The simple reduction of the German states in number, noteworthy though it was, did not mean necessarily the realization of a larger measure of national unity, for the rivalries of the states which survived tended but to be accentuated. But if the vertical cleavages by which the country was divided were deepened, those of a horizontal character, arising from social and economic privilege, were in this period largely done away. Serfdom was abolished; the knights as a political force disappeared; the free cities were reduced to four; and such distinctions of caste as survived rapidly declined in political importance. By an appreciable levelling of society the way was prepared for co-ordinated national development, while by the extinction of a variety of republican and aristocratic sovereignties monarchy as a form of government acquired new powers of unification and leadership.[276]

[Footnote 276: On Germany during the Napoleonic period see Cambridge Modern History, IX., Chap. 11; J. H. Rose, Life of Napoleon I., 2 vols. (new ed., New York, 1910), II., Chaps. 24-25; A. Fournier, Napoleon I., a Biography, trans, by A. E. Adams, 2 vols, (New York, 1911), I., Chaps. 11-12; J. R.

Seeley, Life and Times of Stein; or Germany and Prussia in the Napoleonic Age, 3 vols. (Cambridge, 1878); H. A. L. Fisher, Studies in Napoleonic Statesmanship, Germany (Oxford, 1903).]

*203. The Congress of Vienna and the Confederation of 1815.*--The collapse of the dominion of Napoleon was followed in Germany by rather less of a return to earlier arrangements than might have been expected. Indeed, it can hardly be said to have involved any such return at all. The Confederation of the Rhine was dissolved, and both the grand-duchy of Warsaw and the kingdom of Westphalia ceased, as such, to be. But the Holy Roman Empire was not revived; the newly acquired dignities of the sovereigns of Saxony, Bavaria, and other states were perpetuated; despite the clamors of the mediatized princes, the scores of German states which during the decade had been swallowed up by their more powerful neighbors, or had been otherwise blotted out, were not re-established; and--most important of all--the social and economic changes by which the period had been given (p. 195) distinction were, in large part, not undone.

As has been pointed out, the close of the Napoleonic period found Germany entirely devoid of political unity, in both name and fact. By the governments which were chiefly influential in the reconstruction of Europe in 1814-1815, it was deemed expedient that there be re-established some degree of German unity, though on the part of most of them, both German and non-German, there was no desire that there be called into existence a united German nation of substantial independence and power. In the Final Act of the Congress of Vienna, promulgated under date of June 9, 1815, there was included the draft of a const.i.tution, prepared by a committee of the Congress under the presidency of Count Metternich, in which was laid down the fundamental law of an entirely new German union. Within Germany proper there were recognized to be, when the Congress had completed its work of readjustment, thirty-eight states, of widely varying size, importance, and condition. Under authorization of the Congress, these states were now organized, not into an empire with a common sovereign, but into a _Bund_, or Confederation, whose sole central organ was a _Bundestag_, or Diet, sitting at Frankfort-on-the-Main and composed of delegates commissioned by the sovereigns of the affiliated states and serving under their immediate and absolute direction. Save only in respect to certain matters pertaining to foreign relations and war, each of the thirty-eight states retained its autonomy unimpaired.[277]

[Footnote 277: In 1817 the number was brought up to 39 by the adding of Hesse-Homburg, unintentionally omitted when the original list was made up. By successive changes the number was reduced to 33 before the dissolution of the Confederation in 1866.]

*204. The Diet.*--The Diet was in no proper sense a parliamentary body, but was rather a congress of sovereign states. Nominally, its powers were large. They included both the regulation of the fundamental law and the performance of the functions of ordinary legislation. But, in practice, the authority of the body was meager and exercise of discretion was absolutely precluded. The members, as delegates of the princes, spoke and voted only as they were instructed. Questions relating to the fundamental laws and the organic inst.i.tutions of the Confederation and "other arrangements of common interest" were required to be decided by the Diet as a whole (_in Plenum_), with voting power distributed among the states, in rough proportion to their importance. Of the total of 69 votes, six of the princ.i.p.al states possessed four each. The preparation of measures for discussion _in Plenum_ was intrusted to the "ordinary a.s.sembly," a smaller (p. 196) gathering in which Austria, Prussia, and nine other states had each one vote, and six _curiae_, comprising the remaining states in groups had likewise each a single vote. The presidency of the two a.s.semblies was vested permanently in Austria, and the Austrian delegation possessed in each a casting vote. Proposals were carried in the smaller body by simple majority, but _in Plenum_ only by a two-thirds vote. For the enactment of fundamental laws, the modification of organic inst.i.tutions, the amendment of individual rights, and the regulation of religious affairs, it was declared by the Federal Act that a majority vote should be insufficient, and, although it was not expressly so stipulated, the intent was that in such cases unanimity should be required. Early in the Diet's history, indeed, the president was instructed solemnly to announce that the fundamental law of the Confederation, far from being subject to revision, was to be regarded as absolutely final.

The Confederation was, and was intended to be, only the loosest sort of a league of sovereign powers. The party of German unity, represented by Stein and the Liberals generally, began by a.s.suming it to be a _Bundesstaat_, or true federal state; but at the opening of the first session of the Diet (November 5, 1816) the Austrian authorities formally p.r.o.nounced it a _Staatenbund_, or federation of states, and from this ruling, according strictly with both the facts of the situation and the intent of the founders, there was no possible escape. The powers and functions which were vested in the Confederation were exercised exclusively through and upon states, and with the private individual it had no sort of direct relation, being, in these respects, essentially similar to the federal government of the United States under the Articles of Confederation. The function of the Diet, in effect, came to be little more than that of registering and promulgating the decrees of the authorities at Vienna.

*205. Const.i.tutional Progress, 1815-1848.*--Notwithstanding these facts, the decade which terminates with the creation of the Confederation of 1815 contributed enormously to the clearing of the way for the establishment of modern German unity and of vigorous and efficient national government. Among large numbers of the German people there had been engendered a genuine desire, not only for const.i.tutionalism in government, but for a substantial unification of the German-speaking world; and the increased h.o.m.ogeneity and prosperity of the kingdom of Prussia pointed already to the eventual realization of these aspirations under the leadership of that powerful state. The history of Germany during the period from 1815 to 1848 is a story largely of the growth of these twin ideas of const.i.tutionalism and nationality, and of (p. 197) the relentless combat which was waged between their exponents and the entrenched forces of autocracy and particularism. Gradually the results of this conflict found expression through two developments, (1) the promulgation of liberalizing const.i.tutions in a majority of the states and (2) the building of the Zollverein, or customs union.

The original draft of the Federal Act of 1815 pledged every member of the Confederation to establish a const.i.tution within a year. In the final form of the instrument, however, the time limit was omitted and what had been a specific injunction became but a general promise. The sovereigns of the two preponderating states, Austria and Prussia, delayed and eventually evaded the obligation altogether. But in a large number of the lesser states the promise that had been made was fulfilled with despatch. In the south the ground had been cleared by the Napoleonic domination, and the influence of French political experimentation was more generally felt, so that, very naturally, the progress of const.i.tutionalism was most rapid in that quarter. The new era of const.i.tution-making was inaugurated by the promulgation of the fundamental law of Schwarzburg-Rudolstadt, January 8, 1816. In rapid succession followed similar grants in Schaumburg-Lippe, January 15, 1816; Waldeck, April 19, 1816; the grand-duchy of Saxe-Weimar-Eisenach, May 5, 1816; Saxe-Hildburghausen, March 19, 1818; Bavaria, May 26, 1818; Baden, August 22, 1818; Lichtenstein, November 9, 1818; Wurttemberg, September 25, 1819; Hanover, December 7, 1819; Brunswick, April 25, 1820, and the grand-duchy of Hesse, December 17, 1820. Instruments promulgated later during the period under review include those of Saxe-Meiningen, in 1829; Hesse-Ca.s.sel, Saxe-Altenburg, and Saxony, in 1831; Hohenzollern-Sigmaringen, in 1833; Lippe, in 1836; and Lubeck, in 1846. In a number of the states mentioned, including Bavaria, Baden, Wurttemberg, and Saxony, the const.i.tutions at this time granted are still in operation. Many of them were, and some of them remain, highly illiberal. But, in the aggregate, the ground gained in behalf of const.i.tutional and enlightened government through their promulgation was enormous.

The spread of const.i.tutionalism was paralleled by the gradual creation, after 1818, of the Zollverein. This was a customs union, taking its origin in the establishment of free trade throughout the kingdom of Prussia, and extended from state to state until by 1842 the whole of Germany had been included save the Hanseatic towns, Mecklenburg, Hanover, and Austria. The union was maintained for purposes that were primarily commercial, but by accustoming the people to concerted effort and by emphasizing constantly their common interests it must be regarded as having contributed in a very (p. 198) important way to the growth of national consciousness and solidarity.

Under its agency the lesser states were schooled deliberately in independence of Austria and in reliance upon Prussian leadership.

II. THE CREATION OF THE EMPIRE

*206. The Revolution of 1848.*--From 1815 onwards the Liberals advocated, in season and out, the conversion of the Confederation into a more substantial union under a const.i.tutional style of government.

Aside from the promulgation of a number of new state const.i.tutions, the effects of the revolutionary movements of 1830 were, in Germany, of little consequence. But during the period 1830-1848 conditions so developed that only the stimulus of a near-by liberal demonstration was required to precipitate to the east of the Rhine a popular uprising of revolutionary proportions. In the const.i.tutional history of the German countries of central Europe few periods are to be a.s.signed larger importance than the years 1848-1849. Taking advantage of the interest created by the contemporary revolution in France, the Liberal leaders began by convening at Heidelberg, March 31, 1848, a _Vorparlament_, or preliminary meeting, by which arrangements were effected for the election, by manhood suffrage, of a national a.s.sembly of some six hundred members whose business it should be to draw up a const.i.tution for a united German nation. This a.s.sembly, reluctantly authorized by the Diet, convened May 18 in the free city of Frankfort.

The task to be accomplished was formidable and much valuable time was consumed in learned but irrelevant disputation. In the end it was decided that not the whole of Austria, but only the German portions, should be admitted to the new union; that there should be established a full-fledged parliamentary system, with a responsible ministry; and that the parliament should consist of two chambers, the lower to be chosen by direct manhood suffrage, the upper to be made up half of members appointed by the princes and half of members elected for six years by the legislative bodies of the several states. As an executive some desired a directory of three princes and some wanted a single president; but the majority voted at length to establish the dignity of German Emperor and to offer it to Frederick William IV., king of Prussia.

*207. The Reaction.*--The refusal of the Prussian monarch to accept the proffered t.i.tle, save upon the impossible condition that all of his brother princes in Germany should give their a.s.sent to his so doing, blasted the hopes of the patriots. In May, 1849, the Frankfort a.s.sembly broke up. Not long thereafter Prussia, Saxony, and (p. 199) Hanover agreed upon a const.i.tution substantially like that which the Frankfort meeting had proposed. Other states accepted it, and March 20, 1850, a parliament was convened under it at Erfurt. By reason of the recovery of Austria, however, and the subsidence of the revolutionary movement generally throughout Germany the experiment promptly collapsed. The conception of a German empire had been formulated with some definiteness, but for its realization the day had not yet arrived. The old Confederation, under Austrian domination, kept the field. After an upheaval which involved the enforced promulgation of a const.i.tution, the accession of a new emperor (the present Francis Joseph), and the threatened loss of Hungary, Bohemia, and the Italian dependencies, the Austrian monarchy recovered its balance and inaugurated a fresh era of reaction, during the course of which there was revoked not only the const.i.tution conceded at Vienna but also that of almost every one of the German states.[278]

[Footnote 278: See pp. 454-456.]

In Prussia the outcome was more fortunate. In January, 1850, Frederick William IV, granted a const.i.tution which established a national legislative a.s.sembly and admitted a portion of the Prussian people to an active partic.i.p.ation in the government. Although the instrument proved a disappointment to the Liberals, it has survived, with some modifications, to the present day as the fundamental law of the Prussian kingdom; and the fact that Prussia had become fixedly a const.i.tutional state, together with the hopeless deadlock which arose between Prussia and Austria in the attempted readjustments of 1848-1849, emphasized the conclusion that the future of Germany lay with Prussia rather than with Austria, and that, indeed, there could be no adequate unification of the German people until one of the two great rival states should have been definitely ejected.[279]

[Footnote 279: On the revolution of 1848 in Germany see Cambridge Modern History, XI., Chaps. 3, 6, 7; H. von Sybel, The Founding of the German Empire trans. by M. L. Perrin, 7 vols. (New York, 1890-1898), I., 145-243; H. Blum, Die deutsche Revolution, 1848-1849 (Florence and Leipzig, 1897); P. Matter, La Prusse et la revolution de 1848 (Paris, 1903).]

*208. The War of 1866.*--With the elevation of Count von Bismarck, September 23, 1862, to the presidency of the Prussian ministry, affairs began to move rapidly toward the inevitable conclusion. A month prior to Bismarck's appointment there had been held at Frankfort a conference--the so-called _Furstentag_--whose object was the proposal of a plan for the reconst.i.tution of the Confederation. The scheme suggested contemplated the establishment of a directory, an a.s.sembly composed of delegates from the various diets, and a federal court of appeal. The conference was held at the instigation of (p. 200) Austria, and it was intended primarily to promote an alignment of the liberal forces against Prussia. The last-mentioned state refused, naturally, to have part in the proceedings, and the enterprise came to naught. A brief interlude in the fast developing contest was afforded by the Austro-Prussian alliance against Denmark in 1864; but the net result of this episode was only to supply the occasion for war which Bismarck desired. In 1866 Prussia came forward with a project for the reorganization of the Confederation (in reality, a counter-bid for popular support), the more noteworthy features of which were the total exclusion of Austria from the league and the establishment of a parliament elected by manhood suffrage. As was inevitable, the Diet rejected the scheme; whereupon, with the object of forcing Austria into helpless isolation, Bismarck and his royal master, William I., in June, 1866, proclaimed the Confederation to be dissolved and plunged the whole of Germany in civil war.

*209. The North German Bund, 1867.*--The conflict was short and sharp.

Its outcome was the crushing defeat of Austria, and in the treaty of Prague (August 23, 1866) the proud Hapsburg monarchy was compelled to a.s.sent to a reconst.i.tution of the German federation in which Austria should have no part. A number of lesser states which had supported Austria--Hanover, Na.s.sau, Hesse-Ca.s.sel, and Frankfort--were forthwith incorporated by Prussia, by decree of September 20, 1866,[280] and among the group of surviving powers the preponderance of Prussia was more than ever indisputable. Realizing, however, that the states of the south--Bavaria, Baden, Wurttemberg, and Hesse-Darmstadt--were not as yet ready to be incorporated under a centralized administration, Prussia contented herself for the moment with setting up a North German _Bund_, comprising the states to the north of the river Main, twenty-two in all. February 24, 1867, there was brought together in Berlin a const.i.tutional diet, representing all of the affiliated states and elected by manhood suffrage and secret ballot. A const.i.tution, drafted previously by a committee of plenipotentiaries, was debated from March 9 to April 16 and was adopted by a vote of 230 to 53. After having been ratified by the legislative bodies of the various states, the instrument was put in operation, July 1. The princ.i.p.al organs of government for which it made provision were three in number: (1) the _Praesidium_, or President, of the Confederation, the dignity being hereditary and vested in the king of Prussia; (2) the _Bundesrath_, or Federal Council, representing the various governments; and (3) the _Bundestag_, or Diet, composed of deputies elected directly by manhood suffrage. For all practical purposes (p. 201) the German Empire, under the hegemony of Prussia, was a reality.

[Footnote 280: The disputed districts of Schleswig-Holstein were annexed at the same time.]

*210. Establishment of the Empire, 1871.*--For the time being the states to the south of the Main were left to their own devices, though the const.i.tution of the _Bund_ was shaped purposely to permit, and even to encourage, the accession of new members. Very soon these southern states entered the new customs union of 1867, maintained by the northern states, and ere long they were concluding with Prussia treaties of both offensive and defensive alliance. The patriotic fervor engendered by the war with France in 1870-1871 sufficed to complete the work. Contrary to the expectation of Napoleon III., the states of the south contributed troops and otherwise co-operated vigorously with the Prussians throughout the contest, and before its close they let it be known that they were ready to become full-fledged members of the Confederation. On the basis of treaty arrangements, concluded in November, 1870, it was agreed that the North German Confederation should be replaced by a German Empire, and that for the t.i.tle of President, borne by the Prussian sovereign, should be subst.i.tuted that of _Deutscher Kaiser_, German Emperor. January 18, 1871, at Versailles, William, king of Prussia and President of the Confederation, was formally proclaimed German Emperor. The siege of Paris was at the time still in progress, and the treaty of Frankfort, by which peace with France was concluded, was not signed until the following May.[281]

[Footnote 281: For brief accounts of the founding of the Empire see B. E. Howard, The German Empire (New York, 1906), Chap. 1; E. Henderson, Short History of Germany (New York, 1906). Chaps. 8-10; Cambridge Modern History, XI., Chaps. 15-17, XII., Chap. 6; and Lavisse et Rambaud, Histoire Generale, XI., Chap. 8. A very good book is G. B. Malleson, The Refounding of the German Empire, 1848-1871 (2d ed., London, 1904). More extended presentation of German history in the period 1815-1871 will be found in A. Stern, Geschichte Europas seit den Vertragen von 1815 bis zum Frankfurter Frieden von 1871, 6 vols. (Berlin, 1894-1911), extending at present to 1848; C. F. H. Bulle, Geschichte der neuesten Zeit, 4 vols. (Leipzig, 1886-1887), covering the years 1815-1885; H. G. Treitschke, Deutsche Geschichte im Neunzehnten Jahrhundert, 5 vols. (Leipzig, 1879-1894), covering the period to 1848; H. von Sybel, Die Begrundung des deutschen Reiches durch Wilhelm I. (Munich and Leipzig, 1890), and in English translation under t.i.tle of The Founding of the German Empire (New York, 1890); H. von Zwiedeneck-Sudenhorst, Deutsche Geschichte von der Auflosung d. alten bis zur Errichtung d.

neuen Kaiserreichs (Stuttgart, 1903-1905); and M.

L. Van Deventer, Cinquante annees de l'histoire federale de l'Allemagne (Brussels, 1870). A book of some value is A. Malet, The Overthrow of the Germanic Confederation by Prussia in 1866 (London, 1870). P. Bigelow, History of the German Struggle for Liberty (New York, 1905) is readable, but not wholly reliable. An excellent biography of Bismarck is that by Headlam (New York, 1899). For full bibliography see Cambridge Modern History, X., 826-832; XI., 879-886, 893-898; XII., 869-875.]

III. THE CONSt.i.tUTION: NATURE OF THE EMPIRE (p. 202)

*211. The Const.i.tution Framed.*--As ordained in the treaties of November, 1870, ratified subsequently by the _Bundesrath_ and the _Bundestag_ of the North German Confederation, and by the legislative a.s.semblies of the four incoming states, the German Empire came legally into existence January 1, 1871. It consisted fundamentally of the Confederation, which in the process of expansion did not lose its corporate ident.i.ty, together with the four states, whose treaties bound them severally to it. The _Bund_ was conceived of technically, not as replaced by, but rather as perpetuated in, the new Empire. The accession of the four southern states, however, involved of necessity a considerable modification of the original character of the affiliation; and the innovations that were introduced called for a general reconst.i.tution of the fundamental law upon which the enlarged structure was to be grounded.

The elements at hand for the construction of the const.i.tution of the Empire were four: (1) the const.i.tution of the North German Confederation, in operation since 1867; (2) the treaties of November 15, 1870, between the Confederation, on the one hand, and the grand-duchies of Baden and Hesse on the other; (3) the treaty of November 23, 1870, by which was arranged the adhesion of the kingdom of Bavaria; and (4) the treaty of November 25, 1870, between the _Bund_, Baden, and Hesse, on the one side, and the kingdom of Wurttemberg on the other. Each of these treaties stipulated the precise conditions under which the new affiliation should be maintained, these stipulations comprising, in effect, so many projected amendments of the original const.i.tution of the _Bund_.[282] At the initiative of the Emperor there was prepared, early in 1871, a revised draft of this const.i.tution, and in it were incorporated such modifications as were rendered necessary by the adhesion of the southern states and the creation of the Imperial t.i.tle. March 31 the Reichstag was convened in Berlin and before it was laid forthwith the const.i.tutional _projet_, to which the Bundesrath had already given its a.s.sent. April 14 the instrument was approved by the popular chamber, and two days later it was promulgated as the supreme law of the land.

[Footnote 282: The first three of these treaties were concluded at Versailles; the fourth was signed at Berlin.]

*212. Contents of the Instrument.*--As it came from the hands of its framers, the new const.i.tution comprised a judicious amalgamation of the various fundamental doc.u.ments that have been mentioned, i.e., the const.i.tution of the Confederation and the treaties. Within the (p. 203) scope of its seventy-eight articles most subjects which are dealt with ordinarily in such instruments find ample place: the nature and extent of the legislative power; the composition, organization, and procedure of the legislative chambers; the privileges and powers of the executive; the adjustment of disputes and the punishment of offenses against the national authority; the process of const.i.tutional amendment. It is a peculiarity of the German const.i.tution, however, that it contains elaborate provisions relating to a variety of things concerning which const.i.tutions, as a rule, are silent. There is an extended section upon customs and commerce; another upon railways; another upon posts and telegraphs; another upon navigation; another upon finance; and an especially detailed one relating to the military organization of the realm. In part, the elaboration of these essentially legislative subjects within the const.i.tution was determined by the peculiarly federal character of the Empire, by which was entailed the necessity of a minute enumeration of powers. In a greater measure, however, it arose from the underlying purpose of Bismarck and of William I. to smooth the way for the conversion of Germany into the premier militant power of Europe. Beyond a guarantee of a common citizenship for all Germany and of equal protection for all citizens as against foreign powers, the const.i.tution contains little that relates to the status or privileges of the individual.

There is in it no bill of rights, and it makes no mention of abstract principles. Among instruments of its kind, none is of a more thoroughly practical character.[283]

[Footnote 283: The text of the const.i.tution, in German, is printed in A. L. Lowell, Governments and Parties in Continental Europe, 2 vols. (Boston, 1896), II., 355-377, and in Laband, Deutsches Reichsstaatsrecht, 411-428; in English, in W. F.

Dodd, Modern Const.i.tutions, 2 vols. (Chicago, 1909), I., 325-351, and in Howard, The German Empire, 403-435. Carefully edited German texts are: L. von Ronne, Verfa.s.sung des deutschen Reiches (8th ed., Berlin, 1899); A. Arndt, Verfa.s.sung des deutschen Reiches (Berlin, 1902). On the formation of the Imperial const.i.tution see A. Lebon, Les origines de la const.i.tution allemande, in _Annales de l'ecole Libre des Sciences Politiques_, July, 1888; ibid., etudes sur l'Allemagne politique (Paris, 1890).]

*213. Federal Character of the Empire.*--The political system of Germany to-day is the product of centuries of particularistic statecraft, capped, in 1871, by a partial centralization of sovereign organs and powers. The Empire is composed of twenty-five states: the four kingdoms of Prussia, Bavaria, Saxony, and Wurttemberg; the six grand-duchies of Baden, Hesse, Mecklenburg-Schwerin, Saxe-Weimar, Mecklenburg-Strelitz, and Oldenburg; the five duchies of Brunswick, Saxe-Meiningen, Saxe-Altenburg, Saxe-Coburg-Gotha, and Anhalt; the seven (p. 204) princ.i.p.alities of Schwarzburg-Sonderhausen, Schwarzburg-Rudolstadt, Waldeck, Reuss alterer Linie, Reuss Jungerer Linie, Lippe, and Schaumburg-Lippe; and the three free cities of Hamburg, Bremen, and Lubeck. These states vary in size from Prussia, with 134,616 square miles, to Bremen, with 99; and in population, from Prussia, with 40,163,333, to Schaumburg-Lippe, with 46,650. There is, in addition, the _Reichsland_, or Imperial domain, of Alsace-Lorraine, whose status until 1911 was that of a purely dependent territory, but which by act of the year mentioned was elevated to a condition of quasi-statehood.[284]

[Footnote 284: See p. 285.]

Prior to the formation in 1867, of the North German Confederation, each of the twenty-five states was sovereign and essentially independent. Each had its own governmental establishment, and in many instances the existing political system was of considerable antiquity.

With the organization of the _Bund_, those states which were identified with the federation yielded their independence, and presumably their sovereignty; and with the establishment of the Empire, all gave up whatever claim they as yet maintained to absolute autonomy. Both the _Bund_ and the Empire were creations, strictly speaking, of the states, not of the people; and, to this day, as one writer has put it, the Empire is "not a juristic person composed of fifty-six million members, but of twenty-five members."[285] At the same time, it is not what the old Confederation of 1815 was, i.e., a league of princes. It is a state established by, and composed of, states.[286]

[Footnote 285: P. Laband, Das Staatsrecht des deutschen Reiches, I., 91.]

[Footnote 286: On the more purely juristic aspects of the Empire the best work in English is Howard, The German Empire (Chap. 2, on "The Empire and the Individual States"). A very useful volume covering the governments of Empire and states is Combes de Lestrade, Les monarchies de l'Empire allemand (Paris, 1904). The monumental German treatise is P.

Laband, Das Staatsrecht des deutschen Reiches (4th ed., Tubingen, 1901), in four volumes. There is a six-volume French translation of this work, Le droit public de L'Empire allemand (Paris, 1900-1904). Other German works of value are: O.

Mayer, Deutsches Verwaltungsrecht (Leipzig, 1895-1896); P. Zorn, Das Staatsrecht des deutschen Reiches (2d ed., Berlin, 1895-1897); and A. Arndt, Das Staatsrecht des deutschen Reiches (Berlin, 1901). There is a four-volume French translation of Mayer's important work, under the t.i.tle Le droit administratif allemand (Paris, 1903-1906). Two excellent brief German treatises are: P. Laband, Deutsches Reichsstaatsrecht (3d ed., Tubingen, 1907), and Hue de Grais, Handbuch der Verfa.s.sung und Verwaltung in Preussen und dem deutschen Reiche (18th ed., Berlin, 1907). The most recent work upon the subject is F. Fleiner, Inst.i.tutionen des deutschen Verwaltungsrechts (Tubingen, 1911). A suggestive monograph is J. du Buy, Two Aspects of the German Const.i.tution (New Haven, 1894).]

IV. THE EMPIRE AND THE STATES (p. 205)

*214. Sovereignty and the Division of Powers.*--The Germans are not themselves altogether agreed concerning the nature and precise location of sovereignty within the Empire, but it is reasonably clear that sovereignty, in the ultimate meaning of that much misused term, is vested in the government of the Empire, and not in that of any state. The embodiment of that sovereignty, as will appear subsequently, is not the national parliament, nor yet the Emperor, but the Bundesrath, which represents the "totality" of the affiliated governments.[287] As in the United States, Switzerland, and federal nations generally, there is a division of powers of government between the central governmental establishment and the states. The powers of the Imperial government, it is important to observe, are specifically enumerated; those of the states are residual. It is within the competence of the Imperial government to bring about an enlargement of the powers that have been confided to it; but until it does so in any particular direction the power of the state governments in that direction is unlimited. On the one hand, there is a considerable field of legislative activity--in respect to citizenship, tariffs, weights, measures, coinage, patents, military and naval establishment of the Empire, etc.--in which the Empire, by virtue of const.i.tutional stipulation, possesses exclusive power to act.[288] On the other, there is a no less extensive domain reserved entirely to the states--the determination of their own forms of government, of laws of succession, of relations of church and state, of questions pertaining to their internal administration; the framing of their own budgets, police regulations, highway laws and laws relating to land tenure; the control of public instruction. Between lies a broad and shifting area, which each may enter, but within which the Imperial authority, in so far as is warranted by the const.i.tution, must be accorded precedence over the authority of a state. "The matters over which the states preserve control," says a great German jurist, "cannot be separated completely from those to which extends the competence of the Empire.

The various powers of government are intimately related the one to another. They run together and at the same time impose mutual checks in so many ways, and are so interlaced, that one cannot hope to set them off by a line of demarcation, or to set up among them a Chinese wall of division. In every sphere of their activity the states (p. 206) encounter a superior power to which they are obliged to submit. They are free to move only in the circle which Imperial law-making leaves open to them. That circle does exist. It is delimited, but not wholly occupied, by the Empire.... In a certain sense it may be said that it is only by sufferance of the Empire that the states maintain their political rights at all, and that, at best, their tenure is precarious."[289]

[Footnote 287: Howard, German Empire, 21.]

[Footnote 288: Matters placed under the supervision of the Empire and made subject to Imperial legislation are enumerated in the sixteen sections of Article 4 of the const.i.tution. Dodd, Modern Const.i.tutions, I., 327-328.]

[Footnote 289: Laband, Das Staatsrecht des deutschen Reiches (2d ed.), I., 102-103.]

In pa.s.sing, it may be observed that there is, in fact, a distinct tendency toward the reduction of the spheres of authority which formerly were left to the states. One of the means by which this has been brought about is the establishment of uniform codes of law throughout the Empire, containing regulations respecting a mult.i.tude of things which otherwise would have been regulated by the states alone. Most important among these is the great Civil Code, which went into effect January 1, 1900. Another means to the same end is the increase in recent years of Imperial legislation relating to workingmen's insurance, factory regulations, industrial conditions, and other matters of a social and economic nature. Not infrequently in recent times have the states, or some of them, raised protest against this centralizing tendency, and especially against the "Prussianization"

of the Empire which it seems clearly to involve. In many states, especially those to the south of the Main, the separatist tradition is still very strong. In Bavaria, more than anywhere else, is this true, and in 1903 the new Bavarian premier, Baron Podevils, was able to arouse genuine enthusiasm for his government by a solemn declaration before the diet that he and his colleagues would combat with all their might "any attempt to shape the future of the Empire on lines other than the federative basis laid down in the Imperial const.i.tution."

*215. The Interlacing of Governmental Agencies.*--The functions of a legislative character which are delegated to the Imperial government are numerous and comprehensive, and in practice they tend all the while to be increased. Those of an executive and judicial character are very much more restricted. In respect to foreign relations, the navy, and the postal and telegraph service, administration is absolutely centralized in the organs of the Empire; in respect to everything else, administrative functions are performed entirely, or almost entirely, through the agency of the states. In the United States the federal government is essentially complete within itself.

It has its own law-makers, administrators, and judges, who carry on the national government largely independently of the governing agencies of the various states. In Germany, where the state occupies in (p. 207) some respects a loftier position in the federation than does its counterpart in America, the central government, in respect to all save the fields that have been mentioned, relies for the execution of its measures upon the officials of the states. The Empire establishes taxes and customs duties, but the imposts are collected by state authorities. Similarly, justice is rendered, not in the name of the Empire, but in the name of the state, and by judges in the employ of the state. In respect to machinery, the Imperial government is, therefore, but a part of a government. Alone, it could not be made to operate. It lacks a judiciary; likewise the larger portion of the administrative agencies without which mere powers of legislative enactment are futile. To put the matter succinctly, the working government of the Empire comprises far more than the organs and functions that are purely Imperial; it comprises the federal organs and functions possessed by the individual states as well.[290]

[Footnote 290: Laband, Das Staatsrecht des deutschen Reiches, -- 7-10; Lebon, etudes sur l'Allemagne politique, 93-104.]

*216. The States: the Prussian Hegemony.*--Legally, the union of the German states is indestructible. The Imperial government is vested with no power to expel a state, to unite it with another state, to divide it, or in any way to alter its status in the federation. On the other hand, no state possesses a right to secede, or to modify its powers or obligations within the Empire. If a state violates its obligations or refuses to be bound by the authority of the Empire, the federal army, on decision of the Bundesrath, may be mobilized by the Emperor against it.[291]