to the position of an upper House and can no longer be called the representative of the sovereign, we have to give a different interpretation to the resolutions of the Federal Council. The way of Imperial legislation is now this: the Imperial Chancellor has the bills prepared through his subordinates, the emperor approves that they be submitted to the Federal Council, the Federal Council resolves on them, the Imperial Diet resolves on them, the Federal Council resolves on them a second time, the emperor signs them. What do the two resolutions of the Federal Council now mean? In case the Imperial Diet amends a bill, then the second resolution of the Federal Council becomes, of course, necessary, as in this country a bill first passed by the Senate and then amended by the House, has to be resolved upon a second time by the Senate. But if the Imperial Diet accepts a government bill without a change, what is then the meaning of the second resolution of the Federal Council? As a matter of fact, all bills, even such as were not amended by the Imperial Diet, are resolved upon a second time by the Federal Council, as far as an outsider can judge. What is now the meaning of this second resolution, and what of the first resolution? We can no longer call the second resolution the sanction of the bill by the sovereign; for the Federal Council is not the representative of the sovereign. And it is for the same reason that we cannot call the first resolution the approval of the sovereign to submit a bill to the diet. In point of fact it is the emperor who submits the bills to both assemblies, to the Federal Council and to the Imperial Diet as to the upper and the lower House. And consequently there is no reason why a bill should be resolved upon twice by the upper House and only once by the lower House, why a bill if passed by the Federal Council and the Imperial Diet without a change should be resolved upon a second time by the Federal Council. This second resolution of the Federal Council accordingly proves to be superfluous in case a bill has been accepted by the Imperial Diet without amendment. It is, nevertheless, kept up in order to comply with the provision of Article 7, Paragraph 1, No. 1 of the Constitution which requires two resolutions of the Federal

Council. The first resolution, therefore, is now the one which is legally binding in that case.

We may also describe the difference between the written Constitution and the actual Constitution with regard to legislation in this way: the framers of the Constitution meant that the Federal Council should make laws with the consent of the Imperial Diet; but to-day it is the emperor who makes the laws with the consent of the Federal Council and the Imperial Diet. That means that the German Emperor holds to-day exactly the same position in the empire which the king of Prussia holds in Prussia,-that of a sovereign in the German sense of the word. If this is true, then we must say that the German Emperor has developed from a mere executive organ to the sovereign of the empire, and by becoming sovereign, he has made the German princes his subjects. But it seems only natural to me that the emperor has assumed the position of sovereign in the empire, when one considers that the German Emperor and the king of Prussia are one and the same man. How could it be that a man who controls the Prussian policy as sovereign of Prussia should be satisfied for any length of time to be in the empire but the obedient organ of the Federal Council and the Imperial Diet? As I say, it seems only natural to me that the two positions became assimilated to each other, and even that the newer one, that of German Emperor, assimilated itself to the older and more powerful one, that of king of Prussia. Although this process of assimilation is still going on in Germany, I yet go so far as to say that the German Emperor has already become sovereign of Germany. He is not only the monarch of Germany, not only its chief organ, as the king of the Belgians is the monarch of Belgium; but he is already the sovereign of the empire in the German sense of the word, in that he has the presumption in his favor of possessing all political rights which are not expressly conferred on any other organ. When I say this I mean that the people in Germany would find it natural for the emperor to do anything which is not an infringement upon the domain of any other organ. Whether or not the emperor is already the German sovereign in that sense, may possibly be tested any day. A decision may come about in the following way.

Let us suppose that the Imperial Chancellor submits a bill in the name of the emperor, first to the Federal Council, and then to the Imperial Diet, and both assemblies accept it without a change; but the emperor refuses to sign it. Has the emperor a right to do so? Has he the choice between signing and not signing the bill? Has he a veto right? No! according to the Constitution he has no such right. Article 5, Paragraph 1 of the Constitution excludes a veto of the emperor when it declares that the Imperial legislation will be exercised through the Federal Council and the Imperial Diet, and that the concurrence of the majority resolutions of both assemblies is necessary and sufficient for an Imperial law; for that implies that nobody else, no third factor, shall have any share in Imperial legislation. And Paragraph 2 of that Article is no exception to that rule; for it does not speak of the emperor, but of the king of Prussia; it gives a privilege to Prussia within the Federal Council. It is true Article 17 is so vague' that from it alone one cannot decide whether it means that the emperor shall have a veto right, or that it shall be his duty to sign all laws passed by the Federal Council and the Imperial Diet. But read in connection with Article 5, Article 17 cannot mean to make the emperor a third factor in Imperial legislation and to give him a veto right, but it must mean that it is the duty of the emperor to expedite and promulgate the Imperial laws. In harmony with this interpretation, Prince Bismarck once declared in the Imperial Diet in so many words: "The emperor has no veto constitutionally "."

But nevertheless I consider it very possible that the emperor may refuse to sign a bill which he had approved himself before the Chancellor introduced it into the two legislative assemblies. I consider it possible that the emperor does not sign such a bill, and that the majority of the people will not object. For illustration I will take the same example I used above, when I spoke of the constitutional right of the Federal

1 Constitution, Article 17: It belongs to the emperor to expedite and promulgate the Imperial laws.

2 Stenographical Reports, Vol. I, p. 30.

Council to veto its own bills. I will assume that the Imperial Chancellor with the approval of the emperor introduces two bills into the Federal Council and the Imperial Diet, and of these two bills one is accepted without a change by both assemblies, the other, however, is accepted by the Federal Council and rejected by the Imperial Diet. But the emperor holds that they should be either accepted together or rejected together, and consequently, when the bill which was accepted by both assemblies comes before him for his signature, he refuses to sign it. The people would not object, I am convinced, but would find it only natural, since in their eyes he is the sovereign of the empire. But this would practically mean that the emperor now posesses a veto right, and that the signature of an Imperial bill by the emperor to-day means the sanction of it by the sovereign. When I endeavored above to interpret the written Constitution, I came to the conclusion that the Federal Council was meant to be the representative of the sovereign, and that the second resolution of the Federal Council amounted to the sanction of the sovereign; but now, when I look at the actual Constitution of to-day, I am compelled to say that the emperor has become the sovereign of the empire, and that the final signature by the emperor is the sanction of the sovereign,—while the second resolution of the Federal Council has become superfluous in case the Imperial Diet accepts a bill without a change.

What a tremendous difference in the position of the emperor! And all this difference has been brought about, not by an amendment of the Constitution, but by custom; not at once, but gradually; not intentionally, but incidentally; and that through the growth of an Imperial ministry, through the development of the initiative of the emperor, through the assimilation of the position of German Emperor to that of king of Prussia, and-last, not least,-through the influence of the monarchical title Emperor on the imagination of the people, and through the monarchical traditions of Germany.

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When we turn back now to the starting point of our discussion on the German Constitution, we shall remember the clashing contrast between the view of the German publicists and the popular view as I called it. We started out with the intention of finding out whether the view of the publicists is right or the popular view, and our conclusion must be both are right, but both relate to different things. When the publicists say that the Federal Council is the representative of the sovereign of the empire, the Imperial Diet is the one House of the empire, and the emperor is but an executive organ of the empire,—they give the correct interpretation of the written Constitution from the standpoint of the framers of it; but when the people hold that the emperor is the monarch and sovereign of the empire, the Federal Council is the upper House and the Imperial Diet the lower House of the empire,-they interpret correctly the unwritten Constitution of to-day as it actually is.

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