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In fact the Prussian government of 1867 has differentiated into two independent governments, a Prussian government and an Imperial government. In March 1892 the breach between the two was made complete, when the present German Emperor separated the two offices of Imperial Chancellor and Prussian prime minister. The only connecting links between the Imperial government and the Prussian government are now that the Imperial Chancellor holds the rather insignificant office of Prussian minister for foreign affairs; and that the Imperial Secretary of State of the Interior is a Prussian minister without portfolio. But whether the two offices of Imperial Chancellor and Prussian prime minister will remain separated or be re-united again, this much seems to be certain that the Imperial policy is settled by the Imperial government now, and that the Imperial government has become a third factor of Imperial legislation besides the Federal Council and the Imperial Diet. It is only in order to enable the Chancellor and the Secretaries of State to submit the government bills to the Federal Council, and to defend them there, that the emperor in his quality as king of Prussia appoints the Chancellor and the Secretaries of State Prussian members of the Federal Council.
But there is no means by which the emperor may submit the government bills directly to the Imperial Diet. He cannot submit to the Imperial Diet a bill which has not first been accepted by the Federal Council, as we have seen. And a government bill can never go before the Imperial Diet, in case it has been rejected by the Federal Council. If the majority of the Federal Council were hostile to the Imperial government, no government bill could ever reach the Imperial Diet. But, as a matter of fact, the government bills do reach the Imperial Diet, as every reader of a German newspaper can see. This shows that the majority of the Federal Council cannot be hostile to the Imperial government and its policy, but submits readily. But why is it that the Federal Council is so compliant with the Imperial government? Or rather let us remember that the Federal Council only consists of representatives of the German state governments, and let us, therefore, rather ask, why is it that the non-Prus
sian princes represented in the Federal Council are so compliant with the Imperial government?
It seems to me that there are several reasons which together explain this fact. One of them is that quite a number of the reigning German princes are near relatives of the German Emperor, and therefore not inclined to make much trouble for the emperor and his government. A second reason is that the North German Federation and the German Empire were formed upon the tacit supposition that the non-Prussian states would yield to the leadership of Prussia. This leadership of Prussia has turned into a leadership on the part of the Imperial government, as we have seen, the change taking place gradually with the growth of the Imperial ministry. And this change was for the good and made for peace; for, if the non-Prussian governments were ready in 1867 and 1871 to yield to the Prussian leadership which might be carried on in a particularistic spirit, they will certainly be more ready to-day to submit to the Imperial government which endeavors to follow an Imperial and national policy.
A third, and perhaps the weightiest, reason is that the reigning princes are the ones who gain by yielding to the emperor and the Imperial government, and who would risk everything by opposition. Let us suppose that they should advocate in the Federal Council a narrow, particularistic policy and oppose an Imperial, national policy which the Imperial government propounds and the majority of the Imperial Diet gladly accepts. What would be the result? They would lose the popularity with their own subjects, and their thrones would get shaky. Since the Federal Council now stands in the middle between a strong Imperial government which is national in its spirit and the Imperial Diet whose majority will naturally consider the interests of the nation as a whole, it would be simply suicidal for the reigning princes to stand for particularism in the Federal Council. Above all, by opposing the Imperial government they would lose the support of the emperor. As it is now, the emperor will never infringe upon the sovereign rights they have in their respective states, as long as they do not interfere with his Imperial policy. The result is that the reign
ing German princes do not determine the Imperial policy through their representatives in the Federal Council, as one would expect from the written Constitution; but they have not lost in any respect the sovereignty they possessed in their respective states, when they entered the federation in 1867 and 1871.
THE MEANING OF THE CHANGE.
The highest power, the legislative power, is described in the Constitution as a Federal one, to be exercised by majority resolutions of the Federal Council,-with the consent of the Imperial Diet; but, as a matter of fact, the highest power of to-day is a national, Imperial one, exercised by the Imperial government with the consent of the Federal Council and Imperial Diet. But if this is so, then honesty requires us to give up the theory of the framers of the Constitution that the reigning German princes together with the senates of the three free cities are the sovereign of the empire, and that the Federal Council is the representative of the Imperial sovereign. The Federal Council of to-day is nothing but the upper House of the German Empire. But we must sharply distinguish between what the Constitution meant the Federal Council to be, and what the Federal Council actually is in 1894. The Constitution unquestionably meant it to be the representative of the sovereign of the empire, and not merely an upper House; but the Federal Council of to-day is but an upper House. And again, the Constitution meant the German Empire to have but one legislative House, the Imperial Diet; but the German Empire of to-day actually has two legislative Houses, the Federal Council and the Imperial Diet, since the Federal Council has sunken to the position of a legislative House from the proud place of the representative of the sovereign.
It would be perverse to maintain with the German commentators that the written Constitution is really in force, especially that the Federal Council is the representative of the
Imperial sovereign; but it would be equally preposterous to maintain that the framers of the Constitution had intended to make the Federal Council the upper House and the emperor the monarch and sovereign of the German Empire. Doing the first would mean being blind to facts; doing the latter, trying to interpret into a Constitution what one wishes to find there. We would better avoid both, the Scylla as well as the Charybdis, and acknowledge and emphasize the difference between the written Constitution on the one hand and the unwritten Constitution which actually is in force on the other hand.
But what does this change of power from the Federal Council to the Imperial government mean? Described in biological terms it means: accidental variation, elimination of the unfit, and survival of the fittest. Accidental variation in so far as the unintended, but necessary extension of the business of Imperial administration reacted upon Imperial legislation, creating an Imperial ministry that began to settle the course of Imperial legislation; elimination of the unfit in so far as the Federal Council was eliminated as the determining factor in Imperial legislation; and survival of the fittest in so far as the Imperial government took the place of the Federal Council in legislation. But, one might ask, in what respect was the Federal Council unfit and is the Imperial government so well fitted to be the determining factor in Imperial legislation? My answer is: there was a function of greatest importance to be performed in the young German Empire, the function of amalgamating the different sections of Germany and of thus creating a national spirit. This function could be performed only by a strong, steady, centralizing, national government, not by the Federal Council whose shifting majority resolutions could have had only a decomposing effect upon the empire.
In the second place the transition of power from the Federal Council to the Imperial government means an immense change in the position of the emperor. In speaking of the Imperial government, I have thus far omitted to touch the relation between the Chancellor and the Secretaries of State on the one hand and the German Emperor on the other.
Now Article 18, Paragraph 1 of the German Constitution says: "The emperor appoints the Imperial officials, * and orders, if necessary, their dismissal". This paragraph is applicable to both the Imperial Chancellor and the Secretaries of State, since both are "Imperial officials". Needlessly, the Constitution declares elsewhere that the Imperial Chancellor is to be appointed by the emperor.' Consequently the Imperial Chancellor as well as the Secretaries of State are appointed and dismissed by the emperor, and that entirely at the pleasure of the emperor,-there being no modification whatsoever in the Constitution with regard to the choice or tenure of office of the Chancellor or the Secretaries, and no restriction on the emperor in point of fact. For there is no trace thus far of Parliamentary government in the German Empire, no obligation on the part of the emperor to choose his ministers from the majority of the Imperial Diet, and to dismiss them when they lose. the confidence of the Diet. The Imperial Chancellor and the Secretaries of State are simply the servants of the emperor. Therefore, as every gain which the manager of a business makes over a competing firm is a gain for the owner of the business, so the gain which the Chancellor and the Secretaries made over the Federal Council was one for their master, the emperor. The peaceful victory which the Imperial government won over the Federal Council in the field of Imperial legislation was a victory for the emperor in so far as the Chancellor and the Secretaries are but the servants of the emperor. He can appoint as Chancellor and Secretaries whom he pleases, he can dismiss them when he pleases, he can make it a condition of their tenure of office that they fulfill his commands. So he has the power to use them as his instruments, to have them follow out his policy, to rule the empire through them. The rise of the Imperial government at the expense of the Federal Council has incidentally made the emperor the ruler, the monarch of Germany. The emperor of the written Constitution is but the highest executive official of the empire, supervising the execution of those laws which the Federal Council together with the Im
1 Constitution, Article 15, Paragraph 1.