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that consequently the emperor cannot be the sovereign. And this view of the publicists is backed by the official interpretation of the Constitution. So, for instance, by the following utterance which Prince Bismarck once made in the Imperial Diet in his quality as Imperial Chancellor : "The sovereignty is not vested in the emperor, but is vested in the totality of the allied governments".' And it was in a speech which the Secretary of State of the Imperial treasury office delivered before the Imperial Diet in 1883 that he called the final adoption by the Federal Council of an Imperial bill, passed by the Imperial Diet-the sanction of the bill," which expression implies that the Federal Council represents the sovereign of the empire; for, according to all use of language, the word sanction is used only with reference to the sovereign of a state.
It is in contrast with this official interpretation and with the view of the publicists that the people of Germany call the emperor the monarch and the sovereign of the empire. That this is the case everybody can see for himself who takes the trouble of reading a German newspaper. The emperor is always spoken of as the monarch, or the sovereign. When one reads a German newspaper, and especially when one reads a Prussian one, for instance a Berlin paper, and finds. the emperor mentioned, one has to be careful to distinguish whether the German Emperor is really meant or whether the king of Prussia. For the same man is king of Prussia and German Emperor at the same time, according to Article II, which reads: "The presidency of the union belongs to the king of Prussia, who bears the name German Emperor' ". The king of Prussia is the monarch and sovereign of Prussia according to Prussian constitutional law; but a careful reader of German newspapers will find that the emperor as emperor is very frequently called a monarch, or a sovereign. The idea that the Federal Council represents the Imperial sovereign is unknown to the German people at large.
1 Stenographical Reports, Vol. I, p. 299.
2 Stenographical Reports, Vol. IV, p. 2996.j
But what do the people in Germany say that the Federal Council is, if not the representative of the Imperial sovereign? The truth is people in Germany think and talk a great deal about the emperor and the Imperial Diet, but very little about the Federal Council. As far as I can judge they have not any definite idea about the constitutional position of the Federal Council. But if they were pressed to formulate one, educated people would probably liken it to the American Senate, or the English House of Lords, in short to an upper House.
I, therefore, may state the difference between the orthodox view and the popular view in this way: The orthodox view is that the Federal Council represents the sovereign of the empire, and that the emperor is not a sovereign; and the popular view is that the emperor is a monarch and the sovereign of Germany, and the Federal Council, if anything, is the upper House of the German Empire. Now, if this is a correct statement of that contrast between the orthodox and the popular view on the Constitution, then the next thing for us to do will be to investigate which of the two views is justified by facts.
CRITICISM OF THE ORTHODOX VIEW.
The orthodox view is a correct interpretation of the Constitution. The framers of the Constitution did not intend to make the king of Prussia the monarch and sovereign of Germany. It is well known that they chose for him the title "German Emperor" instead of the title "Emperor of Germany", because, in their opinion, the latter title would have sounded as if the emperor were the monarch and sovereign of the empire. And when the Constitution of the North German Federation was being discussed in the constitutive Imperial Diet, Prince Bismack, or rather Count Bismarck, as his name then was, declared repeatedly and with great determination that the sovereignty belonged to the totality of the allied governments, and, besides, that "in the Federal
Council the feeling of unviolated sovereignty of each German government finds its recognition". The underlying idea of this phrase is that in compensation for what he sacrificed of his sovereignty in his respective state through the formation of the federation, every German monarch shall receive a corresponding share in the Federal sovereignty over the whole territory of the Federation. And Prince Bismarck spoke those words as president of the Federal commissioners, that is of the agents from the several German state governments who agreed upon the draught of the Constitution. Therefore we have to consider his words as of the greatest weight for an interpretation of the Constitution. One wished to give the governments the feeling that they together were the empire, that the two conceptions, the empire and the allied governments, were identical.' The phrase of Bismarck's quoted above indicates besides that the Federal Council was meant to be the representative of the Imperial sovereign.
These are historical facts which justify the orthodox view on the Constitution. But, besides them, the Constitution itself contains ample proof that it was the intention of the framers of the Constitution to make the Federal Council the representative of the Imperial sovereign. This is nowhere so clearly disclosed as in Article 7, paragraph 1, No. 1.
The Number I of this Article reads: "The Federal Council resolves upon the bills which are to be submitted to the Imperial Diet and upon the resolutions made by the Imperial Diet".
This provision seems to say all Imperial bills are first resolved upon by the Federal Council, then submitted to the Imperial Diet for discussion and vote, and finally resolved upon a second time by the Federal Council. If this is a correct interpretation, then we should have to notice the following three peculiarities of the German Constitution :
I. That all Imperial bills are first resolved upon by the Federal Council.
1 Stenographical Reports of the Constitutive Imperial Diet of the North German Federation, p. 388.
Dr. Georg Meyer, Ibid., pp. 42 and 43.
That all Imperial bills are resolved upon three times: first by the Federal Council, then by the Imperial Diet, and finally a second time by the Federal Council; or in other words, twice by the Federal Council and once by the Imperial Diet.
3. 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.
Now does the German Constitution really intend to establish these three rules? Let us consider them in detail:
To: Is it true that all Imperial bills must be first resolved upon by the Federal Council? No! the Imperial bills may also be proposed by the Imperial Diet. For Article 23 of the Constitution reads: "The Imperial Diet has the right * * to propose bills, etc.". With reference to this Article 23 and to Article 7, No. 1, it is usually said by German publicists that both assemblies, the Federal Council and the Imperial Diet, have the right of the initiative.' That is true. But the Constitution speaks in widely different terms of the initiative of the Federal Council and of the initiative of the Imperial Diet. Article 7, No. 1, declares that the Federal Council resolves upon the bills which are to be submitted to the Imperial Diet. That Article obviously lays down the general rule, and in comparison with it Article 23 now assumes the meaning that the Imperial Diet may propose bills -in exceptional cases. And anybody who will take the trouble of following up the origin of the Imperial laws will find that almost all of them were first resolved upon by the Federal Council, and only a few of them first by the Imperial Diet. This shows that the relation between the Federal Council and the Imperial Diet is the same as that between the prince of a German monarchy and the diet of his state; for it is the rule in the German constitutional monarchies that the prince through his ministers initiates the bills, while the diet, too, has the right to propose bills. The Federal Council, therefore, appears to represent the sovereign of the empire, and that is what I intended to bring out. The Imperial Diet, however, appears to be the diet, the representative assembly, of the empire.
1 So for instance Laband, Ibid., p. 74.
To 2: At first glance it seems to be very strange that all Imperial bills should be resolved upon three times, twice by the Federal Council, and once by the Imperial Diet. And more than that, it seems to be in contradiction with Article 5, the fundamental Article on Imperial legislation, which requires for an Imperial law only "the concurrence of the majority resolutions of both assemblies", of the Federal Council and the Imperial Diet: that is, one resolution of the Federal Council and one resolution of the Imperial Diet.
How can we solve this seeming contradiction between the two Articles? We cannot get around Article 5, which requires only one resolution of the Federal Council. The only alternative is that only one of the two resolutions of the Federal Council can be the one required by Article 5; the other one cannot be an exercise of the legislative power of the Federal Council, but must have some other meaning. But which of the two resolutions of the Federal Council is the exercise of its legislative power?
Let us first assume the case that the bill was amended in the Imperial Diet. Then, of course, a second resolution of the Federal Council on the bill in its amended form becomes necessary, and this second resolution, consequently, must be looked upon as the legally important resolution.
But if the bill were accepted by the Imperial Diet without a change, then the question becomes of importance whether the first or the second resolution is the one spoken of in Article 5. One may say in this case that a second resolution of the Federal Council is wholly superfluous, and it is only sensible to look upon the first resolution as the legally required one. But since Article 7 declares without any modification whatever that the Federal Council resolves upon the resolutions of the Imperial Diet, we have to infer that all Imperial bills must be resolved upon a second time by the Federal Council, even in case a bill was accepted by the Imperial Diet without a change. Therefore the second resolution of the Federal Council must, in every case, be the one required by Article 5; and the first resolution of the Federal Council must have some other meaning. But what is its