[Footnote 312: At the same time it is to be observed that, in practice, the more important state secretaries are apt to sustain a relation with the other organs of government which is somewhat closer than might be inferred from what has been said. Not infrequently they sit in the Bundesrath, and are by reason of that fact privileged to defend their measures in person on the floor of the Reichstag. Not infrequently, too, they are members of the Prussian ministry.]

[Footnote 313: Laband, Das Staatsrecht des deutschen Reiches, ---- 41, 64-66.]

*227. Delegation of Powers.*--There are two arrangements in accordance with which it is possible for the functions of the Chancellor to (p. 217) be vested in a subst.i.tute. By the const.i.tution the Chancellor is authorized, as has been observed, to delegate to any other member of the Bundesrath the power of representing him in that body; and there is a special agreement to the effect that, in such a contingency, should no acceptable Prussian subst.i.tute be available, the choice shall fall on a Bavarian. In the second place, under statute of March 17, 1878, the Chancellor is empowered to call for the appointment of a subst.i.tute, or subst.i.tutes, in his capacity of Imperial minister. The appointment in such a case is made, not by the Chancellor himself, but by the Emperor, and there may be designated either a general subst.i.tute (_Generalstellvertreter_) or a subst.i.tute for the discharge of the Chancellor's functions in some particular department (_Specialstellvertreter_).[314] In the one case there is no limit upon the Emperor's freedom of choice; in the other, appointments must be made from chiefs of the department or departments affected. The Chancellor may at any time resume functions thus delegated.[315]

[Footnote 314: The law of 1878 was enacted on the occasion of Bismarck's prolonged absence from Berlin, during his retirement at Varzin. A _Generalstellvertreter_ takes the t.i.tle of _Reichsvicekanzler_, or Imperial Vice-Chancellor.]

[Footnote 315: On the status and functions of the Chancellor see Howard, The German Empire, Chap. 7; Laband, Das Staatsrecht des deutschen Reiches, -- 40; L. Dupriez, Les ministres dans les princ.i.p.aux pays d'Europe et d'Amerique, 2 vols. (Paris, 1892), I., 483-548; Hensel, Die stellung des Reichskanzlers nach dem Staatsrechte des deutschen Reiches, in Hirth, _Annalen des deutschen Reiches_, 1882; M. I. Tambaro, La transformation des pouvoirs en Allemagne, in _Revue du Droit Public_, July-Sept., 1910.]

III. THE BUNDESRATH

If the chancellorship is without a counterpart among modern governments, no less so is the Federal Council, or Bundesrath. No feature of the German political system is more extraordinary; none, as one writer has observed, is more thoroughly native.[316] It is not an "upper house," nor even, in the ordinary sense, a deliberative chamber at all. On the contrary, it is the central inst.i.tution of the whole Imperial system, and as such it is possessed of a broad combination of functions which are not only legislative, but administrative, consultative, judicial, and diplomatic.

[Footnote 316: Lowell, Governments and Parties, I., 259.]

*228. Composition: the Allotment of Votes.*--The Bundesrath is composed of delegates appointed by the princes of the monarchical states and by the senates of the free cities. In the Imperial const.i.tution it is required that the fifty-eight votes to which the twenty-five states of the confederation are ent.i.tled shall be distributed in such a (p. 218) manner that Prussia shall have seventeen, Bavaria six, Saxony four, Wurttemberg four, Baden three, Hesse three, Mecklenburg-Schwerin two, Brunswick two, and the seventeen other states one apiece.[317] Save for the increase of the Bavarian quota from four to six and of the Prussian from four to seventeen, these numbers were simply carried over from the Diet of the Confederation of 1815. The Prussian increase arose, in 1866, from the absorption of Hanover, Hesse Ca.s.sel, Holstein-Lauenburg, Na.s.sau, and Frankfort; the Bavarian, from a customs union treaty of July 8, 1867. Subsequent to the adoption of the const.i.tution of 1871 Prussia acquired, by contract, the vote of the government of Waldeck; also, through the establishment in 1884-1885 of a perpetual Prussian regency in Brunswick, the two votes to which that state is ent.i.tled; so that the total of the votes controlled by the government of Prussia has been raised, for all practical purposes, to twenty.

[Footnote 317: Under the Alsace-Lorraine Const.i.tution Act of 1911 (see p. 285), comprising for all practical purposes an amendment of the Imperial const.i.tution, the territory of Alsace-Lorraine has become nominally a state of the Empire, being accorded three votes in the Bundesrath. The whole number of votes was thus raised to sixty-one. The Alsatian delegates are appointed by the Statthalter, who is the immediate and responsible agent of the Emperor. Their votes are cast, however, under regulations which are inconsistent with full-fledged statehood.]

It may be observed that the allocation of votes for which provision was made in the const.i.tution of 1867-1871 was largely arbitrary. That is to say, except for the quotas of Prussia and Bavaria, it was perpetuated from the const.i.tution of 1815 with no attempt to apportion voting power among the several states in exact relation to population, wealth, or importance. Upon any one of these bases Prussia must have been accorded an absolute majority of the aggregate number, rather than a scant third. In 1867 the population of Prussia comprised four-fifths of that of the North German Confederation; in 1871, two-thirds of that of the Empire. That Prussia should intrust to her sister states a total of forty-one votes, retaining but seventeen for herself, was one of the arrangements by which Bismarck sought to a.s.sure the lesser members of the federation against too complete domination on the part of the Prussian kingdom.

*229. Status of Delegates and Method of Voting.*--Each state is authorized, though not required, to send to the Bundesrath a number of delegates identical with the number of votes to which the state is ent.i.tled. The full quota of members is, therefore (since the Alsace-Lorraine Const.i.tution Act of 1911), sixty-one. Legally, and to a large extent practically, the status of the delegate is that, not of a senator, but of a diplomat; and the Emperor is required to (p. 219) extend to the members of the body the "customary diplomatic protection."[318] Delegates are very commonly officials, frequently ministers, of the states which they represent. They are appointed afresh for each session, and they may be recalled or replaced at any time. The purely federal character of the Bundesrath is further emphasized by two princ.i.p.al facts. The members speak and act and vote regularly, not at their own discretion, but under the specific instructions of the governing authorities by whom they are accredited.

Only rarely do their instructions allow to them any considerable measure of independence. Strictly, the Bundesrath is not a deliberative a.s.sembly at all; though, unlike the former Diet, it is something more than a meeting of amba.s.sadors of the states. In the second place, the votes cast are the votes, not of the individual members, but of the states, and they are cast in indivisible blocks by the delegations of the states, regardless of the number of members in attendance. Thus, Bavaria is ent.i.tled to six votes. Whatever the individual opinions of the six Bavarian delegates, the six Bavarian votes are cast solidly upon any question that may arise. It is not even necessary that six delegates actually partic.i.p.ate in the decision. A single delegate may cast the entire quota of votes to which his state is ent.i.tled. The twenty votes controlled by Prussia are therefore cast invariably in a block, from which it follows that Prussia usually preponderates in the chamber. On several occasions the smaller states have been able to combine in sufficient numbers to defeat a project upon which Prussia was bent, but such a proceeding is distinctly exceptional.

[Footnote 318: Art. 10. Dodd, Modern Const.i.tutions, I., 330.]

*230. Sessions and Procedure.*--The Bundesrath may be convened by the Emperor, which in effect means by the Chancellor, at any time. The const.i.tution stipulates that there shall be at least one session a year, and, furthermore, that it shall be obligatory upon the Emperor to convene the body whenever a meeting is demanded by one-third of the total number of votes. The Bundesrath may be called together "for the preparation of business" without the Reichstag; but the Reichstag may not be convened without the Bundesrath.[319] The presiding officer at all sessions is the Chancellor, or some other member of the body by him designated as a subst.i.tute. It is within the competence of each member of the confederation, i.e., each state, to propose measures and to introduce motions. The phraseology of the const.i.tution debars the Emperor, as Emperor, from introducing proposals. As king of Prussia, however, he may bring forward any project through the (p. 220) medium of the Prussian delegation; and in actual practice it has not always been deemed necessary to resort to this subterfuge.

[Footnote 319: Arts. 13 and 14. Dodd, Modern Const.i.tutions, I., 331.]

From all sittings of the Bundesrath the public is rigorously excluded; and although ordinarily upon the conclusion of a session a statement regarding the results of the proceedings is given to the press, the chamber may vote to withhold such information altogether. Business left unfinished at the close of a session may be resumed upon the rea.s.sembling, precisely as if no lapse of time had occurred. With some exceptions, a simple majority of the sixty-one votes is adequate for the adoption of a measure. In the event of a tie, the Prussian delegation possesses the deciding voice. The princ.i.p.al limitations upon decisions by simple majority are: (1) any proposal to amend the const.i.tution may be rejected by as few as fourteen votes, whence it arises that Prussia has an absolute veto on amendments; and (2) when there is a division upon proposed legislation relating to military affairs, the navy, the tariff, and various consumption taxes, the vote of Prussia prevails if it is cast in favor of maintaining the _status quo_.[320]

[Footnote 320: Art. 5. Dodd, Modern Const.i.tutions, I., 328.]

*231. Committees.*--The work of the Bundesrath consists largely in the preparation of measures for the consideration of the Reichstag, and a goodly share of its labor is performed in committees. Of permanent committees there are now twelve--eight provided for within the const.i.tution itself and four existing by virtue of standing orders.

The committees prescribed by the const.i.tution are those on the army and fortifications; marine; customs and taxes; commerce; railroads, posts and telegraphs; judicial affairs; accounts; and foreign relations. Under certain limitations, each of these committees, const.i.tuted for one year, is chosen by the Bundesrath itself, by secret ballot, except that the Emperor appoints the members of the committee on the marine and all but one of the members of the committee on the army and fortifications.[321] The committees existing by virtue of standing orders are those on Alsace-Lorraine, railroad freight rates, standing orders, and the const.i.tution. All committees consist of seven members, save those on foreign affairs and the marine, which have five; and each includes representatives of at least four states. Prussia holds all chairmanships, save that of the committee on foreign affairs, which belongs to Bavaria.

[Footnote 321: Art. 8. Ibid., I., 330. Strictly, the Bundesrath but indicates by ballot the states which shall be represented on each committee, leaving to the states themselves the right to name their representatives.]

*232. Powers of Legislation.*--By reason of the pivotal position (p. 221) which the Bundesrath occupies in the German const.i.tutional system the functions of the body are fundamental and its powers comprehensive.

Its competence is in the main legislative and fiscal, but also in part executive and judicial. By the const.i.tution it is stipulated that the legislative power of the Empire shall be exercised by the Bundesrath and the Reichstag, and that a majority of the votes of both bodies shall be necessary and sufficient for the enactment of a law.[322] The right of initiating legislation is expressly conferred upon the Reichstag, but in practice it is exercised almost exclusively by the Bundesrath. Even finance bills all but invariably originate in the superior chamber. Under the normal procedure bills are prepared, discussed, and voted in the Bundesrath, submitted to the Reichstag for consideration and acceptance, and returned for further scrutiny by the Bundesrath before their promulgation by the Emperor. In any case, the final approval of a measure must take place in the Bundesrath, by whose authority alone the character of law can be imparted. Speaking strictly, it is the Bundesrath that makes law, with merely the a.s.sent of the Reichstag.

[Footnote 322: Art. 5. Dodd, Modern Const.i.tutions, I., 328.]

*233. Executive Authority.*--The Bundesrath's executive functions represent a curious admixture, but the sum total is very considerable.

In the first place, the body possesses supplementary administrative powers. By the const.i.tution it is required to take action upon "the general administrative provisions and arrangements necessary for the execution of the Imperial laws, so far as no other provision is made by law," as well as upon "the defects which may be discovered in the execution of the Imperial laws."[323] This function is performed through the issuing of ordinances so devised as not to contravene the const.i.tution, existing law, or the proper prerogatives of any const.i.tuted authority, Imperial or state. In the second place, certain powers vested in the Emperor may be exercised only with the Bundesrath's consent. Most important of these are: (1) the declaration of war, save in the event of an attack upon the territory or coasts of the Empire; (2) the concluding of treaties, in so far as they relate to matters falling within the range of Imperial legislation; and (3) the carrying out of an "execution" against a delinquent state. Finally certain relations are maintained with the Reichstag which involve the exercise of authority that is essentially executive. With the a.s.sent of the Emperor, the Bundesrath may dissolve the popular chamber; and every member of the Bundesrath has the right to appear in the (p. 222) Reichstag and to be heard there at any time upon his own request, somewhat after the manner of a minister in a parliamentary government.[324] Large functions in connection with public finance, likewise, are vested in the body. By it the annual budget is prepared, the accounts which the Empire carries with the states are audited, and important supervisory relations with the Imperial Bank, the Imperial Debt Commission, and other fiscal agencies, are maintained. Lastly, there is some partic.i.p.ation in the power of appointment; for although that power, as such, is vested in the Emperor, officials of some kinds (e.g., judges of the Imperial Court) are actually chosen by the Bundesrath, and in many other instances the body preserves an acknowledged right to approve appointments which are made.

[Footnote 323: Art. 7. Dodd, I., 329.]

[Footnote 324: Arts. 9 and 24. Dodd, Modern Const.i.tutions, I., 330-333. It should be observed, however, that the members of the Bundesrath are authorized to appear in the Reichstag, not for the purpose of advocating a measure which the Bundesrath has enacted, or would be willing to enact, but simply to voice the interests or demands of their own states.]

*234. Judicial Powers.*--In its judicial capacity the Bundesrath sits as a supreme court of appeal, to which cases may be carried from the tribunals of a state, when it can be shown that justice is not to be had in those tribunals.[325] It serves also as a court of last resort for the settlement of disputes between the Imperial Government and a state; or between two states, when the point at issue is not a matter of private law and when a definite request for action is made by one of the parties. Finally, in disputes relating to const.i.tutional questions in states whose const.i.tution does not designate an authority for the settlement of such differences, the Bundesrath is required, at the request of one of the parties, to effect an amicable adjustment; or, if this shall prove impossible, to see to it that the issue is settled by Imperial law.[326]

[Footnote 325: Art. 77. Dodd, Modern Const.i.tutions, I., 350.]

[Footnote 326: Art. 76. Dodd, Modern Const.i.tutions, I., 350. On the Bundesrath see Howard, The German Empire, Chap. 4; J. H. Robinson, The German Bundesrath, in _Publications of University of Pennsylvania_, III. (Philadelphia, 1891); P.

Laband, Das Staatsrecht des deutschen Reiches, ---- 27-31; A. Lebon, etudes sur l'Allemagne politique, 137-151; Dupriez, Les Ministres, I., 505-523; Zorn, Das Staatsrecht des deutschen Reiches, I., 136-160; E. Kliemke, Die Staatsrechtliche Natur und Stellung des Bundesrathes (Berlin, 1894); A. Herwegen, Reichsverfa.s.sung und Bundesrat (Cologne, 1902).]

CHAPTER XI (p. 223)

THE IMPERIAL GOVERNMENT: REICHSTAG, PARTIES, JUDICIARY

I. COMPOSITION OF THE REICHSTAG--ELECTORAL SYSTEM

In complete contrast with the Bundesrath, which is a purely federal inst.i.tution, the Reichstag is broadly national. It represents, not the states, nor yet the people of the states, but the people of the Empire as a whole. From what has been said regarding the preponderance of the autocratic principle in the German system it follows that there is no room in that system for a parliamentary chamber of the nature of the British House of Commons or of the French Chamber of Deputies. None the less, restricted as are its functions, the Reichstag is one of the world's most vigorous and interesting legislative bodies.

*235. Allotment of Seats.*--Members of the Reichstag are chosen for a term of five years,[327] by direct and secret ballot, at an election which takes place on a given day throughout the entire Empire. The number of seats, fixed tentatively by the const.i.tution of 1871 at 382, was, by law of June 25, 1873, providing for the election of fifteen members from Alsace-Lorraine, increased to 397; and it thereafter remained unchanged. The electoral "circles," or districts, each of which returns one member, were laid out originally in such a way as to comprise 100,000 inhabitants each, and also in such a manner that no district would embrace portions of two or more states. Since 1871 there has been no redistricting of the Empire, and the populations comprising the various const.i.tuencies have become grossly unequal.

Berlin, with more than two million people, is still ent.i.tled to but six seats; and the disproportion in other great cities and densely inhabited regions is almost as flagrant.[328] There has long been demand for a redistribution of seats; but, by reason of the p.r.o.neness of urban const.i.tuencies to return to the Reichstag socialists or other radicals, the Government has never been willing to meet the (p. 224) demand. By states, the 397 seats are distributed as follows: Prussia, 236; Bavaria, 48; Saxony, 23; Wurttemberg, 17; Alsace-Lorraine (Imperial territory), 15; Baden, 14; Hesse, 9; Mecklenburg-Schwerin, 6; Saxe-Weimar, 3; Oldenburg, 3; Brunswick, 3, Hamburg, 3; Saxe-Meiningen, 2; Saxe-Coburg-Gotha, 2; Anhalt, 2; and all others, one each. As in the American House of Representatives, a state is ent.i.tled to one member regardless of its population.

[Footnote 327: The term, originally three years, was made five by a law of 1888. The modification went into effect with the Reichstag elected in February, 1890.]

[Footnote 328: In Conservative East Prussia the average number of voters in a district is 121,000; in Socialist Berlin it is 345,000. Twelve of the most populous districts represented in the Reichstag contain 1,950,000 voters; twelve of the least populous, 170,000. The district of Schaumburg-Lippe has but 9,891.]

*236. Time and Method of Elections.*--Electoral procedure is regulated by the Election Law of May 31, 1869, amended in minor particulars at subsequent dates, and extended in 1871 and in 1873 to the southern states and to Alsace-Lorraine respectively. Elections are held uniformly throughout the Empire on a day fixed by the Emperor. In the event of a dissolution prior to the end of the five-year term an election is required to take place within a period of sixty days, and the new Reichstag must be convened not later than ninety days after the dissolution.[329] For election on the first ballot an absolute majority of the votes cast within the circle, or district, is required. If no candidate obtains such a majority, there follows a second balloting (_Stichwahl_) a fortnight later, when choice is made between the two candidates who upon the first occasion polled the largest number of votes. In the event of a tie, decision is by lot.[330] Secrecy of the ballot is specially safeguarded by regulations enacted April 28, 1903. Each voter, upon appearing at the polls, is furnished with an envelope and a white voting-paper bearing an official stamp. In a compartment arranged for the purpose in the polling room he marks his ballot and incloses it in the envelope. As he leaves the room he hands the envelope to the presiding officer or deposits it in a voting urn. Once elected, a member, according to const.i.tutional stipulation, is a representative, not of the const.i.tuency that chose him, but of the people of the Empire as a whole, and he may not be bound by any order or instruction.[331]

[Footnote 329: Art. 25. Dodd, Modern Const.i.tutions, I., 333.]

[Footnote 330: By reason of the multiplicity of parties the number of second ballotings required is invariably large. In 1890 it was 138; in 1893, 181; in 1898, 185; in 1903, 180; in 1907, 158; and in 1912, 191. It is calculated that the effect of forty per cent of the second ballotings is to prevent the election of the candidate obtaining originally the largest number of votes. The arrangement operates to the advantage princ.i.p.ally of the National Liberals, the Radicals, and other essentially moderate parties, and to the disadvantage especially of the Social Democrats. On this subject see A. N. Holcombe, Direct Primaries and the Second Ballot, in _American Political Science Review_, Nov., 1911.]

[Footnote 331: Art. 29. Dodd, Modern Const.i.tutions, I., 333.]

*237. The Franchise.*--The franchise is broadly democratic. (p. 225) Every male who, possessing citizenship in the Empire, has completed his twenty-fifth year is ent.i.tled to vote in the district in which he has his domicile, provided his name appears on the registration lists.

He is not required to be a citizen of the state in which he votes. The only exceptions to the general rule of universal manhood suffrage arise from the disfranchis.e.m.e.nt of persons under guardianship, bankrupts, beneficiaries of public charity, persons suffering judicial deprivation in respect to certain of their rights as citizens, and persons in active service in the army and navy. Any male citizen, possessed of the right to vote, twenty-five years of age or over, and a resident of a state of the Empire during at least one year, is eligible as a candidate. He is not required to be a citizen of the state from which he aspires to be elected.[332]

[Footnote 332: On the German Imperial electoral system see Howard, The German Empire, Chap. 5; Lebon, etudes sur l'Allemagne politique, 70-83; ibid., etude sur la legislation electorale de l'empire d'Allemagne, in _Bulletin de Legislation Comparee_, 1879; G. Below, Das parlamentarische Wahlrecht in Deutschland (Berlin, 1909); and M. H.

Nezard, L'evolution du suffrage universel en Prusse et dans l'Empire allemand, in _Revue du Droit Public_, Oct.-Dec., 1904.]

*238. Privileges of Members.*--Solicitous lest if members of the Reichstag should be ent.i.tled to remuneration for their services the poorer cla.s.ses would arrive at a preponderance in the chamber, Bismarck insisted in season and out upon the non-payment of representatives, and by the const.i.tution of 1871 salaries were specifically forbidden.[333] During the eighties the Imperial Court of Appeal ruled that the payment of socialist members by their supporters was illegal,[334] though such payment has been in recent times not unknown. Again and again measures providing for the payment of all members from the Imperial treasury were pa.s.sed in the Reichstag, only to be thrown out by the Bundesrath. May 21, 1906, such a measure was at last enacted by both chambers, providing for a payment of 3,000 marks a session (with a deduction of twenty-five marks for each day's absence), and in addition free pa.s.ses over German railways during, and for eight days before and after, sessions. Upon the taking effect of this measure, Germany became one of the several European countries in which, within years comparatively recent, the members of the popular legislative chamber have been given a right to public compensation.

Special privileges enjoyed by members are of the customary sort. No member may at any time be held legally to account outside the chamber by reason of his utterances or his votes within it. Unless taken (p. 226) in the commission of a misdemeanor, or during the ensuing day, a member may not be arrested for any penal offense, or for debt, without the consent of the chamber; and at the request of the chamber all criminal proceedings inst.i.tuted against a member, and any detention for judicial investigation or in civil cases, must be suspended during a session.[335]

[Footnote 333: "The members of the Reichstag, as such, shall draw no salary or compensation." Art.

32. Dodd, Modern Const.i.tutions, I., 334.]

[Footnote 334: Cf. the Osborne Judgment of 1909 in England (see p. 127).]