The German Empire

Front matter

Cornell University Library JN3425 .H84 olin

3 1924 030 516 482

Cornell University Library

Chapter I

The study of the Gennan Empire, from a juristic standpoint, begins with the founding of the North German Bund. If, with the formal dissolution of the Holy Roman Empire in 1806, one period of the constitutional history of Germany ended, the disruption of the German Confederation, in 1866, brought another period of that history to a no less definite termination. The break between the North German Bund

' From a wealth of material the foUowing literature may be cited : Aigidi und Klauhold, Das Staatsarchiv, Bd. X. ff. ; Glaser, Archiv der NorddetUschen Bund, Berlin, 1867; Hahn, Zwei Jahre preussisch-deiUscher Poliiik, 1866-67, Berlin, 1868; ibid. Der Krieg DetUschland gegen Frankreich und die Grundung des deulschen Kaiserreichs. Die Deutsche Politik, 1867-71, Berlin, 1871 ; Von Bezold, Materialen der deutschen Reichsverfassung, 3 Bde. mit Register, Berlin, no date ; Otto Mejer, Einleitung in das d. Staalsrecht, 2 Aufl., Freiburg und Tiibingen, 1884; Von Sybel, Die Begriindung d. D. Reiches durch Wilhelm I., 7 Bde., Miinchen und Leipzig, 1889-94 ; Binding, Die Grundung d. N. D. Bund, Leipzig, 1889. Die Drucksachen des Reichstags des N. D. B. for 1870 contain very valuable material. Many important discussions are also to be found in the various volumes of Hirth's Annalen des Deutschen Reichs. See also the treatises on D. Staatsrecht by Laband, Hanel, Meyer, Zorn, Arndt, and the Commentaries of Arndt and Seydel. Treitschke, D. Geschichte, Bd. I., and Politik, Bd. II. Kloeppel, Dreizig Jahre d. Verjassungs-geschichte, Leipzig, 1900. Volume I. alone is published. Bismarck's Gedanken und Erinnerungen, 2 Bde., Stuttgart, 1898. Two good histories of the period before the founding of the N. D. B. are Kaltenborn, Geschichte d. deutschen Bundesverhaltnisse und Einheitstrebungen von 1806 bis i8s6, 2 Bde., Berlin, 1857; and KJupfel, Geschichte d. D. Einheitsbestrebungen bis zu ihrer Erfiillung; 1848-71, 2 Bde., Berlin, 1872-

B I and the German Confederation legally is no less sharp than that between the German Confederation and the old Empire. The legal continuity between the North German Bund and the present Empire, however, is complete. The modem German State is not something different juristically from the North German Bund. It is rather an expansion of it. The Imperial Constitution is the federal constitution revised.

Long before the tension between Prussia and Austria had been brought to the point of breaking by the development of the Schleswig-Holstein affair, the constitutional organization of the German State, imder the provisions of the Bundesakt, had proven hopelessly inadequate. That some form of reorganization was inevitable became patent to every one. What that form should be was not so clear. The unavoidable and irreconcilable rivalry between Prussia and Austria indicated plainly that in the reorganization — whatever form it might take — one of these two great powers must be eliminated. The decision as to which of these two it should be was rendered by history's great court of last resort — War.

On the II June, 1866, Austria moved, in the Federal Diet, the mobilization of the federal army against Prussia,* on the ground that the Prussian government had resisted the interposition of the Diet in the dispute between Austria and Prussia over Schleswig-Holstein. Prussia had maintained that the Schleswig-Holstein matter lay outside the jurisdiction of the Confederation, and she therefore could not admit the right of the Diet to mterfere in an affair which concerned the two great powers alone. No ground existed, under the Bundesakt, for the mobilization of the federal troops against Prussia. The Prussian government could look upon the motion of Austria, therefore, as nothing less than a declaration of war, — not only a declaration of war

' Motion printed in Hahn, Zwei Jahre, etc., p. ii8.

on the part of Austria against Prussia, but a declaration of war on the part of the Confederation against a member. This was an act directly violating the organic law on which the Confederation was based. Prussia saw in the motion to mobilize the army a breach of the union which must be met with decisive measures.*

On the 14 June, 1866, the Diet assented to the Austrian proposition and ordered the mobihzation of the 7th, 8th, 9th, and loth army corps. Prior to the vote, the Prussian ambassador made the following statement: "The Prussian ambassador must vote against any and every action with respect to the motion of Austria, as contrary to the form and content of the union, and herewith enters an express protest against such action, in the name of his government." "^ The vote stood nine to six in favor of the motion.' Thereupon the Prussian ambassador declared that his government must regard the action of the Diet as in open conflict with the Constitution, and as a breach of the federal relation. "In the name and upon the command of his Majesty, the King, the ambassador therefore declares that Prussia looks upon the treaty of union, hitherto existent, as hereby broken, and, on that account, as no longer binding, will consider the same as dissolved and will so act. However, his Majesty,

' " Vollends wiirde die Annahme des osterreichischen Antrages nicht bios als ein Akt offener Feindseligkeit gegen Preussen, sondern auch als ein entscheidener Bundesbruch aufzufassen und zu behandeln sein." Bemerkungen der Provinzial-Correspondenz von 13 Juni, 1866, cited by Hahn, op. cit. p. 121.

' The votes were as follows : Aflfirmative — Austria, Bavaria, Saxony, Wurttemberg, Hannover, Hesse, both Grand Duchy and Electorate, Nassau, and the i6th Curia, consisting of Lichtenstein, Reuss, etc. Negative — Saxe- Weimar and the Thuringian Duchies with the exception of Meiningen, Oldenburg, Anhalt-Schwartzburg, Mecklenburg, the Free Cities except Frankfurt, Luxemburg, and Baden. Prussia did not vote, regarding the whole transaction as unconstitutional.

the King, will not regard the national foundation on which the Confederation has been built as destroyed with the dissolution of the union which has existed up to this time."' With the question whether the position of Prussia was well taken or not, the present discussion has nothing to do. In the light of subsequent events, such a question can have only a doctrinaire interest. The student of German affairs is confronted by a fact, not by a theory. That fact is the open rupture between Prussia and Austria, into which, as adherents to one or other of the parties, the members of the Confederation were drawn. Whether the Confederation was legally dissolved or not, whether the action of the Diet justified Prussia's contention or not, so far as the actual situation was concerned, the old relation between the German States had gone to pieces.

With the Preliminary Peace of Nicolsburg, 26 July, 1866, following the short but victorious Prussian campaign, the problem of reconstruction forced its way to the front. Perhaps it were more accurate to say that the problem was one of construction, rather than of reconstruction, — to organize out of the dispersed elements of the old Confederation a new political and constitutional structure, which should avoid the weakness of the old loose union and prove itself sufficient for the tasks which must, in the nature of things, be laid upon it.

Two very definite ideas had shaped themselves in the mind of those best fitted to grasp the real state of affairs imder the confederation: first, that the organization of the German State on an international basis, carrying with it necessarily the unit rule in the determination of all public questions, must be replaced by a closer federation, invested with larger powers; and, second, that no such union could be consum-

' Glaser, Archiv, I. p. 27; Hahn, op. cit. pp. 124 £f.

mated so long as Prussia and Austria, each, as a world power, unwilling to become subordinate to the other, were members of the federation.

The second of these ideas, the elimination of Austria from the problem of a reorganized Germany, was accompHshed by the terms of the Treaty of Prag, 23 August, 1866, in which "his Majesty, the Kaiser of Austria, recognizes the dissolution of the German Confederation and gives his consent to a new formation of Germany, in which the imperial State of Austria shall have no part. Moreover, his Majesty promises to recognize the narrower federal relations which his Majesty, the King of Prussia, shall estabUsh north of the Main, and declares himself also willing to allow the German States south of the Main to join themselves into a union, whose national association with the North German Bund shall be reserved for a more detailed agreement between the two parties." To this agreement the remaining opponents of Prussia also subscribed, with the exception of Hannover, Kur- Hesse, Nassau, and Frankfurt, whose independent existence has ceased through conquest and subsequent incorporation in the Prussian State.*

The Treaty of Prag cleared the way for a constructive work — for the erection of a new and true State in the room of the old confederacy. In this movement Prussia naturally assumed the lead. As early as June 10, 1866, Bismarck, foreseeing the inevitable, had addressed a circular note to the German governments,^ in which, after referring to the failure of Prussia, earlier in the year, to put through a motion looking to a reformation of the Bund, asks for an immediate answer to the question " whether, should the relations exist-

' See Treaty with Baden, Bavaria, Hesse, Reuss a. L., Saxe-Meiningen, Saxony, August to October, i866. ' See Hahn, op. cit. p. 123.

ing between the members of the Bund be dissolved by a threatened danger of war, they (the governments) would be inclined to favor a new Bund, to be erected on the basis of these modifications of the old treaty of union." " These modifications " referred to a series of changes submitted to the governments, together with the circular despatch, under the titles " Principles for a New Federal Constitution." * To such an extent does this document forecast the later constitution of the North German Bund that it may be properly styled the " first draft " of that instrument. Four days after the date of this note occurred the dramatic scene on the floor of the Bundestag, when the Prussian representative declared the Bund no longer existent.

On the 1 6 June, Prussia addressed an identical note to all the governments of the North German States, with the exception of Hannover, Saxony, Kur-Hesse, Hesse-Darmstadt, and Luxemburg, proposing a union. These governments accepted the proposition, with the exception of Saxe- Meiningen and Reuss a. L. On 4 August, 1866, Prussia laid before these friendly governments the draft of a treaty of union,^ which was definitely adopted at BerUn on 18 August.' This action was a purely international arrangement between Prussia and the fifteen German States north of the Main, and is known as the "August Treaty." The two Mecklenburgs entered into the relation on 21 August,^ the grand duchy of Hesse, for that part of its territory north of the Main, through the Treaty of Peace on 3 September;^ the principality of Reuss a. L., the duchy of Saxe-Meiningen, and the kingdom of Saxony on the 26 September, 8 October, and 21 October respectively." The number of contracting

' The text of these " Grundzuge" is found in Hahn, op. cit. pp. 121 ff. ' Ibid. p. 462. 'Ibid. p. 463. *ZWd. p. 464.

parties to the August Treaty was thus raised to twenty-two.

With the conclusion of the August Treaty, a definite and positive step was taken toward the erection of a German federal State. The terms of the treaty provided for an offensive and defensive alliance between all the signatory powers, with the assignment of the chief command over the military forces of the allies to the king of Prussia. Further, the August Treaty was not to be perpetual, but was to have binding force for a year, at the longest, unless it terminated earlier through the carrying out of its provisions. The main principle of the treaty, in fact its raison d'iire, was, as the wording of Article 2 explicitly states, to estabhsh finally a federal constitution, on the basis of the Prussian draft of 10 June, 1866, with the cooperation of a general parliament to be summoned for that purpose. That is to say, the August Treaty does not, nor does it intend to, create a new state. It was merely an international agreement between the several governments to meet within a year from date, together with a body chosen by popular representation, and definitely decide upon a federal constitution which should take the place of the offensive and defensive alliance provided for in the treaty. Should such a constitution be not fixed upon within the prescribed time, the treaty terminated. The method by which the constitution was to be drawn up was laid down in Art. 5 of the treaty, which reads: "the allied governments will order, simultaneously with Prussia, the election of delegates to a parliament, in accordance with the provisions of the imperial law of 12 April, 1849, ^^d summon them in common with Prussia. At the same time will they send plenipotentiaries to Berlin, in order to fix upon a draft of a federal constitution, in conformity to the 'Principles' of lo June, 1866, which draft shall be laid before the parliament for its consideration and consent."

The treaty of i8 August, 1866, constitutes the international base for the erection of the North German Bund. "Aside from the alhance defensive and offensive for the period of one year, the contracting parties pledge themselves to a single transaction, to the performance of one act, which, from its very nature, cannot be repeated, to wit, the production of a federal constitution. They do not estabUsh a constitution, but they pledge themselves to establish one. They do not agree upon a constitution, but they do agree upon a method by which a constitution shall be determined upon." ' The August Treaty was a contract between the governments taking part in it, creating a temporary offensive and defensive alhance, not longer than a year in duration, and obhgating those governments to determine upon a federal constitution, within that period, which should supersede the alliance. It was a purely international contract and, as such, did not, and could not, create a new state. Further, the duration of the alhance terminated with the estabhshment of the new federal relation in the fulfilment of the contract. In other words, the treaty of 18 August, 1866, ceased to exist upon its fulfilment, and with it ceased the international alhance between the several contracting governments.

Looking closely at the treaty, the contracting parties bind themselves to two subsidiary acts in fulfilment of the main purpose of the agreement: (i) to order an election to a parhament, and (2) to despatch plenipotentiaries to Berhn for the purpose of determining a draft of a constitution. In meeting the first of these two it was necessary to put in force the imperial law of 12 April 1849, in each several State; in other words, to give this law, in such ways as each several ' Laband, I. p. 16. Cf. also Hanel, Studien, I. p. 69.

State might choose to do so, the force of a State law. In Prussia, even before the signatures were appended to the August Treaty, — that is, on 13 August, 1866, — the government laid before the Landtag the "draft of a law touching the election to the Reichstag of the North German Bund." The purpose of this law was, as the bill declared, " to secure in Prussia a legal foundation for the election to the parUament." In conformity to the stipulations of the proposed August Treaty, this draft was a reproduction of the law of 12 April, 1849. ■'■Q considering this draft, however, the Prussian House of Delegates modified the measure in such wise that the parliament to be elected was granted power, not to give final form to the Constitution of the North German Bund, but to confer or deliberate with respect to such Constitution. The adoption of the new federal Constitution would necessarily involve considerable modification of the several State constitutions. Prussia was unwilling to concede to any general body of men the right to amend her constitution. Further, Prussia did not propose to rehnquish her right to a voice in the final shaping of the constitution for the proposed Bund, nor did she care to be put in the position of having the federal State erected over her head, with no opportunity for her Landtag to express itself definitely in the matter of its organization. This view of Prussia was shared by the other States, with the exception of Brunswick. The original idea of the August Treaty was therefore modified to the extent that the plenipotentiaries of the several States and the parliament were not given power to determine the final form of the constitution, but only to deliberate over it and bring in a draft that should be referred to the legislative bodies of the several States for their final action.

Pursuant to the stipulations of the August Treaty, on invitation of the Prussian government, plenipotentiaries lO THE GERMAN EMPIRE

from the various States met, in a confidential conference, in Berlin, on 15 December, 1866. In the name of Prussia, Bismarck laid before the assembly a draft of a constitution, containing a somewhat more detailed working out of the "Principles" of 10 June, 1866.' This is referred to by German writers as the "second draft of the Constitution." The meeting was not an open one, and no record was kept of the debates. On the 7 February, 1867, Prussia having consented to a number of amendments proposed by the other States, the assembly of plenipotentiaries united on the draft of the constitution to be presented to the parliament, not yet assembled.^

The general election of members of the parUament took place on the 12 February, 1867, and the delegates met in Berhn on the 24th of that month. The debate over the proposed constitution lasted from 9 March to 16 April. Numerous amendments were proposed by parliament, and the final draft was agreed upon, 16 April, 1867, by a vote of 230- 53. On this same date, the assembly of plenipotentiaries met and " resolved to accept the draft of a constitution as it was finally passed upon by the parliament." This action was announced to the parliament by Bismarck on the following day.

Both the assembly of plenipotentiaries and the parliament had now definitely agreed upon the text of the Constitution. Nevertheless, that document had still no binding force. It was only a draft of a proposed constitution. Its content had been determined in accordance with the provisions of the August Treaty, but the Constitution itself had no vahdity. It did not become operative with the mere agreement of the

' For text of this draft, v. Binding, Siaatsgrundgesetze, Heft I., grossere Ausgabe, pp. 75 £f . ; also app. to Kittel, Die Preuss. Hegemonie, pp. 40 ff. Cf . also Hanel, Studien, I. pp. 273 ff. ; also Hahn, op. cit. pp. 483-485.

' See text in Binding, op. cit. p. 75.

THE FOUNDING OF THE GERMAN EMPIRE II

deliberative bodies as to the text of it.* The parUament was not given power to adopt and give legal effect to a constitution, but only to deliberate over the text of a constitution. The German Constitution does not rest upon an agreement made between the representatives of the several State governments and the members of a general parliament. "The pariiament was not one of the 'parties' to the Constitution, but only a means of coming to some sort of an agreement over the Constitution. It had no legal powers, but simply a political duty. It was meant to balance the divergent views and particularistic tendencies of the several governments, and its consent should serve as a guarantee that the Constitution, as agreed upon, should correspond to the political views and desires of the people, to pubhc opinion. The 'agreement' between the governments and the parhament was a harmonizing of views as to what sort of a constitution should be given to the Bund, and the result of that 'agreement' was not to impart vaUdity to a constitution, but to produce the draft of a constitution."^

In conformity to the requirements of the August Treaty, the draft of the Constitution had now been made. There still remained the fulfilment of the pledge to found a federation. This could not be done without the consent and the concurrent action of the legislative bodies of the several States. This consent was given by all the States belonging to the North German Bund, in the form provided by the organic law of the State for constitutional amendments, and the Constitution of the North German Bund was published in the Gazette of each individual State, except Brunswick

' See discussion of Binding, in his pamphlet, Die Crundung d. N. D. Bund, and the refutation of his arguments by Laband, I. pp. 22, 23. Also Hanel, Staatsr. I. pp. 19 ff. ; Meyer, Staatsr. pp. 164, 165.

and Bremen, who had already given their consent previous to the meeting of parliament and the assembly of plenipotentiaries. In each formula of pubHcation it was stated that the new Constitution should go into effect on i July, 1867.

It is at this stage of the proceedings that controversies arise as to the juristic significance of this action on the part of the State legislatures. Seydel, the Calhoun of Germany, declared that by the action of the legislatures of the several States, the Constitution of the North German Bund became part of the municipal law of each commonwealth; that it was an identical State law, no more, no less, and that the laws pubHshed on the basis of this Constitution derived their validity from the constitution of the State. Hanel, on the other hand, shows that the Federal Constitution dealt with matters which it was impossible for the State law to deal with, and that it presupposed a union of States, whose organization it defined. A State law can legally control only such matters as fall within the sphere of the State. It does not extend to such as contemplate or anticipate the existence of several States. "The legal regulation of such a relation of coexistence lies beyond the realm of sovereignty of any single State, and consequently of any State law. The North German Bund, therefore, could never acquire an actual and legal existence through the sum of identical and particular laws." Laband declares that the Constitution of the North German Bund is not an identical State law, nor did it obtain its sanction from the State power in any particular State. The decision of the State to enter the Bund defined by the Constitution, however, was afiirmed in each State by State law. The PubHcation Law of June, 1867, did not determine the Constitution, but is a declaration of entrance into the Bund which that Constitution outlines. No State had any power to introduce the Constitution by itself as State law, but each

State could declare, in the form of law, that it would take part in the erection of the North German Bund on i July, 1867. The several articles of the Constitution are not introduced into the territory of each State as State law, but the Publication Patent gives sanction to a single clause, which is everywhere the same and runs : The State x belongs from the i July, 1867, to the North German Bund. The Publication Law is a governmental transaction requisite to the successful carrying out of the terms of the August Treaty. With this founding of the Bund the stipulations of the August Treaty were fully met. The Treaty expired through its fulfilment. The international agreement between the States became a constitution. What had been a league became a State. The contract relation between the several States ceased to exist.

The North German Bund was erected on i July, 1867. "When, on 14 July, 1867, the king of Prussia appointed Graf von Bismarck as chancellor of the Bund, and ordered, on the 26 July, the issuance of the Federal Gazette with the publication of the Constitution in the first number thereof, the North German Bund was already in existence and the Constitution already in force." King William acted by reason of a power given him by the Constitution. The pub- Hcation was not an act of legislation. The "PubUcandum" of 26 July, 1867, with which the Gazette begins, contains no clause which imparts validity to the Constitution, but the king "gives notice, and, in the name of the North German Bund, announces, that the Constitution of the North German Bund," — here follows the text — " was promulgated on the 25 June, of the present year, and went into force on the I July." So the i July, 1867, is the birthday of the North German Bund, and the sum total of the legislative acts of the several States, twenty-two in all, was the act which created it. The "North German Bund brought its Constitution with it into the world."

By the Treaty of Prag, the North German Bund could not extend itself south of the Main. The German States lying beyond the Hne of the Main were left free to form a union of their own, whose ultimate relations with the North German Bund were to be determined by their own independent action. This union never came into being. In its place arose a relationship based on individual treaties between the several States and the Bund, which subsequently led to the formation of the Empire. Upon the conclusion of the treaty of peace, an offensive and defensive alhance had been made between Prussia and the South German States, whereby, in case of war, the troops of all Germany were to be placed under the command of the Prussian king. This was before the erection of the Bund. It effected a military unity of the whole of Germany prior to the founding of the federal relation. All the troops were to be fashioned on the Prussian model.

The Customs Union Treaty of 8 July, 1867,^ was also instrumental in bringing about a closer union of the two sections of country. This Union, established as early as 1833 and destroyed by the war of 1866, had had for decades as its motto the sentence which now is adopted by the Imperial Constitution : " Germany forms one territory in matters of tariff and of trade, surrounded by common boundaries." The Treaty was renewed on 8 July, 1867, to run for twelve years, and by tacit consent, should no notice of termination be given, for another like period. The affairs of the Union were managed by a Tariff-union legislature, composed of a Tariff Bundesrat and a Tariff parliament. The Tariff Bundesrat was made up of the Bundesrat of the North German Bund, plus representatives from the South German States, — identical with the present Bundesrat of the Empire, — while the Tarifif parliament was composed of the Reichstag of the Bund plus eighty-five members elected from the South German States, on the basis of the equal, general, secret suffrage prevailing in the Bund. The laws of the Union were to take precedence of federal laws, that is, of the laws of the Bund. The Presidency belonged to Prussia and carried an indirect veto, through the Prussian plenipotentiaries, of all laws, administrative arrangements, and provisions. The treaty was accepted by the Reichstag of the North German Bund, 26 October, 1867. A number of other treaties, concluded before the war, revived, so far as was consistent with the new poUtical form of Germany, and several new treaties guaranteeing legal aid, providing for military freedom of migration, for postal arrangements, etc., were made. Thus, before the advent of the Empire, its approach was already shadowed forth in the relations existing between the Bund and the South German States.

The Constitution of the Bund, also, looked toward the ultimate union of all Germany in one great poUtical body. Article 79 of that instrument reads : "The entry of the South German States, or any one of them, into the Bund shall take place upon the proposal of the Praesidium of the Bund, in the way of legislation." All provision had been made, in the very beginning, for an extension of the Bund to South Germany and for the erection of the Empire. The war of 1870, with France, brought the sense of national unity to fruition. On the declaration of hostiUties, the South German States stood fast for a united Fatherland. They fought side by side with the Prussian troops in defence of their common country.

"The initiative came from Bavaria. The government of Bavaria, in the course of September, 1870, gave the Praesidium of the Bund to understand that the pohtical relations of Germany, as they had been brought about by the warlike events, necessitated, according to its conviction, a departure from the international treaty w^hich had hitherto bound the South German States to the North German Bund, and called for a constitutional bond.'" In other words, the South German States had come to the conclusion that no relation based upon international treaty would longer suffice, but that all the German States should be bound together in one great political organization by a common Constitution.

The movement took legal form by the adoption of several agreements first of all between the North German Bund and the several South German States. These were : —

1. An agreement between the North German Bund, Baden, and Hesse relative to the founding of a German Union and the adoption of a federal Constitution, drawn up at Versailles in November, 1870.^

2. A treaty between the North German Bund, Baden, and Hesse, on the one side, and Wurttemberg, on the other, relative to the acceptance by Wurttemberg of the Constitution of the German Union, drawn up on the 25 November, 1870, together with the Final Protocol and the Military Convention of the same date.'