288] On the other, there is a no less extensive domain reserved entirely to the states—the determination of their own forms of government, of laws of succession, of relations of church and state, of questions pertaining to their internal administration; the framing of their own budgets, police regulations, highway laws and laws relating to land tenure; the control of public instruction. Between lies a broad and shifting area, which each may enter, but within which the Imperial authority, in so far as is warranted by the constitution, must be accorded precedence over the authority of a state. "The matters over which the states preserve control," says a great German jurist, "cannot be separated completely from those to which extends the competence of the Empire. The various powers of government are intimately related the one to another. They run together and at the same time impose mutual checks in so many ways, and are so interlaced, that one cannot hope to set them off by a line of demarcation, or to set up among them a Chinese wall of division. In every sphere of their activity the states (p. 206) encounter a superior power to which they are obliged to submit. They are free to move only in the circle which Imperial law-making leaves open to them. That circle does exist. It is delimited, but not wholly occupied, by the Empire.... In a certain sense it may be said that it is only by sufferance of the Empire that the states maintain their political rights at all, and that, at best, their tenure is precarious."[289]

[Footnote 287: Howard, German Empire, 21.]

[Footnote 288: Matters placed under the supervision of the Empire and made subject to Imperial legislation are enumerated in the sixteen sections of Article 4 of the constitution. Dodd, Modern Constitutions, I., 327-328.]

[Footnote 289: Laband, Das Staatsrecht des deutschen Reiches (2d ed.), I., 102-103.]

In passing, it may be observed that there is, in fact, a distinct tendency toward the reduction of the spheres of authority which formerly were left to the states. One of the means by which this has been brought about is the establishment of uniform codes of law throughout the Empire, containing regulations respecting a multitude of things which otherwise would have been regulated by the states alone. Most important among these is the great Civil Code, which went into effect January 1, 1900. Another means to the same end is the increase in recent years of Imperial legislation relating to workingmen's insurance, factory regulations, industrial conditions, and other matters of a social and economic nature. Not infrequently in recent times have the states, or some of them, raised protest against this centralizing tendency, and especially against the "Prussianization" of the Empire which it seems clearly to involve. In many states, especially those to the south of the Main, the separatist tradition is still very strong. In Bavaria, more than anywhere else, is this true, and in 1903 the new Bavarian premier, Baron Podevils, was able to arouse genuine enthusiasm for his government by a solemn declaration before the diet that he and his colleagues would combat with all their might "any attempt to shape the future of the Empire on lines other than the federative basis laid down in the Imperial constitution."

*215. The Interlacing of Governmental Agencies.*—The functions of a legislative character which are delegated to the Imperial government are numerous and comprehensive, and in practice they tend all the while to be increased. Those of an executive and judicial character are very much more restricted. In respect to foreign relations, the navy, and the postal and telegraph service, administration is absolutely centralized in the organs of the Empire; in respect to everything else, administrative functions are performed entirely, or almost entirely, through the agency of the states. In the United States the federal government is essentially complete within itself. It has its own law-makers, administrators, and judges, who carry on the national government largely independently of the governing agencies of the various states. In Germany, where the state occupies in (p. 207) some respects a loftier position in the federation than does its counterpart in America, the central government, in respect to all save the fields that have been mentioned, relies for the execution of its measures upon the officials of the states. The Empire establishes taxes and customs duties, but the imposts are collected by state authorities. Similarly, justice is rendered, not in the name of the Empire, but in the name of the state, and by judges in the employ of the state. In respect to machinery, the Imperial government is, therefore, but a part of a government. Alone, it could not be made to operate. It lacks a judiciary; likewise the larger portion of the administrative agencies without which mere powers of legislative enactment are futile. To put the matter succinctly, the working government of the Empire comprises far more than the organs and functions that are purely Imperial; it comprises the federal organs and functions possessed by the individual states as well.[290]

[Footnote 290: Laband, Das Staatsrecht des deutschen Reiches, Sec. 7-10; Lebon, Etudes sur l'Allemagne politique, 93-104.]

*216. The States: the Prussian Hegemony.*—Legally, the union of the German states is indestructible. The Imperial government is vested with no power to expel a state, to unite it with another state, to divide it, or in any way to alter its status in the federation. On the other hand, no state possesses a right to secede, or to modify its powers or obligations within the Empire. If a state violates its obligations or refuses to be bound by the authority of the Empire, the federal army, on decision of the Bundesrath, may be mobilized by the Emperor against it.[291]

[Footnote 291: Art. 19. Dodd, Modern Constitutions, I., 332.]

Among the states, however, there is a glaring lack of equality of status and privilege. When the Empire was formed the component states differed widely in area, population, and traditional rights, and there was no attempt to reduce them to a footing that should be absolutely uniform. Prussia, besides comprising the moving spirit in the new affiliation, contained a population considerably in excess of that of the other twenty-four states combined. The consequence was that Prussia became inevitably the preponderating power in the Empire. The king of Prussia is ex-officio German Emperor; the Prussian votes in the Bundesrath can defeat any proposed amendment of the constitution, and likewise any measure looking toward a change in the army, the navy, or the taxes; and Prussia controls the chairmanship of all standing committees in the Bundesrath.[292]

[Footnote 292: A. Lebon, La constitution allemande et l'hegemonie prussienne, in Annales de l'Ecole Libre des Sciences Politiques, Jan., 1887.]

*217. Military Arrangements.*—Other privileges Prussia possesses (p. 208) by virtue, not of the constitution, but of agreements with her sister states. The most important of these relates to the army. By the constitution it was provided at the outset that the armed forces of the Empire should be organized into a single establishment, to be governed by Imperial law and to be under the supreme command of the Emperor.[293] In respect to the appointment of minor officers, and some other matters, powers of jurisdiction were left, however, to the individual states. These powers were in themselves worth little, and in the course of time all of the states save Bavaria, Saxony, and Wuerttemberg were brought to the point of yielding to Prussia the slender military authority that remained to them.[294] In this manner Prussia acquired the right to recruit, drill, and officer the contingents of twenty-one states—a right which appreciably increased her already preponderant authority in all matters of a military character. Technically, there is no German army, just as there is no German minister of war. Each state maintains its own contingent, and the contingent maintained by the state is stationed normally within that state. By virtue of the treaties, however, all contingents save those of Bavaria, Saxony, and Wuerttemburg are administered precisely as if they comprised integral parts of the Prussian establishment.[295]

[Footnote 293: Arts. 61, 63, 64. Dodd, Modern Constitutions, I., 345-347.]

[Footnote 294: The first of the Prussian military treaties, that concluded with Saxe-Coburg-Gotha, dates from 1861; the last, that with Brunswick, from 1885.]

[Footnote 295: Howard, The German Empire, Chap. 12; Laband, Das Staatsrecht des deutschen Reiches, Secs. 95-113; C. Morhain, De l'empire allemand (Paris, 1886), Chap. 15.]

*218. The Sonderrechte.*—In the possession of special privileges Prussia, however, is not alone. When the states of the south became members of the federation all of them stipulated certain Sonderrechte, or reserved rights, whose acknowledgment was made the condition upon which they came into the union. Wuerttemberg and Bavaria, for example, retain on this basis the administration of posts and telegraphs within their boundaries, and Wuerttemberg, Bavaria, and Baden possess the exclusive right to tax beers and brandies produced within each state respectively. Bavaria retains the administration of her own railways. At one time it was feared that the special privileges accorded the southern states would constitute a menace to the stability of the Empire. Such apprehension, however, has proved largely groundless.[296] In this connection it is worth pointing out that under the Imperial constitution the right to commission and despatch diplomatic (though not consular) agents is not withdrawn from the individual states. In most instances, however, the maintenance of diplomatic representatives abroad has long since been discontinued. Saxony, Bavaria, and (p. 209) Wuerttemberg retain to-day only their posts at Vienna, St. Petersburg, and the Vatican.

[Footnote 296: Laband, Das Staatsrecht des deutschen Reiches, Secs. 11-13.]

*219. Constitutional Amendment.*—It is stipulated within the Imperial constitution that amendments may be adopted by a process identical with that of ordinary legislative enactment, save that an amendment against which as many as fourteen votes are cast in the Bundesrath is to be considered rejected. The practical operation of this last-mentioned provision is to confer upon Prussia, possessing seventeen votes and controlling twenty in the federal chamber, an absolute veto upon all propositions looking toward constitutional change. Clauses of the constitution whereby special rights are secured to particular states may be amended only with the consent of the states affected.[297] In 1873, 1888, and 1893 the text of the constitution was amended, and upon several other occasions important modifications have been introduced in the working constitution without the formality of altering the letter of the instrument.

[Footnote 297: Art. 78. Dodd, Modern Constitutions, I., 351.]



CHAPTER X (p. 210)

THE IMPERIAL GOVERNMENT: EMPEROR, CHANCELLOR, AND BUNDESRATH

I. THE EMPEROR

*220. Status and Privileges.*—Under the North German Confederation of 1867-1871 the king of Prussia was vested with supreme command of the federal navy, the functions of Bundesfeldherr, or commander-in-chief of the federal army, and a large group of purely governmental powers, including the summoning, proroguing, and adjourning of the Bundesrath and Bundestag, the appointment and dismissal of the Chancellor and of other federal officials, the publication of the federal laws, and a general supervision of the federal administration. These powers were exercised by the king in the capacity of Bundespraesidium, or chief magistrate, of the federation. Upon the accession of the south German states in 1870-1871 Bismarck and his royal master determined to bring once more into use in Germany the title of Emperor, although between the empire which was now assuming form and the empire which had been terminated in 1806 there was recognized to be no historical connection. The constitution of April 16, 1871, accordingly stipulates that "to the king of Prussia shall belong the presidency of the Confederation, and he shall bear the title of Deutscher Kaiser (German Emperor)."[298]

[Footnote 298: Art. II. Dodd, Modern Constitutions, I., 330. It will be observed that the title is not "Emperor of Germany." The phrase selected was intended to denote that the Emperor is only primus inter pares in a confederation of territorial sovereigns (Landesherren.) He is a territorial sovereign only in Prussia.]

The revival of the Imperial title and dignity involved, and was intended to involve, no modification of the status of the Bundespraesident, save in respect to his official designation and certain of his personal privileges. His relations with the states and with the princes of the federation continued precisely as before. The powers of the Kaiser were, and are, the powers of the old President, and nothing in excess of those. The title might be taken to imply a monarchy of the customary sort; but properly it does not. There is no Imperial crown, no Imperial civil list, no Imperial "office" as such. The king of Prussia, in addition to his purely Prussian prerogatives, is by the Imperial constitution vested with the added prerogative (p. 211) of bearing the Kaiser title and of exercising those powers which under the constitution and laws are conferred upon the bearer of that title. Apart from the Prussian crown the Imperial function does not exist; from which it follows that there is no law of Imperial succession apart from the Prussian law regulating the tenure of the Prussian throne,[299] and that in the event of a regency in Prussia the regent would, ipso facto, exercise the functions of Emperor. Chief among the privileges which belong to the Kaiser as such are those of special protection of person and family and of absolute exemption from legal process. Responsible to no superior earthly authority, the Emperor may not be brought for trial before any tribunal, nor be removed from office by any judicial proceeding. Assaults upon his person are punishable with death, and attacks, in speech or writing, which are adjudged to constitute lese majeste are subject to special and severe penalties.[300]

[Footnote 299: Arts. 53-58 of the Prussian Constitution. See p. 253.]

[Footnote 300: R. C. Brooks, Lese Majeste, in The Bookman, June, 1904.]

*221. Powers: Military and Foreign Affairs.* The king of Prussia being ipso facto Emperor, the royal and Imperial functions which are combined in the hands of the one sovereign are of necessity closely interrelated. There are powers which belong to William II. to-day solely by virtue of his position as king of Prussia. There are others, of an Imperial nature, which he possesses by reason of the fact that, being king of Prussia, he is also Emperor. In practice, if not in law, there are still others which arise from the thoroughgoing preponderance of the Prussian kingdom as a state within the Empire—the power, in general, of imparting a bent to Imperial policy such as would not be possible if, for example, the king of Wuerttemberg were Emperor, rather than the king of Prussia.

The functions of the Emperor as such are not numerous, but, so far as they go, they are of fundamental importance. In the first place, the Emperor is commander-in-chief of the army and navy. He may control the organization of the Landwehr, or national defense; determine the strength and composition of the armed contingents; supervise the equipment and drilling of the troops; and mobilize the whole, or any part, of the forces.[301] A second group of Imperial functions are those relating to foreign affairs. "It shall be the duty of the Emperor," says the constitution, "to represent the Empire among nations, to declare war and to conclude peace in the name of the Empire, to enter into alliances and other treaties with foreign countries, to accredit ambassadors and to receive them."[302] The (p. 212) Emperor's power, however, is not in all of these directions absolute. One important limitation arises from the requirement that, under all circumstances save in the event of an attack upon the federal territory or its coasts, war may be declared only with the consent of the Bundesrath. Another is that in so far as treaties with foreign countries relate to matters which are to be regulated by Imperial legislation, "the consent of the Bundesrath shall be required for their conclusion, and the approval of the Reichstag shall be necessary to render them valid."[303]

[Footnote 301: Howard, The German Empire, Chap. 12; Laband, Deutsches Reichsstaatsrecht, 345-359.]

[Footnote 302: Art. II. Dodd, Modern Constitutions, I., 330.]

[Footnote 303: Art. II, clause 3. Dodd, I., 331.]

*222. Powers: Legislation and Justice.*—A third group of functions has to do with legislation. By the constitution the Emperor is vested with the right to convene the Bundesrath and the Reichstag, and to open, adjourn, and close them.[304] In accordance with resolutions of the Bundesrath, bills are laid before the Reichstag in the name of the Emperor; and it is the Emperor's duty to prepare and publish the laws of the Empire, as well as to supervise their execution.[305] In so far as is permitted by the constitution, and by laws from time to time enacted, decrees and ordinances may be promulgated by the Emperor, under the countersignature of the Chancellor. Speaking strictly, the Emperor possesses no veto upon measures passed in the Bundesrath and Reichstag, though in practice he may refuse to publish a law in the enactment of which he believes the ordinary formal requirements not to have been complied with. He may not withhold a measure by reason simply of its content.

[Footnote 304: Art. 12. Ibid.]

[Footnote 305: "The laws of the Empire shall receive their binding force by Imperial promulgation, through the medium of an Imperial Gazette. If no other time is designated for the published law to take effect it shall become effective on the fourteenth day after its publication in the Imperial Gazette at Berlin." Art. 2. Dodd, Modern Constitutions, I., 326.]

The Emperor is vested, in the next place, with certain prerogatives in relation to the judiciary. On motion of the Bundesrath, he appoints (though he may not remove) the members of the Reichsgericht, or Imperial Court; and by the Code of Criminal Procedure it is stipulated that in cases in which the Imperial Court shall have rendered judgment as a tribunal of first instance, the Emperor shall possess the power of pardon. The pardoning power is extended likewise to cases adjudged in consular courts, prize courts, and other tribunals specified by law.

*223. Powers: Execution of the Law.*—Finally, the execution of the laws is intrusted to the Emperor with, however, this limitation, that, under the German system, the execution of law is committed largely to the states and the officials thereof, so that the measures of the (p. 213) Imperial Government whose execution is not specifically provided for by the constitution and the laws are presumably carried into effect by the constituted authorities of the states. There are, however, Imperial agents whose business it is to inspect the execution of Imperial measures by the states and to report to the Emperor infractions or omissions. When such delinquencies are adjudged sufficiently serious, the Emperor may bring them to the attention of the Bundesrath, and that body may order an "execution," i.e., a show of military force to coerce the erring state. The carrying out of the "execution" is intrusted to the Emperor.[306] Incident to the general executive function is the power to make appointments. By the constitution it is stipulated that the Emperor, in addition to appointing the Imperial Chancellor, shall appoint Imperial officials, require of them the taking of an oath to the Empire, and, when necessary, dismiss them.[307] The position which the Chancellor occupies in the Imperial administrative system is of such weight that the power of appointing to, and of removing from, the chancellorship is in itself of very large importance; and the Kaiser's control of administration is still further increased by his power of appointment and removal of subordinate officials.[308]

[Footnote 306: Art. 19. Dodd, Modern Constitutions, I., 332.]

[Footnote 307: Art. 18. Ibid.]

[Footnote 308: Art. 19. Dodd, Modern Constitutions, I., 332. On the status and functions of the German Emperor see Howard, The German Empire, Chap. 3; J. W. Burgess, The German Emperor, in Political Science Quarterly, June, 1888; Laband, Das Staatsrecht des deutschen Reiches, Secs. 24-26; ibid., Das deutsche Kaiserthum (Strassburg, 1896); R. Fischer, Das Recht des deutschen Kaisers (Berlin, 1895); K. Binding, Die rechtliche Stellung des Kaisers (Dresden, 1898); R. Steinbach, Die rechtliche Stellung des deutschen Kaisers verglichen mit des Praesidenten der Vereinigten Staaten von Amerika (Leipzig, 1903).]

II. THE CHANCELLOR

*224. Non-existence of a Parliamentary System.*—Within the domain of Imperial government the place filled in other governmental systems by a ministry or cabinet of some variety is occupied by a single official, the Reichskanzler, or Chancellor. When the Imperial constitution was framed it was the intention of Bismarck to impart to the Imperial administration the fullest facility and harmony by providing the Chancellor with no colleagues, and by making that official responsible solely to the Emperor. Such a scheme would have meant, obviously, a thoroughgoing centralization in all Imperial affairs and the utter negation of anything in the way of a parliamentary system of government. The more liberal members of the constituent Reichstag compelled (p. 214) a modification of the original Bismarckian programme; so that when the constitution assumed its permanent form it contained not merely the stipulation that "the Imperial Chancellor, to be appointed by the Emperor, shall preside in the Bundesrath and supervise the conduct of its business," but the significant provision that "the decrees and ordinances of the Emperor shall be issued in the name of the Empire, and shall require for their validity the countersignature of the Imperial Chancellor, who thereby assumes the responsibility for them."[309]

[Footnote 309: Arts. 15 and 17. Dodd, Modern Constitutions, I., 331.]

Nominally, this article establishes the principle of ministerial responsibility, even though there is but a single minister to be made responsible. Practically, it does nothing of the sort, for the reason that no machinery whatever is provided for the enforcing of responsibility. There is not even specification of the authority to which responsibility shall lie. The article stipulating responsibility, appropriated from the constitution of Prussia, was merely tacked on the Imperial instrument and has never been brought into organic relation with it. In practice the Imperial Government has always been able to do business without for a moment admitting the right of the Reichstag to unseat the Chancellor by an adverse vote. The Chancellor may be criticised and the proposals which he introduces may be defeated; expediency may even require his removal by his Imperial master; but he has never felt obliged to retire merely by reason of lack of support in the legislative chamber, as would a British or a French minister similarly situated. This does not mean, of course, that the blocking of a governmental programme may not tend to produce the practical effect of a parliamentary vote of "want of confidence." It means simply that the Chancellor, in such a case, is under no admitted obligation to resign. The retirement of Chancellor von Buelow during the crisis of 1908-1909 was more nearly involuntary than that of any one of his three predecessors, but persons most conversant with the circumstances agree that there was involved in it no intention of concession to the parliamentary principle. The Chancellor's fall was, in reality, only his punishment for countenancing the popular indignation occasioned by the Emperor's memorable Daily Telegraph interview, for which the Chancellor himself had been, at least technically, responsible.[310]

[Footnote 310: For an excellent discussion of this general subject see W. J. Shepard, Tendencies toward Ministerial Responsibility in Germany, in American Political Science Review, Feb., 1911. In the course of an impassioned speech in the Reichstag in 1912, occasioned by a storm of protest against the Emperor's alleged threat to withdraw the newly granted constitution of Alsace-Lorraine, Chancellor von Bethmann-Hollweg stated the theory and fact of the office which he holds in these sentences: "No situation has been created for which I cannot take the responsibility. As long as I stand in this place I shield the Emperor (trete ich vor den Kaiser). This not for courtiers' considerations, of which I know nothing, but as in duty bound. When I cannot satisfy this my duty you will see me no more in this place."]

There is a clause of the constitution[311] which confers upon the (p. 215) Chancellor the right to delegate the power to represent him to any other member of the Bundesrath; whence it seems to follow that the Chancellor must be himself a member of that body. The relations of the Empire and the Prussian kingdom practically require, further, that the Chancellor be identified with the Prussian contingent in the federal chamber. Since, however, the Emperor, in his capacity of king of Prussia, designates the Prussian delegates in that body, it is open to him to make such an appointment in this second capacity as will enable him when selecting, in his Imperial capacity, a chancellor to procure the services of the man he wants.

[Footnote 311: Art. 15, cl. 2. Dodd, Modern Constitutions, I., 331.]

*225. Functions: in the Bundesrath and the Reichstag.*—Speaking broadly, the functions of the Chancellor are two-fold. The first arises from his position within the Bundesrath. Not only does he represent in that body, as do his Prussian colleagues, the king of Prussia; he is vested constitutionally with the presidency of it and with the supervision of its business. He determines the dates of its sessions. Through his hands pass all communications and proposals, from the states as well as from the Reichstag, addressed to it, and he is its representative in all of its external relations. In the name of the Emperor he lays before the Reichstag all measures enacted by the Bundesrath; and as a member of the Bundesrath, though not as Imperial Chancellor, he may appear on the floor of the Reichstag to advocate and explain proposed legislation. Measures which have been enacted into law are binding only after they have been proclaimed by the Chancellor, such proclamation being made regularly through the official organ known as the Reichsgesetzblatt.

*226. Functions: Administration.*—A second function, so inextricably intertwined with those just mentioned as to be in practice sometimes not clearly distinguishable from them, is that which arises from the Chancellor's position as the principal administrative official of the Empire. As has been pointed out, the work of administration under the German system is largely decentralized, being left to the states; but the ultimate administrative authority is very highly centralized, being gathered in the hands of the Chancellor in a measure not paralleled in any other nation of western Europe. As an administrative official the Chancellor has been described with aptness as the Emperor's "other self." He is appointed by the Emperor; he may be dismissed by him; he performs his functions solely as agent and (p. 216) assistant of the Emperor; and, although according to the letter of the constitution responsible to the Reichstag, he is, in practice, responsible to no one save his Imperial master.

Prior to 1870 the administrative functions of the Confederation were vested in a single department, the Bundeskanzleramt, or Federal Chancery, which was organized in three sections—the "central office," the postal office, and the bureau of telegraphs. For the time being, affairs pertaining to the army, the navy, and foreign relations were confided to the care of the appropriate ministries of Prussia. In 1870 there was created a separate federal department of foreign affairs, and in the following year a federal department of the marine. One by one other departments were established, until in 1879 the process was completed by the conversion of what remained of the Bundeskanzleramt into a department of the interior. The status of these departments, however, was from the outset totally unlike that of the corresponding branches of most governments. They were, and are, in effect but bureaus of the Imperial Chancellery, and their heads comprise in no degree a collegiate ministry or cabinet. Each official in charge of a department owes his position absolutely to the Chancellor, and is responsible, not to the Reichstag, nor yet to the Emperor directly, but to the Chancellor. Some of the more important officials bear the title of "secretary of state," but in any case they are legally nothing more than expert and essentially non-political functionaries of the administrative hierarchy, answerable to the Chancellor for all that they may do.[312] Of the principal departments there are at present seven: the Foreign Office, the Colonial Office, the Imperial Home Office, the Department of Justice, the Imperial Treasury, the Imperial Admiralty, and the Imperial Post-Office. In the nature of things some are more important than others; and in addition to them there are several Imperial bureaus, notably those of Railways, the Bank, and the Debt Commission. Throughout all branches of the Imperial administrative service appointments and dismissals are made regularly by the Chancellor, in the name of the Emperor, and by the same authority all administrative regulations are promulgated.[313]

[Footnote 312: At the same time it is to be observed that, in practice, the more important state secretaries are apt to sustain a relation with the other organs of government which is somewhat closer than might be inferred from what has been said. Not infrequently they sit in the Bundesrath, and are by reason of that fact privileged to defend their measures in person on the floor of the Reichstag. Not infrequently, too, they are members of the Prussian ministry.]

[Footnote 313: Laband, Das Staatsrecht des deutschen Reiches, Secs. 41, 64-66.]

*227. Delegation of Powers.*—There are two arrangements in accordance with which it is possible for the functions of the Chancellor to (p. 217) be vested in a substitute. By the constitution the Chancellor is authorized, as has been observed, to delegate to any other member of the Bundesrath the power of representing him in that body; and there is a special agreement to the effect that, in such a contingency, should no acceptable Prussian substitute be available, the choice shall fall on a Bavarian. In the second place, under statute of March 17, 1878, the Chancellor is empowered to call for the appointment of a substitute, or substitutes, in his capacity of Imperial minister. The appointment in such a case is made, not by the Chancellor himself, but by the Emperor, and there may be designated either a general substitute (Generalstellvertreter) or a substitute for the discharge of the Chancellor's functions in some particular department (Specialstellvertreter).[314] In the one case there is no limit upon the Emperor's freedom of choice; in the other, appointments must be made from chiefs of the department or departments affected. The Chancellor may at any time resume functions thus delegated.[315]

[Footnote 314: The law of 1878 was enacted on the occasion of Bismarck's prolonged absence from Berlin, during his retirement at Varzin. A Generalstellvertreter takes the title of Reichsvicekanzler, or Imperial Vice-Chancellor.]

[Footnote 315: On the status and functions of the Chancellor see Howard, The German Empire, Chap. 7; Laband, Das Staatsrecht des deutschen Reiches, Sec. 40; L. Dupriez, Les ministres dans les principaux pays d'Europe et d'Amerique, 2 vols. (Paris, 1892), I., 483-548; Hensel, Die stellung des Reichskanzlers nach dem Staatsrechte des deutschen Reiches, in Hirth, Annalen des deutschen Reiches, 1882; M. I. Tambaro, La transformation des pouvoirs en Allemagne, in Revue du Droit Public, July-Sept., 1910.]

III. THE BUNDESRATH

If the chancellorship is without a counterpart among modern governments, no less so is the Federal Council, or Bundesrath. No feature of the German political system is more extraordinary; none, as one writer has observed, is more thoroughly native.[316] It is not an "upper house," nor even, in the ordinary sense, a deliberative chamber at all. On the contrary, it is the central institution of the whole Imperial system, and as such it is possessed of a broad combination of functions which are not only legislative, but administrative, consultative, judicial, and diplomatic.

[Footnote 316: Lowell, Governments and Parties, I., 259.]

*228. Composition: the Allotment of Votes.*—The Bundesrath is composed of delegates appointed by the princes of the monarchical states and by the senates of the free cities. In the Imperial constitution it is required that the fifty-eight votes to which the twenty-five states of the confederation are entitled shall be distributed in such a (p. 218) manner that Prussia shall have seventeen, Bavaria six, Saxony four, Wuerttemberg four, Baden three, Hesse three, Mecklenburg-Schwerin two, Brunswick two, and the seventeen other states one apiece.[317] Save for the increase of the Bavarian quota from four to six and of the Prussian from four to seventeen, these numbers were simply carried over from the Diet of the Confederation of 1815. The Prussian increase arose, in 1866, from the absorption of Hanover, Hesse Cassel, Holstein-Lauenburg, Nassau, and Frankfort; the Bavarian, from a customs union treaty of July 8, 1867. Subsequent to the adoption of the constitution of 1871 Prussia acquired, by contract, the vote of the government of Waldeck; also, through the establishment in 1884-1885 of a perpetual Prussian regency in Brunswick, the two votes to which that state is entitled; so that the total of the votes controlled by the government of Prussia has been raised, for all practical purposes, to twenty.

[Footnote 317: Under the Alsace-Lorraine Constitution Act of 1911 (see p. 285), comprising for all practical purposes an amendment of the Imperial constitution, the territory of Alsace-Lorraine has become nominally a state of the Empire, being accorded three votes in the Bundesrath. The whole number of votes was thus raised to sixty-one. The Alsatian delegates are appointed by the Statthalter, who is the immediate and responsible agent of the Emperor. Their votes are cast, however, under regulations which are inconsistent with full-fledged statehood.]

It may be observed that the allocation of votes for which provision was made in the constitution of 1867-1871 was largely arbitrary. That is to say, except for the quotas of Prussia and Bavaria, it was perpetuated from the constitution of 1815 with no attempt to apportion voting power among the several states in exact relation to population, wealth, or importance. Upon any one of these bases Prussia must have been accorded an absolute majority of the aggregate number, rather than a scant third. In 1867 the population of Prussia comprised four-fifths of that of the North German Confederation; in 1871, two-thirds of that of the Empire. That Prussia should intrust to her sister states a total of forty-one votes, retaining but seventeen for herself, was one of the arrangements by which Bismarck sought to assure the lesser members of the federation against too complete domination on the part of the Prussian kingdom.

*229. Status of Delegates and Method of Voting.*—Each state is authorized, though not required, to send to the Bundesrath a number of delegates identical with the number of votes to which the state is entitled. The full quota of members is, therefore (since the Alsace-Lorraine Constitution Act of 1911), sixty-one. Legally, and to a large extent practically, the status of the delegate is that, not of a senator, but of a diplomat; and the Emperor is required to (p. 219) extend to the members of the body the "customary diplomatic protection."[318] Delegates are very commonly officials, frequently ministers, of the states which they represent. They are appointed afresh for each session, and they may be recalled or replaced at any time. The purely federal character of the Bundesrath is further emphasized by two principal facts. The members speak and act and vote regularly, not at their own discretion, but under the specific instructions of the governing authorities by whom they are accredited. Only rarely do their instructions allow to them any considerable measure of independence. Strictly, the Bundesrath is not a deliberative assembly at all; though, unlike the former Diet, it is something more than a meeting of ambassadors of the states. In the second place, the votes cast are the votes, not of the individual members, but of the states, and they are cast in indivisible blocks by the delegations of the states, regardless of the number of members in attendance. Thus, Bavaria is entitled to six votes. Whatever the individual opinions of the six Bavarian delegates, the six Bavarian votes are cast solidly upon any question that may arise. It is not even necessary that six delegates actually participate in the decision. A single delegate may cast the entire quota of votes to which his state is entitled. The twenty votes controlled by Prussia are therefore cast invariably in a block, from which it follows that Prussia usually preponderates in the chamber. On several occasions the smaller states have been able to combine in sufficient numbers to defeat a project upon which Prussia was bent, but such a proceeding is distinctly exceptional.

[Footnote 318: Art. 10. Dodd, Modern Constitutions, I., 330.]

*230. Sessions and Procedure.*—The Bundesrath may be convened by the Emperor, which in effect means by the Chancellor, at any time. The constitution stipulates that there shall be at least one session a year, and, furthermore, that it shall be obligatory upon the Emperor to convene the body whenever a meeting is demanded by one-third of the total number of votes. The Bundesrath may be called together "for the preparation of business" without the Reichstag; but the Reichstag may not be convened without the Bundesrath.[319] The presiding officer at all sessions is the Chancellor, or some other member of the body by him designated as a substitute. It is within the competence of each member of the confederation, i.e., each state, to propose measures and to introduce motions. The phraseology of the constitution debars the Emperor, as Emperor, from introducing proposals. As king of Prussia, however, he may bring forward any project through the (p. 220) medium of the Prussian delegation; and in actual practice it has not always been deemed necessary to resort to this subterfuge.

[Footnote 319: Arts. 13 and 14. Dodd, Modern Constitutions, I., 331.]

From all sittings of the Bundesrath the public is rigorously excluded; and although ordinarily upon the conclusion of a session a statement regarding the results of the proceedings is given to the press, the chamber may vote to withhold such information altogether. Business left unfinished at the close of a session may be resumed upon the reassembling, precisely as if no lapse of time had occurred. With some exceptions, a simple majority of the sixty-one votes is adequate for the adoption of a measure. In the event of a tie, the Prussian delegation possesses the deciding voice. The principal limitations upon decisions by simple majority are: (1) any proposal to amend the constitution may be rejected by as few as fourteen votes, whence it arises that Prussia has an absolute veto on amendments; and (2) when there is a division upon proposed legislation relating to military affairs, the navy, the tariff, and various consumption taxes, the vote of Prussia prevails if it is cast in favor of maintaining the status quo.[320]

[Footnote 320: Art. 5. Dodd, Modern Constitutions, I., 328.]

*231. Committees.*—The work of the Bundesrath consists largely in the preparation of measures for the consideration of the Reichstag, and a goodly share of its labor is performed in committees. Of permanent committees there are now twelve—eight provided for within the constitution itself and four existing by virtue of standing orders. The committees prescribed by the constitution are those on the army and fortifications; marine; customs and taxes; commerce; railroads, posts and telegraphs; judicial affairs; accounts; and foreign relations. Under certain limitations, each of these committees, constituted for one year, is chosen by the Bundesrath itself, by secret ballot, except that the Emperor appoints the members of the committee on the marine and all but one of the members of the committee on the army and fortifications.[321] The committees existing by virtue of standing orders are those on Alsace-Lorraine, railroad freight rates, standing orders, and the constitution. All committees consist of seven members, save those on foreign affairs and the marine, which have five; and each includes representatives of at least four states. Prussia holds all chairmanships, save that of the committee on foreign affairs, which belongs to Bavaria.