[Footnote 291: Art. 19. Dodd, Modern Const.i.tutions, I., 332.]

Among the states, however, there is a glaring lack of equality of status and privilege. When the Empire was formed the component states differed widely in area, population, and traditional rights, and there was no attempt to reduce them to a footing that should be absolutely uniform. Prussia, besides comprising the moving spirit in the new affiliation, contained a population considerably in excess of that of the other twenty-four states combined. The consequence was that Prussia became inevitably the preponderating power in the Empire. The king of Prussia is _ex-officio_ German Emperor; the Prussian votes in the Bundesrath can defeat any proposed amendment of the const.i.tution, and likewise any measure looking toward a change in the army, the navy, or the taxes; and Prussia controls the chairmanship of all standing committees in the Bundesrath.[292]

[Footnote 292: A. Lebon, La const.i.tution allemande et l'hegemonie prussienne, in _Annales de l'ecole Libre des Sciences Politiques_, Jan., 1887.]

*217. Military Arrangements.*--Other privileges Prussia possesses (p. 208) by virtue, not of the const.i.tution, but of agreements with her sister states. The most important of these relates to the army. By the const.i.tution it was provided at the outset that the armed forces of the Empire should be organized into a single establishment, to be governed by Imperial law and to be under the supreme command of the Emperor.[293] In respect to the appointment of minor officers, and some other matters, powers of jurisdiction were left, however, to the individual states. These powers were in themselves worth little, and in the course of time all of the states save Bavaria, Saxony, and Wurttemberg were brought to the point of yielding to Prussia the slender military authority that remained to them.[294] In this manner Prussia acquired the right to recruit, drill, and officer the contingents of twenty-one states--a right which appreciably increased her already preponderant authority in all matters of a military character. Technically, there is no _German_ army, just as there is no _German_ minister of war. Each state maintains its own contingent, and the contingent maintained by the state is stationed normally within that state. By virtue of the treaties, however, all contingents save those of Bavaria, Saxony, and Wurttemburg are administered precisely as if they comprised integral parts of the Prussian establishment.[295]

[Footnote 293: Arts. 61, 63, 64. Dodd, Modern Const.i.tutions, I., 345-347.]

[Footnote 294: The first of the Prussian military treaties, that concluded with Saxe-Coburg-Gotha, dates from 1861; the last, that with Brunswick, from 1885.]

[Footnote 295: Howard, The German Empire, Chap. 12; Laband, Das Staatsrecht des deutschen Reiches, ---- 95-113; C. Morhain, De l'empire allemand (Paris, 1886), Chap. 15.]

*218. The Sonderrechte.*--In the possession of special privileges Prussia, however, is not alone. When the states of the south became members of the federation all of them stipulated certain _Sonderrechte_, or reserved rights, whose acknowledgment was made the condition upon which they came into the union. Wurttemberg and Bavaria, for example, retain on this basis the administration of posts and telegraphs within their boundaries, and Wurttemberg, Bavaria, and Baden possess the exclusive right to tax beers and brandies produced within each state respectively. Bavaria retains the administration of her own railways. At one time it was feared that the special privileges accorded the southern states would const.i.tute a menace to the stability of the Empire. Such apprehension, however, has proved largely groundless.[296] In this connection it is worth pointing out that under the Imperial const.i.tution the right to commission and despatch diplomatic (though not consular) agents is not withdrawn from the individual states.

In most instances, however, the maintenance of diplomatic representatives abroad has long since been discontinued. Saxony, Bavaria, and (p. 209) Wurttemberg retain to-day only their posts at Vienna, St. Petersburg, and the Vatican.

[Footnote 296: Laband, Das Staatsrecht des deutschen Reiches, ---- 11-13.]

*219. Const.i.tutional Amendment.*--It is stipulated within the Imperial const.i.tution that amendments may be adopted by a process identical with that of ordinary legislative enactment, save that an amendment against which as many as fourteen votes are cast in the Bundesrath is to be considered rejected. The practical operation of this last-mentioned provision is to confer upon Prussia, possessing seventeen votes and controlling twenty in the federal chamber, an absolute veto upon all propositions looking toward const.i.tutional change. Clauses of the const.i.tution whereby special rights are secured to particular states may be amended only with the consent of the states affected.[297] In 1873, 1888, and 1893 the text of the const.i.tution was amended, and upon several other occasions important modifications have been introduced in the working const.i.tution without the formality of altering the letter of the instrument.

[Footnote 297: Art. 78. Dodd, Modern Const.i.tutions, I., 351.]

CHAPTER X (p. 210)

THE IMPERIAL GOVERNMENT: EMPEROR, CHANCELLOR, AND BUNDESRATH

I. THE EMPEROR

*220. Status and Privileges.*--Under the North German Confederation of 1867-1871 the king of Prussia was vested with supreme command of the federal navy, the functions of Bundesfeldherr, or commander-in-chief of the federal army, and a large group of purely governmental powers, including the summoning, proroguing, and adjourning of the Bundesrath and Bundestag, the appointment and dismissal of the Chancellor and of other federal officials, the publication of the federal laws, and a general supervision of the federal administration. These powers were exercised by the king in the capacity of _Bundespraesidium_, or chief magistrate, of the federation. Upon the accession of the south German states in 1870-1871 Bismarck and his royal master determined to bring once more into use in Germany the t.i.tle of Emperor, although between the empire which was now a.s.suming form and the empire which had been terminated in 1806 there was recognized to be no historical connection. The const.i.tution of April 16, 1871, accordingly stipulates that "to the king of Prussia shall belong the presidency of the Confederation, and he shall bear the t.i.tle of _Deutscher Kaiser_ (German Emperor)."[298]

[Footnote 298: Art. II. Dodd, Modern Const.i.tutions, I., 330. It will be observed that the t.i.tle is not "Emperor of Germany." The phrase selected was intended to denote that the Emperor is only _primus inter pares_ in a confederation of territorial sovereigns (_Landesherren_.) He is a territorial sovereign only in Prussia.]

The revival of the Imperial t.i.tle and dignity involved, and was intended to involve, no modification of the status of the Bundespraesident, save in respect to his official designation and certain of his personal privileges. His relations with the states and with the princes of the federation continued precisely as before. The powers of the Kaiser were, and are, the powers of the old President, and nothing in excess of those. The t.i.tle might be taken to imply a monarchy of the customary sort; but properly it does not. There is no Imperial crown, no Imperial civil list, no Imperial "office" as such.

The king of Prussia, in addition to his purely Prussian prerogatives, is by the Imperial const.i.tution vested with the added prerogative (p. 211) of bearing the Kaiser t.i.tle and of exercising those powers which under the const.i.tution and laws are conferred upon the bearer of that t.i.tle.

Apart from the Prussian crown the Imperial function does not exist; from which it follows that there is no law of Imperial succession apart from the Prussian law regulating the tenure of the Prussian throne,[299] and that in the event of a regency in Prussia the regent would, _ipso facto_, exercise the functions of Emperor. Chief among the privileges which belong to the Kaiser as such are those of special protection of person and family and of absolute exemption from legal process. Responsible to no superior earthly authority, the Emperor may not be brought for trial before any tribunal, nor be removed from office by any judicial proceeding. a.s.saults upon his person are punishable with death, and attacks, in speech or writing, which are adjudged to const.i.tute _lese majeste_ are subject to special and severe penalties.[300]

[Footnote 299: Arts. 53-58 of the Prussian Const.i.tution. See p. 253.]

[Footnote 300: R. C. Brooks, Lese Majeste, in _The Bookman_, June, 1904.]

*221. Powers: Military and Foreign Affairs.* The king of Prussia being _ipso facto_ Emperor, the royal and Imperial functions which are combined in the hands of the one sovereign are of necessity closely interrelated. There are powers which belong to William II. to-day solely by virtue of his position as king of Prussia. There are others, of an Imperial nature, which he possesses by reason of the fact that, being king of Prussia, he is also Emperor. In practice, if not in law, there are still others which arise from the thoroughgoing preponderance of the Prussian kingdom as a state within the Empire--the power, in general, of imparting a bent to Imperial policy such as would not be possible if, for example, the king of Wurttemberg were Emperor, rather than the king of Prussia.

The functions of the Emperor as such are not numerous, but, so far as they go, they are of fundamental importance. In the first place, the Emperor is commander-in-chief of the army and navy. He may control the organization of the Landwehr, or national defense; determine the strength and composition of the armed contingents; supervise the equipment and drilling of the troops; and mobilize the whole, or any part, of the forces.[301] A second group of Imperial functions are those relating to foreign affairs. "It shall be the duty of the Emperor," says the const.i.tution, "to represent the Empire among nations, to declare war and to conclude peace in the name of the Empire, to enter into alliances and other treaties with foreign countries, to accredit amba.s.sadors and to receive them."[302] The (p. 212) Emperor's power, however, is not in all of these directions absolute.

One important limitation arises from the requirement that, under all circ.u.mstances save in the event of an attack upon the federal territory or its coasts, war may be declared only with the consent of the Bundesrath. Another is that in so far as treaties with foreign countries relate to matters which are to be regulated by Imperial legislation, "the consent of the Bundesrath shall be required for their conclusion, and the approval of the Reichstag shall be necessary to render them valid."[303]

[Footnote 301: Howard, The German Empire, Chap. 12; Laband, Deutsches Reichsstaatsrecht, 345-359.]

[Footnote 302: Art. II. Dodd, Modern Const.i.tutions, I., 330.]

[Footnote 303: Art. II, clause 3. Dodd, I., 331.]

*222. Powers: Legislation and Justice.*--A third group of functions has to do with legislation. By the const.i.tution the Emperor is vested with the right to convene the Bundesrath and the Reichstag, and to open, adjourn, and close them.[304] In accordance with resolutions of the Bundesrath, bills are laid before the Reichstag in the name of the Emperor; and it is the Emperor's duty to prepare and publish the laws of the Empire, as well as to supervise their execution.[305] In so far as is permitted by the const.i.tution, and by laws from time to time enacted, decrees and ordinances may be promulgated by the Emperor, under the countersignature of the Chancellor. Speaking strictly, the Emperor possesses no veto upon measures pa.s.sed in the Bundesrath and Reichstag, though in practice he may refuse to publish a law in the enactment of which he believes the ordinary formal requirements not to have been complied with. He may not withhold a measure by reason simply of its content.

[Footnote 304: Art. 12. Ibid.]

[Footnote 305: "The laws of the Empire shall receive their binding force by Imperial promulgation, through the medium of an Imperial Gazette. If no other time is designated for the published law to take effect it shall become effective on the fourteenth day after its publication in the Imperial Gazette at Berlin."

Art. 2. Dodd, Modern Const.i.tutions, I., 326.]

The Emperor is vested, in the next place, with certain prerogatives in relation to the judiciary. On motion of the Bundesrath, he appoints (though he may not remove) the members of the Reichsgericht, or Imperial Court; and by the Code of Criminal Procedure it is stipulated that in cases in which the Imperial Court shall have rendered judgment as a tribunal of first instance, the Emperor shall possess the power of pardon. The pardoning power is extended likewise to cases adjudged in consular courts, prize courts, and other tribunals specified by law.

*223. Powers: Execution of the Law.*--Finally, the execution of the laws is intrusted to the Emperor with, however, this limitation, that, under the German system, the execution of law is committed largely to the states and the officials thereof, so that the measures of the (p. 213) Imperial Government whose execution is not specifically provided for by the const.i.tution and the laws are presumably carried into effect by the const.i.tuted authorities of the states. There are, however, Imperial agents whose business it is to inspect the execution of Imperial measures by the states and to report to the Emperor infractions or omissions. When such delinquencies are adjudged sufficiently serious, the Emperor may bring them to the attention of the Bundesrath, and that body may order an "execution," i.e., a show of military force to coerce the erring state. The carrying out of the "execution" is intrusted to the Emperor.[306] Incident to the general executive function is the power to make appointments. By the const.i.tution it is stipulated that the Emperor, in addition to appointing the Imperial Chancellor, shall appoint Imperial officials, require of them the taking of an oath to the Empire, and, when necessary, dismiss them.[307] The position which the Chancellor occupies in the Imperial administrative system is of such weight that the power of appointing to, and of removing from, the chancellorship is in itself of very large importance; and the Kaiser's control of administration is still further increased by his power of appointment and removal of subordinate officials.[308]

[Footnote 306: Art. 19. Dodd, Modern Const.i.tutions, I., 332.]

[Footnote 307: Art. 18. Ibid.]

[Footnote 308: Art. 19. Dodd, Modern Const.i.tutions, I., 332. On the status and functions of the German Emperor see Howard, The German Empire, Chap. 3; J.

W. Burgess, The German Emperor, in _Political Science Quarterly_, June, 1888; Laband, Das Staatsrecht des deutschen Reiches, ---- 24-26; ibid., Das deutsche Kaiserthum (Stra.s.sburg, 1896); R.

Fischer, Das Recht des deutschen Kaisers (Berlin, 1895); K. Binding, Die rechtliche Stellung des Kaisers (Dresden, 1898); R. Steinbach, Die rechtliche Stellung des deutschen Kaisers verglichen mit des Prasidenten der Vereinigten Staaten von Amerika (Leipzig, 1903).]

II. THE CHANCELLOR

*224. Non-existence of a Parliamentary System.*--Within the domain of Imperial government the place filled in other governmental systems by a ministry or cabinet of some variety is occupied by a single official, the _Reichskanzler_, or Chancellor. When the Imperial const.i.tution was framed it was the intention of Bismarck to impart to the Imperial administration the fullest facility and harmony by providing the Chancellor with no colleagues, and by making that official responsible solely to the Emperor. Such a scheme would have meant, obviously, a thoroughgoing centralization in all Imperial affairs and the utter negation of anything in the way of a parliamentary system of government.

The more liberal members of the const.i.tuent Reichstag compelled (p. 214) a modification of the original Bismarckian programme; so that when the const.i.tution a.s.sumed its permanent form it contained not merely the stipulation that "the Imperial Chancellor, to be appointed by the Emperor, shall preside in the Bundesrath and supervise the conduct of its business," but the significant provision that "the decrees and ordinances of the Emperor shall be issued in the name of the Empire, and shall require for their validity the countersignature of the Imperial Chancellor, who thereby a.s.sumes the responsibility for them."[309]

[Footnote 309: Arts. 15 and 17. Dodd, Modern Const.i.tutions, I., 331.]

Nominally, this article establishes the principle of ministerial responsibility, even though there is but a single minister to be made responsible. Practically, it does nothing of the sort, for the reason that no machinery whatever is provided for the enforcing of responsibility. There is not even specification of the authority to which responsibility shall lie. The article stipulating responsibility, appropriated from the const.i.tution of Prussia, was merely tacked on the Imperial instrument and has never been brought into organic relation with it. In practice the Imperial Government has always been able to do business without for a moment admitting the right of the Reichstag to unseat the Chancellor by an adverse vote.

The Chancellor may be criticised and the proposals which he introduces may be defeated; expediency may even require his removal by his Imperial master; but he has never felt obliged to retire merely by reason of lack of support in the legislative chamber, as would a British or a French minister similarly situated. This does not mean, of course, that the blocking of a governmental programme may not tend to produce the practical effect of a parliamentary vote of "want of confidence." It means simply that the Chancellor, in such a case, is under no admitted obligation to resign. The retirement of Chancellor von Bulow during the crisis of 1908-1909 was more nearly involuntary than that of any one of his three predecessors, but persons most conversant with the circ.u.mstances agree that there was involved in it no intention of concession to the parliamentary principle. The Chancellor's fall was, in reality, only his punishment for countenancing the popular indignation occasioned by the Emperor's memorable _Daily Telegraph_ interview, for which the Chancellor himself had been, at least technically, responsible.[310]

[Footnote 310: For an excellent discussion of this general subject see W. J. Shepard, Tendencies toward Ministerial Responsibility in Germany, in _American Political Science Review_, Feb., 1911. In the course of an impa.s.sioned speech in the Reichstag in 1912, occasioned by a storm of protest against the Emperor's alleged threat to withdraw the newly granted const.i.tution of Alsace-Lorraine, Chancellor von Bethmann-Hollweg stated the theory and fact of the office which he holds in these sentences: "No situation has been created for which I cannot take the responsibility. As long as I stand in this place I shield the Emperor (_trete ich vor den Kaiser_). This not for courtiers'

considerations, of which I know nothing, but as in duty bound. When I cannot satisfy this my duty you will see me no more in this place."]

There is a clause of the const.i.tution[311] which confers upon the (p. 215) Chancellor the right to delegate the power to represent him to _any other_ member of the Bundesrath; whence it seems to follow that the Chancellor must be himself a member of that body. The relations of the Empire and the Prussian kingdom practically require, further, that the Chancellor be identified with the Prussian contingent in the federal chamber. Since, however, the Emperor, in his capacity of king of Prussia, designates the Prussian delegates in that body, it is open to him to make such an appointment in this second capacity as will enable him when selecting, in his Imperial capacity, a chancellor to procure the services of the man he wants.

[Footnote 311: Art. 15, cl. 2. Dodd, Modern Const.i.tutions, I., 331.]

*225. Functions: in the Bundesrath and the Reichstag.*--Speaking broadly, the functions of the Chancellor are two-fold. The first arises from his position within the Bundesrath. Not only does he represent in that body, as do his Prussian colleagues, the king of Prussia; he is vested const.i.tutionally with the presidency of it and with the supervision of its business. He determines the dates of its sessions. Through his hands pa.s.s all communications and proposals, from the states as well as from the Reichstag, addressed to it, and he is its representative in all of its external relations. In the name of the Emperor he lays before the Reichstag all measures enacted by the Bundesrath; and as a member of the Bundesrath, though not as Imperial Chancellor, he may appear on the floor of the Reichstag to advocate and explain proposed legislation. Measures which have been enacted into law are binding only after they have been proclaimed by the Chancellor, such proclamation being made regularly through the official organ known as the _Reichsgesetzblatt_.

*226. Functions: Administration.*--A second function, so inextricably intertwined with those just mentioned as to be in practice sometimes not clearly distinguishable from them, is that which arises from the Chancellor's position as the princ.i.p.al administrative official of the Empire. As has been pointed out, the work of administration under the German system is largely decentralized, being left to the states; but the ultimate administrative _authority_ is very highly centralized, being gathered in the hands of the Chancellor in a measure not paralleled in any other nation of western Europe. As an administrative official the Chancellor has been described with aptness as the Emperor's "other self." He is appointed by the Emperor; he may be dismissed by him; he performs his functions solely as agent and (p. 216) a.s.sistant of the Emperor; and, although according to the letter of the const.i.tution responsible to the Reichstag, he is, in practice, responsible to no one save his Imperial master.

Prior to 1870 the administrative functions of the Confederation were vested in a single department, the _Bundeskanzleramt_, or Federal Chancery, which was organized in three sections--the "central office,"

the postal office, and the bureau of telegraphs. For the time being, affairs pertaining to the army, the navy, and foreign relations were confided to the care of the appropriate ministries of Prussia. In 1870 there was created a separate federal department of foreign affairs, and in the following year a federal department of the marine. One by one other departments were established, until in 1879 the process was completed by the conversion of what remained of the Bundeskanzleramt into a department of the interior. The status of these departments, however, was from the outset totally unlike that of the corresponding branches of most governments. They were, and are, in effect but bureaus of the Imperial Chancellery, and their heads comprise in no degree a collegiate ministry or cabinet. Each official in charge of a department owes his position absolutely to the Chancellor, and is responsible, not to the Reichstag, nor yet to the Emperor directly, but to the Chancellor. Some of the more important officials bear the t.i.tle of "secretary of state," but in any case they are legally nothing more than expert and essentially non-political functionaries of the administrative hierarchy, answerable to the Chancellor for all that they may do.[312] Of the princ.i.p.al departments there are at present seven: the Foreign Office, the Colonial Office, the Imperial Home Office, the Department of Justice, the Imperial Treasury, the Imperial Admiralty, and the Imperial Post-Office. In the nature of things some are more important than others; and in addition to them there are several Imperial bureaus, notably those of Railways, the Bank, and the Debt Commission. Throughout all branches of the Imperial administrative service appointments and dismissals are made regularly by the Chancellor, in the name of the Emperor, and by the same authority all administrative regulations are promulgated.[313]