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meaning? Of that Prof. Georg Meyer gives us an explanation which is convincing to me.'
In a word, Prof. Georg Meyer draws an analogy between the German Empire and the German states which are constitutional monarchies. This analogy is a very close one, indeed; and I hope I shall be able to bring it out still clearer than Prof. Meyer does himself. The analogy from the German constitutional monarchies is this. It is a fact that in each of them every government bill before it becomes a law is approved of twice by the prince; for the first time before it is submitted to the diet of the state, and a second time after it has been accepted by the diet.
The meaning of the first approval by the prince is the authorization of the sovereign to his ministers to submit the bill to the diet; and the meaning of the second approval only is the exercise of the legislative power by the sovereign, is the sanction of the bill by the sovereign. Now of the two resolutions of the Federal Council in the German Empire the second one, as we have seen, means the exercise of its legislative power by the Federal Council; and the first one is the authorization of the Federal Council to the emperor to submit the bill to the Imperial Diet. In harmony with this interpretation Article 16 declares: "The necessary bills will be submitted to the Imperial Diet in accordance with the resolutions of the Federal Council in the name of the emperor".
This analogy shows that the Federal Council stands in exactly the same relation to the Imperial Diet in this respect as stands the prince and sovereign of a German monarchy to the diet of his state. Again the Federal Council proves to represent the sovereign of the empire in this respect as above with regard to the initiative, and the Imperial Diet to be the representative assembly of the empire.
But if this be the true interpretation of the relation between the Federal Council and the Imperial Diet, then Article 5, that fundamental Article on Imperial legislation, appears in a different light from what it does to the superficial reader. This Article reads in its first paragraph as follows:
1 Dr. Georg Meyer, Ibid., p. 54-56.
"The Imperial legislation will be exercised through the Federal Council and the Imperial Diet. The concurrence of the majority resolutions of both assemblies is required and sufficient for an Imperial law". At first glance it seems to say that the Federal Council is the upper and the Imperial Diet the lower House of the German Empire. But when we supplement our interpretation of Article 5 by our knowledge gained from a study of Article 7, No. 1, then we must say that the concurrence required by Article 5 is a concurrence between the sovereign and his diet, or rather between the representative of the Imperial sovereign and the representation of the German people. That this is the correct interpretation of Article 5 can be seen best when we compare the Article in question of the Imperial Constitution with Article 62 of the Prussian Constitution, which reads: "The legislative power will be exercised in common through the king and through two chambers. The concurrence of the king and of both chambers is required for every law".
Now it is a fact that Article 5 of the Imperial Constitution was made after Article 62 of the Prussian Constitution,' and, knowing this, we have a right to assume that the framers of the Imperial Constitution intended to put the Federal Council into the same place with regard to Imperial legislation which the Prussian king has in Prussian legislation, and to put the Imperial Diet into the place of the two chambers of the Prussian Diet. The relation, however, of the king to the two chambers of the diet in Prussia is that of the sovereign to the representation of the people according to Prussian constitutional law. Consequently the analogy between Article 5 of the Imperial Constitution and Article 62 of the Prussian Constitution shows that the framers of the Imperial Constitution intended to make the Federal Council the representative of the Imperial sovereign and the Imperial Diet the representative assembly of the German people. And, by the way, this means that the German Empire has only one legislative House: the Imperial Diet; and that makes Germany the only great power on earth which has but one legislative House.
1 Dr. Georg Meyer, Ibid., p. 47.
To 3: Let us go back once more to Article 7, No. 1, and briefly discuss the third peculiarity of the German Constitution which is implied in the provision of that Number 1. I expressed that peculiarity in this way. I said that the Federal Council has the possibility of vetoing a bill which was initiated by it and accepted by the Imperial Diet without a change, since the Federal Council resolves upon all resolutions of the Imperial Diet. This might seem a strange privilege of the Federal Council at first glance. But the prince of every German constitutional monarchy has the same privilege. He is not bound to sanction a bill which was submitted to the diet of his state at his initiative and accepted by the diet without a change. This peculiarity of the Federal Council only discloses again that the Federal Council represents the Imperial sovereign towards the Imperial Diet.
And one can imagine cases where the prince or the Federal Council should have the right to veto their own bills. Let us take for instance a case like this. The Federal Council initiates two bills at the same time which it thinks ought to be accepted together, or rejected together by the Imperial Diet. Now if the Imperial Diet accepts only one of the two bills, and rejects the other, then considerations of expediency urge that the Federal Council should have the right to veto the bill that was accepted by the Imperial Diet.
This study of Article 7 together with the historical facts mentioned above shows clearly, I think, that the orthodox view of the Constitution is a correct interpretation of it.
THE ACTUAL CONSTITUTION.
If we turn from the document of the Constitution to the contemporaneous constitutional history of Germany, we shall see a very different picture. We hear a great deal about the emperor and the Imperial Chancellor, less about the Imperial Diet, and very little about the Federal Council. And yet according to the orthodox theory the Federal Council
represents the Imperial sovereign, and the emperor is but an executive organ of the empire!' Has the German Constitution changed? Is there a difference between the written Constitution and the actual Constitution of to-day? Yes, there is one great difference between the two: the written Constitution knows only two legislative factors, the Federal Council and the Imperial Diet, according to Article 5, Paragraph 1; but the unwritten Constitution of to-day knows three legislative factors, the emperor, the Federal Council, and the Imperial Diet. According to the written Constitution it was expected that, as a rule, all Imperial bills would be initiated by the Federal Council, as we saw above; but, as a matter of fact, almost all Imperial bills are initiated today by the Imperial Chancellor in his quality as the great Imperial minister of the emperor. If anybody asks me how I can prove that almost all Imperial bills are initiated by the Imperial Chancellor, I can ask him only to read German newspapers. There he will find notices stating that a bill concerning such and such a topic is being prepared by the Imperial government. And that means the Imperial bills do not spring forth from the initiative of the Federal Council, nor from that of the Imperial Diet, but from the initiative of the Imperial government. By imperial government one usually understands in Germany of to-day the Imperial Chancellor together with the Imperial Secretaries of State.
However, such a thing as an initiative of the Imperial government is unknown to the written Constitution; nor has it been established through an amendment of the Constitution. The question, therefore, arises how can the Imperial government exercise that initiative? The answer to this question is, the Imperial government does not exercise the initiative directly; it does not submit its bills to the Federal Council and the Imperial Diet directly, as the English government, for instance, submits its bills to the House of Lords and the House of Commons. But it reaches the same result in
1 Constitution, Article 17: It belongs to the emperor to expedite and promulgate the Imperial laws, and to supervise the execution of them.
2 Article 5, Paragraph 1: The Imperial legislation will be exercised through the Federal Council and the Imperial Diet.
an indirect way. The members of the Imperial government, the Chancellor and the Secretaries of State, are members of the Federal Council; they are Prussian members of the Federal Council. A glance at the "Almanac de Gotha ” will verify this fact. Now in the Federal Council they propose their bills in their quality as Prussian members of that body. They could not do otherwise; for since all bills must be proposed in the Federal Council by one or another of the member states,' the Chancellor and the Secretaries of State, being Prussian members, can legally propose their bills only in the name of Prussia. When a bill proposed by them has been accepted by the Federal Council, then it is submitted to the Imperial Diet through the Chancellor in the name of the emperor. Article 16 prescribes: "The necessary bills will be submitted to the Imperial Diet in the name of the emperor according to the resolutions of the Federal Council". They are submitted to the Imperial Diet in the name of the emperor, it is true, but only according to the resolutions of the Federal Council. This means that the emperor has to submit the Imperial bills as they come forth from the Federal Council. The emperor cannot change their text, nor omit to submit them, nor submit a bill which has not been accepted by the Federal Council. Says Prof. Laband: "He has neither the right to omit wholly or defer unnecessarily their submission; nor has he the right to submit a bill in a form different from that in which the Federal Council resolved it; nor can the emperor submit to the Imperial Diet bills which the Federal Council has rejected, or which have not been resolved upon at all in the Federal Council". This shows that the bills submitted to the Imperial Diet, although submitted in the name of the emperor, must be looked upon in law as bills of the Federal Council; the emperor is only the means for their passage from the Federal Council to the Imperial Diet; and the Imperial Chancellor actually submits them as the first servant of the emperor. Prof. Seydel and Prof. Laband interpret Article 16 in the
1 Constitution, Article 7, Paragraph 2.
Prof. Laband, Ibid., p. 74.