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 title of Emperor, although between the empire which was now assuming form and the empire which had been terminated in 1806 there was recognized to be no historical connection. The constitution of April 16, 1871, accordingly stipulates that "to the king of Prussia shall belong the presidency of the Confederation, and he shall bear the title of Deutscher Kaiser (German Emperor)."

The revival of the Imperial title 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 title 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 constitution vested with the added prerogative (p. 211) of bearing the Kaiser title and of exercising those powers which under the constitution and laws are conferred upon the bearer of that title. 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, 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. Assaults upon his person are punishable with death, and attacks, in speech or writing, which are adjudged to constitute lese majeste are subject to special and severe penalties.

*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 Wuerttemberg 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. A second group of Imperial functions are those relating to foreign affairs. "It shall be the duty of the Emperor," says the constitution, "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 ambassadors and to receive them." 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 circumstances 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."

*222. Powers: Legislation and Justice.*--A third group of functions has to do with legislation. By the constitution the Emperor is vested with the right to convene the Bundesrath and the Reichstag, and to open, adjourn, and close them. 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. In so far as is permitted by the constitution, 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 passed 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.

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 constitution and the laws are presumably carried into effect by the constituted 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. Incident to the general executive function is the power to make appointments. By the constitution 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. 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.

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 constitution 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 constituent Reichstag compelled (p. 214) a modification of the original Bismarckian programme; so that when the constitution assumed 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 assumes the responsibility for them."

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 constitution 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 Buelow 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 circumstances 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.

There is a clause of the constitution 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.

*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 constitutionally with the presidency of it and with the supervision of its business. He determines the dates of its sessions. Through his hands pass 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 principal 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) assistant of the Emperor; and, although according to the letter of the constitution 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 title 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. Of the principal 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.

*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 substitute. By the constitution 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 substitute 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 substitute, or substitutes, 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 substitute (Generalstellvertreter) or a substitute for the discharge of the Chancellor's functions in some particular department (Specialstellvertreter). 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.

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. It is not an "upper house," nor even, in the ordinary sense, a deliberative chamber at all. On the contrary, it is the central institution 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.

*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 constitution it is required that the fifty-eight votes to which the twenty-five states of the confederation are entitled shall be distributed in such a (p. 218) manner that Prussia shall have seventeen, Bavaria six, Saxony four, Wuerttemberg four, Baden three, Hesse three, Mecklenburg-Schwerin two, Brunswick two, and the seventeen other states one apiece. 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 Cassel, Holstein-Lauenburg, Nassau, and Frankfort; the Bavarian, from a customs union treaty of July 8, 1867. Subsequent to the adoption of the constitution 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 entitled; so that the total of the votes controlled by the government of Prussia has been raised, for all practical purposes, to twenty.

It may be observed that the allocation of votes for which provision was made in the constitution of 1867-1871 was largely arbitrary. That is to say, except for the quotas of Prussia and Bavaria, it was perpetuated from the constitution 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 assure 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 entitled. The full quota of members is, therefore (since the Alsace-Lorraine Constitution 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." 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 principal 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 assembly at all; though, unlike the former Diet, it is something more than a meeting of ambassadors 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 entitled 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 participate in the decision. A single delegate may cast the entire quota of votes to which his state is entitled. 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.

*230. Sessions and Procedure.*--The Bundesrath may be convened by the Emperor, which in effect means by the Chancellor, at any time. The constitution 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. The presiding officer at all sessions is the Chancellor, or some other member of the body by him designated as a substitute. 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 constitution 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.

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 reassembling, 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 principal limitations upon decisions by simple majority are: (1) any proposal to amend the constitution 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.

*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 constitution itself and four existing by virtue of standing orders. The committees prescribed by the constitution 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, constituted 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. The committees existing by virtue of standing orders are those on Alsace-Lorraine, railroad freight rates, standing orders, and the constitution. 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.

*232. Powers of Legislation.*--By reason of the pivotal position (p. 221) which the Bundesrath occupies in the German constitutional 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 constitution 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. 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 assent of the Reichstag.

*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 constitution 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." This function is performed through the issuing of ordinances so devised as not to contravene the constitution, existing law, or the proper prerogatives of any constituted 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 assent 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. 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 participation 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.

*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. 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 constitutional questions in states whose constitution 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.