in which is located the Kaiserhof, or Imperial residence, and the seat of the Government itself. The attempt failed, but it was only at the second ballot, and by the narrow margin of seven votes, that the socialist candidate was defeated by his Radical opponent. As has been pointed out, the parties of the Left are entirely separate and they are by no means able always to combine in action upon a public question. The ideal voiced by the publicist Naumann, "from Ba.s.sermann to Bebel," meaning that the National Liberals under the leadership of Ba.s.sermann should, through the medium of the Radicals, amalgamate for political purposes with the Social Democrats under Bebel, has not as yet been realized. None the less there has long been community of interest and of policy, and the elections of 1912 made it possible for the first time for a combination of the three groups and their allies to outweigh decisively any combination which the parties of the _bloc_ and their allies can oppose. Before the election there was a clear Government majority of eighty-nine; after it, an opposition majority of, at the least, fourteen. When, in February, 1912, the new Reichstag was opened, it was only by the most dexterous tactics on the part of the _bloc_ that the election of the socialist leader Bebel to the presidency of the chamber was averted.

[Footnote 347: Many of the socialist victories were, of course, at the expense of the National Liberals and Radicals.]

[Footnote 348: The number of electors inscribed on the lists was 14,236,722. The number who actually voted was 12,188,337. The exact vote of the Social Democrats was 4,238,919; of the National Liberals, 1,671,297; of the Radicals, 1,556,549; of the Centre, 2,012,990; and of the Conservatives, 1,149,916.]

*254. The Parties To-day: Conservatives and Centre.*--The princ.i.p.al effect of the election would seem to be to accentuate the already manifest tendency of Germany to become divided between two great hostile camps, the one representative of the military, bureaucratic, agrarian, financial cla.s.ses and, in general, the forces of resistance to change, the other representative of modern democratic forces, extreme and in principle even revolutionary. Leaving out of account the minor particularist groups, the most reactionary of existing parties is the Conservatives, whose strength lies princ.i.p.ally in (p. 239) the rural provinces of Prussia along the Baltic. The most radical is the Social Democrats, whose strength is pretty well diffused through the states of the Empire but is ma.s.sed, in the main, in the cities.

Between the two stand the Centre, the Radicals, and the National Liberals. The Centre has always included both an aristocratic and a popular element, being, indeed, more nearly representative of all cla.s.ses of people in the Empire than is any other party. Its numerical strength is drawn from the peasants and the workingmen, and in order to maintain its hold in the teeth of the appeal of socialism it has been obliged to make large concessions in the direction of liberalism.

At all points except in respect to the interests of the Catholic Church it has sought to be moderate and progressive, and it should be observed that it has abandoned long since its irreconcilable att.i.tude on religion. Geographically, its strength lies princ.i.p.ally in the south, especially in Bavaria.

*255. The Social Democrats.*--Nominally revolutionary, the German Social Democracy comprises in fact a very orderly organization whose economic-political tenets are at many points so rational that they command wide support among people who do not bear the party name.

Throughout a generation the party has grown steadily more practical in its demands and more opportunist in its tactics. Instead of opposing reforms undertaken on the basis of existing inst.i.tutions, as it once was accustomed to do, in the hope of bringing about the establishment of a socialistic state by one grand _coup_, it labors for such reforms as are adjudged attainable and contents itself with recurring only occasionally and incidentally to its ultimate ideal. The supreme governing authority of the party is a congress composed of six delegates from each electoral district of the Empire, the socialist members of the Reichstag, and the members of the party's executive committee. This congress convenes annually to regulate the organization of the party, to discuss party policies, and to take action upon questions submitted by the party members. Nominally, the principles of the party are those of Karl Marx, and its platform is the "Erfurt programme" of 1891, contemplating the abolition of cla.s.s government and of cla.s.ses themselves, the termination of every kind of exploitation of labor and oppression of men, the destruction of capitalism, and the inauguration of an economic regime under which the production and distribution of goods shall be controlled by the state exclusively. The Radical Socialists, i.e., the old-line members of the party, cling to these time-honored articles of faith. But the ma.s.s of the younger element of the party, ably led by Edward Bernstein--the "Revisionists," as they call themselves--consider that the Marxist doctrines are in numerous respects erroneous, and they are insisting that the Erfurt programme shall be overhauled and brought into (p. 240) accord with the practical and positive spirit of the party to-day.

Except Bebel and Kautsky, every socialist leader of note in Germany at the present time is identified with the revisionist movement.[349] The political significance of this situation arises from the fact that the "new socialists" stand ready to co-operate systematically with progressive elements of whatsoever name or antecedents. Already the socialists of Baden, Wurttemberg, and Bavaria have voted for the local state budgets and have partic.i.p.ated in court functions, and upon numerous occasions they have worked hand in hand, not only at elections but in the Reichstag and in diets and councils, with the National Liberals and the Radicals. For the future of sane liberalism in Germany this trend of the party in the direction of co-operative and constructive effort augurs well. At the annual congress held at Chemnitz in September, 1912, the issue of revisionism was debated at length and with much feeling, but an open breach within the party was averted and Herr Bebel was again elected party president. It was shown upon this occasion that the party membership numbered 970,112, a gain of 133,550 during the previous year. It need hardly be observed that of the millions of men who in these days vote for Social Democratic candidates for office hardly a fourth are identified with the formal party organization.[350]

[Footnote 349: Herr Bebel died August 13, 1913.]

[Footnote 350: Two important works of recent date dealing with the history and character of political parties in Germany are C. Grotewald, Die Parteien des deutschen Reichstags. Band I. Der Politik des deutschen Reiches in Einzeldarstellungen (Leipzig, 1908); and O. Stillich, Die politischen Parteien in Deutschland. Band I. Die Konservativen (Leipzig, 1908), Band II. Der Liberalismus (Leipzig, 1911).

The second is a portion of a scholarly work planned to be in five volumes. A brief treatise is F.

Wegener, Die deutschkonservative Partei und ihre Aufgaben fur die Gegenwart (Berlin, 1908). An admirable study of the Centre is L. Goetze, Das Zentrum, eine Konfessionelle Partie; Beitrage zur seiner Geschichte (Bonn, 1906). The rise of the Centre is well described in L. Hahn, Geschichte des Kulturkampfes (Berlin, 1881). On the rise and progress of the Social Democracy see E. Milhaud, La democratie socialiste allemande (Paris, 1903); C.

Andler, Origines du socialisme d'etat en Allemagne (Paris, 1906); E. Kirkup, History of Socialism (London, 1906); W. Sombart, Socialism (New York, 1898); W. Dawson, Bismarck and State Socialism (London, 1891); J. Perrin, The German Social Democracy, in _North American Review_, Oct., 1910.

Under the t.i.tle "Chroniques politiques" there is printed in the _Annales_ (since 1911 the _Revue_) _des Sciences Politiques_ every year an excellent review of the current politics of Germany, as of other European nations. Other articles of value are: M. Caudel, Les elections allemandes du 16 juin, 1898, et le nouveau Reichstag, in _Annales de l'ecole Libre des Sciences Politiques_, Nov., 1898; J. Hahn, Une election au Reichstag allemand, in _Annales des Sciences Politiques_, Nov., 1903; G.

Isambert, Le parti du centre en Allemagne et les elections de janvier-fevrier 1907, ibid., March, 1907; P. Matter, La crise du chancelier en Allemagne, ibid., Sept., 1909; A. Marvaud, La presse politique allemande, in _Questions Diplomatiques et Coloniales_, March 16 and April 1, 1910. There are valuable chapters on German politics in W. Dawson, The Evolution of Modern Germany (London, 1908) and O. Eltzbacher (or J.

Ellis Barker), Modern Germany, her Political and Economic Problems (new ed., London, 1912). For a sketch of party history during the period 1871-1894 see Lowell, Governments and Parties, II., Chap. 7.

An excellent survey of the period 1906-1911 is contained in P. Matter, D'un Reichstag a l'autre, in _Revue des Sciences Politiques_, July-Aug., 1911. On the elections of 1912 see G. Blondel, Les elections au Reichstag et la situation nouvelle des partis, in _Le Correspondant_, Jan. 25, 1912; J. W.

Jenks, The German Elections, in _Review of Reviews_, Jan., 1912; A. Quist, Les elections du Reichstag allemand, in _Revue Socialiste_, Feb. 15, 1912; and W. Martin, La crise const.i.tutionelle et politique en Allemagne, in _Revue Politique et Parlementaire_, Aug. 10, 1912.]

VI. LAW AND JUSTICE (p. 241)

*256. Dual Character.*--Upon the subject of the administration of justice the Imperial const.i.tution of 1871 contained but a single clause, by which there was vested in the Empire power of "general legislation concerning the law of obligations, criminal law, commercial law and commercial paper, and judicial procedure." By an amendment adopted December 20, 1873, the clause was modified to read, "general legislation as to the whole domain of civil and criminal law, and of judicial procedure."[351] Each of the federated states has always had, and still has, its own judicial system, and justice is administered all but exclusively in courts that belong to the states.

These courts, however, have been declared to be also courts of the Empire, and, to the end that they may be systematized and that conditions of justice may be made uniform throughout the land, the federal government has not hesitated to avail itself of the regulative powers conferred in 1871 and amplified in 1873 in the const.i.tutional provisions which have been cited.

[Footnote 351: Art. 4. Dodd, Modern Const.i.tutions, I., 328.]

*257. Diversity of Law Prior to 1871.*--In the first place, there has been brought about within the past generation a unification of German law so thoroughgoing in character as to be worthy of comparison with the systematization of the law of France which was accomplished through the agency of the Code Napoleon. In 1871 there were comprised within the Empire more than two score districts each of which possessed an essentially distinct body of civil and criminal law; and, to add to the confusion, the boundaries of these districts, though at one time coincident with the limits of the various political divisions of the country, were no longer so. The case of Prussia was typical. In 1871 the older Prussian provinces were living under a Prussian code promulgated in 1794; the Rhenish provinces maintained the Code Napoleon, established by Napoleon in all Germany west of the Rhine; in the Pomeranian districts there were large survivals of Swedish law; while the territories acquired after the war of 1866 had each its (p. 242) indigenous legal system. Two German states only in 1871 possessed a fairly uniform body of law. Baden had adopted a German version of the Code Napoleon, and Saxony, in 1865, had put in operation a code of her own devising. At no period of German history had there been either effective law-making or legal codification which was applicable to the whole of the territory contained within the Empire. In the domain of the civil law, in that of the criminal law, and in that of procedure the diversity was alike obvious and annoying.

*258. Preparation of the Codes.*--German legal reform since 1871 has consisted princ.i.p.ally in the formation and adoption of successive codes, each of which has aimed at essential completeness within a given branch of law. The task had been begun, indeed, before 1871. As early as 1861 the states had agreed upon a code relating to trade and banking, and this code had been readopted, in 1869, by the Confederation of 1867.[352] In 1869 a code of criminal law had been worked out for the Confederation, and in 1870 a code relating to manufactures and labor. Upon the establishment of the Empire, in 1871, there was created a commission to which was a.s.signed the task of drawing up regulations for civil procedure and for criminal procedure, and also a plan for the reorganization of the courts. Beginning with a scheme of civil procedure, published in December, 1872, the commission brought in an elaborate project upon each of the three subjects. The code of civil procedure, by which many important reforms were introduced in the interest of publicity and speed, was well received.

That relating to criminal procedure, proposing as it did to abolish throughout the Empire trial by jury, was, however, vigorously opposed, and the upshot was that all three reports were referred to a new commission, by which the original projects relating to criminal procedure and to the organization of the courts were completely remodelled. In the end the revised projects were adopted. October 1, 1879, there went into effect a group of fundamental laws under which the administration of justice throughout the Empire has been controlled from that day to the present. The most important of these was the Gerichtsverfa.s.sungsgesetz, or Law of Judicial Organization, enacted January 27, 1877; the Civilprozessordnung, or Code of Civil Procedure, of January 30, 1877; and the Strafprozessordnung, or Code of Criminal Procedure, of February 1, 1877.

[Footnote 352: It was replaced by a new code May 10, 1897.]

It remained only to effect a codification of the civil law. A committee const.i.tuted for the purpose completed its work in 1887, and the draft submitted by it was placed for revision in the hands of a new commission, by which it was reported in 1895. In an amended form the Civil Code was approved by the Reichstag, August 18, 1896, and (p. 243) it was put in operation January 1, 1900. Excluding matters pertaining to land tenure (which are left to be regulated by the states), the Code deals not only with all of the usual subjects of civil law but also with subjects arising from the contact of private law and public law.[353]

[Footnote 353: A convenient manual for English readers is E. M. Borchard, Guide to the Law and Legal Literature of Germany (Washington, 1912), the first of a series of guides to European law in preparation in the Library of Congress.]

*259. The Inferior Courts.*--By these and other measures it has been brought about that throughout the Empire justice is administered in tribunals whose officials are appointed by the local governments and which render decisions in their name, but whose organization, powers, and rules of procedure are regulated minutely by federal law. The hierarchy of tribunals provided for in the Law of Judicial Organization comprises courts of four grades. At the bottom are the Amtsgerichte, of which there are approximately two thousand in the Empire. These are courts of first instance, consisting ordinarily of but a single judge. In civil cases their jurisdiction extends to the sum of three hundred marks; in criminal, to matters involving a fine of not more than six hundred marks or imprisonment of not over three months. In criminal cases the judge sits with two Schoffen (sheriffs) selected by lot from the jury lists. Besides litigious business the Amtsgerichte have charge of the registration of land t.i.tles, the drawing up of wills, guardianship, and other local interests.

Next above the Amtsgerichte are the 173 district courts, or Landgerichte, each composed of a president and a variable number of a.s.sociate judges. Each Landgericht is divided into a civil and a criminal chamber. There may, indeed, be other chambers, as for example a Kammer fur Handelssachen, or chamber for commercial cases. The president presides over a full bench; a director over each chamber.

The Landgericht exercises a revisory jurisdiction over judgments of the Amtsgerichte, and possesses a more extended original jurisdiction in both civil and criminal matters. The criminal chamber, consisting of five judges (of whom four are necessary to convict), is competent, for example, to try cases of felony punishable with imprisonment for a term not exceeding five years. For the trial of many sorts of criminal cases there are special Schwurgerichte, or jury courts, which sit under the presidency of three judges of the Landgerichte. A jury consists of twelve members, of whom eight are necessary to convict.

Still above the Landgerichte are the Oberlandesgerichte, of which there are twenty-eight in the Empire, each consisting of seven judges.

The Oberlandesgerichte are courts of appellate jurisdiction largely.

Each is divided into a civil and a criminal senate. There is a (p. 244) president of the full court and a similar official for each senate.[354]

[Footnote 354: In Bavaria alone there is an Oberste Landesgericht, with twenty-one judges. Its relation to the Bavarian Oberlandesgerichte is that of an appellate tribunal.]

*260. The Reichsgericht.*--At the apex of the system stands the Reichsgericht (created by law of October i, 1879), which, apart from certain administrative, military, and consular courts,[355] is the only German tribunal of an exclusively Imperial, or federal, character. It exercises original jurisdiction in cases involving treason against the Empire and hears appeals from the consular courts and from the state courts on questions of Imperial law. Its members, ninety-two in number, are appointed by the Emperor for life, on nomination of the Bundesrath, and they are organized in six civil and four criminal senates. Sittings are held invariably at Leipzig, in the kingdom of Saxony.

[Footnote 355: The highest administrative court is the Oberverwaltungsgericht, whose members are appointed for life. Under specified conditions, the "committees" of circles, cities, and districts exercise inferior administrative jurisdiction. For the adjustment of disputed or doubtful jurisdictions there stands between the ordinary and the administrative tribunals a Gerichtshof fur Kompetenz-konflikte, or Court of Conflicts, consisting of eleven judges appointed for life.]

All judges in the courts of the states are appointed by the sovereigns of the respective states. The Imperial law prescribes a minimum of qualifications based on professional study and experience, the state being left free to impose any additional qualifications that may be desired. All judges are appointed for life and all receive a salary which may not be reduced; and there are important guarantees against arbitrary transfer from one position to another, as well as other practices that might operate to diminish the judge's impartiality and independence.[356]

[Footnote 356: On the German judiciary see Howard, The German Empire, Chap. 9; Laband, Das Staatsrecht des deutschen Reiches, ---- 83-94; C. Morhain, De l'empire allemand (Paris, 1886), Chap. 9.]

CHAPTER XII (p. 245)

THE CONSt.i.tUTION OF PRUSSIA-THE CROWN AND THE MINISTRY

I. THE GERMAN STATES AND THEIR GOVERNMENTS

*261. Variations of Type.*--Within the bounds of Germany to-day there are twenty-five states and one Imperial territory with certain attributes of statehood, Alsace-Lorraine. During the larger portion of the nineteenth century each of these states (and of the several which no longer exist) was possessed of substantial sovereignty, and each maintained its own arrangements, respecting governmental forms and procedure. Under the leadership of Prussia, as has been pointed out, the loose Confederation of 1815 was transformed, during the years 1866-1871, into an Imperial union, federal but yet vigorous and indestructible, and to the const.i.tuted authorities of this Empire was intrusted an enormous aggregate of governmental powers. The powers conferred were, however, not wholly abstracted from the original prerogatives of the individual states. In a very appreciable measure they were powers, rather, of a supplementary character, by virtue of which the newly created central government was enabled to do, on a broadly national scale, what, in the lack of any such central government, there would have been neither means of doing, nor occasion for doing, at all. Only at certain points, as, for example, in respect to the levying of customs duties and of taxes, was the original independence of the individual state seriously impaired by the terms of the new arrangement.

The consequence is that, speaking broadly, each of the German states maintains to this day a government which is essentially complete within itself. No one of these governments covers quite all of the ground which falls within the range of jurisdiction of a sovereign state; each is cut into at various points by the superior authority of the Empire; but each is sufficiently ample to be capable of continuing to run, were all of the other governments of Germany instantly to be blotted out.[357] Of the twenty-five state governments, three--those of the free cities of Bremen, Hamburg, and Lubeck--are aristocratic (p. 246) republics; all the others are monarchies. Among the monarchies there are four kingdoms: Prussia, Bavaria, Saxony, and Wurttemberg; six grand-duchies: Baden, Hesse, Mecklenburg-Schwerin, Mecklenburg-Strelitz, Oldenburg, and Saxe-Weimar; five duchies: Anhalt, Brunswick, Saxe-Altenburg, Saxe-Coburg-Gotha, and Saxe-Meiningen; and seven princ.i.p.alities: Lippe, Schwarzburg-Rudolstadt, Schwarzburg-Sonderhausen, Schaumburg-Lippe, Reuss alterer Linie, Reuss Jungerer Linie, and Waldeck-Pyrmont.

[Footnote 357: The best survey in English of the governments of the German states is that in Lowell, Governments and Parties, I., Chap. 6. Fuller and more recent is G. Combes de Lestrade, Les monarchies de l'empire allemand (Paris, 1904). The most elaborate treatment of the subject is to be found in an excellent series of studies edited by H. von Marquardsen and M. von Seydel under the t.i.tle Handbuch des Oeffentlichen Rechts der Gegenwart in Monographien (Freiburg and Tubingen, 1883-1909). A new series of monographs, comprising substantially a revision of this collection, is at present in course of publication by J. C. B. Mohr at Tubingen. The texts of the various const.i.tutions are printed in F. Stoerk, Handbuch der deutschen Verfa.s.sungen (Leipzig, 1884).]

*262. The Preponderance of Prussia.*--From whatever angle one approaches German public affairs, the fact that stands out with greatest distinctness is the preponderant position occupied by the kingdom of Prussia. How it was that Prussia became the virtual creator of the Empire, and how it is that Prussia so dominates the Imperial government that that government and the Prussian are at times all but inextricable, has already been pointed out.[358] Wholly apart from the sheer physical fact that 134,616 square miles of Germany's 208,780, and 40,163,333 people of the Empire's 64,903,423, are Prussian, the very conditions under which the Imperial organization of the present day came into being predetermined that Prussia and things Prussian should enjoy unfailing pre-eminence in all that pertains to German government and politics. Both because they are extended immediately over a country almost two-thirds as large as France, and because of their peculiar relation to the political system of the Empire, the inst.i.tutions of Prussia call for somewhat detailed consideration.

[Footnote 358: See pp. 200-201, 207.]

II. THE RISE OF CONSt.i.tUTIONALISM IN PRUSSIA

*263. Regeneration in the Napoleonic Period.*--By reason of the vacillating policies of her sovereign, Frederick William III., the successive defeats of her armies at Jena, Auerstadt, and elsewhere, and the loss, by the treaty of Tilsit in 1807, of half of her territory, Prussia realized from the first decade of the Napoleonic period little save humiliation and disaster. Through the years 1807-1815, however, her lot was wonderfully improved. Upon the failure of the Russian expedition of Napoleon in 1812, Frederick William (p. 247) shook off his apprehensions and allied himself openly with the sovereigns of Russia and Austria. The people rose _en ma.s.se_, and in the t.i.tanic struggle which ensued Prussia played a part scarcely second in importance to that of any other power. At the end she was rewarded, through the agency of the Congress of Vienna, by being a.s.signed the northern portion of Saxony, Swedish Pomerania, her old possessions west of the Elbe, the duchies of Berg and Julich, and a number of other districts in Westphalia and on the Rhine. Her area in 1815 was 108,000 square miles, as compared with 122,000 at the beginning of 1806; but her loss of territory was more than compensated by the subst.i.tution that had been made of German lands for Slavic.[359] The h.o.m.ogeneity of her population was thereby increased, her essentially Germanic character emphasized, and her capacity for German leadership enhanced.

[Footnote 359: L. A. Himly, Histoire de la formation territoriale des etats de l'Europe centrale, 2 vols. (Paris, 1876), I., 93-110.]

It was not merely in respect to territory and population that the Prussia of 1815 was different from the Prussia of a decade earlier.

Consequent upon the humiliating disasters of 1806 there set in a moral regeneration by which there was wrought one of the speediest and one of the most thoroughgoing national transformations recorded in history. In 1807 Frederick William's statesmanlike minister Stein accomplished the abolition of serfdom and of all legal distinctions which separated the various cla.s.ses of society.[360] In 1808 he reformed the munic.i.p.alities and gave them important powers of self-government. By a series of sweeping measures he reconstructed the ministerial departments, the governments of the provinces, and the local administrative machinery, with the result of creating an executive system which has required but little modification to the present day. In numerous directions, especially in relation to economic conditions, the work of Stein was continued by that of the succeeding minister, Prince Hardenberg. By Scharnhorst and Gneisenau the military regime was overhauled and a body of spiritless soldiery kept in order by fear was converted into "a union of all the moral and physical energies of the nation." By Wilhelm von Humboldt the modern Prussian school system was created; while by Fichte, Arndt, and a galaxy of other writers there was imparted a stimulus by which the patriotism and aspiration of the Prussian people were raised to (p. 248) an unprecedented pitch.[361]

[Footnote 360: It is to be observed that while Stein was officially the author of this reform, the substance of the changes introduced had been agreed upon by the king and his advisers before Stein's accession to office (October 4, 1807). The Edict of Emanc.i.p.ation was promulgated October 9, 1807. It made the abolition of serfdom final and absolute on and after October 8, 1810.]

[Footnote 361: E. Meier, Reform der Verwaltungsorganisation unter Stein und Hardenberg (Leipzig, 1881); J. R. Seeley, Life and Times of Stein, 3 vols. (Boston, 1879), Pt. III., Chaps.

3-4, Pt. V., Chaps. 1-3.]

*264. Obstacles to the Establishment of a Const.i.tution.*--Such an epoch of regeneration could not fail to be a favorable period for the growth of liberal principles of government. In June, 1814, and again in May, 1815, King Frederick William promised, through the medium of a cabinet order, to give consideration to the question of the establishment of a const.i.tution in which provision should be made not merely for the estates of the provinces but also for a national diet. After the Congress of Vienna the task of framing such a const.i.tution was actually taken in hand. But the time was not ripe. Liberalism had gained headway as yet among only the professional cla.s.ses, while the highly influential body of ultra-conservative landholders were unalterably opposed. Between the eastern provinces, still essentially feudal in spirit, and the western ones, visibly affected by French revolutionary ideas, there was, furthermore, meager community of interest. So keen was the particularistic spirit that not infrequently the various provinces of the kingdom were referred to in contemporary doc.u.ments as "nations." Among these provinces some retained the system of estates which had prevailed throughout Germany since the Middle Ages, but in some of those which had fallen under the control of Napoleon the estates had been abolished, and in others they were in abeyance. In a few they had never existed. Votes were taken in the a.s.semblages of the estates by orders, not by individuals, and the function of the bodies rarely extended beyond the approving of projects of taxation. Within the provinces there existed no sub-structure of popular inst.i.tutions capable of being made the basis of a national parliamentary system.