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I.

THE STATEMENT OF THE TWO VIEWS.

I

SHALL never forget how surprised I was when I was

told, some eight years ago, in a lecture on German constitutional law at the Berlin University that the German Empire is not a monarchy. I was a German, more than twenty years old, had gone through a German“Gymnasium", and had been studying law in the Berlin University for two years, yet I had never heard before that Germany was not a monarchy! I was convinced that Germany was a monarchy, and I may add that I never met anybody in Germany who did not believe that Germany was a monarchy,-except men who had studied German constitutional law at a university. This state of things discloses the fact that there is a clashing contrast between what the German people believe that the German Empire is and what the professors of constitutional law at the German universities teach that the empire is. But how can we describe this contrast? I will try to do it as well as I can.

I could state the contrast in this way. I could say: the people believe that Germany is a monarchy, and the publicists teach that it is not a monarchy. But such a statement would not satisfy anybody; we must know what the publicists positively say that the empire is. The quintessence of their teaching is: the German Empire is a federal state, and not a monarchy. As proof of my assertion I will quote a passage from Prof. Laband, who says: “The preamble of the Imperial laws

is put quite as if the Federal Council (Bundesrat) were a division of the representation of the people, and the empire not a federal state, but a monarchy with two chambers ”. This

This expression of Prof. Laband implies that he calls the German Empire a federal state, and not a monarchy. That the German Empire is a federal state, that is to say composed of a number of member

Laband in Marquardsen's Handbuch des Öffentlichen Rechts der Gegenwart, Vol. II, Book 1, p. 76.

states, nobody would deny. But is it correct to contrast the two conceptions in question, that of a federal state and that of a monarchy? Making this contrast is adverse to all use of language. In common use the opposite of a monarchy is a republic, and the opposite of a federal state a unitary state. Now Prof. Laband does not mean that the German Empire is a republic when he says that it is not a monarchy. But what else does he mean? He means that the German Emperor is not the monarch of Germany, is not the sovereign of the empire, but that the totality of the German reigning princes together with the senates of the three free cities conceived as a unit is the sovereign of the empire. I think that we express Prof. Laband's view correctly by saying that he holds that this ideal unit of the reigning princes and the three senates is the sovereign of the empire, and that the emperor is not the sovereign.'

As to the negative side of the question of the sovereignty of the empire, all German publicists agree that the emperor is not the sovereign. They differ, however, with regard to the positive side of the question. Almost all of them declare that the allied governments together are the Imperial sovereign.

Laband says that the states, the member states of the empire, together possess the Imperial sovereignty, or the allied princes and senates together in so far as they represent their respective states. A passage in which Prof. Laband expresses this view is for instance the following one:

“ The German Empire is formed of member states,

* * * of twenty-five members.

These twenty-five members in their totality are the possessors of the sovereignty of the

With the exception of the three free cities all German states are monarchies; the reigning princes, therefore, are the only legitimate possessors of the state sovereignty, and as such they also exercise in the German Empire the rights of the membership, the share of their states

*

* *

empire. *

1 Ibid., p. 42.

2 Ibid., p. 37

The emperor is not the sovereign of the empire.”

* *

in the Imperial sovereignty”.' Prof. Laband, therefore, holds that it does not make any difference practically whether one says that the member states or the sovereigns of these states possess the Imperial sovereignty. Besides this view of Laband and the general view that the allied governments together are the sovereign of the empire, there is a third view, represented by Prof. Georg Meyer, of Heidelberg, who holds that the allied princes and senates possess the Imperial sovereignty, but that one may say as well the allied governments possess it. He declares: “ Possessors of the Imperial sovereignty are * the allied princes and senates, or, as it is usually expressed, the allied governments”. The reasons why the two terms may be used as identical are these in my opinion: first, allied governments is a wide conception, wide enough to include the princes as well as the senates; and secondly, the term government is a fitting one as well for those German monarchies where the monarch is absolute (the Mecklenburgs), as for those where he is restricted by the ministry.

One would expect the best means for settling the claims of these three different views would be to see what the German Constitution says on the matter. But unfortunately the Constitution seems to give justifications for all three views. A careful reading of Article 6 will show that that Article understands by “members of the union” the member states, Prussia, Bavaria, Saxony, Württemberg, Baden, etc. For this Article reads : “ The Federal Council consists of the representatives of the members of the union among which the votes are distributed in such a manner that Prussia casts 17 votes, Bavaria 6, Saxony 4, etc.". That is to say the Article speaks first of the members of the union and enumerates then how many votes the states of Prussia, Bavaria, Saxony, etc., have to cast individually. This can be interpreted only in the way Laband does, that the twenty-five states enumerated in the Article are the members of the union.

1 Ibid., p. 20.

· Dr. Georg Meyer : Der Anteil der Reichsorgane an der Reichs-Gesetzgebung, p. 41. Jena : 1889.

But, while according to this Article the members of the Federal Council are representatives of the members states, Article 9 calls it their function to represent the views of their respective governments. Article 9 begins: “Every member of the Federal Council has the right to appear in the Imperial Diet (Reichstag), and has to be heard there on his demand at any time to represent the views of his government”. And again in contrast with Article 9, the preamble to the Constitution of the North German Federation, which latter was the predecessor of the present German Empire, enumerates the nineteen North German princes and the senates of the three free cities, and declares that they make an eternal union. This preamble sounds as if the princes and the senates were the parties to the transaction, and are now the members of the union.

The question arises now, How can we unite these seemingly contradictory passages where in one of them the member states, in another the governments of the states, and in a third the sovereigns of the states seem to be considered the members of the empire? My standpoint is this. It is impossible to deny that Article 6 calls the member states the members of the empire. But Prof. Laband is right in saying that the princes are the legitimate representatives of their respective states, and that they therefore together with the three senates may be considered the members of the empire ; and it is in this sense that the preamble to the Constitution of the North German Federation treats the princes and senates as the members of the empire. And finally it means the same thing whether one says either that the allied princes and senates, or that the allied governments are the members of the empire, and that for the reason that the term allied governments is so wide that it is applicable to the executives of all the German member states, of the twenty-two monarchies among them as well as of the three republics, and of the absolute monarchies as well as of the constitutional ones. This part of my explanation would reconcile the preamble to Article 9.

However, it cannot be denied that there is no unity of language in the Constitution with regard to the question who are the members of the empire. Since this is so, it becomes very important to know the official interpretation of the question.

As to that I can say this much. Whenever the Imperial Chancellor has to defend the Imperial policy in the Imperial Diet, he does so “in the name of the allied governments”, as can be seen from newspaper reports. In contrast with that the present emperor not long ago in a public speech used a phrase which evidently referred to the princes as the members of the empire ; for he spoke, if my memory does not deceive me, of his "high allies”. Now the underlying idea of this expression can, in my opinion, only be that he as king of Prussia and the other German reigning princes together are the members of the empire. And again in contrast with this, bills are proposed in the Federal Council in the name of the different states, of Prussia, Bavaria, etc., as far as I know. I say as far as I know, because the meetings of the Federal Council are secret.

Thus we see that the official interpretation of the Articles in question is as indefinite as is the text of the Articles themselves. But it does not make any difference for my purpose whether we call the states, or the governments, or the princes and senates, the members of the empire and the joint possessors of the Imperial sovereignty. For, however this question may be decided, this much is certain, the Federal Council is the visible representative of the Imperial sovereign; and the position of the Federal Council is the point in which I am chiefly interested here. Whoever may be the “members of the union", Article 6 declares “the Federal Council consists of the representatives of the members of the union”; that is, the Federal Council is an assembly consisting of the representatives of the members of the empire, or the possessors of the Imperial sovereignty. It is only a just interpretation of the Constitution when the German publicists say that the Federal Council is the representative of the Imperial sovereign. And that is what all

of them say.

To sum up, the publicists agree among themselves that the Federal Council represents the sovereign of the empire, and

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