SECTION I. Territorial Status of the States

TERRITORIAL STATUS OF THE STATES

Territory is one of the essential elements of a state. In a confederated state the central government cannot force on the member states changes or exchanges of territory, fusions or parceling of their respective holdings. Such was in principle the régime prevailing in the old German Empire. The historic composition of the individual states as they were when their princes signed the federal pact in 1871 was guaranteed, and the territories of individual states were protected by the Constitution in the geographic integrity they had when they entered the Empire.

The Constitution of Weimar on the other hand put forward the principle of the mobility of frontiers. But it was not until after the most violent and passionate discussions that this was adopted, and not without modifications that peculiarly limited its operation. For, what was foremost in the deliberations and constantly dominated them was neither more nor less than the question of the dismemberment of Prussia. The cardinal consideration was this: legally the majority of the problems of organization that the Constitution had to solve would depend for their solution according to whether Prussia would or would not retain its territorial integrity. But the political problem was also grave. Prussia remaining as such, would it not exercise again its former hegemony over Germany with all the attendant dangers to the domestic and foreign policies of the Reich, dangers of an obstinate reaction at home and of an insatiable pan-Germanism abroad?

1.--THE PROBLEM OF THE DISMEMBERMENT OF PRUSSIA.

In November, 1918, there was felt throughout Germany a very powerful centrifugal movement. The masses of the people saw in the Reich nothing more than an alliance of princes and Prussian domination. It was to the princes and to Prussia that they attributed the inexpiable fault of having begun the war and lost it. During several weeks of limitless despair, two cries were raised, “Down with the Princes!” and above that, “Separation from Prussia!” It must be added that behind these cries was partly the unavowed hope that by abandoning the Reich one could more or less escape the menacing consequences of defeat. The Reich seemed on the point of dissolution.

But some men at once realized that if Germany was to be saved the one efficacious remedy was to revive in the people the sentiment of national unity and to reconstruct the Reich on new bases. A unitary republic would have to be created and the domination of Prussia overturned.

These two fundamental objectives were self-explanatory and mutually compulsory. For, given the disproportion in power that existed between Prussia and the other states, the more one increased the power of the Reich to the detriment of the states the more one strengthened the domination of Prussia, for thereby Prussia was made all powerful within the Reich. If, therefore, the centralizing character of the Constitution was to be accentuated, the following dilemma would have to be confronted. Either Prussia as it was would have to be accepted by the Reich, in which case the German Republic would in reality become a unitary Prussian Republic in which non-Prussian parties would be subjected to the will of Prussia. Or, if this state of affairs was to be avoided and a unitary state with central will was desired, Prussia would have to be suppressed, either by a partition of her own accord or one imposed upon it by the Reich. It was this latter alternative that Under-Secretary of State Preuss chose when he was put in charge of the drafting of the Constitution.

The individual states, he pointed out, were the products of purely dynastic politics which almost everywhere ran counter to the natural relations of populations and races, separating what should have been united and uniting elements that had nothing in common. Only the republic has the possibility--it is also its duty--to reunite what belonged together. The fundamental question of the internal organization of Germany is, can a centralized Prussian State be maintained within the future German Republic? This question Preuss, after philosophical, historical considerations, answered in the negative. He demanded the territorial redistribution of the states on the basis of the right of populations to self-determination, according to their needs and their political and economic inclinations, with the intervention, by the sanction and under the direction of the Reich. Preuss insisted throughout on the fact that Prussia is not a nation, but that she constitutes an artificial formation, due to the political hazards of a reigning house, purchases, marriages, conquests, etc. The Prussian state does not form an organic whole and is bound together neither by economic nor cultural relations. It is an incomplete German state, “an edifice of fortune.” Even admitting that it had been for a time indispensable, in that it constituted to a certain measure an internal bond, it has now outlived its usefulness as a state. The national unity of Germany as a whole is a vital question for the German people and therefore for the German Republic. It is imperative that the diverse races who lived in forced unity in Prussia should be at once placed under the sovereignty of the Reich instead of being “mediatized” by a state that interposes itself between them and the Reich. It is only by the suppression of Prussia that these populations can secure that equality which is their right by the side of the other German states. It is only by the dismemberment of Prussia that the small states of North and Central Germany can make themselves communities able to survive. That an incompletely unified state of forty million Germans, that is to say, Prussia, could co-exist with a more complete unity of seventy million Germans, is contrary to nature and is a political contradiction. The German people, therefore, must be free to erect within the Reich new German republics without regarding the actual boundaries of the existing German states, as far as economic conditions and historical considerations permit the formation of new states. Newly created states will have to have at least two million inhabitants each. The fusion of several member states into a new state can be effected by an interstate treaty drawn up by the states in question, and approved by their parliaments as well as the government of the Reich. If the population of a territory wishes to separate itself from the state to which it belonged in order to unite with one or more other German Republics, or to form for itself an independent republic within the Reich, a plebiscite must be resorted to.

These proposals aroused most violent opposition. In the meetings of the committees as well as in plenary sessions of the Assembly two declarations were constantly emphasized. On the one hand, matters could not remain as they were, for the interior boundaries of the country were too entangled and there were states too small and powerless to discharge conveniently their obligations. On the other hand, it was impossible to conceive a radical transformation and to hope to see realized a completely new regrouping if this had to be done on purely rational principles. Revolution could perhaps effect this transformation, but the Republic was not yet strong enough to undertake this task, particularly as it was so preoccupied with the problem of a constitution. Insistence on the complete solution of this problem, even if it did not invite complete failure, would mean too much loss of time. A compromise had to be found.

The terms of such a compromise were extremely difficult to find. For no change in the territories of the various states could be effected without encroaching on the territory of Prussia, which has “enclaves” or domains in most of the states whose transformation was contemplated. If even one were to content oneself with the fusing of several small states--which it was unanimously agreed was highly desirable--it could be done only by taking from Prussia such and such piece of its territory. No matter from what side, therefore, the problem was attacked one came to the question of the dismemberment of Prussia. And over this question came conflict.

Some of the members followed the lines of the proposal submitted by Preuss on the partition of Prussia; but they went much further and indicated precisely what territory they found necessary to take away from it.

It was above all the question of the Rhineland. Through Trimborn, spokesman of the Centre, deputies of Cologne and Aix-la-Chapelle, the inhabitants of the Rhine country presented their claims. Prussia, product of a political dynasty, is an aggregation of different races, for there is no Prussian nation. The people who live on the banks of the Rhine feel themselves handicapped in comparison with the other German races, since they are not in direct contact with the Reich, and are represented in it only through the medium of Prussia. It follows from this that the people of the Rhine cannot have free expression of their native tendencies nor develop their own culture. They suffer in every way by not having their own administration and by having to endure Prussian functionaries over them.

The objections which came from the Prussian side to the formation of a Rhine state were not valid, insisted the partisans of the latter. The separation of the Rhineland from Prussia need not entail in itself a separation from the Reich. On the contrary, the Rhineland would be more solidly and intimately welded to the Reich if they belonged to it directly instead of being only part of Prussia. Nor would they admit the argument that the Rhineland should belong to Prussia to supplement economically the relatively poor Eastern provinces of Prussia. “The old cry of the poor East and the rich West is to-day dead,” the Rhinelanders insisted. War and revolution have done infinitely more damage to industrial Rhine than to the rural Eastern provinces. Finally, while it is possible that for a certain period, undoubtedly short, there might be disturbances in Germany caused by the creation of a new state, these would be less harmful than leaving on the Rhine a situation that would remain a permanent source of trouble. In conclusion, the representatives of the Rhineland demanded the creation of a Republic of the West, which should take in the provinces of the Rhine, a part of Westphalia and the territories of Oldenburg and Bremen.

On the other hand, the representatives of Hanover demanded justice against the violent annexation to which it had been subjected in 1866. There was formed in the Assembly a “German-Hanoverian” group which demanded “a free Hanover within a new Germany.” It involved the fusion of Lower Saxony with Hanover and Brunswick.

In the same way the small states of Central Germany wanted to fuse into a single state which would take in also part of the territory of Prussia and the region of Erfurt, and would form the state of Thuringia.

To these claims the representatives of Prussia, particularly the Prussian Minister of Justice, Heinze, and the German Nationalist, Düringer, replied, that the separatists were rats who were deserting a sinking ship; and they presented a vigorous defence of Prussia.

Firstly, they insisted, Prussia is no longer what it was before the Revolution. Formerly it was a powerful state enjoying all the advantages of hegemony and all the privileges which came from the fact that the German Emperor was the King of Prussia. To-day, said they, Prussia, whose military backbone is broken, finds itself economically and financially ruined and all its ancient prerogatives taken away. Furthermore, its former electoral system based on a class suffrage is gone and all the elements, including those of the Rhine, can make themselves equally felt thereafter.

Prussia as it now exists should be maintained, they went on. Its dismemberment would hurt the Reich more than it would serve it. Only powerful states, in command of important financial resources, can discharge the innumerable duties that to-day are incumbent on public organisms. Not only is Prussian culture necessary for the development of German culture, but the downfall of Prussia would involve the downfall of Germany; for Prussia is the cement that holds together the unity of the Reich, and renders services proportional to its greatness. Then, too, what would be the result of a dismemberment of Prussia? Aside from the fact that the advocates of dismemberment are absolutely unable to indicate the number and extent of the states into which they would carve Prussia, its parcelling out would involve a considerable loss in power and spirit, in time and in money. For each new state will want to have new administrative apparatus complete in every respect, a separate constitution, a separate parliament, a separate legislature, and so on. These states by reason of their weakness will be unable to discharge the obligations that would fall upon them. Still further, nothing was more illogical than to create new states if one wants to realize some day or other the unity of the Reich; for, each of these states will constitute later on just one more obstacle to such a unity.

Finally, said the Prussians, Prussia, which has already given all and sacrificed all to the greatness of the Empire, is ready to renounce still more, for the benefit of the Reich, what still remains of its independence, provided, that the other states do as much.

But it was precisely this demand that made the proposition impossible of acceptance by the others. In “sacrificing to the Reich all that remained” of the ancient rights of Prussia, the latter in reality sacrificed nothing; on the contrary, it gained a great deal. For, mistress of the Reich as it would be, it would secure thereby not only everything it brought to it, but also all that the other states contributed to it. It was thus, therefore, that Preuss always came back to the same dilemma: either a Germany under Prussian hegemony or a Prussia dissolved into the Reich.

Following the position which they took on this question, the members of the Committee on the Constitution supported either the text adopted by the conference of States or the project put forward by the government.

It became indispensable to know who in the last instance would decide on the territorial distribution. The conference of states replied, that only the states concerned should have the decision, otherwise there remains no such thing as states. The government insisted that it alone should be the deciding power, for it was the natural arbiter between the states, and only it controlled the situation sufficiently to resolve the problem in accordance with the political and economic considerations that were involved. Only the Reich can accomplish the necessary redistribution according to a consistent plan. Such a redistribution would have to be regulated by a law. A third current of opinion in this question came particularly from the champions of the creation of a Rhine republic, who pressed for the submission of the question of territorial redistribution to popular referendum and insisted that the will of the population thus expressed should be the ultimate guide for territorial redistribution.

After a preliminary examination of the question the committee to which it had been submitted presented a project according to which territorial changes would be regulated by a law, which, however, would have to be demanded either by the people involved or by a predominant general interest. It would be the Reich that would decide this in the last instance. Against this first project of the committee, objections were raised on March 29 by the states of south Germany; and negotiations began between the government, the representatives of these states and those of the majority parties. On May 29, a compromise was signed which, after slight alterations on June 5 by the Committee on the Constitution, provided that territorial changes must be accepted in principle by the states involved, and approved by the Reich. If the states refused their consent these changes could not be effected except by a law that took the form of a Constitutional provision; but this law could not be enacted unless the populations affected demanded it or unless the preponderant general interest required it. This new version increased the rôle of the states but also augmented the difficulty of procedure in any dismemberment whatsoever. It did not, however, exclude the hypothesis of a dismemberment effected in opposition to the wishes of the interested states.

The debate came back again and again to this version; and when the question reached the second reading before the National Assembly there was presented an amendment drawn up by Löbe of the Social Democrats, Trimborn of the Centre, and Heile of the Democrats, which after very much discussion among the government and the representatives of the states modified considerably the version of the Committee on the Constitution. On the one hand, territorial modifications were facilitated in the sense that new states could thereafter be created, even against the desires of the interested states, by a simple law; for they wanted to avoid, for example, the situation in which Prussia or another state could completely prevent all territorial modification by rendering impossible the necessary majority for the vote needed to enact a constitutional law. On the other hand, the creation of such a new state was rendered more difficult in the sense that it considerably complicated the conditions according to which the populations affected could express their desires. But most important of all--and that was the principal provision of the amendment--it was specified that no territorial change could be effected against the wish of the states concerned before a period of two years after the formal adoption of the Constitution.

Thus Prussia was guaranteed for at least two years against dismemberment.

This last provision was aimed at the Rhineland whose situation, as it was clearly indicated at the Assembly, was at the bottom of all the discussion. It was declared that the Rhineland needed above all tranquillity in the particular circumstances in which it found itself; that occupied by foreign troops it could decide its territorial needs only with difficulty; and that, above all, the creation of a state on the banks of the Rhine would be considered abroad as a preliminary to the complete independence of this state from the German Reich; and that it was “necessary to maintain a unity of front against French imperialism.” Along this line of argument it was further insisted that the dismemberment of Prussia has been the chief aim of the war waged by the enemies of Germany and the creation of a Rhenish Republic would be exploited by them as an additional victory. This resulted in the deputies from the Rhenish provinces declaring in the tribune of the Assembly their loyalty to the Reich and that whatever were their desires to see the Rhineland organized into a state, they would support the Löbe-Trimborn-Heile amendment including the postponement for two years of their justifiable claims.

The amendment was adopted by vote of 169 to 71, with 10 abstentions.

This version could not yet be considered as definitive, since when it came up for the third reading before the Assembly a new version was presented in the form of a new amendment by Löbe, Trimborn and Heile, which modified the original version. The changes proposed dealt with the method of calculating the majorities necessary in a popular vote to determine territorial changes. The Prussian Minister of the Interior Heine complained that the compromise previously adopted after such long debate had been modified at the last moment in the course of conferences to which the representatives of the states concerned had not been summoned. He preferred the original version; nevertheless he accepted the new one since he was convinced that the Constitution would have to be revised in several of its parts. He added several interesting declarations. It would be dangerous, he said, to seek to realize unity within the Reich by creating new states, which would almost immediately after have to abandon their newly won sovereignty and dissolve themselves into the Reich as a whole. That would be a useless detour. Heine pledged himself to facilitate the creation of the state of Thuringia and to give up to it a part of Prussian territory on the condition that prior to this a treaty would be enacted between that state and Prussia regulating the administrative and economic relations between the two. But he opposed with vigor the proposition to create the state of Upper Silesia and above all opposed the creation of a Rhenish Republic. This Republic, he pointed out, would unite the territories of the left bank of the Rhine occupied by the enemy and the territories of the right bank administered by Prussia. Such a union far from safeguarding the German spirit on the left bank would incur the risk of submitting the right bank to the same influences that prevailed on the other, and thus create a considerable danger of infection to the right bank.

Finally the Löbe-Trimborn-Heile amendment in its new version was adopted by the Assembly.

At the same time the Assembly passed a resolution which invited the Government to institute a central office where the different states would be represented; one which would have as its function to prepare programmes for regrouping the territory in accordance with a general plan. In July, 1920, a commission was formed in the Reichsrat with the consent of the states to devote itself to this task. The Minister of the Interior for the Reich, Koch, summed up its programme as “federation and decentralization.”

2.--CHANGES IN STATE TERRITORIES.

The territorial status of states is regulated by Article 18 of the Constitution.

This, as we have said, is a compromise; its leading idea is to fortify and draw closer the bonds of unity within the Reich on the basis of a new redistribution of territory according to economic and social interests and taking into account the wishes of the population. It is true that this has the value only of a programme without positive legislative force; nevertheless it has its importance; it presents the principle of a progressive revision of the territories of the states, a revision whose new unities would form organic divisions of the Reich such as would serve to a maximum degree the interest of the whole German people. The idea which should direct this territorial regrouping must be exclusively the interest of the German nation in its ensemble. The territorial status of the states no longer has as formerly a value absolute in itself, but is thereafter subjected to the condition that it assures in the largest measure possible the highest well-being of the Reich as a whole. There is in this undoubtedly a victory for the unitary idea.

Frontiers, therefore, will be “mobile” and their modification will have to serve the development of the general welfare. It will have to be the Reich that will be called upon to preside over the question of new repartition of territories, because it alone is the holder of sovereignty in Germany, and because it alone is in position to maintain an equal balance between the varied and particular interests of the states. No territorial change whatsoever, whether a fusion, a separation, or the creation of a state, will be possible or operative no matter what conditions exist for its consummation, without a law enacted by the Reich.

In addition--and this general rule must be followed every time that a change is envisaged which does not constitute an exception expressly provided for--such a law of the Reich must be enacted in the form of a constitutional law.

This rule has three exceptions in which an ordinary law of the Reich suffices, provided that a certain number of other conditions are realized.

(1) An ordinary law is sufficient when the change, the separation or the union of territories takes place with the consent of the interested states. This consent manifests itself in the form of a declaration of the governments of the states; for these governments by virtue of the constitution enjoy the confidence of the people, since they are supposed to be both democratic and republican; in which case a plebiscite is superfluous.

(2) But cases may present themselves in which populations wish to separate from a state to which they belong, against the desires of the government of the state. The Constitution provides that the wish of these populations must be followed. According to Article 18 an ordinary law is sufficient to permit territorial changes or the creation of states if the interested states do not consent to it, but if the wish of the population demands it and at the same time the preponderant interest of the Reich requires it. This provision is evidently directed against Prussia; for should in such a case a constitutional law be demanded Prussia would command a sufficient number of votes in the Assemblies to prevent changes it did not wish. The dismemberment of Prussia is thus rendered theoretically possible by this provision. But we know that this provision is not applicable before August 12, 1921.

It remains to be seen how the wish of a population can manifest itself in the operation of the latter provision.

The population may either be consulted by the government of the Reich, which can order an immediate plebiscite; or the population can take the initiative and impose on the government of the Reich the obligation of ordering the plebiscite. This initiative must be signed by a third of the inhabitants of the territory whose separation is asked for. The plebiscite in such a case must be ordered by the government of the Reich.

Whether the plebiscite is ordered by the government or results from popular initiative, it must, to be effective, satisfy the following conditions of majority. They must obtain (a) three-fifths of the total number of votes cast; (b) a majority of the votes of the inhabitants entitled to suffrage; (c) and finally when the question is one of dividing a territory which wishes to separate from its state, the population of the whole district or administrative division of which it was a part must be consulted; this in order to avoid break-ups due to parochial quarrels. In other words, the plebiscite must extend to the whole district even if the part that wishes to separate forms only a fraction of this district. Nevertheless Article 18 provides for practical purposes one exception to this third condition. This refers to exceptional districts, that is to say, sections of territory that have no geographical kinship with the district to which they belong. In such a case a special law of the Reich could decide that the wish of the population of this special district is sufficient and that the entire population of the district to which it belongs need not be consulted.

The plebiscite having rendered an affirmative verdict the government of the Reich must submit to the Reichstag the project of law necessary to effect the changes in territory desired by the population.

(3) An ordinary law is sufficient to modify the outer boundaries of the state, that is to say, the frontiers of the Reich itself, when these are necessitated by a treaty of peace. When these modifications are to be effected otherwise than by the special case of a treaty of peace, the consent of the state affected must be obtained (Article 78).

Such are the provisions of the Constitution relative to the territorial status of the states, but it must be recalled that certain of these provisions--those which aim at territorial change based on the desires of the population but against the wishes of their state government--do not become operative until two years after the adoption of the constitution. Thus up to August 12, 1921, no parcel of the territory of Prussia, Bavaria, Hesse, Oldenburg, occupied by foreign armies, could be constitutionally taken away from their states without their wish. The aim pursued by the constituent Assembly in adopting this provision was to combat separatist attempts of powers whose armies occupy German soil, and to avoid all appearances and possibilities of dismemberment until revolutionary effervescence and political disorders shall have come to an end.

3.--THE CREATION OF A STATE--THURINGIA.

The provisions which we have elucidated have already been put into operation. A new state has appeared in the Reich created by the fusion of several former states.

Almost immediately after the revolution of November, 1918, a project was born in central Germany to fuse several states there and to form of their territories the state of “Thuringia.”

First the two states of Reuss reunited. On December 21, 1918, they organized an administration in common and the fusion became operative on April 4, 1919. This new state appeared thereafter as a sort of centre for crystallization. The first state to join this movement was the Republic of Altenburg, with which Reuss had many interests in common.

But this development toward the federation of states of central Germany was soon interrupted and seemed for a time even definitely arrested. The men who were pushing the project of extending this movement conceived the idea of the creation of a “Great Thuringia,” which would comprise important parts of Prussian territory and which would have as the economic and political centre and as capital the Prussian city of Erfurt.

The execution of this plan aroused violent opposition on the part of the government of Prussia, such as it manifested whenever the question came up of the separation from it of any part of its territory. It encountered also the strong objection on the part of the authorities and the population of Erfurt who preferred the present advantage of belonging to the most powerful German state rather than the possible benefit of becoming an important element in a new state. The project of a “Great Thuringia” was abandoned and the effort continued as before to form a state which should comprise all the states of Thuringia without appropriating any Prussian territory.

Of the eight republics of central Germany included in this plan of fusion one, that of Coburg, refused to join the movement. This republic, having on October 30 inaugurated a plebiscite to find out whether the population wished to belong to Bavaria or to the future “Thuringia,” obtained 3,460 votes for Thuringia and 16,102 votes for Bavaria. This reunion with Bavaria was then consummated, with the consent of Bavaria, by a law of the Reich of April 30, 1920.

As for seven other republics--Saxe-Weimar-Eisenach, Saxe-Altenburg, Reuss, Saxe-Gotha, Schwarzburg-Rudolstadt, Schwarzburg-Sondershausen and Saxe-Meiningen--they concluded a “treaty” by which they combined in a “community” to prepare their complete fusion.

To this effect the treaty provided two organs:

(a) A popular Council, the legislative organ of the “Community,” composed of representatives of each of the seven Diets;

(b) A Council of States, the executive organ, consisting of representatives of each of the seven governments.

These organs had as their mission to study and take all preliminary measures necessary for the fusion. To permit the accomplishment of this mission the states transferred to them all their legislative and administrative powers necessary. The laws voted by the popular Council were therefore compulsory in the territory of all the seven states. They were particularly operative over the governments and the administrative authorities of these states.

The common organs were in addition instructed to prepare the Constitution of their future state.

When all these necessary preliminary provisions had been taken the Reich declared the fusion in being. All the interested states being in agreement with this step an ordinary law sufficed; and it carries the date of April 30, 1920.