[Footnote 321: Art. 8. Ibid., I., 330. Strictly, the Bundesrath but indicates by ballot the states which shall be represented on each committee, leaving to the states themselves the right to name their representatives.]

*232. Powers of Legislation.*—By reason of the pivotal position (p. 221) which the Bundesrath occupies in the German constitutional system the functions of the body are fundamental and its powers comprehensive. Its competence is in the main legislative and fiscal, but also in part executive and judicial. By the constitution it is stipulated that the legislative power of the Empire shall be exercised by the Bundesrath and the Reichstag, and that a majority of the votes of both bodies shall be necessary and sufficient for the enactment of a law.[322] The right of initiating legislation is expressly conferred upon the Reichstag, but in practice it is exercised almost exclusively by the Bundesrath. Even finance bills all but invariably originate in the superior chamber. Under the normal procedure bills are prepared, discussed, and voted in the Bundesrath, submitted to the Reichstag for consideration and acceptance, and returned for further scrutiny by the Bundesrath before their promulgation by the Emperor. In any case, the final approval of a measure must take place in the Bundesrath, by whose authority alone the character of law can be imparted. Speaking strictly, it is the Bundesrath that makes law, with merely the assent of the Reichstag.

[Footnote 322: Art. 5. Dodd, Modern Constitutions, I., 328.]

*233. Executive Authority.*—The Bundesrath's executive functions represent a curious admixture, but the sum total is very considerable. In the first place, the body possesses supplementary administrative powers. By the constitution it is required to take action upon "the general administrative provisions and arrangements necessary for the execution of the Imperial laws, so far as no other provision is made by law," as well as upon "the defects which may be discovered in the execution of the Imperial laws."[323] This function is performed through the issuing of ordinances so devised as not to contravene the constitution, existing law, or the proper prerogatives of any constituted authority, Imperial or state. In the second place, certain powers vested in the Emperor may be exercised only with the Bundesrath's consent. Most important of these are: (1) the declaration of war, save in the event of an attack upon the territory or coasts of the Empire; (2) the concluding of treaties, in so far as they relate to matters falling within the range of Imperial legislation; and (3) the carrying out of an "execution" against a delinquent state. Finally certain relations are maintained with the Reichstag which involve the exercise of authority that is essentially executive. With the assent of the Emperor, the Bundesrath may dissolve the popular chamber; and every member of the Bundesrath has the right to appear in the (p. 222) Reichstag and to be heard there at any time upon his own request, somewhat after the manner of a minister in a parliamentary government.[324] Large functions in connection with public finance, likewise, are vested in the body. By it the annual budget is prepared, the accounts which the Empire carries with the states are audited, and important supervisory relations with the Imperial Bank, the Imperial Debt Commission, and other fiscal agencies, are maintained. Lastly, there is some participation in the power of appointment; for although that power, as such, is vested in the Emperor, officials of some kinds (e.g., judges of the Imperial Court) are actually chosen by the Bundesrath, and in many other instances the body preserves an acknowledged right to approve appointments which are made.

[Footnote 323: Art. 7. Dodd, I., 329.]

[Footnote 324: Arts. 9 and 24. Dodd, Modern Constitutions, I., 330-333. It should be observed, however, that the members of the Bundesrath are authorized to appear in the Reichstag, not for the purpose of advocating a measure which the Bundesrath has enacted, or would be willing to enact, but simply to voice the interests or demands of their own states.]

*234. Judicial Powers.*—In its judicial capacity the Bundesrath sits as a supreme court of appeal, to which cases may be carried from the tribunals of a state, when it can be shown that justice is not to be had in those tribunals.[325] It serves also as a court of last resort for the settlement of disputes between the Imperial Government and a state; or between two states, when the point at issue is not a matter of private law and when a definite request for action is made by one of the parties. Finally, in disputes relating to constitutional questions in states whose constitution does not designate an authority for the settlement of such differences, the Bundesrath is required, at the request of one of the parties, to effect an amicable adjustment; or, if this shall prove impossible, to see to it that the issue is settled by Imperial law.[326]

[Footnote 325: Art. 77. Dodd, Modern Constitutions, I., 350.]

[Footnote 326: Art. 76. Dodd, Modern Constitutions, I., 350. On the Bundesrath see Howard, The German Empire, Chap. 4; J. H. Robinson, The German Bundesrath, in Publications of University of Pennsylvania, III. (Philadelphia, 1891); P. Laband, Das Staatsrecht des deutschen Reiches, Secs. 27-31; A. Lebon, Etudes sur l'Allemagne politique, 137-151; Dupriez, Les Ministres, I., 505-523; Zorn, Das Staatsrecht des deutschen Reiches, I., 136-160; E. Kliemke, Die Staatsrechtliche Natur und Stellung des Bundesrathes (Berlin, 1894); A. Herwegen, Reichsverfassung und Bundesrat (Cologne, 1902).]



CHAPTER XI (p. 223)

THE IMPERIAL GOVERNMENT: REICHSTAG, PARTIES, JUDICIARY

I. COMPOSITION OF THE REICHSTAG—ELECTORAL SYSTEM

In complete contrast with the Bundesrath, which is a purely federal institution, the Reichstag is broadly national. It represents, not the states, nor yet the people of the states, but the people of the Empire as a whole. From what has been said regarding the preponderance of the autocratic principle in the German system it follows that there is no room in that system for a parliamentary chamber of the nature of the British House of Commons or of the French Chamber of Deputies. None the less, restricted as are its functions, the Reichstag is one of the world's most vigorous and interesting legislative bodies.

*235. Allotment of Seats.*—Members of the Reichstag are chosen for a term of five years,[327] by direct and secret ballot, at an election which takes place on a given day throughout the entire Empire. The number of seats, fixed tentatively by the constitution of 1871 at 382, was, by law of June 25, 1873, providing for the election of fifteen members from Alsace-Lorraine, increased to 397; and it thereafter remained unchanged. The electoral "circles," or districts, each of which returns one member, were laid out originally in such a way as to comprise 100,000 inhabitants each, and also in such a manner that no district would embrace portions of two or more states. Since 1871 there has been no redistricting of the Empire, and the populations comprising the various constituencies have become grossly unequal. Berlin, with more than two million people, is still entitled to but six seats; and the disproportion in other great cities and densely inhabited regions is almost as flagrant.[328] There has long been demand for a redistribution of seats; but, by reason of the proneness of urban constituencies to return to the Reichstag socialists or other radicals, the Government has never been willing to meet the (p. 224) demand. By states, the 397 seats are distributed as follows: Prussia, 236; Bavaria, 48; Saxony, 23; Wuerttemberg, 17; Alsace-Lorraine (Imperial territory), 15; Baden, 14; Hesse, 9; Mecklenburg-Schwerin, 6; Saxe-Weimar, 3; Oldenburg, 3; Brunswick, 3, Hamburg, 3; Saxe-Meiningen, 2; Saxe-Coburg-Gotha, 2; Anhalt, 2; and all others, one each. As in the American House of Representatives, a state is entitled to one member regardless of its population.

[Footnote 327: The term, originally three years, was made five by a law of 1888. The modification went into effect with the Reichstag elected in February, 1890.]

[Footnote 328: In Conservative East Prussia the average number of voters in a district is 121,000; in Socialist Berlin it is 345,000. Twelve of the most populous districts represented in the Reichstag contain 1,950,000 voters; twelve of the least populous, 170,000. The district of Schaumburg-Lippe has but 9,891.]

*236. Time and Method of Elections.*—Electoral procedure is regulated by the Election Law of May 31, 1869, amended in minor particulars at subsequent dates, and extended in 1871 and in 1873 to the southern states and to Alsace-Lorraine respectively. Elections are held uniformly throughout the Empire on a day fixed by the Emperor. In the event of a dissolution prior to the end of the five-year term an election is required to take place within a period of sixty days, and the new Reichstag must be convened not later than ninety days after the dissolution.[329] For election on the first ballot an absolute majority of the votes cast within the circle, or district, is required. If no candidate obtains such a majority, there follows a second balloting (Stichwahl) a fortnight later, when choice is made between the two candidates who upon the first occasion polled the largest number of votes. In the event of a tie, decision is by lot.[330] Secrecy of the ballot is specially safeguarded by regulations enacted April 28, 1903. Each voter, upon appearing at the polls, is furnished with an envelope and a white voting-paper bearing an official stamp. In a compartment arranged for the purpose in the polling room he marks his ballot and incloses it in the envelope. As he leaves the room he hands the envelope to the presiding officer or deposits it in a voting urn. Once elected, a member, according to constitutional stipulation, is a representative, not of the constituency that chose him, but of the people of the Empire as a whole, and he may not be bound by any order or instruction.[331]

[Footnote 329: Art. 25. Dodd, Modern Constitutions, I., 333.]

[Footnote 330: By reason of the multiplicity of parties the number of second ballotings required is invariably large. In 1890 it was 138; in 1893, 181; in 1898, 185; in 1903, 180; in 1907, 158; and in 1912, 191. It is calculated that the effect of forty per cent of the second ballotings is to prevent the election of the candidate obtaining originally the largest number of votes. The arrangement operates to the advantage principally of the National Liberals, the Radicals, and other essentially moderate parties, and to the disadvantage especially of the Social Democrats. On this subject see A. N. Holcombe, Direct Primaries and the Second Ballot, in American Political Science Review, Nov., 1911.]

[Footnote 331: Art. 29. Dodd, Modern Constitutions, I., 333.]

*237. The Franchise.*—The franchise is broadly democratic. (p. 225) Every male who, possessing citizenship in the Empire, has completed his twenty-fifth year is entitled to vote in the district in which he has his domicile, provided his name appears on the registration lists. He is not required to be a citizen of the state in which he votes. The only exceptions to the general rule of universal manhood suffrage arise from the disfranchisement of persons under guardianship, bankrupts, beneficiaries of public charity, persons suffering judicial deprivation in respect to certain of their rights as citizens, and persons in active service in the army and navy. Any male citizen, possessed of the right to vote, twenty-five years of age or over, and a resident of a state of the Empire during at least one year, is eligible as a candidate. He is not required to be a citizen of the state from which he aspires to be elected.[332]

[Footnote 332: On the German Imperial electoral system see Howard, The German Empire, Chap. 5; Lebon, Etudes sur l'Allemagne politique, 70-83; ibid., Etude sur la legislation electorale de l'empire d'Allemagne, in Bulletin de Legislation Comparee, 1879; G. Below, Das parlamentarische Wahlrecht in Deutschland (Berlin, 1909); and M. H. Nezard, L'Evolution du suffrage universel en Prusse et dans l'Empire allemand, in Revue du Droit Public, Oct.-Dec., 1904.]

*238. Privileges of Members.*—Solicitous lest if members of the Reichstag should be entitled to remuneration for their services the poorer classes would arrive at a preponderance in the chamber, Bismarck insisted in season and out upon the non-payment of representatives, and by the constitution of 1871 salaries were specifically forbidden.[333] During the eighties the Imperial Court of Appeal ruled that the payment of socialist members by their supporters was illegal,[334] though such payment has been in recent times not unknown. Again and again measures providing for the payment of all members from the Imperial treasury were passed in the Reichstag, only to be thrown out by the Bundesrath. May 21, 1906, such a measure was at last enacted by both chambers, providing for a payment of 3,000 marks a session (with a deduction of twenty-five marks for each day's absence), and in addition free passes over German railways during, and for eight days before and after, sessions. Upon the taking effect of this measure, Germany became one of the several European countries in which, within years comparatively recent, the members of the popular legislative chamber have been given a right to public compensation. Special privileges enjoyed by members are of the customary sort. No member may at any time be held legally to account outside the chamber by reason of his utterances or his votes within it. Unless taken (p. 226) in the commission of a misdemeanor, or during the ensuing day, a member may not be arrested for any penal offense, or for debt, without the consent of the chamber; and at the request of the chamber all criminal proceedings instituted against a member, and any detention for judicial investigation or in civil cases, must be suspended during a session.[335]

[Footnote 333: "The members of the Reichstag, as such, shall draw no salary or compensation." Art. 32. Dodd, Modern Constitutions, I., 334.]

[Footnote 334: Cf. the Osborne Judgment of 1909 in England (see p. 127).]

[Footnote 335: Arts. 30 and 31. Dodd, Modern Constitutions, I., 334.]

II. ORGANIZATION AND POWERS OF THE REICHSTAG

*239. Sessions and Officers.*—The constitution stipulates that the Reichstag and the Bundesrath shall meet annually. Beyond this, and the further requirement that the Reichstag shall never be in session when the Bundesrath is not, the Imperial Government is left entirely free in respect to the convening of the representative body.[336] The summons is issued by the Emperor and the sessions are opened by him, in person or by proxy. By him the assembly may be prorogued (though not more than once during a session, and never for a longer period than thirty days without its own consent); by him also, with the assent of the Bundesrath, it may be dissolved.[337] The chamber validates the election of its members, regulates its own procedure and discipline, and elects its president, vice-presidents, and secretaries.[338] Under standing orders adopted February 10, 1876, the president and vice-president are chosen at the opening of the first session following a general election for a temporary term of four weeks, and upon the expiration of this period an election takes place for the remainder of the session. At the opening of each succeeding session an election of these officials for the session takes place at once. The secretary is chosen at the beginning of each session for the entire session.

[Footnote 336: Mention has been made of the regulation that, following a dissolution prior to the end of the five-year term, the chamber shall be convoked within ninety days. It will be recalled, also, that the Bundesrath may be convoked without the Reichstag.]

[Footnote 337: Nominally by a resolution of the Bundesrath, with the consent of the Emperor. Art. 24. Dodd, Modern Constitutions, I., 333.]

[Footnote 338: Art. 27. Ibid.]

*240. Abtheilungen and Committees.*—At the opening of a session the entire membership of the Reichstag is divided by lot into seven Abtheilungen, or bureaus, as nearly equal as it is possible to make them. The bureaus of the French Chamber of Deputies are reconstituted once a month, and those of the Italian once in two months, but those of the Reichstag are maintained unchanged throughout a session, unless upon motion of as many as thirty members the body decides upon a fresh distribution. The functions of the bureaus comprise, in the main, (p. 227) the passing upon the credentials of members of the chamber and the designating of members of committees. There is in the Reichstag but one standing committee—that on elections. It is perpetuated throughout a session. All other committees are made up, as occasion requires, by the appointment by ballot of an equal number of members by each of the seven bureaus; although, in point of fact, the preparation of committee lists falls largely to the party leaders of the chamber. The function of committees is the preliminary consideration of measures and the reporting of them and of evidence relating to them, to the chamber, Bills are not, however, in all cases referred to committees.

*241. Methods of Business.*—Measures proposed for enactment pass through the three readings which have come to be customary among modern legislative assemblies. Debate is carried on under regulations closely resembling those which prevail in the British House of Commons and distinctly less restrictive than those in vogue in the French Chamber of Deputies. Members of the Bundesrath, to whom is assigned a special bench, possess the right to appear and to speak at pleasure. Debaters address the chamber from the tribune or from their seats as they choose, and they speak whenever they can secure the recognition of the presiding official, not, as in France, in the hard and fast order indicated by a previously prepared written list. Like the Speaker of the House of Commons, the president of the Reichstag is a strictly non-partisan moderator. A fixed tradition of the office is that during debate the chair shall recognize alternately the supporters and the opponents of the measure under consideration. As a general rule, closure of debate may be ordered upon the initiative of thirty members.

Unlike the sittings of the Bundesrath, which take place invariably behind closed doors, those of the Reichstag are, by constitutional provision, public. Under the standing orders, however, the body may go into secret session, on motion of the president, or of ten members. Publicity is further assured by the constitutional stipulation that "no one shall be held responsible for truthful reports of the proceedings of the public sessions of the Reichstag."[339] Measures are carried by absolute majority; and, while discussion may proceed in the absence of a quorum, no vote or other action is valid unless there is present a majority of the full membership of the body, that is, since 1873, 199.

[Footnote 339: Art. 22. Dodd, Modern Constitutions, I., 333.]

*242. Powers.*—The legislative power of the Empire is vested in the Reichstag and the Bundesrath conjointly, and a majority of the votes of both bodies is necessary for the enactment of a law. So declares the constitution. The legislative functions of the popular chamber (p. 228) are, however, in practice distinctly subordinate to those of the Bundesrath. The Reichstag possesses no such power of legislative initiative and discretion as is possessed by the popular chambers of Great Britain, France, Italy, and the United States. Its consent is necessary for the enactment of every law, for the adoption of every constitutional amendment, and for the ratification of every treaty affecting matters within the domain of Imperial legislation. But bills, including those relating to finance, originate ordinarily with the Chancellor and the Bundesrath; the procedure followed in the shaping of revenue and military measures puts the Reichstag distinctly at a disadvantage; and, at the best, the part which the chamber can play in the public policy of the Empire is negative and subsidiary. It can block legislation and discuss at length the policy of the Government, but it is not vested by the constitution with power sufficient to make it an effective instrument of control. It is within the competence of the Bundesrath, with the assent of the Emperor, to dissolve the popular chamber at any time, and, as has been pointed out, such action is taken without an iota of the ministerial responsibility which in other nations ordinarily accompanies the right of dissolution. On several occasions since 1871 the Reichstag has been dissolved with the sheer intent of putting an end to its obstructionism.[340]

[Footnote 340: Lowell, Governments and Parties, I., 257.]

The standing orders of the chamber make mention of the right of interpellation, and resort is occasionally had to this characteristic continental legislative practice. There are no ministers, however, to whom an interpellation may be addressed except the Chancellor, and even he has no right to appear in the Reichstag save as a member of the Bundesrath. The consequence is that interpellations are addressed, in practice, to the Bundesrath. It is only where the parliamentary system prevails, as in France and Italy, that the device of interpellation can be made to assume much importance. The possibility of a larger opportunity for interpellation, which should involve the right of the chamber to adopt resolutions declaring satisfaction or dissatisfaction with the answer made, was warmly, but on the whole inconclusively, discussed in the Reichstag in 1912.[341]

[Footnote 341: On the Reichstag see Howard, The German Empire, Chap. 5; A. Lebon, Le Reichstag allemand, in Annales de l'Ecole Libre des Sciences Politiques, April, 1889; ibid., Etudes sur l'Allemagne politique, Chap. 2; Laband, Das Staatsrecht des deutschen Reiches, Secs. 32-38; H. Robalsky, Der deutsche Reichstag (Berlin, 1897); G. Leser, Untersuchungen ueber das Wahlpruefungsrecht des deutschen Reichstags (Leipzig, 1908). There is a full discussion of German methods of legislation in Laband, op. cit., Secs. 54-59.]

III. THE RISE OF POLITICAL PARTIES (p. 229)

In Germany, as in continental countries generally, the number of political groups is legion. Many are too small and unstable to be entitled properly to the designation of parties; and, in truth, of even the larger ones none has ever become so formidable numerically as to acquire a majority in the popular chamber. For the enactment of measures the Government is obliged to rely always upon some sort of coalition, or, at best, upon the members of a group which for the time being holds the balance between two opposing alignments.

*243. Conservatives and Progressives.*—The party situation of the present day has been reached in consequence of the gradual disintegration of the two great political groups with which Prussia entered upon the period of Bismarck's ministry; and to this day the parties of the German Empire and those of the Prussian kingdom are largely identical.[342] The two original Prussian groups were the Conservatives and the Fortschritt, or Progressives, of which the one comprised, throughout the middle portion of the nineteenth century, the supporters of the Government and the other its opponents. The Conservatives were pre-eminently the party of the landed aristocracy of northern and eastern Germany. During twenty years prior to 1867 they dominated completely the Prussian court and army. Following the Austrian war of 1866, however, the Conservative ascendancy was broken and there set in that long process of party dissolution by which German political life has been brought to its present confused condition. To begin with, each of the two original parties broke into two distinct groups. From the Conservatives sprang the Frei Conservativen, or Free Conservatives; from the Fortschritt, the National-Liberal-Partei, or National Liberals. In the one case the new group comprised the more advanced element of the old one; in the other, the more moderate; so that, in the order of radicalism, the parties of the decade following 1866 were the Conservatives, the Free Conservatives, the National Liberals, and the Fortschrittspartei, or Radicals. Among these four groups Bismarck was able to win for his policy of German unification the support of the more moderate, that is to say, the second and third. The ultra-Conservatives clung to the particularistic regime of earlier days, and with them the genius of "blood and iron" broke definitely in 1866. The Free Conservatives comprised at the outset simply those elements of the original (p. 230) Conservative party who were willing to follow Bismarck.

[Footnote 342: To so great an extent is this true that, having described in this place the parties of the Empire, it will not be necessary subsequently to allude at length to those of Prussia.]

*244. Rise and Preponderance of the National Liberals.*—Similarly among the Progressives there was division upon the attitude to be assumed toward the Bismarckian programme. The more radical wing of the party, i.e., that which maintained the name and the policies of the original Fortschritt, refused to abandon its opposition to militarism and monarchism, opposed the constitution of 1867 for its illiberality, and withheld from Bismarck's government all substantial support. The larger portion of the party members, however were willing to subordinate for a time to Bismarck's nationalizing projects the contest which the united Fortschritt had long been waging in behalf of constitutionalism. The party of no compromise was strongest in Berlin and the towns of east Prussia. It was almost exclusively Prussian. The National Liberals, on the contrary, became early an essentially German, rather than simply a Prussian, party. Even before 1871 they comprised, in point both of numbers and of power, the preponderating party in both Prussia and the Confederation as a whole; and after 1871, when the Nationalists of the southern states cast in their lot with the National Liberals, the predominance of that party was effectually assured. Upon the National Liberals as the party of unity and uniformity Bismarck relied absolutely for support in the upbuilding of the Empire. It was only in 1878, after the party had lost control of the Reichstag, in consequence of the reaction against Liberalism attending the great religious contest known as the Kulturkampf, that the Chancellor was in a position to throw off the not infrequently galling bonds of the Liberal alliance.

*245. The Newer Groups: the Centre.*—Meanwhile the field occupied by the various parties that have been named was, from an early date, cut into by an increasing number of newly organized parties and groups. Most important among these were the Clericals, or Centre, and the Social Democrats. The origins of the Centre may be traced to the project which was formulated in December, 1870, to found a new party, a party which should be essentially Catholic, and which should have for its purpose the defense of society against radicalism, of the states against the central government, and of the schools against secularization. A favorite saying of the founders was that "at the birth of the Empire Justice was not present." The party, gaining strength first in the Rhenish and Polish provinces of Prussia and in Bavaria, was able in the elections of 1871 to win a total of sixty seats. Employed by the Catholic clergy during the decade that followed to maintain the cause of the papacy against the machinations of Bismarck, the party early struck root deeply; and by reason of (p. 231) the absolute identification in the public mind of its interests with the interests of the Catholic Church, ensuring its preponderance in the states of the south, and also by reason of the fact that it has always been more successful than any of its rivals in maintaining compactness of organization, it became, and has continued almost uninterruptedly to the present time, the strongest numerically of all political groups within the Reichstag.

*246. The Newer Groups: the Social Democrats.*—The Social Democratic party was founded in 1869 under the leadership of Wilhelm Liebknecht and August Bebel. In 1863 there had been organized at Leipzig, under the inspiration of the eloquent Marxist Ferdinand Lassalle, a Universal German Workingman's Association. Between the two bodies there was for a time keen rivalry, but at a congress held at Gotha, in May, 1875, they (together with a number of other socialistic societies) were merged in one organization, which has continued to this day to be known as the Social Democratic party. The development of socialism in the Empire between 1870 and 1880, in respect to both numbers and efficiency of organization, was phenomenal. At the parliamentary elections of 1871 the Social Democratic vote was 124,655 (three per cent of the total) and two Social Democrats were chosen to the Reichstag. In 1874 the popular vote was 351,952, and nine members were elected; in 1877 it was 493,288, and the number of successful candidates was twelve. By the Emperor William I. and by his chancellor; Bismarck, as indeed by the governing and well-to-do classes generally, the progress of the movement was viewed with frankly avowed apprehension. Most of the great projects of the Imperial Government were opposed by the Social Democrats, and the members of the party were understood to be enemies of the entire existing order, and even of civilization itself. Two attempts in 1878 upon the life of the Emperor, made by men who were socialists, but disavowed by the socialists as a body, afforded the authorities an opportunity to enter upon a campaign of socialist repression, and from 1878 to 1890 anti-socialist legislation of the most thoroughgoing character was regularly on the statute books and was in no slight measure enforced. At the same time that effort was being made to stamp out socialist propaganda a remarkable series of social reforms was undertaken with the deliberate purpose not only of promoting the public well-being, but of cutting the ground from under the socialists' feet, or, as some one has observed, of "curing the Empire of socialism by inoculation." The most important steps taken in this direction comprised the inauguration of sickness insurance in 1883, of accident insurance in 1884, and of old-age and invalidity insurance in 1889.

For a time the measures of the government seemed to accomplish (p. 232) their purpose, and the official press loudly proclaimed that socialism in Germany was extinct. In reality, however, socialism thrived on persecution. In the hour of Bismarck's apparent triumph the socialist propaganda was being pushed covertly in every corner of the Empire. A party organ known as the Social Democrat was published in Switzerland, and every week thousands of copies found their way across the border and were passed from hand to hand among determined readers and converts. A compact organization was maintained, a treasury was established and kept well filled, and with truth the Social Democrats aver to-day that in no small measure they owe their superb organization to the Bismarckian era of repression. At the elections of 1878 the party cast but 437,158 votes, but in 1884 its vote was 549,990 (9.7 per cent of the whole) and the contingent of representatives returned to the Reichstag numbered twenty-four. In 1890 the socialist vote attained the enormous total of 1,427,298 (19.7 per cent of the whole), and the number of representatives was increased to thirty-five. Repression was manifestly a failure, and in 1890 the Reichstag, with the sanction of the new emperor, William II., wisely declined to renew the statute under which proscription had been employed.

*247. Minor Parties.*—Aside from the Centre and the Social Democrats, the newer party groups in Germany—the Guelfs, the Poles, the Danes, the Alsatians, the Antisemites, etc.—are small and relatively unimportant. All are particularistic and irreconcilable; all are organized on the basis of local, racial, or religious interests. Apart, indeed, from the National Liberals and the Socialists, it cannot be said that any one of the German political groups, large or small, is broadly national, in either its tenets or its constituency. The Guelfs, or Hanoverische Rechtspartei, comprise the irreconcilables among the old Hanoverian nobility who refuse to recognize the validity of the extinction of the ancient Hanoverian dynasty by the deposing of George V. in 1866. As late as 1898 they returned to the Reichstag nine members. In 1903 they elected but five, and in 1907 their representation was reduced to a single deputy. In 1912 their quota became again five. The Poles comprise the Slavic voters of the districts of West Prussia, Posen, and Silesia, who continue to send to the Reichstag members who protest against the incorporation of the Poles in Prussia and in the Empire. At the elections of 1903 they secured sixteen seats, at those of 1907 twenty, and at those of 1912 eighteen. The Danes of northern Schleswig keep up some demand for annexation to Denmark, and measures looking toward Germanization are warmly resented; but the number of people concerned—not more than 150,000—is so small that their political power is almost nil. (p. 233) They have, as a rule, but a single spokesman in the Reichstag. The Alsatians comprise the autonomists of Alsace-Lorraine, and the Antisemites form a group whose original purpose was resistance to Jewish influence and interests.

IV. PARTY POLITICS AFTER 1878

*248. Shifting "Government" Parties.*—To rehearse here the details of German party history during the period since the Government's break with the Liberals in 1878 is impossible. A few of the larger facts only may be mentioned. Between 1878 and 1887 there was in the Reichstag no one great party, nor even any stable coalition of parties, upon which the Government could rely for support. For the time being, in 1879, Bismarck allied with the Centre to bring about the adoption of his newly-framed policy of protection and of the famous Frankenstein clause relative to the matricular contributions of the states.[343] The National Liberals, left in the lurch, broke up, and in 1881 the remnant of the party was able to obtain only forty-five seats. After the elections of that year the Centre commanded in the Reichstag a plurality of forty. The upshot was that, in the effort to procure the dependable support of the Centre, the Government gradually abandoned the Kulturkampf, and for a time the Centre virtually succeeded to the position occupied prior to 1878 by the National Liberals. The elections of 1887, however, again changed the situation. The Centre retained a plurality of some twenty seats, but the Conservatives, Free Conservatives, and National Liberals formed a coalition and between them obtained a total of 220 seats and, accordingly, the control of the Reichstag. Thereupon the Conservatives became the Government's principal reliance and the Centre dropped for a time into a position of neutrality. At the elections of 1890 the coalition, which in truth had been built up by the Government on the basis of a cartel, or agreement, suffered heavy losses. Of 397 seats it carried only 130,[344] while the Centre alone procured 116. Coincident with the overturn came the dismissal of Bismarck and the elevation to the chancellorship of General von Caprivi. Throughout his years of office (1890-1894) Caprivi was able to rely habitually upon the support of no single party or group of parties, and for the enactment of its measures the Government was obliged to seek (p. 234) assistance now in one quarter and now in another, according as circumstances dictated.

[Footnote 343: This measure provided that each year all proceeds from the Imperial customs and tobacco tax in excess of 130,000,000 marks should be distributed among the several states in proportion to their population. Its author was Frankenstein, a leader of the Centre.]

[Footnote 344: Conservatives 65, Free Conservatives 24, National Liberals 41.]

*249. The Agrarian Movement and the Rise of the Bloc.*—Two or three developments of the period stand out with some distinctness. One was the break-up, apparently for all time, of the Fortschrittspartei, or Radical party, in consequence of the elections of 1893. A second was the rise of the Government's prolonged contest with the Agrarians. The Agrarian group, of which indeed one hears as early as 1876, comprised principally the grain-growing landholders of northern and eastern Germany. By treaties concluded in 1892-1894 with Austria-Hungary, Italy, Belgium, Russia, and other nations, German import duties on grain were considerably reduced in return for advantages given to German manufacturers. Low duties meant cheap foodstuffs, and in the negotiation of these treaties the Government found itself supported with enthusiasm not only by the Centre, but also by the Social Democrats and the surviving Radicals. The Conservatives were divided. Those of Agrarian sympathies (especially the Prussian landholders) allied themselves with the forces of opposition. But the remainder gave the Government some measure of support. And from this last-mentioned fact arose a final political development of large significance during the Caprivi period, namely, the creation of that bloc, or affiliation, of Centre and Conservatives (popularly referred to as the "blue-black" bloc) upon which the Government was destined regularly to rely through upwards of a decade and a half. During the chancellorship of Prince Chlodwig Hohenlohe-Schillingsfuerst (1894-1900) the struggle with the Agrarians was continued and the preponderance of the bloc became an established fact. Finally, should be mentioned the rapidly accelerating growth of the Social Democracy. In 1893 the popular party cast a total of 1,876,738 votes and elected forty-four representatives. In 1896 its vote was 2,007,076 and the number of members elected was fifty-seven. In 1903 its vote rose to the enormous proportions of 3,008,000 (24 per cent of the total, and larger than that of any other single party), and the quota in the Reichstag was increased to seventy-nine.

*250. The Elections of 1903 and 1907.*—At the elections of 1903 the bloc suffered numerically a loss of strength. The Centre obtained 102 seats, the Conservatives 53, and the Free Conservatives, or "Party of the Empire," 22—an aggregate of only 177. By deft management, however, Chancellor von Buelow (1900-1908) contrived to play off through several years the opposing forces, and so to preserve, for all practical purposes, the working efficiency of the Government coalition. The elections of January, 1907, brought on by a dissolution of the Reichstag after the refusal of that body to vote the (p. 235) Government's colonial estimates, were of interest principally by reason of the continued show of strength of the Centre and the falling off of the Social Democrats in their representation in the Reichstag. In the practical working out of political forces it had come about that the Centre occupied in the chamber a pivotal position of such consequence that the Government was in effect absolutely dependent upon the vote of that party for the enactment of its measures. Naturally enough, the party, realizing its power, was prone to put its support upon a contractual basis and to drive with the Government a hard bargain for the votes which it commanded. While hardly in a position to get on without Clerical assistance, the Government in 1907 would have been willing enough to see the Centre's power and independence broken. Not only, however, did the Centre not lose seats by that contest; it in fact realized a gain of two. On the other hand, there was compensation for the Government in the fact that the Social Democrats fell back. They polled a total of 3,250,000 popular votes, as compared with 3,008,000 in 1903; but by reason of the antiquated distribution of seats which prevails in the Empire, the unusual vote polled by other parties, and also the unusual co-operation of the party groups opposed to the Social Democrats, their representation in the Reichstag was cut from 79 to 43.[345]

[Footnote 345: The total number of popular votes cast in the election was 10,857,000, of which number government candidates received 4,962,000, and opposition candidates 5,895,000. The numerical strength of the various elements composing the Reichstag consequent upon the elections of 1903 and 1907 was as follows:

1903 1907 Seats Seats gained lost

Centre 102 104 2 0 Conservatives 53 58 5 0 Free Conservatives 22 22 0 0 National Liberals 51 56 5 0 Social Democrats 79 43 0 36 Radicals 42 50 8 0 Antisemites and Economic Union 22 30 8 0 Poles 16 20 4 0 Liberal Union 10 13 3 0 Volkspartei (Democrats of South) 6 7 1 0 Alsatians 10 7 0 3 Guelfs or Hanoverians 5 1 0 4 Danes 1 1 6 0 Independents 0 7 7 0

Total 397 397 43 43]

V. PARTIES SINCE 1907 (p. 236)

*251. The Buelow Bloc.*—The period covered by the life of the Reichstag elected in 1907 was remarkable in German political history chiefly by reason of the prolonged struggle for the establishment of parliamentary government which took place within it—a struggle which had its beginning, indeed, in the deadlock by which the dissolution of 1906 was occasioned, which reached its climax in the fiscal debates of 1908-1909, and which during the years that followed gradually subsided, leaving both the status of parties and the constitutional order of the Empire essentially as they were at the beginning. Even before the dissolution of 1906 the Conservative-Centre bloc was effectually dissolved, principally by the defection of the Centre, and through upwards of three years it was replaced by an affiliation, known commonly as the "Buelow bloc," of the Conservatives and the Liberals. This combination, however, was never substantial, and in the course of the conflict over the Government's proposed budget of November, 1908, there was a return to the old alignment, and throughout ensuing years the Conservative-Clerical bloc remained a preponderating factor in the political situation.

*252. The Elections of 1912: Parties and Issues.*—The Reichstag of 1907 was dissolved at the termination of its five-year period, and in January, 1912, there was elected a new chamber, the thirteenth since the creation of the Empire. The contest was pre-eminently one of measures rather than of men, but the public interest which it excited was extraordinary. Broadly, the line was drawn between the Government and the parties of the bloc, on the one hand, and the more purely popular parties, especially the National Liberals, the Radicals, and the Social Democrats, on the other;[346] and the issues were chiefly such as were supplied by the spirit, purposes, and methods of Chancellor von Bethmann-Hollweg and his Conservative-Clerical allies. Of the alleged reactionism of the Government parties there was widespread complaint. They were held responsible for the fiscal reform of 1909 which imposed burdens unduly heavy on industry and commerce, while sparing land and invested capital; they were charged with re-establishing the yoke of the Catholic Centre upon the Lutheran (p. 237) majority; and they were reproached for having failed to redeem their promise to liberalize the antiquated franchise arrangements of Prussia. The Conservatives in particular were attacked on the ground of their continued monopoly of patronage and of power. On the whole, however, the most important of practical issues was that of the tariff. Throughout a twelvemonth discontent occasioned by the high cost of living had been general and the Government had been besought by municipalities, workingmen's organizations, and political societies to inaugurate a project for the reduction of the duties imposed upon imported foodstuffs. The demand was in vain and the country was given to understand by the Chancellor that the Government, under Conservative-Agrarian mastery, would stand or fall with "protection for the nation's work" as its battle-cry. Upon this question the National Liberals, being protectionist by inclination, stood with the Government, but the Radicals, the Social Democrats, and some of the minor groups assumed an attitude of clear-cut opposition.

[Footnote 346: The gravest abuse in connection with the conduct of campaigns and elections in Germany is the pressure which the Government brings to bear systematically upon the enormous official population and upon railway employees (alone numbering 600,000) to vote Conservative, or, in districts where there is no Conservative candidate, Centrist. This pressure is applied through the local bureaucratic organs, principally the Landrath of the Kreis, who not uncommonly is a youthful official of noble origin, related to some important landed family, and a rigid Conservative. It has been estimated that official influence controls a million votes at every national election.]

*253. The Results and Their Significance.*—The total number of candidates in the 397 constituencies was 1,428. The Social Democrats alone had a candidate in every constituency, a fact which emphasizes the broadly national character which that party has acquired. The National Liberals had candidates in 200 constituencies, the Centre in 183, the Radicals in 175, and the Conservatives in 132. A second ballot was required in 191 constituencies, or nearly one-half of the whole number. The final results of the election justified completely the general expectation of observers that the Social Democrats would realize enormous gains. The appeal of von Bethmann-Hollweg for solidarity against the Socialists had no such effect as did the similar appeal of von Buelow in 1907. The tactfulness and personal hold of the Chancellor was inferior to that of his predecessor, and the mass of the nation was aroused in 1912 as it was not upon the earlier occasion. The results may be tabulated as follows:

Seats Seats acquired at dissolution by elections of 1912

Centre 103 90 Conservatives 58 45 Free Conservatives 25 13 Social Democrats 53 110 National Liberals 51 44 Radicals 49 41 Poles 20 18 Antisemites and Economic Union 20 11 Guelfs or Hanoverians 1 5 Alsatians, Danes, and Independents 16 20 Total 397 397

Two of the three parties of the Left, i.e., the National Liberals (p. 238) and the Radicals, suffered substantial losses, but the victory of the Social Democrats was so sweeping that there accrued to the Left as a whole a net gain of forty-two seats.[347] On the other hand, the three parties of the bloc lost heavily—in the aggregate thirty-eight seats. The number of popular votes cast for candidates of the bloc was approximately 4,500,000; that for candidates of the Left approximately 7,500,000.[348] In Berlin, five of whose six constituencies were represented already by Social Democrats, there was a notable attempt on the part of the socialists to carry the "Kaiser district" in which is located the Kaiserhof, or Imperial residence, and the seat of the Government itself. The attempt failed, but it was only at the second ballot, and by the narrow margin of seven votes, that the socialist candidate was defeated by his Radical opponent. As has been pointed out, the parties of the Left are entirely separate and they are by no means able always to combine in action upon a public question. The ideal voiced by the publicist Naumann, "from Bassermann to Bebel," meaning that the National Liberals under the leadership of Bassermann should, through the medium of the Radicals, amalgamate for political purposes with the Social Democrats under Bebel, has not as yet been realized. None the less there has long been community of interest and of policy, and the elections of 1912 made it possible for the first time for a combination of the three groups and their allies to outweigh decisively any combination which the parties of the bloc and their allies can oppose. Before the election there was a clear Government majority of eighty-nine; after it, an opposition majority of, at the least, fourteen. When, in February, 1912, the new Reichstag was opened, it was only by the most dexterous tactics on the part of the bloc that the election of the socialist leader Bebel to the presidency of the chamber was averted.

[Footnote 347: Many of the socialist victories were, of course, at the expense of the National Liberals and Radicals.]

[Footnote 348: The number of electors inscribed on the lists was 14,236,722. The number who actually voted was 12,188,337. The exact vote of the Social Democrats was 4,238,919; of the National Liberals, 1,671,297; of the Radicals, 1,556,549; of the Centre, 2,012,990; and of the Conservatives, 1,149,916.]

*254. The Parties To-day: Conservatives and Centre.*—The principal effect of the election would seem to be to accentuate the already manifest tendency of Germany to become divided between two great hostile camps, the one representative of the military, bureaucratic, agrarian, financial classes and, in general, the forces of resistance to change, the other representative of modern democratic forces, extreme and in principle even revolutionary. Leaving out of account the minor particularist groups, the most reactionary of existing parties is the Conservatives, whose strength lies principally in (p. 239) the rural provinces of Prussia along the Baltic. The most radical is the Social Democrats, whose strength is pretty well diffused through the states of the Empire but is massed, in the main, in the cities. Between the two stand the Centre, the Radicals, and the National Liberals. The Centre has always included both an aristocratic and a popular element, being, indeed, more nearly representative of all classes of people in the Empire than is any other party. Its numerical strength is drawn from the peasants and the workingmen, and in order to maintain its hold in the teeth of the appeal of socialism it has been obliged to make large concessions in the direction of liberalism. At all points except in respect to the interests of the Catholic Church it has sought to be moderate and progressive, and it should be observed that it has abandoned long since its irreconcilable attitude on religion. Geographically, its strength lies principally in the south, especially in Bavaria.

*255. The Social Democrats.*—Nominally revolutionary, the German Social Democracy comprises in fact a very orderly organization whose economic-political tenets are at many points so rational that they command wide support among people who do not bear the party name. Throughout a generation the party has grown steadily more practical in its demands and more opportunist in its tactics. Instead of opposing reforms undertaken on the basis of existing institutions, as it once was accustomed to do, in the hope of bringing about the establishment of a socialistic state by one grand coup, it labors for such reforms as are adjudged attainable and contents itself with recurring only occasionally and incidentally to its ultimate ideal. The supreme governing authority of the party is a congress composed of six delegates from each electoral district of the Empire, the socialist members of the Reichstag, and the members of the party's executive committee. This congress convenes annually to regulate the organization of the party, to discuss party policies, and to take action upon questions submitted by the party members. Nominally, the principles of the party are those of Karl Marx, and its platform is the "Erfurt programme" of 1891, contemplating the abolition of class government and of classes themselves, the termination of every kind of exploitation of labor and oppression of men, the destruction of capitalism, and the inauguration of an economic regime under which the production and distribution of goods shall be controlled by the state exclusively. The Radical Socialists, i.e., the old-line members of the party, cling to these time-honored articles of faith. But the mass of the younger element of the party, ably led by Edward Bernstein—the "Revisionists," as they call themselves—consider that the Marxist doctrines are in numerous respects erroneous, and they are insisting that the Erfurt programme shall be overhauled and brought into (p. 240) accord with the practical and positive spirit of the party to-day. Except Bebel and Kautsky, every socialist leader of note in Germany at the present time is identified with the revisionist movement.[349] The political significance of this situation arises from the fact that the "new socialists" stand ready to co-operate systematically with progressive elements of whatsoever name or antecedents. Already the socialists of Baden, Wuerttemberg, and Bavaria have voted for the local state budgets and have participated in court functions, and upon numerous occasions they have worked hand in hand, not only at elections but in the Reichstag and in diets and councils, with the National Liberals and the Radicals. For the future of sane liberalism in Germany this trend of the party in the direction of co-operative and constructive effort augurs well. At the annual congress held at Chemnitz in September, 1912, the issue of revisionism was debated at length and with much feeling, but an open breach within the party was averted and Herr Bebel was again elected party president. It was shown upon this occasion that the party membership numbered 970,112, a gain of 133,550 during the previous year. It need hardly be observed that of the millions of men who in these days vote for Social Democratic candidates for office hardly a fourth are identified with the formal party organization.[350]

[Footnote 349: Herr Bebel died August 13, 1913.]

[Footnote 350: Two important works of recent date dealing with the history and character of political parties in Germany are C. Grotewald, Die Parteien des deutschen Reichstags. Band I. Der Politik des deutschen Reiches in Einzeldarstellungen (Leipzig, 1908); and O. Stillich, Die politischen Parteien in Deutschland. Band I. Die Konservativen (Leipzig, 1908), Band II. Der Liberalismus (Leipzig, 1911). The second is a portion of a scholarly work planned to be in five volumes. A brief treatise is F. Wegener, Die deutschkonservative Partei und ihre Aufgaben fuer die Gegenwart (Berlin, 1908). An admirable study of the Centre is L. Goetze, Das Zentrum, eine Konfessionelle Partie; Beitraege zur seiner Geschichte (Bonn, 1906). The rise of the Centre is well described in L. Hahn, Geschichte des Kulturkampfes (Berlin, 1881). On the rise and progress of the Social Democracy see E. Milhaud, La democratie socialiste allemande (Paris, 1903); C. Andler, Origines du socialisme d'etat en Allemagne (Paris, 1906); E. Kirkup, History of Socialism (London, 1906); W. Sombart, Socialism (New York, 1898); W. Dawson, Bismarck and State Socialism (London, 1891); J. Perrin, The German Social Democracy, in North American Review, Oct., 1910. Under the title "Chroniques politiques" there is printed in the Annales (since 1911 the Revue) des Sciences Politiques every year an excellent review of the current politics of Germany, as of other European nations. Other articles of value are: M. Caudel, Les elections allemandes du 16 juin, 1898, et le nouveau Reichstag, in Annales de l'Ecole Libre des Sciences Politiques, Nov., 1898; J. Hahn, Une election au Reichstag allemand, in Annales des Sciences Politiques, Nov., 1903; G. Isambert, Le parti du centre en Allemagne et les elections de janvier-fevrier 1907, ibid., March, 1907; P. Matter, La crise du chancelier en Allemagne, ibid., Sept., 1909; A. Marvaud, La presse politique allemande, in Questions Diplomatiques et Coloniales, March 16 and April 1, 1910. There are valuable chapters on German politics in W. Dawson, The Evolution of Modern Germany (London, 1908) and O. Eltzbacher (or J. Ellis Barker), Modern Germany, her Political and Economic Problems (new ed., London, 1912). For a sketch of party history during the period 1871-1894 see Lowell, Governments and Parties, II., Chap. 7. An excellent survey of the period 1906-1911 is contained in P. Matter, D'un Reichstag a l'autre, in Revue des Sciences Politiques, July-Aug., 1911. On the elections of 1912 see G. Blondel, Les elections au Reichstag et la situation nouvelle des partis, in Le Correspondant, Jan. 25, 1912; J. W. Jenks, The German Elections, in Review of Reviews, Jan., 1912; A. Quist, Les elections du Reichstag allemand, in Revue Socialiste, Feb. 15, 1912; and W. Martin, La crise constitutionelle et politique en Allemagne, in Revue Politique et Parlementaire, Aug. 10, 1912.]

VI. LAW AND JUSTICE (p. 241)

*256. Dual Character.*—Upon the subject of the administration of justice the Imperial constitution of 1871 contained but a single clause, by which there was vested in the Empire power of "general legislation concerning the law of obligations, criminal law, commercial law and commercial paper, and judicial procedure." By an amendment adopted December 20, 1873, the clause was modified to read, "general legislation as to the whole domain of civil and criminal law, and of judicial procedure."[351] Each of the federated states has always had, and still has, its own judicial system, and justice is administered all but exclusively in courts that belong to the states. These courts, however, have been declared to be also courts of the Empire, and, to the end that they may be systematized and that conditions of justice may be made uniform throughout the land, the federal government has not hesitated to avail itself of the regulative powers conferred in 1871 and amplified in 1873 in the constitutional provisions which have been cited.

[Footnote 351: Art. 4. Dodd, Modern Constitutions, I., 328.]

*257. Diversity of Law Prior to 1871.*—In the first place, there has been brought about within the past generation a unification of German law so thoroughgoing in character as to be worthy of comparison with the systematization of the law of France which was accomplished through the agency of the Code Napoleon. In 1871 there were comprised within the Empire more than two score districts each of which possessed an essentially distinct body of civil and criminal law; and, to add to the confusion, the boundaries of these districts, though at one time coincident with the limits of the various political divisions of the country, were no longer so. The case of Prussia was typical. In 1871 the older Prussian provinces were living under a Prussian code promulgated in 1794; the Rhenish provinces maintained the Code Napoleon, established by Napoleon in all Germany west of the Rhine; in the Pomeranian districts there were large survivals of Swedish law; while the territories acquired after the war of 1866 had each its (p. 242) indigenous legal system. Two German states only in 1871 possessed a fairly uniform body of law. Baden had adopted a German version of the Code Napoleon, and Saxony, in 1865, had put in operation a code of her own devising. At no period of German history had there been either effective law-making or legal codification which was applicable to the whole of the territory contained within the Empire. In the domain of the civil law, in that of the criminal law, and in that of procedure the diversity was alike obvious and annoying.

*258. Preparation of the Codes.*—German legal reform since 1871 has consisted principally in the formation and adoption of successive codes, each of which has aimed at essential completeness within a given branch of law. The task had been begun, indeed, before 1871. As early as 1861 the states had agreed upon a code relating to trade and banking, and this code had been readopted, in 1869, by the Confederation of 1867.[352] In 1869 a code of criminal law had been worked out for the Confederation, and in 1870 a code relating to manufactures and labor. Upon the establishment of the Empire, in 1871, there was created a commission to which was assigned the task of drawing up regulations for civil procedure and for criminal procedure, and also a plan for the reorganization of the courts. Beginning with a scheme of civil procedure, published in December, 1872, the commission brought in an elaborate project upon each of the three subjects. The code of civil procedure, by which many important reforms were introduced in the interest of publicity and speed, was well received. That relating to criminal procedure, proposing as it did to abolish throughout the Empire trial by jury, was, however, vigorously opposed, and the upshot was that all three reports were referred to a new commission, by which the original projects relating to criminal procedure and to the organization of the courts were completely remodelled. In the end the revised projects were adopted. October 1, 1879, there went into effect a group of fundamental laws under which the administration of justice throughout the Empire has been controlled from that day to the present. The most important of these was the Gerichtsverfassungsgesetz, or Law of Judicial Organization, enacted January 27, 1877; the Civilprozessordnung, or Code of Civil Procedure, of January 30, 1877; and the Strafprozessordnung, or Code of Criminal Procedure, of February 1, 1877.

[Footnote 352: It was replaced by a new code May 10, 1897.]

It remained only to effect a codification of the civil law. A committee constituted for the purpose completed its work in 1887, and the draft submitted by it was placed for revision in the hands of a new commission, by which it was reported in 1895. In an amended form the Civil Code was approved by the Reichstag, August 18, 1896, and (p. 243) it was put in operation January 1, 1900. Excluding matters pertaining to land tenure (which are left to be regulated by the states), the Code deals not only with all of the usual subjects of civil law but also with subjects arising from the contact of private law and public law.[353]

[Footnote 353: A convenient manual for English readers is E. M. Borchard, Guide to the Law and Legal Literature of Germany (Washington, 1912), the first of a series of guides to European law in preparation in the Library of Congress.]

*259. The Inferior Courts.*—By these and other measures it has been brought about that throughout the Empire justice is administered in tribunals whose officials are appointed by the local governments and which render decisions in their name, but whose organization, powers, and rules of procedure are regulated minutely by federal law. The hierarchy of tribunals provided for in the Law of Judicial Organization comprises courts of four grades. At the bottom are the Amtsgerichte, of which there are approximately two thousand in the Empire. These are courts of first instance, consisting ordinarily of but a single judge. In civil cases their jurisdiction extends to the sum of three hundred marks; in criminal, to matters involving a fine of not more than six hundred marks or imprisonment of not over three months. In criminal cases the judge sits with two Schoeffen (sheriffs) selected by lot from the jury lists. Besides litigious business the Amtsgerichte have charge of the registration of land titles, the drawing up of wills, guardianship, and other local interests.

Next above the Amtsgerichte are the 173 district courts, or Landgerichte, each composed of a president and a variable number of associate judges. Each Landgericht is divided into a civil and a criminal chamber. There may, indeed, be other chambers, as for example a Kammer fuer Handelssachen, or chamber for commercial cases. The president presides over a full bench; a director over each chamber. The Landgericht exercises a revisory jurisdiction over judgments of the Amtsgerichte, and possesses a more extended original jurisdiction in both civil and criminal matters. The criminal chamber, consisting of five judges (of whom four are necessary to convict), is competent, for example, to try cases of felony punishable with imprisonment for a term not exceeding five years. For the trial of many sorts of criminal cases there are special Schwurgerichte, or jury courts, which sit under the presidency of three judges of the Landgerichte. A jury consists of twelve members, of whom eight are necessary to convict.

Still above the Landgerichte are the Oberlandesgerichte, of which there are twenty-eight in the Empire, each consisting of seven judges. The Oberlandesgerichte are courts of appellate jurisdiction largely. Each is divided into a civil and a criminal senate. There is a (p. 244) president of the full court and a similar official for each senate.[354]

[Footnote 354: In Bavaria alone there is an Oberste Landesgericht, with twenty-one judges. Its relation to the Bavarian Oberlandesgerichte is that of an appellate tribunal.]

*260. The Reichsgericht.*—At the apex of the system stands the Reichsgericht (created by law of October i, 1879), which, apart from certain administrative, military, and consular courts,[355] is the only German tribunal of an exclusively Imperial, or federal, character. It exercises original jurisdiction in cases involving treason against the Empire and hears appeals from the consular courts and from the state courts on questions of Imperial law. Its members, ninety-two in number, are appointed by the Emperor for life, on nomination of the Bundesrath, and they are organized in six civil and four criminal senates. Sittings are held invariably at Leipzig, in the kingdom of Saxony.

[Footnote 355: The highest administrative court is the Oberverwaltungsgericht, whose members are appointed for life. Under specified conditions, the "committees" of circles, cities, and districts exercise inferior administrative jurisdiction. For the adjustment of disputed or doubtful jurisdictions there stands between the ordinary and the administrative tribunals a Gerichtshof fuer Kompetenz-konflikte, or Court of Conflicts, consisting of eleven judges appointed for life.]

All judges in the courts of the states are appointed by the sovereigns of the respective states. The Imperial law prescribes a minimum of qualifications based on professional study and experience, the state being left free to impose any additional qualifications that may be desired. All judges are appointed for life and all receive a salary which may not be reduced; and there are important guarantees against arbitrary transfer from one position to another, as well as other practices that might operate to diminish the judge's impartiality and independence.[356]

[Footnote 356: On the German judiciary see Howard, The German Empire, Chap. 9; Laband, Das Staatsrecht des deutschen Reiches, Secs. 83-94; C. Morhain, De l'empire allemand (Paris, 1886), Chap. 9.]



CHAPTER XII (p. 245)

THE CONSTITUTION OF PRUSSIA-THE CROWN AND THE MINISTRY

I. THE GERMAN STATES AND THEIR GOVERNMENTS

*261. Variations of Type.*—Within the bounds of Germany to-day there are twenty-five states and one Imperial territory with certain attributes of statehood, Alsace-Lorraine. During the larger portion of the nineteenth century each of these states (and of the several which no longer exist) was possessed of substantial sovereignty, and each maintained its own arrangements, respecting governmental forms and procedure. Under the leadership of Prussia, as has been pointed out, the loose Confederation of 1815 was transformed, during the years 1866-1871, into an Imperial union, federal but yet vigorous and indestructible, and to the constituted authorities of this Empire was intrusted an enormous aggregate of governmental powers. The powers conferred were, however, not wholly abstracted from the original prerogatives of the individual states. In a very appreciable measure they were powers, rather, of a supplementary character, by virtue of which the newly created central government was enabled to do, on a broadly national scale, what, in the lack of any such central government, there would have been neither means of doing, nor occasion for doing, at all. Only at certain points, as, for example, in respect to the levying of customs duties and of taxes, was the original independence of the individual state seriously impaired by the terms of the new arrangement.

The consequence is that, speaking broadly, each of the German states maintains to this day a government which is essentially complete within itself. No one of these governments covers quite all of the ground which falls within the range of jurisdiction of a sovereign state; each is cut into at various points by the superior authority of the Empire; but each is sufficiently ample to be capable of continuing to run, were all of the other governments of Germany instantly to be blotted out.[357] Of the twenty-five state governments, three—those of the free cities of Bremen, Hamburg, and Luebeck—are aristocratic (p. 246) republics; all the others are monarchies. Among the monarchies there are four kingdoms: Prussia, Bavaria, Saxony, and Wuerttemberg; six grand-duchies: Baden, Hesse, Mecklenburg-Schwerin, Mecklenburg-Strelitz, Oldenburg, and Saxe-Weimar; five duchies: Anhalt, Brunswick, Saxe-Altenburg, Saxe-Coburg-Gotha, and Saxe-Meiningen; and seven principalities: Lippe, Schwarzburg-Rudolstadt, Schwarzburg-Sonderhausen, Schaumburg-Lippe, Reuss Aelterer Linie, Reuss Juengerer Linie, and Waldeck-Pyrmont.

[Footnote 357: The best survey in English of the governments of the German states is that in Lowell, Governments and Parties, I., Chap. 6. Fuller and more recent is G. Combes de Lestrade, Les monarchies de l'empire allemand (Paris, 1904). The most elaborate treatment of the subject is to be found in an excellent series of studies edited by H. von Marquardsen and M. von Seydel under the title Handbuch des Oeffentlichen Rechts der Gegenwart in Monographien (Freiburg and Tuebingen, 1883-1909). A new series of monographs, comprising substantially a revision of this collection, is at present in course of publication by J. C. B. Mohr at Tuebingen. The texts of the various constitutions are printed in F. Stoerk, Handbuch der deutschen Verfassungen (Leipzig, 1884).]

*262. The Preponderance of Prussia.*—From whatever angle one approaches German public affairs, the fact that stands out with greatest distinctness is the preponderant position occupied by the kingdom of Prussia. How it was that Prussia became the virtual creator of the Empire, and how it is that Prussia so dominates the Imperial government that that government and the Prussian are at times all but inextricable, has already been pointed out.[358] Wholly apart from the sheer physical fact that 134,616 square miles of Germany's 208,780, and 40,163,333 people of the Empire's 64,903,423, are Prussian, the very conditions under which the Imperial organization of the present day came into being predetermined that Prussia and things Prussian should enjoy unfailing pre-eminence in all that pertains to German government and politics. Both because they are extended immediately over a country almost two-thirds as large as France, and because of their peculiar relation to the political system of the Empire, the institutions of Prussia call for somewhat detailed consideration.

[Footnote 358: See pp. 200-201, 207.]

II. THE RISE OF CONSTITUTIONALISM IN PRUSSIA

*263. Regeneration in the Napoleonic Period.*—By reason of the vacillating policies of her sovereign, Frederick William III., the successive defeats of her armies at Jena, Auerstaedt, and elsewhere, and the loss, by the treaty of Tilsit in 1807, of half of her territory, Prussia realized from the first decade of the Napoleonic period little save humiliation and disaster. Through the years 1807-1815, however, her lot was wonderfully improved. Upon the failure of the Russian expedition of Napoleon in 1812, Frederick William (p. 247) shook off his apprehensions and allied himself openly with the sovereigns of Russia and Austria. The people rose en masse, and in the titanic struggle which ensued Prussia played a part scarcely second in importance to that of any other power. At the end she was rewarded, through the agency of the Congress of Vienna, by being assigned the northern portion of Saxony, Swedish Pomerania, her old possessions west of the Elbe, the duchies of Berg and Julich, and a number of other districts in Westphalia and on the Rhine. Her area in 1815 was 108,000 square miles, as compared with 122,000 at the beginning of 1806; but her loss of territory was more than compensated by the substitution that had been made of German lands for Slavic.[359] The homogeneity of her population was thereby increased, her essentially Germanic character emphasized, and her capacity for German leadership enhanced.

[Footnote 359: L. A. Himly, Histoire de la formation territoriale des etats de l'Europe centrale, 2 vols. (Paris, 1876), I., 93-110.]

It was not merely in respect to territory and population that the Prussia of 1815 was different from the Prussia of a decade earlier. Consequent upon the humiliating disasters of 1806 there set in a moral regeneration by which there was wrought one of the speediest and one of the most thoroughgoing national transformations recorded in history. In 1807 Frederick William's statesmanlike minister Stein accomplished the abolition of serfdom and of all legal distinctions which separated the various classes of society.[360] In 1808 he reformed the municipalities and gave them important powers of self-government. By a series of sweeping measures he reconstructed the ministerial departments, the governments of the provinces, and the local administrative machinery, with the result of creating an executive system which has required but little modification to the present day. In numerous directions, especially in relation to economic conditions, the work of Stein was continued by that of the succeeding minister, Prince Hardenberg. By Scharnhorst and Gneisenau the military regime was overhauled and a body of spiritless soldiery kept in order by fear was converted into "a union of all the moral and physical energies of the nation." By Wilhelm von Humboldt the modern Prussian school system was created; while by Fichte, Arndt, and a galaxy of other writers there was imparted a stimulus by which the patriotism and aspiration of the Prussian people were raised to (p. 248) an unprecedented pitch.[361]

[Footnote 360: It is to be observed that while Stein was officially the author of this reform, the substance of the changes introduced had been agreed upon by the king and his advisers before Stein's accession to office (October 4, 1807). The Edict of Emancipation was promulgated October 9, 1807. It made the abolition of serfdom final and absolute on and after October 8, 1810.]

[Footnote 361: E. Meier, Reform der Verwaltungsorganisation unter Stein und Hardenberg (Leipzig, 1881); J. R. Seeley, Life and Times of Stein, 3 vols. (Boston, 1879), Pt. III., Chaps. 3-4, Pt. V., Chaps. 1-3.]

*264. Obstacles to the Establishment of a Constitution.*—Such an epoch of regeneration could not fail to be a favorable period for the growth of liberal principles of government. In June, 1814, and again in May, 1815, King Frederick William promised, through the medium of a cabinet order, to give consideration to the question of the establishment of a constitution in which provision should be made not merely for the estates of the provinces but also for a national diet. After the Congress of Vienna the task of framing such a constitution was actually taken in hand. But the time was not ripe. Liberalism had gained headway as yet among only the professional classes, while the highly influential body of ultra-conservative landholders were unalterably opposed. Between the eastern provinces, still essentially feudal in spirit, and the western ones, visibly affected by French revolutionary ideas, there was, furthermore, meager community of interest. So keen was the particularistic spirit that not infrequently the various provinces of the kingdom were referred to in contemporary documents as "nations." Among these provinces some retained the system of estates which had prevailed throughout Germany since the Middle Ages, but in some of those which had fallen under the control of Napoleon the estates had been abolished, and in others they were in abeyance. In a few they had never existed. Votes were taken in the assemblages of the estates by orders, not by individuals, and the function of the bodies rarely extended beyond the approving of projects of taxation. Within the provinces there existed no sub-structure of popular institutions capable of being made the basis of a national parliamentary system.

Notwithstanding these deterring circumstances, it is not improbable that some sort of constitution might have been established but for the excesses of the more zealous Liberals, culminating in the murder of the dramatist Kotzebue in 1819, whereby the king was thrown into an attitude, first of apprehension, and finally of uncompromising reaction. By assuming joint responsibility for the Carlsbad Decrees of October 17, 1819, he surrendered completely to the regime of "stability" which all the while had been urged upon him by Metternich. June 11, 1821, he summoned a commission to organize a system of provincial estates;[362] but at the same time the project of a national constitution and a national diet was definitely abandoned. Under (p. 249) repression Prussian liberalism languished, and throughout the remainder of the reign, i.e., to 1840, the issue of constitutionalism was not frequently raised. In Prussia, as in Austria, the widespread revolutionary demonstrations of 1830 elicited little response.

[Footnote 362: The system was created by royal patent June 5, 1823.]

*265. The Diet of 1847.*—Upon the accession of Frederick William IV., son of Frederick William III., in 1840, the hopes of the Liberals were revived. The new sovereign was believed to be a man of advanced ideas. To a degree he was such, as was manifested by his speedy reversal of his father's narrow ecclesiastical policy, and by other enlightened acts. But time demonstrated that his liberalism was not without certain very definite limits. February 13, 1847, he went so far as to summon a Vereinigter Landtag, or "united diet," of Prussia, comprising all members of the existing eight provincial assemblies, and organized in two chambers—a house of lords and a house containing the three estates of the knights, burghers, and peasants. But the issue was unhappy. As Metternich had predicted, the meeting of the Diet but afforded opportunity for a forceful reassertion of constitutional aspirations, and the assemblage refused to sanction loans upon which the sovereign was bent until its representative character should have been more completely recognized. The king, on his part, declared he would never allow "to come between Almighty God in heaven and this land a blotted parchment, to rule us with paragraphs, and to replace the ancient, sacred bond of loyalty." The deadlock was absolute, and, June 26, the Diet was dissolved.

*266. The Revolution of 1848.*—The dawn of constitutionalism was, however, near. The fundamental law under which Prussia still is governed was a product—one of the few which endured—of the widespread revolutionary movement of 1848. Upon the arrival in Berlin of the news of the overthrow of Louis Philippe (February 24) at Paris and of the fall of Metternich (May 13) at Vienna, the Prussian Liberals renewed with vigor their clamor for the establishment in Prussia of a government of a constitutional type. The demand was closely related to, yet was essentially distinct from, the contemporary project for the inauguration of a new constitutional German Empire. As was proved by the vagaries of the Frankfort Parliament (May, 1848, to June, 1849), conditions were not yet ripe for the creation of a closely-knit empire;[363] and one of the reasons why this was true was that a necessary step toward that culmination was only now about to be taken, i.e., the introduction of constitutional government in the important kingdom of Prussia. Apprehensive lest (p. 250) the scenes of violence reported from Paris should be re-enacted in his own capital, Frederick William acquiesced in the demands of his subjects in so far as to issue letters patent, May 13, 1848, convoking a national assembly[364] for the consideration of a proposed constitution. Every male citizen over twenty-five years of age was given the right to participate in the choice of electors, by whom in turn were chosen the members of this assembly. May 22, 1848, the assembly met in Berlin and entered upon consideration of the sketch of a fundamental law which the king laid before it. The meeting was attended by disorders in the city, and the more radical deputies further inflamed public feeling by persisting in the discussion of the abolition of the nobility, and of a variety of other more or less impracticable and revolutionary projects. The king took offense because the assembly presumed to exercise constituent functions independently and, after compelling a removal of the sittings to the neighboring city of Brandenburg, he in disgust dissolved the body, December 5, and promulgated of his own right the constitutional charter which he had drawn.

[Footnote 363: See p. 198.]

[Footnote 364: Known technically as Versammlung zur Vereinbarung der preussischen Verfassung.]

*267. Formation of the Constitution.*—At an earlier date it had been promised that the constitution to be established should be "agreed upon with an assembly of the nation's representatives freely chosen and invested with full powers;" but it had been suggested to the king that the way out of the existing difficulty lay in issuing a constitutional instrument independently and subsequently allowing the Landtag first elected under it to submit it to a legislative revision, and this was the course of procedure which was adopted.[365] Elections were held and, February 26, 1849, the chambers were assembled. Having recognized formally the instrument of December 5, 1848, as the law of the land, the two bodies addressed themselves forthwith to the task of revising it. The result was disagreement and, in the end, the dissolution of the lower house. The constitution of 1848 had been accompanied by an electoral law establishing voting by secret ballot and conferring upon all male citizens equal suffrage. Upon the dissolution of 1849 there was promulgated by the king a thoroughgoing modification of this democratic measure, whereby voting by ballot was abolished and parliamentary electors were divided into three classes whose voting power was determined by property qualifications or by (p. 251) official and professional status. In other words, there was introduced that peculiar three-class system which was already not unknown in the Prussian municipalities, and which, in both national and city elections, persists throughout the kingdom to the present day. In the elections which were held in the summer of 1849 in accordance with this system the democrats refused to participate. The upshot was that the new chambers, convened August 7, 1849, proved tractable enough, and by them the text of the constitution, after being discussed and revised article by article, was at last accorded formal approval. On the last day of January, 1850, the instrument was duly promulgated at Charlottenburg.[366] By Austria, Russia, and other reactionary powers persistent effort was made during the ensuing decade to influence the king to rescind the concession which he had made. He refused, however, to do so, and, with certain modifications, the constitution of 1850 remains the fundamental law of the Prussian kingdom to-day.[367]

[Footnote 365: The confusion of constitutional and ordinary statutory law inherent in this arrangement has influenced profoundly the thought of German jurists.]

[Footnote 366: On the establishment of constitutionalism in Prussia see (in addition to works mentioned on p. 201) P. Matter, La Prusse et la revolution de 1848, in Revue Historique, Sept.-Oct., 1902; P. Devinat, Le mouvement constitutionnel en Prusse de 1840 a 1847, ibid., Sept.-Oct. and Nov.-Dec., 1911; Klaczko, L'agitation allemande et la Prusse, in Revue des Deux Mondes, Dec., 1862, and Jan., 1863; C. Bornhak, Preussische Staats-und Rechtsgeschichte (Berlin, 1903); H. von Petersdorff, Koenig Friedrich Wilhelm IV. (Stuttgart, 1900); and H. G. Prutz, Preussische Geschichte, 4 vols. to 1888 (Stuttgart, 1900-1902). For full bibliography see Cambridge Modern History, XI., 893-898.]

[Footnote 367: As is true in governmental systems generally, by no means all of the essential features of the working constitution are to be found in the formal documents, much less in the written constitution alone. In Prussia ordinances, legislative acts, and administrative procedure, dating from both before and after 1850, have to be taken into account continually if one would understand the constitutional order in its entirety.]

*268. Nature of the Constitution.*—The constitution of Prussia is modelled upon that of Belgium. Provisions relating to the powers of the crown, the competence of the chambers, and the functions of the ministers are reproduced almost literally from the older instrument. None the less, the two rest upon widely differing bases. The Belgian fundamental law begins with the assertion that "all powers emanate from the nation." That of Prussia voices no such sentiment, and the governmental system for which it provides has as its cornerstone the thoroughgoing supremacy of the crown.[368] The Liberals of the mid-century period were by no means satisfied with it; and, sixty years after, it stands out among the great constitutional documents of the European world so conspicuous by reason of its disregard of fundamental democratic principle as to justify completely the (p. 252) charges of anachronism which reformers in Prussia and elsewhere are in these days bringing against it. It provides for the responsibility of ministers, without stipulating a means whereby that responsibility may be enforced. There is maintained under it one of the most antiquated and undemocratic electoral systems in Europe. And, as is pointed out by Lowell, even where, on paper, it appears to be liberal, it is sometimes much less so than its text would lead one to suppose. It contains, for example, a bill of rights, which alone comprises no fewer than forty of the one hundred eleven permanent articles of the instrument.[369] In it are guaranteed the personal liberty of the subject, the security of property, the inviolability of personal correspondence, immunity from domiciliary visitation, freedom of the press, toleration of religious sects, liberty of migration, and the right of association and public meeting. But there is an almost total lack of machinery by which effect can be given to some of the most important provisions relating to these subjects. Some guarantees of what would seem the most fundamental rights, as those of public assemblage and of liberty of teaching, are reduced in practice to empty phrases.[370]