JN 
 
 3633 
 
 R7 
 
 U.CI.
 
 Specifications 
 
 Material ^ 
 
 ^CiJrMo'r 
 
 
 Morocco 
 
 Red 39 
 
 Full Bind 
 
 Select Leather 
 
 Wine 34 
 
 
 ^Buck._-^) 
 
 Tan 39 
 
 % Bind 
 
 Vellum 
 
 
 
 
 Brown 1 
 
 Music 
 
 Leather Color 
 
 Light Blue 
 
 Recase 
 
 Red 
 
 Blue 9 
 
 Flexible Cover 
 
 Wine 
 
 
 
 Brown 
 
 Blue-Block 1 
 
 Pocket 
 
 Blue 
 
 
 
 
 Black 7 
 
 Foldouts 
 
 Block 
 
 
 
 Green 
 
 Light Green t 
 
 No Trim 
 
 Bright Green 
 
 Green 9 
 
 Rush 
 
 Tan 
 
 ^ 
 
 Standardized 
 
 Boxes 
 
 Cgo^ 
 
 Labels 
 
 Closed 
 
 
 
 
 
 Sample Sent 
 
 Open End 
 Slip Case 
 
 
 Rub 
 
 Portfolio 
 
 
 Bind "as is" 
 Stubs for: 
 
 Ads: 
 Bind all 
 Last copy only 
 Remove all 
 Bind as attached insf. 
 
 Index: . 
 None warded 
 Bind in front 
 Bind in back 
 Bind "as is"
 
 PUBLICATION s 
 
 OF THE 
 
 UNIVERSITY OF PENNSYLVANIA. 
 
 POLITICAL ECONOMY AND PUBLIC LAW SERIES. 
 EDMUND J. JAMES, Ph. D., Editor. 
 
 Vol. III. WHOLE NUMBER IN SERIES, 10. No. 1. 
 
 THE GERMAN BUNDESRATH. 
 
 A STUDY IN COMPARATIVE CONSTITUTIONAL LAW 
 
 BY 
 JAMES HARVEY ROBINSON,_Ph. D. 
 
 Lecturer in European History 
 
 in the 
 
 Wharton School of Finance and Economy, 
 University of Pennsylvania. 
 
 PHILADELPHIA. 
 1891. 
 
 purer: SEVENTY-FIVE I-/.;\T\
 
 JN 
 3k 33 
 
 R1
 
 CONTENTS. 
 
 PAGE 
 I. 
 
 Aim of the present study 5 
 
 The constitutional position of the German monarchs 6 
 
 The historical development of the Bundesrath 10 
 
 The fundamental divergence of the German institutions from our 
 
 own 21 
 
 The obstacles to the formation of the North German Federation 
 
 and their influence upon the character of the Constitution . . . 22 
 
 II. 
 
 The relation of the Bundesrath to the individual states. ... 28 
 
 The organization of the Bundesrath as an organ of the State ... 36 
 
 III. 
 
 The functions of the Bundesrath 4!* 
 
 (1) Legislative 43 
 
 (2) Administrative 55 
 
 (3) Judicial 57 
 
 Conclusion 67 
 
 (Hi)
 
 NOTE. 
 
 The text of the German Constitution, to which reference is made in 
 the following pages, has been rendered into English, and furnished 
 with a brief historical introduction by Professor Edmund J. James. 
 
 See publications of University of Pennsylvania, Political Economy tiud 
 Public Law Series, Vol. I., No. 7. Philadelphia, 1890.
 
 THE GERMAN BUNDESRATH. 
 
 A STUDY IN COMPARATIVE CONSTITUTIONAL LAW. 
 
 The chief use and significance of the study of the politi- 
 cal institutions of other nations, lies not so much in the 
 acquaintance with these themselves, as in the broader and 
 more accurate view of our own institutions which we 
 thereby gain. We first become conscious of peculiarities 
 in objects long familiar to us through contrast with new 
 and different ones. In recognition of this important psych- 
 ological principle, that consciousness is intimately associ- 
 ated with and dependent upon contrast, I have attempted 
 to give a picture of an institution quite foreign to our 
 notions of government, not so much for the sake of famil- 
 iarity with a distant and to us essentially unimportant 
 organ of a foreign State, as to make clearer our notions of 
 our own system. 
 
 Of the three great factors of government established by 
 the Imperial Constitution of Germany, the Bundesrath or 
 Federal Council, the Emperor, and the Reichstag or repre- 
 sentation of the people, the Bundesrath is first in order of 
 treatment in the constitution. Whether or no this be an 
 intentional recognition of its preeminence,* certain it is that 
 historically and legally the Bundesrath is the center and 
 core of the existing form of government. Hence a study 
 
 *"Es 1st bezeichnend dass die Reichsverfassung den vom Bundes- 
 rath handelnden Absclmitt vor jenen stellt welcber dass Bunde- 
 piasidium betrifft." Seydel im Jahrbuch fin- Gesetzgebung, u. s. w., 
 III., 274. 
 
 (5)
 
 6 The German Bundesralh. 
 
 of this institution inducts one most quickly and easily into 
 a knowledge of the entire constitutional system, and fur- 
 nishes at once an explanation and a justification of many off 
 the peculiarities which characterize it. 
 
 As the present German Empire is a federation made up 
 of states which, previous to the formation of the Union, 
 led an independent existence, each under its appropriate 
 constitution, we naturally look for a reflection of the pre- 
 valent ideas of government on which the state constitutions 
 are based, in the constitution adopted for the federation. 
 In examining the twenty-five state constitutions, one finds 
 twenty-two of them to be monarchical in form, while the 
 three remaining ones only, those of the free cities of Liibeck, 
 Hamburg and Bremen, are republican. A prevailing char- 
 acteristic, then, of the states of the present German Empire, 
 as distinguished, for instance, from those for which our 
 constitution was formed in 1787, is that they are each sub- 
 ject to a monarch. Before considering the relation which 
 exists between the monarchical institutions of the individ- 
 ual states, and the form of the central government, it will 
 be necessary to consider briefly the constitutional position 
 of the German princes, for on an understanding of this de- 
 pends a clear idea of the imperial constitution. 
 
 According to the theory of German constitutional law, 
 the whole power of the state is vested in the monarch. 
 The various functions of government find their common 
 center in his person. Without his consent or against his 
 will nothing in the affairs of state may take place. " Er 
 vereiniyt in seiner Person die Fi'dle staatlicher Hoheit und 
 Macht}' 1 * This conception of the monarch, however, . as 
 
 * Meyer. Deutsches Staatsrecht, 2 Aufl., 202. 
 
 Sclmlze writes (Preusfasches Staatsrecht, 2 Aufl., I., 153): "Das 
 rnonarchische Priuzip nach seinem richtigen Verstandnisse, nicht in 
 seiner tendenziosen Verdrehung, wie es zu Zeiten des Bundes im 
 Shine des Absolutismus ausgebeutet wurde, verlangt nur : 'dass die 
 gesammte Staatsgewalt, dera Rechte der Innebabung nach, in der
 
 The German Bundesrath. f 
 
 possessor of the whole power of the state, no longer included 
 the idea of unlimited right of self-determination in the ex- 
 ercise of it. He is bound to act in accordance with the 
 provisions of the constitution : all his acts must be counter- 
 signed by a responsible minister : many of the most im- 
 portant functions of government, especially legislative, can 
 only be exercised in co-operation with the representatives of 
 the people. Still the monarch has both legally and practi- 
 cally the advantage over the people in any movement to- 
 wards a more popular form of government. He has still 
 the tradition of unlimited power behind him ; the restric- 
 tions which the constitution has imposed are comparatively 
 recent, in the chief state of the Empire, Prussia, being 
 scarcely more than forty years old. The autocratic con- 
 ceptions of the former Bundestag still linger in the dictum 
 that where a doubt concerning the right to exercise a power 
 arises, the presumption is always in favor of the monarch. 
 This doctrine is, of course, based on the theory that such 
 rights alone fall to the people as have been expressly 
 granted them, all others remaining vested, as heretofore, 
 solely in the monarch.* Over against the monarch the 
 parliament appears simply as an instrument of restraint, 
 limiting him in the exercise of certain of his powers, f In 
 
 Person des Staatsoberhauptes vereinigt bleibe, dass keine Funktion 
 der Staatsgewalt von dem monarchischen Mittelpuukt losgelost werde, 
 dass in alien staatlichen Dingen nichts ohue und uichts gegen den 
 Willen des Monarchen geschehen konne.' ' 
 
 *"Er [the monarch] behalt die Prasumtion der Berechtigung : es 
 stehen ihm alle diejenigen Befugnisse zu, welche ihm nicht ausdnick- 
 lich entzogen, den anderen Organen Oes Staates dagegen nur die, 
 welche ihnen ausdriicklich eingeraumt sind." Meyer. Deutsches 
 Staatsrecht, p. 202. See also p. 242. Compare Schulze, Deutsches 
 Staatsrecht, I., 477, who expresses a somewhat divergent view. 
 
 f"Der Landtag erscheint nicht als Mittrager der Staatsgewalt 
 neben dem Monarchen, sondern als ein beschrankender Factor, an 
 dessen Mitwirkung dieser bei Ausiibung einzelner seiner Fuuctionen 
 gebunden ist. Es stehen ihm daher uur diejenigen Rechte zu, welche 
 ihm ausdriicklich beigelegt sind.'' Meyer. Deutsches Staatsrecht, 
 p. 242.
 
 8 The German Bundesrath. 
 
 it are vested none of the sovereign powers of the state, for 
 these are one and all attributes of the prince. For example, 
 no bill becomes law because concurred in by both branches 
 of the legislative body, even one proposed by the ministry 
 itself and accepted without amendment by the representa- 
 tives of the people. The sanction of the monarch first 
 transforms a bill into a law binding on the subject. To 
 grant this sanction the monarch is in no way bound ; ex- 
 pressed in the usual negative form, he has an absolute veto. 
 These legal conceptions correspond with the actually ex- 
 isting condition. The government (Reyieruny), i. e., the 
 prince and his immediate ministers, stand over against the 
 representatives of the people ( Volksvertretuny] in sharp con- 
 trast. The opposition has been mellowed by no such grad- 
 ual changes as meet us in the history of England. The 
 German prince rules as well as reigns. Parliamentary gov- 
 ernment is unknown, and would in fact ill correspond alike 
 with the prevailing conditions and the accepted theories. 
 The ultimate determining factor in the State is not the will 
 of a party, but the supposedly impartial decision of the 
 monarch, who is above all parties.* It is significant for the 
 correct judgment of the relation between monarch and 
 people that the initiative, although no longer legally,-*- is 
 still practically in large measure confined to the monarch. 
 The " Reyieriing " has taken the initiative so long that it 
 continues to do so, even under the altered conditions. The 
 
 * In regard to the possibility of conflict between the Landtag and 
 the ministry, Schulze observes: "In einem solchen Falle, ist der 
 Monarch welcher im konstitutionellen Staate liber den Parteieu stehen 
 mid auch seinem eigenen Ministerium gegeuiiber eice vorurtheilsfreie 
 Stellung bewahren soil, recht eigentlich zu einem personlichen Ein- 
 greifen berufen, urn den Staatsverderblichen Konflikt zu losen." 
 
 Deut. Staatsr., I., 495. 
 
 For the opinion of Wm. I. on this point see Sybel: " Die Begriin- 
 dung des Deutschen Reiches," II., 284-5. 
 
 f In some of the lesser German states, the iniative is still confined 
 to the crown. See Meyer. Staatsrecht, 463.
 
 The German Bundesrath. !> 
 
 people are in general satisfied with knowing and opposing 
 what they do not want, and too little intent on determining 
 what they do require.* 
 
 In view of what has been said, it will not be surprising if 
 we find the monarchs, as such, playing an important role in 
 the Empire, as well as in their own dominions. So import- 
 ant and universal a characteristic of the individual States 
 as the prevailing monarchical form of government could 
 hardly fail to exercise a marked influence on the form of 
 the federal constitution. The Imperial Constitution is in- 
 deed, as will appear later, based on and interpenetrated by 
 the monarchical idea. Nevertheless, and in spite of the 
 title Emperor borne by one of the chief organs of State, we 
 may not regard the present German federation as a mon- 
 archy. Such a view is from a legal standpoint quite false 
 and wholly out of consonance with the accepted notions in 
 Germany itself. Politically, the King of Prussia exercises 
 in many respects an influence analogous to that which 
 would fall to a monarch of the Empire supposing such to 
 exist. Legally, however, the Emperor and the King of 
 Prussia, although the same person, are to be carefully dis- 
 tinguished. The title "Kaiser," which William accepted in 
 1871, is somewhat misleading, for it is associated with much 
 that does not belong to the position in the State which it 
 now designates, f In fact, we have here to do with an en- 
 
 * See Westerkamp "Uber die Reichsverfassung," 127-8, who criti- 
 cizes the " wesentlichen negativen Haltung der Landesvertretuiigen. " 
 He quotes Carl Schurz (p. 128, note) in substantiation of the asserted 
 difference which exists in this respect between our own country and 
 the German states. 
 
 f Comparing the Roman and the holy Roman Empire with the pres- 
 ent German one, Held writes: " Wollte man die Aehnlichkeiten unter 
 diesen drei Kaiserreichen noch so hoch aurechnen, so miisste man 
 doch zustehen dass die rechtlichen Verschiedenheiten unter ihnen zu 
 gross sind, als dass sie unter sich im Verhaltniss der Rechtsnachfolge 
 stehen konnten, da nicht bloss das Recht des Kaisers nach Ursprung 
 und Gehalt, sondern auch das Object des Kaiserthums in jedeni der 
 drei Fiille im wesentlich andcres ist." Das Kaiserthum als Rechts* 
 begriff. Wurzburg, p. 35.
 
 10 The German Bundesrath. 
 
 tirely peculiar political creation, which should not be 
 judged by previous institutions of the same name, but must 
 be considered for itself: for it is, strangely enough, in the 
 Bundesrath, and not in the Emperor, that we find the char- 
 acteristics of a monarch most fully exemplified. This truth 
 finds its classical expression in Bismarck's famous utterance, 
 " The sovereignty rests not with the Emperor, but in the 
 [ideal] unity of the confederated governments." (Die 
 Souveranitat ruht nicht beim Kaiser, sie ruht bei der 
 Gesammtheit der verbiindeten Regierungen.)* Peculiar as 
 this conception is, it was the product of very easily discern- 
 ible conditions existing at the time of the formation of the 
 constitution, and is by no means new. As Laband says, "the 
 Bundesrath was neither discovered nor invented at the time 
 of the foundation of the North German Federation, but was 
 at once a spontaneous generation and a historical fact."f 
 Some attention to its origin is therefore the first requisite to 
 an understanding of this most peculiar of all the institutions 
 of German constitutional law. 
 
 In 1814, after Napoleon's forced abdication, the reorgan- 
 ization of the remains of the Holy Roman Empire became 
 an object of international solicitude. The first Peace of 
 Paris touches on this topic in the general provision that 
 " Les etats de 1' Allemagne seront independents et unis par 
 un lien fede'ratif." $ Obviously the serious question of the 
 manner of reconciling the independence of the members of 
 the proposed union with the creation of a central power 
 worthy of the name was here in no way answered. In the 
 discussion of the new organization of Germany, which took 
 
 * In the Reichstag, 1871. 
 
 f . . . "der Bundesrath [ist] bei der Griindung des Norddeutschen- 
 Bundes uberhaupt nicht erdacht und erfunden worden, sondern 
 gleichsam von selbst entstanden, historisch gegeben gewesen." 
 Staatsrecht des Deutschen Reiches. Zweite umgearbeitete Auflage 
 (2 Bde.), Freiburg, i. B., 1888. I., 215. 
 
 t Art. VI.
 
 The German Bundesrath. 11 
 
 place at the Congress of Vienna, Prussia's efforts were 
 directed toward the establishment of a firm union, while 
 Austria was intent on the formation of the loosest possible 
 confederation. She had already promised Bavaria and 
 Wiirtemberg that their newly acquired sovereignty should 
 suffer no diminution, and in these States she found natural 
 and sturdy allies. The empty result of the deliberations 
 was the so-called Bundesacte* or constitution under which 
 Germany lived with a short interruption until 1866. This 
 confederation was officially defined in 1820 as an interna- 
 tional Union of the German sovereign Princes and free 
 cities.f The members of the Confederation were thus not 
 States, but monarchs. The states found their entire and 
 exclusive representation in the person of their prince. Still 
 the membership was confined to actually reigning sove- 
 reigns $ it was no personal right of an individual. By way 
 of illustrating this somewhat peculiar conception of the 
 union, it may be pointed out that the number of states 
 comprised in the Confederation bore no necessary relation 
 to the number of members, but might, as was actually the 
 case, exceed it. The number of members however could 
 never be greater than that of the States, for, although one 
 prince could rule over several States united in a personal 
 union, no State could be subject to more than one prince. 
 
 The sole organ of the Confederation was the Diet, (Bun- 
 destag] permanently assembled at Frankfort-on-the-Main. 
 The plenipotentiaries who composed this assembly were the 
 
 * A short description of this constitution is to be found in Sybel, 
 Begrundung des Deutschen Reiches, I., 48 ff. Also in Meyer Staatsrecht 
 2 te aufl. pp. 84-111, and in Schulze, Deut. Staaisr. L, 91-111. 
 
 f "Der deutsche Bund 1st ein volkerrechtlicher Verein der deutschen 
 souverainen Fiirsten und freien Stadte." Wiener Schluss- Acte. Art. 
 I. Mayer's Corpus Juris Confed. Ger., II., 152. 
 
 \ The exceptional position of the Free Cities, owing to their unim- 
 portance, may be passed over, here as elsewhere, without explicit 
 mention.
 
 12 The German Bundesrath. 
 
 instructed representatives of the members of the union r 
 strictly responsible to the prince whom they represented 
 for the observance of their instructions. They enjoyed all 
 those rights which belong by the rules of international law 
 to ambassadors, especially that of ex-territoriality when at- 
 tending the meetings at Frankfort. Thus the Diet was no 
 free deliberative assembly where the members voted ac- 
 cording to their individual convictions, but a device by 
 means of which the wishes and opinions of the monarchs 
 might be expressed without the necessity of their personal 
 attendance on the meetings. 
 
 The Diet had two distinct modes of procedure, distin- 
 guished from one another by the apportionment of the 
 votes among the members of the Confederation and the 
 character of the majority necessary for the passage of a bill. 
 When the assembly met in the form of a select council,* 
 as it did for the transaction of the ordinary business, no 
 member had more than one vote, while the smaller states 
 were grouped into so-called curise, those comprising each 
 group having but one vote among them. A simple majority 
 sufficed for the passage of a measure. More important mat- 
 ters, such as changes in the constitution, the decision in re- 
 gard to peace and war, etc., could only be acted upon by the 
 so-called Plenum. Here even the most insigificant member 
 of the Confederation had his own independent vote, while 
 in order to give them their appropriate weight, the larger 
 states were assigned more than one. Austria, Prussia, Sax- 
 ony, Bavaria, Hanover and Wurtemberg, for example, each 
 had four votes, then followed five members with three, and 
 three with two, the remaining twenty-four having but one 
 each.f In the Plenum the opposition of a single member 
 sufficed to frustrate the passage of a bill. It is unnecessary 
 to describe this institution more carefully here, as many of 
 its peculiarities reappear in its successor, the Bundesrath. 
 
 * Known as Der engere Rath. 
 f Bundesacte, Art. VI.
 
 The Crerman Bundesrath. 13 
 
 The Confederation, sickly from its birth, dragged out a 
 miserable existence of half a century, until Prussia finally 
 undertook the dangerous operation which alone could 
 render a healthful development possible. On June 14th, 
 1866, the disagreement between the two great powers, 
 Prussia and Austria, in respect to the disposal of the Elbe 
 provinces, reached a crisis. Under the influence of Austria, 
 the Diet voted to mobilize the troops of the Confederation 
 with the intention of directing them against Prussia. 
 Prussia thereupon declared that the bond of union was 
 broken and the Confederation no longer existed. Its ex- 
 ample was followed by many of the other States. In the 
 treaties following Prussia's victory at Koniggratz (Sadowa), 
 the dissolution of the old union was formally recognized by 
 Austria and those states which had not yet done so.* 
 Prussia, which had long been intent on reform, could now 
 realize her cherished hopes without danger of Austrian in- 
 terference. Her plan for a new union of the twenty-two 
 German States lying north of the river Main, embraced 
 three main points; an increased field of activity for the 
 central government, provision for an executive, and the in- 
 troduction of a representation of the people, which, as in 
 the individual States, was to control the exercise of certain 
 powers of government. 
 
 Just before the 14th of June, Bismarck had sent a circu- 
 lar note to the several States containing the sketch of a 
 constitution, and asking if they would, should the tottering 
 Confederation finally give way, join a new Union on the 
 basis of the plan submitted .f This plan proposed that the 
 new union should comprise all the countries of the old, ex- 
 cept those owing allegiance to the Emperor of Austria and 
 the King of Holland ; but such parts of Prussia as had been 
 outside the former boundary should be admitted, as well as 
 Schleswig in short, excluding Alsace-Lorraine, the boun- 
 
 * Excepting Liechtenstein. 
 
 f See Hahn. Zwei Jahre Preussich-Deutscher Politik, p. 121.
 
 14 The German Bundesrath. 
 
 daries should be those of the present empire. Between 
 many of the articles of this sketch and those ultimately 
 adopted, there is such a resemblance both in matter and 
 form of expression that it may be regarded as the first 
 draft of the North German Constitution. 
 
 The first official formulation* of the extent and appella- 
 tion of the new confederation occurs in the Preliminary 
 Peace of Nicolsburg of July 26th, 1866, where Austria con- 
 sents to a rearrangement of Germany without her partici- 
 pation, and "promises to recognize the narrower union 
 which His Majesty the King of Prussia is to establish north 
 of the line of the Main, and agrees that the states lying to 
 the south of this line may unite, f the regulation of the 
 national bond with the North German Federation (Nord- 
 deutscher Bund) being reserved for farther understanding 
 between the parties.":}: This provision was acceded to by 
 all the other States lately at war with Prussia, and the neg- 
 ative conditions for farther progress were insured. The 
 dualism which had determined Ger.nan history for a half a 
 century was forever done away with. The rock against 
 which Prussia's plans of reform in 1849-50 had suffered 
 shipwreck no longer existed. 
 
 The positive results were brought about in the following 
 order. It must be kept in mind that the twenty-two states 
 in question were sovereign and independent countries, and 
 the forms observed were those of international intercourse. 
 That no violation of any of these rules took place is 
 a subject of congratulation with German jurists, and it is 
 certainly a matter of no little interest to see how this re- 
 sult was achieved ; how of two mutually exclusive ideas, 
 that of independence gave way peacefully and legally to 
 
 *See Laband. Staatsr., I., 15. 
 
 f This plan of a union between the South German states was never 
 carried out. 
 
 | See Hahn. Zwei Jahre, etc., p. 188.
 
 The German Bundesrath. 15 
 
 that of subordination to a higher power. Immediately after 
 the dissolution of the old Confederation, Prussia invited 
 those countries north of the Main, with whom she was on 
 friendly terms, to enter into an alliance with her. Sixteen 
 states acceded, and on the 18th of August, 1866, a treaty 
 was signed at Berlin, which was ultimately agreed to by 
 the other rulers north of the Main, including the King of 
 Saxony and the Duke of Hesse-Darmstadt, a part of whose 
 possessions lay within the proposed boundary. It is this 
 alliance which forms the international foundation on which 
 the North German Federation, and hence the German Em- 
 pire rests, and it deserves a little more careful consideration 
 even in this short sketch.* Unlike the treaty of confeder- 
 ation in 1815, this was not a perpetual league, but was lim- 
 ited expressly to one year. At the expiration of this term 
 the treaty relations were extinguished of themselves, if, by 
 that time, the purpose of the treaty had not been realized 
 in the establishment of a lasting federation. The contract- 
 ing parties, after concluding an offensive and defensive alli- 
 ance, pledged themselves to insure the realization of the ends 
 of the temporary alliance, by means of a constitution based 
 on the draft submitted by Prussia on June 10th, 1866. 
 They agreed to send plenipotentiaries to Berlin to deliber- 
 ate on the draft of a constitution which should be sub- 
 mitted to a parliament for consideration and ultimate 
 acceptance. This parliament was to be called together by 
 the common action of the allied cabinets, who pledged 
 themselves to order for this purpose an election of repre- 
 sentatives of the people on the basis of the election law of 
 1849. In these two bodies, i. e., the congress of plenipoten- 
 tiaries of the several monarchs, and the representatives of 
 the people, we have the beginnings of the present Bundes- 
 rath and Reichstag. 
 
 Obviously no confederation is established by these pro- 
 
 * Compare Laband. Staatsr., I., 16 ff.
 
 16 T)ie German Bundesrath. 
 
 ceedings, for the parties have only agreed to establish one. 
 No constitution is agreed upon, but simply the method in 
 which the constitution is to be brought into being.* About 
 the middle of December the congress of plenipotentiaries 
 met as arranged in Berlin, and in secret session took into 
 consideration a new draft of a constitution submitted by 
 Bismarck, in the name of the Prussian government. This, 
 in an amended form, was submitted to the Reichstag in 
 Berlin, February 24th, 1867. In the speech from the 
 thronef King William said that the allied governments, 
 while adhering to the approved arrangement of the earlier 
 system, had agreed on a number of definite and limited 
 alterations, which were not only undeniably necessary, but 
 at the same time lay within the bounds of immediate possi- 
 bility. The important part which the past played in the 
 German constitution is here clearly recognized. The re- 
 forms introduced were strictly limited by the existing con- 
 ditions. There was no attempt to form a constitution based 
 on abstract principles, as in 1848. Although the ground, 
 as Bismarck expressed it, was ill-adapted for the constitu- 
 tional structure, it had nevertheless to be utilized. In no 
 institution of the present political organization of Germany, 
 do we find so clear ah expression of the various factors 
 which had to be considered by the framers of the con- 
 stitution as in the Bundesrath. The adherence to the 
 " approved arrangements" of the past comes most clearly 
 to light in the character and organization of this body. 
 Such characteristics of the earlier system as answer the 
 existing requirements are retained. Although no legal 
 continuity exists between the Confederation of 131.~> and 
 the new Empire, the Bundesrath is a connecting link be- 
 tween the old and the new. Essentially novel in the con- 
 stitution submitted to the Reichstag in 1866, was the ad- 
 
 * See Haenel. Vertragsmtissige Elemente der deutschen Reicfaver- 
 fassung, I., 70, and Laband, I., 17. 
 
 fThrourede: Hahn. Zv-ei Jaltre. ftr., p. 497.
 
 The German Bundesrath. 17 
 
 mission of the people to a share in the government. Here 
 the precedents furnished by the constitutional development 
 of the individual states were strictly adhered to. In addi- 
 tion, the central government was given increased powers in 
 the regulation of commerce and trade. Important altera- 
 tions were also made in the organization of the army.* 
 Although Bismarck complained that the representatives of 
 the people, not sufficiently impressed with the " hitherto un- 
 exampled unanimity of the rulers of 30,000,000 Germans," 
 as expressed in the draft of the constitution, persisted in 
 presenting amendments, this had the effect of shedding no 
 little light on the nature of the proposed government. The 
 various objections had to be met by the commissioners of 
 the allied governments, and so the gap left by the absence of 
 a report of the proceedings in secret conclave was in a way 
 filled out. The final draft, which the congress. of plenipo- 
 tentiaries hastened to accept on the day of its passage in the 
 Reichstag, while adhering in the main to the original plan,f 
 contained a number of alterations and improvements.:}: 
 
 The federation was not, however, as yet established. 
 Many of the states had only granted the members sent to 
 the Reichstag the right to deliberate on the constitution. 
 The constitution had to be ratified by each state. The 
 cabinets could not legally enter such a union as was pro- 
 posed, for a radical change in each and every particular 
 state constitution was involved, and such amendments could 
 take place only with the consent of the legislature. In 
 each of the states, the needed alterations were, with a due 
 observance of the legal forms, carried out, and the new 
 Constitution of the North German Federation was pub- 
 lished in each of them with the identical provision that the 
 law should go into force on the 1st of July, 1867. Thus 
 
 * See Laband. Slaatsrecht, L, 22. 
 
 f For an essential change see Haenel. Die organisatorische Entwick- 
 lung der deutschen Reichsverfassung, p. 9 ft'. 
 JLaband. Staatsrecht, I., 28.
 
 18 The German Bundesrath. 
 
 each sovereign and independent country declared its inten- 
 tion to enter the union July 1st. Obviously there is no 
 room here for a discussion regarding the relative age of 
 states and union. The states were confessedly the parties 
 to a contract which resulted on the 1st of July, 1867, in the 
 formation of a new compound state. It is not to be in- 
 ferred, however, that because the origin of the union was 
 contractual, the Constitution of the German Empire is re- 
 garded as in any sense a compact between sovereign states. 
 On the contrary, the tendency of German jurists is to deny 
 the attribute of sovereignty to the states, and ascribe it to 
 the Empire alone.* The individual state is even deprived 
 of the old consolation of believing itself "sovereign in its 
 sphere," for not only may the power of the central govern- 
 ment be easily extended without its consent, f but the 
 whole theory of a "division of sovereignty," which was 
 formerly looked upon as the distinguishing characteristic of 
 a federative system, has of late received some rude shocks, 
 and is discarded as contradictory and untenable by a num- 
 ber of eminent writers. \ 
 
 The new Union was, as we have seen, limited to the 
 countries lying north of the Main. The considerable king- 
 dom of Bavaria, that of Wiirtemberg, the Grand-Duchy of 
 Baden and the southern half of Hesse, which together 
 form over one-fifth of the present Empire, were as yet com- 
 pletely independent of the North German Federation and 
 
 *See Laband, Staatsrecht, I., 81 if. Also Meyer, Skiatsrecht, who 
 enumerates other authorities, pp. 13 note, 170 and note 6. Prof. Max 
 Seydel, of Munich, the "Calhoun of Germany," is the most able oppo- 
 nent of this generally accepted view of the nature of the union. His 
 thesis is, "Die einzelnen Staaten sind der Bund.'" He has developed 
 his theory in a little book called, Commentar zur Verfassungs-Urkunde 
 fur das Deutsche Reich. Freiburg, i. B. 1873. 
 
 f Prussia occupies practically, although not theoretically, an excep- 
 tional position in this respect, inasmuch as she possesses a sufficient 
 number of votes to prevent any alteration of the constitution. 
 
 $ See the interesting criticism in Laband. Staatsr., I., 58 if.
 
 The German Bundesrath. 19 
 
 of each other. The constitution was, however, expressly 
 arranged so that the southern states might be admitted 
 easily and without any alteration of the fundamental law. 
 A simple legislative enactment was declared sufficient, no 
 constitutional amendment being required.* The southern 
 boundary was, so to speak, not yet definitely fixed.f All 
 depended on the attitude of the rulers and people of the 
 southern states, when the long cherished dream of German 
 unity should be realized. Before the great shock came 
 which broke down the barrier of particularism separating 
 the states of the south from the north, an economic union, 
 the shadow which the coming empire cast before it, ^ had 
 bound Germany in respect to one great field of interests 
 into a whole. In the " Customs Union " re-established in 
 1867,1 she found a much closer and more hopeful unity 
 than that existing under the Confederation of 1815. Al- 
 though short-lived, this organization is of the greatest in- 
 terest as a link in the chain of development. It was 
 organized on the plan of the constitution of the North 
 German Federation.^ There was a common organ of the 
 cabinets of the allied states in the Bundesrath of the Cus- 
 toms Union, a general representation of the people in the 
 Customs Parliament. The first was formed by the admis- 
 
 *Laband. Staatsrecht, I., 35. The Cons, provided : " Der Eintritt 
 der suddeutschen Staaten oder eines derselben in den Bund erfolgt 
 auf den Vorschlag des Bundes- Presidiums ini Wege der Bundesgesetz- 
 gebung." Art. 79, 1 2. 
 
 f Martitz. Betrachtung iiber die VerfUssung des Norddeutschen 
 Bundes, p. 9. 
 
 ^ " Die Verfassung des Zollvereins war der Verfassung des Nord- 
 deutscheu Bundes so vollig analog, dass sie wie eiu Schatteii erscheint, 
 den die Reichsverfassung vor sich her warf." Laband, Staatsrecht, 
 I., 35. 
 
 | Hahn. Zwei Jahre, etc., pp. 624 ff. 
 
 The economic union was preceded by a military one. Laband, 
 I., "34. 
 
 , Zwei Jahre, etc., pp. 624 ff.
 
 20 The German Bundesrath. 
 
 sion of the plenipotentiaries of the southern States into the 
 Bundesrath of the North German Federation; the Parlia- 
 ment by the admission of the representatives of the people 
 elected in the Southern States into the Reichstag. Prussia 
 presided as in the North German Federation. Laws were 
 passed by a simple majority of both bodies, the old require- 
 ment of unity which had existed in the previous Customs 
 Union being abolished. "Thus to a temporary interna- 
 tional union was given a constitution borrowed from a true 
 state."* 
 
 The short and glorious conflict with France carried on by 
 North and South alike, produced the conditions necessary 
 to change the international union heretofore existing into 
 a real Federation. The Southern States after Sedan sent 
 plenipotentiaries to Versailles to consider with the Presi- 
 dent of the North German Federation their reception into 
 that body. A treaty between the Federation on the one 
 hand and Baden and Hesse on the other, was concluded at 
 Versailles, November 15, 1870, to which was appended a 
 constitution of the German Federation containing such 
 amendments to the North German constitution as the ad- 
 mission of Baden and southern Hesse demanded. Many of 
 the changes were, however, made out of regard to the future 
 admission of Bavaria, whose wishes were already known. f 
 The example was almost immediately followed by Bavaria 
 and Wiirtemberg. In all these transactions, the States 
 north of the Main appeared always as a whole. No new 
 union was formed, the old was only extended ; the legal 
 continuity between the North German Federation and the 
 German Empire is complete. 
 
 Although the renewal of the expression "Kaiser und 
 Reich" which took place at the suggestion of that unhappy 
 prince, King Lewis II. of Bavaria, did not materially alter 
 
 *Schulze, Deut. Staatsr., I., 167. 
 fSclmlze, Deut. Staatsr., I., 170.
 
 The German Bundesrath. 21 
 
 the constitution, a revision had become necessary for other 
 reasons. The fundamental law of Germany was at this time 
 contained in three separate documents, i. e., the constitution 
 agreed upon by Baden, Hesse, and the North German Fed- 
 eration, November 15th ; the treaty between these States 
 and Wlirtemberg, November 25th, and that between the 
 North German Federation and Bavaria, November 23d. 
 To collect and formulate these scattered provisions into a 
 definite Imperial Constitution was the last act of the mag- 
 nificent political drama which we have just reviewed.* 
 
 The present German Constitution is a somewhat puz- 
 zling document. It is in style far inferior to that of our 
 own country ; the forms of expression are uncouth and 
 sometimes inexact.f Hence, particularly to a foreigner, 
 many clauses are obscure and misleading.:}: This is due 
 to the process of its formation. The Constitution of the 
 North German Federation came into being just after a 
 great war, coupled with grave internal complications in the 
 Prussian state itself. It was a time when something had 
 to be done; when substance took precedence of form.|| 
 The revision embracing the changes incident to the en- 
 largement of the Federation by the admission of the 
 Southern States shows little improvement. Consequently- 
 one cannot be too guarded in his inferences. It must 
 moreover always be kept in mind that the German Con- 
 stitution differs from ours in origin, nature and purpose, and 
 therefore no simple comparison of the clauses in the two 
 can serve the purposes of real study. "We must," as 
 
 * This document has never been altered by formal amendment, al- 
 though in some points the law has undergone important material 
 changes. 
 
 fHaenel, Organ. Entwicklitng, etc., p. 8. 
 
 $ Haenel cleverly explains several knotty points by drawing into 
 consideration the various drafts which lie behind the present constitu- 
 tion. 
 
 I Cf. Bismarck in the Reichstag., Apr. 16th, 1869.
 
 22 The German Bundesrath, 
 
 Schaffle says, "accustom ourselves to look at every sov- 
 ereign state in each of its stages of development as a 
 political personality."* Nowhere is this more necessary 
 than in dealing with the German Constitution. In it we 
 find the cherished formulations of political speculation 
 giving way to the demands of the actual. We find a great 
 state springing up from a chaos of weak principalities and 
 taking a commanding place among the powers of the 
 world. Yet a great number of the rules formulated by 
 political writers of the eighteenth century, which played so 
 considerable a part in the formation of our own federal 
 system, are ignored in the present German Constitution. 
 The doctrine of a division of powers, for instance, is neither 
 realized in practice nor accepted in theory. We find no 
 checks and balances; no supreme court empowered with 
 the decision of constitutional conflicts. The representatives 
 of the people do not fall into two houses of legislation ; the 
 central power does not in general execute the laws it 
 makes; the federal treasury is largely and purposely de- 
 pendent on the contributions of the several stat.es. In 
 short, the peculiar conditions existing at the time of the 
 establishment of the union are everywhere reflected in the 
 provisions of the constitution. The old definition of a 
 federation showed itself too narrow, and the jurists of Ger- 
 many have since been endeavoring to formulate a concep- 
 tion which should correspond to the new political phenom- 
 enon. 
 
 In the formation of the North German Federation in 
 1807, the difficulties to be surmounted and the conflicting 
 interests to be reconciled were by no means inconsiderable. 
 It was necessary to give the requisite form to extremely 
 unmanageable material. The various sovereign states 
 which were to be united contained in all some thirty-three 
 millions of inhabitants, but of these a single one, Prussia, 
 
 * Ban und Leben des socialen Rorpers, IV. 411. Quoted by Riime- 
 1m.
 
 The German Bundesrath. 23 
 
 had no less than twenty-four millions, or four-fifths of the 
 whole number. The other fifth was divided among 
 twenty-one States, of which one only, the Kingdom of Sax- 
 ony, had a larger population than the city of Berlin (then 
 702,000). Eight of the proposed members had less than 
 100,000 inhabitants each.* The difficulties of the situation 
 were appreciably increased by the necessity of considering, 
 in the organization of the union, the future admission of 
 the Southern States. Three distinct, and in many respects 
 conflicting, forces had to be brought into harmonious action. 
 There was, in the first place, the Kingdom of Prussia, one 
 of the great European powers, conscious of a glorious past, 
 strong in present victory, with possessions comprising 
 almost thirteen-fifteenths of the whole territory embraced 
 in the plan of union; in truth, a most unmanageable mem- 
 ber for a federation like our own. It seemed destined to 
 occupy a dictatorial position in any possible form of union. 
 The second element to be considered was the particularistic 
 or monarchical power in the remaining twenty-one coun- 
 tries. These, as we have seen, were, in general, very 
 limited in extent. Had one, at this time, traveled in a 
 straight line from Fulda to Altenburg, a distance of some 
 one hundred and twenty-five English miles, he would have 
 found himself, on the way, in the dominions of nine sov 
 ereign and independent monarchs, and have crossed thirty- 
 four boundary lines. Insignificant and scattered possessions 
 do not, however, necessarily imply moderate pretensions. 
 Each of these States possessed a long recognized sovereignty 
 not inferior, from a legal standpoint, to that of Prussia 
 itself. And in spite of the efforts of the educated classes in 
 behalf of unity, these minor governments seem in general 
 to have enjoyed a high degree of popularity among their 
 subjects.f Lastly, the force of public opinion had to be 
 
 *For these particulars, I rely on Haenel, Organ. Enttoicklung., 
 p. 9. 
 
 f See Sybel's speech in the Reichstag, 1867. Bezold: Materialien der 
 deutschen Reichsverfassung, I., 583.
 
 2'- The German Bundesratl. 
 
 considered in the new order. This took the form of a 
 demand for liberal institutions and a united Germany. On 
 examining the North German Constitution we find each of 
 these three forces assigned an appropriate organ. The 
 presidency of the Federation (Bimdesprasidium) is united 
 forever in a personal union with the crown of Prussia. In 
 the Bundesrath the princes of the various confederated 
 states represent collectively the whole power of the federal 
 state. In the Reichstag, a representation of the German 
 nation as a whole * exerts, as in the individual states, a 
 check on the exercise of the powers of government. 
 
 As has already been pointed out, the President of the 
 Federation, or, as he is now called, the Emperor, is not 
 properly speaking a monarch, for the chief characteristics 
 of a monarch are quite wanting in his case. He has, for 
 example, no veto, but must promulgate all laws which are 
 constitutionally passed by the Bundesrath and Eeichstag, 
 whether they are agreeable to him or not. In the Bundes- 
 rath, and not in the Emperor, is vested the supreme power 
 of the state. "Where powers, lying within the competence 
 of the central government, are not explicitly delegated to 
 other factors of the government, there is always a presump- 
 tion in its favor, just as in the various constitutional mon- 
 archies of Germany the prejudice is in favor of the mon- 
 arch. Among the writers on the subject complete unani- 
 mity prevails in denying to the Emperor the title of 
 sovereign.^ The explanation for this lies in the experience 
 
 * Die Mitglieder des Reichstages sind Vertreter des gesaminten 
 Volkes und an Auftiagen und Instruktionen nicht gebunden. (Cons., 
 Art. 29.) 
 
 f"In der Literatur berrscht dariiber voiles Einverstandniss, dass 
 rler Kaiser iiieht Souverain des Reiches 1st ; wernn trotzdem zahlreiche 
 Sehriftsteller das Reich als einen ' monarchischeu Bundesstaat ' be- 
 zeichnen oder ihm einen ' monarchischen ' Charakter, eioe ' inonarch- 
 ische ' Spitz zuschreiben, so wird das Wort nisht im staatsrechtlichen 
 Sinne gebraucht," Laband, I. 89, note. 
 
 The old Holy Roman Empire was legally a monarchy. The charac-
 
 The German Bundesrath. 25 
 
 of the past. In 1848-9 the attempt of the Frankfurt con- 
 vention to make of Germany a constitutional monarchy, 
 signally failed. The effort of Prussia at Erfurt was not 
 more successful, although the title of Emperor was rejected 
 and a college of princes introduced. The essentials of a 
 monarchy were retained, and in spite of all the rights 
 granted to the German princes, they became subjects of the 
 King of Prussia.* During the debates on the constitution 
 in the North German Reichstag of 1867, Bismarck, in op- 
 position to a motion to include a responsible ministry in 
 the new system, declared that this could only take place if 
 the new constitution was made monarchial, but this he con- 
 tinued, would involve the mediatization of those upon 
 whom the monarchial power was not conferred. "Such a 
 mediatization has, however, been neither conceded by our 
 allies nor aimed at by us. It has been hinted here by 
 some that this could be carried out by force, by others, that 
 it would to a certain extent come of itself .... We do 
 not, however, believe this to be true, nor do we expect 
 that any considerable number of the German princes would 
 exchange their places for that of an English peer."f Not 
 only did the princes themselves strenuously oppose any- 
 thing approaching subjection to the King of Prussia, but 
 their subjects exhibited the particularistic tendencies which 
 Bismarck declares to be inherent in the German character.:}: 
 Hence, if the errors of the past attempts at reform were not 
 
 ter of the new Empire appears in the title, which is not Emperor of 
 Germany, but German Emperor, thus with no territorial attribute. 
 See Zorn, article Kaiserthum, in Holzendorff's Rechtslexicon (1881), II., 
 426. 
 
 *See Sybel in the Reichstag, Bezold, Materialien, etc., i., 582. 
 
 f Quoted by Busch in Unser Reichskanzler, i., 59-60. Something in 
 many respects resembling the present Bundesrath had been long a 
 cherished scheme of Bismarck's, as a motion of his in the Erfurt Par- 
 liament of 1850 proves. See Martitz, Betrachtungen, etc., pp. 50-51. 
 
 See Busch, Unser Reichskamler, p. 61, and Sybel, Begnindung des 
 Deutschen Reiches, II., 334-5.
 
 _M; The German Bundesrath. 
 
 to be repeated, it was of prime necessity that the self-esteem 
 of the individual states as such should be taken into con- 
 sideration in framing the new constitution. The members 
 had to be compensated in kind, so to speak, for the sacrifices 
 of individual power. The past furnished, as already hinted, 
 an excellent basis on which to found an institution which 
 would realize this end. Prussia had proposed to reform 
 the old Confederation by increasing the competence of the 
 central power, adding a representation of the people, and 
 doing away with the requirement of unanimity, thus, as it 
 were, building around the old Bundestag or Assembly of 
 the Confederation. The realization of the plan was of 
 course once for all rendered impossible by the sudden 
 demise of the Bundestag in 1866. An institution closely 
 resembling it, however, in many respects, immediately 
 sprang into being through the treaty above referred to of 
 August 18, 1866, for the commissioners sent by the various 
 cabinets during the winter of 1866-67 to deliberate on the 
 draft of a constitution, composed an assembly correspond- 
 ing in the main with the former Bundestag,* i. e., a con- 
 gress of the plenipotentiaries of the allied governments 
 voting according to instructions. This developed rapidly 
 into the Bundesrath of to-day. The conduct of the pro- 
 ceedings was naturally assigned to Prussia, and the King of 
 Prussia invested with the right of convoking and adjourn- 
 ing the Reichstay, as the representative assembly was 
 already called. The relations between this council of 
 plenipotentiaries and the representatives of the people, con- 
 
 * Schulze, Deut, Staatsr., II., 47. A precedent for the Bundesrath 
 is to be found even in the oldest constitution of the Holy Roman Em- 
 pire, such is the continuity of German constitutional development. 
 "Nur mit veranderten Namen," Schulze writes, "ist der Bundesrath 
 an die Stelle des ehemaligen deutscheu Rechstages getreten. Mag 
 man politische jede vergleichung uuseres Bundesrathes mit jenem viel 
 verspotteteu Reichstag von Regensburg zuriickweisen, fur die Staats 
 rechtliche Koustruktiou bietet der&elbe iiberraschende analogien." 
 Staatsr. II., 48.
 
 The German Bundesrath. 27 
 
 yoked early in 1867, are an exact picture of those which 
 continue to exist between the Bundesrath and Reichstag. 
 The constitution was dealt with exactly as a bill would be 
 to-day. The Bundesrath (verbundete Regierungen) prepared 
 the draft to be submitted to the Reichstag. This was, after 
 certain changes, accepted by the latter body, and returned 
 to the Bundesrath for its final acceptance. "No new or- 
 ganization was demanded. Already existing arrangements, 
 at once the natural expression of prevailing conditions and 
 the reflection of historical facts, had only to be more clearly 
 defined and legally fixed."* 
 
 Although the Bundesrath is really a perpetuation of an 
 institution characteristic of a loose international union, we 
 must guard against the inference that the present Empire is 
 to be classed with the Confederation of 1815. The Bundes- 
 rath, unlike its progenitor, is not the single organ of a loose 
 confederation or Staatenbund^ but one of the three great 
 organs of a true federation or Bundesstaat^ of a composite 
 state which, in contradistinction to its predecessor, possesses 
 an independent power of legislation and administration and 
 a recognized sovereignty over its members, the individual 
 states. This putting of new wine into old bottles might 
 seem, at first thought, a dangerous experiment. It would 
 appear unlikely that an assembly organized in 1815 in ac- 
 cordance with Prince Metternich's ideas of government 
 would find itself at home in the radically altered surround- 
 ings of to-day. Such an apprehension would, however, 
 rest solely on the supposition that the conditions which just- 
 ified the formation of a body like the old Bundestag no 
 
 * Laband, Deut. Staahr., I., 216. 
 
 fTbe definition of -the words Federation and Confederation as found 
 iu the Federalist, reflect to some extent the peculiarities of our own 
 constitution, and are not precisely equivalent to the terms Bundesstaat 
 and Staatenbund as usually understood. Still it seems unnecessary to 
 introduce new terms, as the existing ones may easily be widened to 
 embrace new political phenomena.
 
 28 The German Bundesrath. 
 
 longer existed in 1867. A more careful consideration 
 shows that this supposition is not borne out by the facts. 
 All contradiction disappears if we remember that every 
 historical federation retains in its various members political 
 creations belonging to an antecedent period; for should the 
 states of which the federation is formed lose their identity, 
 the federation would merge into a unitary government, 
 
 II 
 
 The Bundesrath has, as Laband has clearly pointed out, a 
 double nature, corresponding exactly to the double nature 
 of the Federation. It "serves partly for the exercise and 
 assertion of the membership rights of the individual states, 
 partly as an organ of the Empire ; in the latter capacity as 
 an ideal unity."* Accepting Laband's distinction, wa shall 
 treat the Bundesrath first in its federative aspect, and sec- 
 ondly as an organ of the state. 
 
 Without attempting to decide the involved question 
 whether or no the states of a federation may be rightly 
 termed in any sense sovereign, certain it is that many pow- 
 ers appertaining to an independent state are sacrificed on 
 entering a union. In order to recompense the states for 
 this loss, as well as to insure the continuance of the federa- 
 tion, and prevent a lapse into a unitary state, we find in 
 the existing examples of federations, a participation of the 
 states, as such, in the formation of the governing bodies. 
 Of this our Senate affords an example as well as the Swiss 
 Stdnderath.^ Answering a similar purpose, but differing 
 radically in character and origin, is the German Bundes- 
 rath. Here we find the states, or their sovereigns for them, 
 not only participating in the government, but constituting 
 in their totality the collective sovereign of the Empire. 
 
 * Laband, Staatsrecht, I., 217. 
 
 f The Staatenhaus of the Frankfurt Constitution of 1849 was a sim- 
 ilar institution. Cf. Schulze, Deut. Staatsr., II., 46.
 
 The German Bundesrath. 
 
 29 
 
 Every member of the Federation is represented in this 
 body, but only members have any right to share in its 
 formation. Alsace-Lorraine, for instance, neither has, nor 
 can have, a vote in the Bundesrath. Its exclusion is not 
 due to any difficulty to be encountered in the appointment 
 and instruction of plenipotentiaries, but to the fact that the 
 territory won from France is not a member of the Union 
 at all, but a province of the Empire. No power intervenes 
 between its inhabitants and the Empire. It is not a state, 
 but resembles very closely in position one of our territories.* 
 It would farther be out of all accord with the nature of 
 the institution to receive into the Bundesrath representa- 
 tives of any class of the inhabitants, or to admit to a seat 
 distinguished individuals or the mediatized princes who 
 formerly ruled over their lands as monarchs. 
 
 In apportioning the votes among the various members, 
 the framers of the constitution simply adopted the rule of 
 the former Plenum.f In this way the endless discussion 
 
 * Commissioners are however appointed by the government of Al- 
 sace-Lorraine to participate in the deliberations, but not in the deci- 
 sions, of the Bundesrath. (Law of July 4th, 1879.) 
 
 f The following is a comparison between the Plenum as it appeared 
 in the Act of Confederation in 1815, and the existing arrangement of 
 the Bundesrath : 
 
 Excluded from the new Union. 
 
 The 17 votes of Prussia consist, In 
 addition to its original 4, of those 
 of the annexations of 1866, f. e., 
 Hannover 4, Elec. Hesse 3, Hoi- 
 stein 3, Nassau 2, and Frank- 
 furt 1. 
 
 Annexed to Prussia, 1866. 
 
 Annexed to Prussia, 1866. 
 
 Annexed to Prussia. 1866. 
 Excluded iroin the new Union. 
 
 Annexed to Prussia, 1866. 
 
 
 Plenum. 
 
 B'rath. 
 
 Austria 
 
 4 
 
 
 Prussia 
 
 4 
 
 17 
 
 Kingdom of Saxony... 
 
 4 
 
 4 
 
 Bavaria 
 
 4 
 
 6 
 
 
 4 
 
 
 Wiirtemberg 
 
 4 
 
 4 
 
 Baden 
 
 3 
 
 3 
 
 Electoral Hesse or 
 
 
 
 
 3 
 
 
 Grand-duchy of Hesse 
 
 
 
 or Hesse-Darmstadt. 
 
 3 
 
 3 
 
 
 3 
 
 
 
 3 
 
 
 Brunswick 
 
 2 
 
 2 
 
 Mecklenburg - Schwer- 
 
 
 
 in 
 
 2 
 
 2 
 
 
 2 
 
 
 Suxe-Weiniar ... 
 
 1 
 
 1
 
 30 
 
 The German Bundesrath. 
 
 which any attempt at a new distribution would inevitably 
 have entailed, was avoided. The long-established system 
 had lost the arbitrariness which it once possessed, and be- 
 come, as it were, the habit of the nation.* The four votes 
 of Prussia were, it is true, more than quadrupled by the an- 
 nexations of 1866, still this was no deviation from the es- 
 tablished principle. Bavaria, however, retained in the 
 empire the two extra votes granted her in the Bundesrath 
 of the Customs-Union, and occupies thus an exceptional 
 position. 
 
 The exercise of rights left by the Constitution to the vari- 
 ous members is, in principle, the domestic concern of each 
 state, and so determined by state law. A complete under- 
 standing of the Bundesrath is therefore impossible without 
 at least a passing notice of the method of choosing and 
 instructing the plenipotentiaries who form that august 
 
 Saxe-Gotha 
 
 Plenum. 
 1 
 
 B'rath. 
 
 > , 
 
 The dying out of the Suxe-Gotha 
 
 Saxe-Ooburg 
 
 1 
 
 1 
 
 line in 1825 caused a re-arrange- 
 
 Saxe-Meiuingen 
 
 1 
 
 1 
 
 ment of the little Thiiringian 
 states, from which the present 
 duchies arose; Altenburg being 
 the former Heldburghaugen fam- 
 ily. See Meyer, Deut. titaalsr., 90. 
 
 Saxe- Hel db u rghausen . 
 
 1 
 
 
 
 Saxe-Altenburg 
 
 
 1 
 
 
 Mecklenburg-Strelitz. 
 (Holstein) Oldenburg. 
 Anhalt-Dessau 
 
 1 
 1 . 
 1 
 
 1 
 1 
 
 ) 
 
 
 Anhalt-Bernburg 
 Anhalt-Cothen 
 
 J 
 1 
 
 ' 
 
 United in 1863, and now known 
 simply as Anhalt. 
 
 Schwurzburg - Sonder- 
 hausen 
 
 1 
 
 1 
 
 
 Schwarzburg - Kudol- 
 stadt 
 
 1 
 
 1 
 
 
 Hohenzollern - Hechin- 
 gen 
 
 |1 
 
 
 
 Hobenzollern-Sigmar- 
 ingen 
 
 1 
 
 J 
 
 
 tarily with the Prussian State in 
 1849. 
 
 Liechtenstein 
 
 
 
 
 
 Waldeck 
 
 i 
 
 1 
 
 
 Reuss (elder line) 
 Reuss (younger line).. 
 Schaumberg-Lippe 
 Lippe 
 
 i 
 i 
 i 
 i 
 
 1 
 1 
 1 
 1 
 
 
 Free City of Liibeck . . 
 Free City ot Frankfurt 
 
 i 
 
 i 
 
 1 
 
 Annexed to Prussia 186(5 
 
 Free City of Bremen. . 
 Free City of Hamburg. 
 
 i 
 i 
 
 1 
 1 
 
 
 
 69 
 
 58 
 
 
 * See Bismarck's speech in Bezold, 1. c., I., 649.
 
 The German Bundesratlt. 31 
 
 assembly. But here arises the question, are the states, or 
 their monarchs for them, represented in the Bundesrath ? 
 On this point the German jurists are not at one. Meyer 
 and several others assert that "the states in their relations 
 with the Empire, as in the case of the earlier confederation, 
 are represented solely in and through the person of their 
 monarchs."* They therefore deny to the individual states 
 the right to grant to the representatives of the people, by 
 constitutional amendment, any participation in the instruc- 
 tion of the delegates to the Bundesrath.f This, they would 
 consider a violation of the imperial law. Still they admit 
 that the princes have a place in the Bundesrath, not in vir- 
 tue of a personal right, but only as head and representative 
 of their states, and consequently only so long as they con- 
 tinue in possession of the power of the state.:}: Laband, on 
 the other hand, declares the members of the union to be 
 states and not princes. il Das Reich ist Jcein Fiirstenbund 
 sondern ein av.s den deutschen Staaten gebildeter Staat." 1 
 The prince or his ministry is the natural representative 
 of the state in its relations with an outside power, as form- 
 erly with foreign states, so now with respect to the Empire. 
 But there is nothing to prevent the state law from regu- 
 lating the conditions under which the instructions are given. 
 There is nothing in the constitution of the Empire, either 
 expressed or implied, indicative that the instruction of the 
 plenipotentiaries belongs exclusively to the monarch or his 
 
 * Meyer, Staatsrecht, p. 347. 
 
 f " Da aber reichsverfassungsmassig im Bundesrath nur die Regier- 
 ungen vertreten sind, so darf die Instruction landesgesetzlich nicht 
 Ton einer Zustirnmung des Landestages abhangig gemacht werden. 
 Meyer, I.e., p. 355. 
 
 J Meyer, StaaUrecht, p. 347. 
 
 | Laband, Deut. Staatsrecht, I., 89. 
 
 " Die Reichsverfassung nortnirt lediglich die Abstimmung im Bun- 
 desrathe, aber mit keinem "Worte die Instruktionsertheilung welche 
 res interna jedes einzelneu Staates ist.'' Laband, 1. c., I., 226.
 
 32 The German Bundesrath. 
 
 ministry. To a foreigner, especially to an American, it is 
 hard to see why the sovereign should be any freer from con- 
 stitutional control where the interests of the state as a 
 member of the union are concerned, than in internal affairs. 
 They were not absolute monarchs who confederated in 1866, 
 but monarchs limited each by a constitution. Even if they 
 and not the states be represented in the Bundesrath, they 
 are not freed from the constraints to which the increasing 
 self -consciousness of nations has seen wise to submit the in- 
 dividual ruler. Inasmuch, however, as nothing happens 
 in the German states without the monarch's will, it is highly 
 improbable that any law will be passed in the individual 
 states, granting the Landtag or assembly of representatives 
 of the people, a voice in the instruction of the plenipoten- 
 tiaries.* 
 
 Although an assembly of instructed representatives of 
 the various members, the Bundesrath is to a certain extent 
 a deliberative body. This arises first from the fact that 
 "instruction" is a very elastic term, comprehending many 
 degrees of explicitness. "The instructions may consist in 
 a carte blanche or in the most minutely detailed course of 
 action, or even in the requirement that the representative 
 must, before proceeding, procure a special indication of the 
 wishes of his government."f It thus often happens that 
 the members are not supplied with instructions for each 
 particular case, but within certain bounds may vote ac- 
 cording to their own judgment.;}: This is most natural in 
 the case of ministers and presidents of the individual 
 
 * Laband adds most characteristically: " Audi ist nicbt zu verkennen 
 dass auch aus anderen politiscben Grunden ein solches Gesetz ver- 
 werflich ware, da das Volk in seiner Gesammtheit durcb den Reicbs- 
 tag eine Vertretung erhalten hat neben welcher die Volksvertre- 
 tuugen der einzelnen Staaten zuriicktreten mussen." Deut. Staatsr., 
 p. 227. 
 
 fSee Seydel, Holzendorff and Brentano's Jahrbuch, III., 277. 
 J Meyer. Staatsr., p. 361.
 
 The German Bundesratl. 33 
 
 cabinets, who frequently undertake the task of representing 
 their states. In looking over the names for 1888 we find 
 the cabinets of the individual states largely represented. 
 From Prussia, besides the president of the ministry, the 
 ministers of the Interior, of War, of Finance, etc.; from 
 Saxony, ministers of the Interior and of Finance; from 
 Bavaria the same; from "Wiirtemberg, the president of the 
 cabinet and the minister of the Interior.* Thus the 
 Bundesrath appears not so much in the light of a diplomatic 
 body as of an assembly of specialists.f As a means of 
 communication between the various state governments, 
 nothing could be more convenient and effective. Here the 
 leading men meet together and consider the common policy 
 to be pursued. The process of instruction may easily be 
 reversed. The plenipotentiary by his report may affect the 
 opinion of his government, of which he is often an im- 
 portant member, and so instruct rather than receive instruc- 
 tion from others.:}: Still it is always the will of the state 
 government which asserts itself in the vote. The member 
 of the Bundesrath is never, as in our Senate, a representa- 
 tive of the people of the Empire, but of his state govern- 
 ment ; his is not the voice of the individual, but of the 
 state. This difference is well expressed by Bismarck in 
 his speech of April 19th, 1871. After referring to the 
 proposed Erfurt Constitution where the member was not 
 bound by instructions, but voted according to his own con- 
 victions, he continues, "In the Bundesrath the votes do not 
 weigh so lightly ; there it is not Freiherr von Friesen who 
 votes, but the Kingdom of Saxony through him. Accord- 
 ing to his instructions, he deposits a vote which is a care- 
 
 *See Handbuch fur das deutsche Reich, 1888, p. 4 ff. Up to 1880 
 the names of plenipotentiaries are to be found in the Reichsgesetzblatt. 
 
 \ u Der Bundesrath ist kein diplomatischer Korper, sondern ein sich 
 aus einer Beihe von Fachmanner zusammensetzendes Collegium." 
 Martitz, Betrachtungen, etc., p. 43. 
 
 | Laband, I., 231. and note 3
 
 34 The German Bundesrath. 
 
 fill distillation of all the forces which combine to form the 
 public life of Saxony. This vote is the diagonal of the 
 political forces which play a part in the Saxon state. . . . 
 Analogously in the Hanse towns, in the republican members, 
 it is the whole weight of a great, rich, powerful and intelli- 
 gent commercial city which is represented in a vote of the 
 city of Hamburg in the Bundesrath, not the vote of a citi- 
 zen of Hamburg who can vote this way or that according 
 to his convictions. The vote in the Bundesrath should corn- 
 command the respect due to the whole political life of a 
 member of the Union." 
 
 The instruction of the members of the Bundesrath is the 
 affair of the individual state governments, and not a matter 
 of which that body takes cognizance. In seeming contra- 
 diction to this is the clause in the Constitution, " Unrepre- 
 sented and uninstructed votes shall not be counted."* This 
 is not to be taken literally. It does not mean that this is 
 the penalty for voting without instructions, that the vote 
 of an uninstructed member is simply neglected.f Nothing 
 could be farther from the truth. The Bundesrath has 
 neither the duty nor the right to investigate the nature of 
 the plenipotentiaries' instructions. That he is plenipoten- 
 tiary suffices. It never inquires whether a member is vot- 
 ing according to instructions, and it would have no influence 
 on the validity of the decision if it should be afterwards 
 discovered that all the members had voted without, or 
 even against, their instructions. The motives are no more 
 considered in the Bundesrath than in the House of Kepre- 
 sentatives. The impracticability of attempting such a 
 supervision and the paralyzing effect on the work of the 
 assembly is too obvious to need farther amplification. 
 The clause of the Constitution above referred to means, 
 first, that the states are in no way compelled to take part 
 
 *Eeiehsverfas8u?ig., Art 7., Tf 3. 
 
 fSeydel, Holzendorff & Brentano's Jahrbuch, III., 277.
 
 Tke German Bundesrath. 35 
 
 in the proceedings;* and that, farther, a member cannot 
 demand that a vote be deferred because he has no instruc- 
 tions.f That his vote corresponds to his instructions, the 
 plenipotentiary is therefore responsible to his home gov- 
 ernment alone. His vote is in every case unconditionally 
 binding on the state he represents. 
 
 The active participation of the individual members of 
 the Union in the Bundesrath is not confined, as a clause 
 in the Constitution would at first glance seem to indicate, 
 to matters affecting their own state directly or indirectly, 
 but extends as well to measures which relate solely to 
 other portions of the Union. The Bundesrath is the organ 
 of the Empire as a whole, and is in principle concerned 
 only with the whole even where but a portion of the realm 
 is directly affected. The clause referred to reads, " In the 
 decision upon a matter which, according to the provisions of 
 this Constitution, is not common to the whole Empire, only 
 the votes of those states shall be counted to which the 
 matter is common (yemeinschaftlich)?^ This refers only to 
 the Southern States, which have been exempted from the 
 action of the federal power in certain departments. They 
 have in certain respects, remained outside the Union, so to 
 speak, and are naturally precluded from interfering with 
 matters which do not concern them, either individually or 
 as members of the Union. For example, the votes of Ba- 
 varia and Wiirtemberg are not taken into consideration in 
 decisions touching the administration of the imperial post 
 
 * Dissenting from this generally accepted opinion, Zorn claims that 
 "dauernde Fernhaltungeines Staatesvom Bundesrath wiirde iiberdies 
 wohl die Anwemiung des Artikel 19 der Reichsverfassung (Bundes- 
 exekution) zur Folge haben miissen." HolzendoriFs Rechtslexikon, 
 I., 435. 
 
 fLaband, Deut. Staatsr., I., 222, 228-9. Meyer, Staatsr., 355. 
 Schulze, Deut. Staater., II., 51. 
 
 J Art, 7, ^ 4.
 
 36 The Q-erman Bundesrath. 
 
 and telegraph, nor Baden's in matters relating to the beer 
 and brandy excise.* 
 
 We now turn to a consideration of the organization of 
 the Bundesrath as a portion of the constitutional mechanism 
 of the Empire. The form of business in this body is regu- 
 lated to a certain extent by the Constitution, more specifi- 
 cally by the Rules of Procedure. f The latter has not the 
 force of law, and may be altered at the pleasure of the as- 
 sembly.^: 
 
 The Bundesrath is not a permanent assembly as the 
 former Bundestag was in theory, and the old Reichstag of 
 the Holy Roman Empire was in fact, but is assembled at 
 least yearly by the emperor. || It is, nevertheless, distin- 
 guished from the ordinary parliamentary assembly by the 
 so-called principle of continuity (Kontinuitat), which links 
 each new session closely to the last. For, in contrast to the 
 rules of the Reichstag, business is resumed at the point 
 where it was broken off by adjournment at the close of the 
 preceding session. 
 
 Although the Constitution vests the power of summoning 
 the Bundesrath in the emperor, he exercises this power 
 only under important limitations. He may not call the 
 Reichstag together without at the same time summoning 
 the Bundesrath, although it is quite allowable and custom- 
 ary, especially for the preparation of bills to be laid be- 
 fore the representatives of the people, to convoke the Bun- 
 
 * Constitution Arts. 35 and 52. See Laband, Deut. Staatsr., I., 229- 
 30. Meyer, Staatsr., 359. 
 
 f Geschaftsordnung fiir den Buudesrath ; printed 1871 at the Kong- 
 lichen Geheimen Ober-Hofbuchdruckerei, Berlin, 18 pp. Revised 
 1880. There is a good account of the contents in Laband, I., 252 ff. 
 The writer was unable to gain access to the original, either at the 
 Royal Library or at the Reichstag Library. 
 
 t Laband, 1. c., I., 252. 
 
 II Schulze, Deut. Staatsr., II., 64-5, and Cons., Art. 13.
 
 T/te German Bundesratl . 37 
 
 desrath alone.* Moreover, the Emperor is bound to 
 assemble the Bundesrath if one-third of the votes, that is 
 twenty, are in favor of it.f 
 
 Each session falls, for convenience, into two periods. 
 The important work, where the presence of the chief pleni- 
 potentiary of the larger states is requisite, is condensed into 
 as short a space of time as possible; the remainder of the 
 session being devoted to the transaction of the less important 
 business.:}: Thus the leading statesmen are relieved, and 
 their term of attendance shortened. When we recollect 
 that these men play the chief role in the administration of 
 their respective states, in addition to their duties in the 
 direction of the federal affairs, the necessity of this arrange- 
 ment is obvious. 
 
 The conduct of the business devolves upon the Imperial 
 Chancellor, who is designated by the Constitution as Presi- 
 dent of the Bundesrath. During the session he appoints 
 the time of meeting, and opens the sittings; all communi- 
 cations from the Reichstag, the motions of the individual 
 members of the Union, and all petitions directed to the 
 Bundesrath, pass through his hands. Such petitions as 
 clearly do not fall within the sphere of the assembly he 
 may reject without farther formality. That only a pleni- 
 potentiary of Prussia may be appointed to this position is 
 generally admitted. Hence there are vested necessarily 
 
 * Cons.. Art. 13. James, German Constitution, p. 24. 
 
 f Cons., Art. 14. James, German Constitution, p. 24. 
 
 J Laband, Staatsreeht, I., 256. 
 
 | Meyer, 1. c., p. 357, note 7; Haenel 1. c., II., 24 ff. That the Chan- 
 cellor must be a member of the Bundesrath, the wording of the Con- 
 stitution (Art. 15) clearly implies, inasmuch as it provides for the 
 appointment of any other member ( ; 'jedes andere Mitglied") of that 
 body as a temporary substitute for the Chancellor. That no other 
 member than a Prussian plenipotentiary may be appointed is dcduci- 
 ble from the circumstance that the appointment and dismissal of the 
 Chancellor are vested solely in the Emperor. Should he select any 
 other than one of his own representatives, that plenipotentiary might
 
 38 The German Bundesrath. 
 
 in a single person the important functions appertaining to- 
 the Chancellor or chief administrative officer of the Empire, 
 to the President of the Bundesrath, and lastly to the lea.l- 
 ing representative of Prussia, a state to which is allotted 
 not only nearly one-third of the votes in every decision and 
 the determining voice in the case of an equal division, but 
 in several important matters an absolute veto. Whatever 
 judgment we may pass on this peculiar arrangement, by 
 which the head of the Executive Department is at the 
 same time the most important member of the chief legisla- 
 tive assembly, it must not be forgotten that we are dealing 
 with a set of conditions and political traditions wholly dif- 
 ferent from those of our country. Two things should be 
 noted. First, the principle of the division of powers has 
 not the absolute validity which would make its strict 
 application possible. Even in the early Constitution of 
 Massachusetts, where this principle appears among the ina- 
 lienable rights of man, the executive was not refused all 
 influence on the legislation. In the second place, the posi- 
 tion occupied by the minister of the Emperor is precisely 
 parallel to that occupied by the Emperor himself. .As 
 Prussia and the Empire are joined in a personal union, so 
 the office of Imperial Chancellor and th^at of the Prussian 
 Representative in the councils of the Federation are united 
 in the same individual. 
 
 The number which shall constitute a quorum in the Bun- 
 desrath is determined neither by the Constitution nor by 
 the Rules of Procedure. Although each member of the 
 Union may send as many representatives as it has votes, its- 
 influence in deciding a question is in no way connected 
 with the number of its plenipotentiaries present. One is 
 
 at any time be recalled by the monarch lie represented in the Bundes- 
 rath, and thus without being dismissed by the Emperor lose the c< in- 
 stitutional qualification for the Chancellorship. See Laband, 1. c., I , 
 351. There is an interesting historical argument in llaenel, 1. c., II., 
 28 f.
 
 The German Bundesrath. #i> 
 
 quite sufficient to cast the votes of his state, which can not 
 be cast otherwise than as a whole. It would be out of ac- 
 cord not only with the theory of the Constitution, for a 
 state or monarch cannot have two wills at the same instant, 
 but with its express provisions as well,* if the votes were 
 disposed singly. 
 
 According to the reports of the sittings, the number at- 
 tending is very much below the possible fifty-eight, one or 
 two only being present from the larger states, while in the 
 case of the smaller ones a single representative (Stell- 
 vertreter) is chosen to act for several conjointly.f 
 
 In general, a simple majority is the only condition for 
 the passage of a measure. In case of a tie, the decision is 
 in favor of the side on which Prussia's votes have been cast. 
 The exceptions to this rule are enumerated below. It is 
 striking that in those cases where more than a simple ma- 
 jority is demanded for the passage of a measure, this limi- 
 tation never extends to the Keichstag. Here a plurality of 
 the votes is the only condition for the passage of every 
 species of bill. 
 
 I. Amendments to the Constitution are looked upon as 
 rejected if there be fourteen votes against the change. The 
 history of this apparently arbitrary provision is as follows: 
 According to the North German Constitution, a two-thirds 
 majority of the Bundesrath was necessary for the alteration 
 of the fundamental law. This, on the admission of the 
 
 * Art. 6. James, German Constitution, p. 21. 
 
 f Cf. Laband, I., 223. While each little state generally appoints a 
 plenipotentiary of its own, it has at the same time a substitute (Stell- 
 vertreter) in common with one or more other states. So in 1888 the 
 Plenipotentiary of the two Mecklenburgs was also representative of 
 Reuss a L. and of Schaumberg-Lippe, while the Vertreter of Sachsen- 
 Weimar was appointed to the same oilice by Sachsen-Altenburg, Co- 
 burg-Gotha, Schwarzburg-S., Schwarzburg-R. (no other representa- 
 tive) and Reuss j. L. [Haudbuch fiir das Deutsche Reich, 1888.] 
 Presumably the title " Plenipotentiary " is simply honorary, the \'tr~ 
 treter doing all the work.
 
 40 Tlie German B unties rath. 
 
 Southern States, bad to be altered; for otherwise Prussia, 
 whose seventeen votes do not constitute a third of the 
 present number, would have been deprived of its control, 
 and left to the mercy of the other states. The requirement 
 of three fourths, which was accepted in the treaty with 
 Baden and Hesse, and which, expressed in the present nega- 
 tive fashion, would have rendered the modification of the 
 Constitution impossible in the face of an opposition which 
 could muster fifteen votes, gave way to the existing provi- 
 sion as a compromise with Bavaria. Prussia is obviously 
 the only State which can, without the co-operation of any 
 other, prevent a widening of the powers of the central 
 government,* but there are quite a variety of combinations 
 by which four of the lesser states can accomplish the same 
 end. Even three may do so, namely, Bavaria, Saxony and 
 Wiirtemberg. 
 
 II. In certain cases no alteration of the existing law can 
 take place unless Prussia's votes be with the majority in 
 favor of the change. This the German jurists chose to re- 
 gard not as a veto, but as a deviation from the rule which 
 prescribes a simple majority. Comprised in the class re- 
 ferred to are changes in the military or naval arrange- 
 ments and in the regulations concerning the customs duiic.s 
 and taxes on certain specified articles."- 
 
 III. In regard to the reserved rights of the Southern 
 States it is provided in the Constitution that no modifica- 
 tion of these may take place without the consent of the 
 State concerned.f The required consent is looked upon as 
 
 * From the point of view of the sovereignty of the Empire the ex- 
 ceptional position of Prussia ofl'ers a strange anomaly. " Man kann 
 daher nnr bedingt von einer ideellen Machtvollkommenheit des 
 Reiches gegeniiber den Einzelstaateu sprechen, da cine Aenderung der 
 VerfMSUng gegeu den "VYilkn des einzigeu Partikular&taates Prens.--oii 
 vollstandig ausgeschlossen erscheint." Eiimeliu : Zeitsch. fur Gcs- 
 ammt Staatmissenscftaft. Bd. XXXIX. S. !:'.). 
 
 * Cons., Art. 35. James, German Cons., p. 27. 
 
 f Cons., Art. 78. There is no corresponding clause in the Constitu- 
 tion of the North German Federation.
 
 TJie German Bundesrath. 41 
 
 given if the vote of the State in question be cast in the 
 Bundesrath in favor of the alteration. The question what 
 the consent of the privileged member involves or may in- 
 volve farther than the vote of the plenipotentiary, has been 
 a subject of discussion in Germany. The views of jurists are 
 divergent, but it is generally held that even if the acquies- 
 cence of the Landtag is not required by the imperial law, 
 as some claim,* the consent of the representatives of the 
 people may be made requisite by a law of the state itself. 
 In spite of the efforts, however, to restrict in this manner 
 the power of the monarch to surrender the peculiar advan- 
 tages of the state, no bill imposing such a limitation has 
 ever been passed even in the Landtag itself, not to speak of 
 receiving the assent of the ruler.f 
 
 IV. Finally, a simple majority of the Bundesrath is not 
 sufficient where a dissolution of the Reichstag is involved. 
 For this the consent of the Emperor is necessary, in addi- 
 tion to that of the Allied Cabinets.;}: 
 
 The Bundesrath, like other legislative bodies, relies on 
 committees for assistance in the performance of its func- 
 tions. The organization of these is not left, as is usual, to 
 the discretion of the Plenum or assembly as a whole, but is 
 carefully defined by the Constitution (Art. 8). Seven per- 
 manent committees are enumerated, and their composition 
 and appointment more or less completely provided for. la 
 each of these, besides Prussia, at least four members of the 
 Union are to be represented, each state having but one 
 vote. The Emperor, as cornmander-in chief of the land 
 and sea forces, appoints the members of the Committee on 
 the Army,! and that on the Marine, the members of the 
 
 * Georg Meyer for instance. Staatsr., 481. 
 
 f Cf. references iu Meyer, 481, note 25, and Laband, 1. c., 115-6, and 
 notes. For a history of the attempts to legislate on the subject, see 
 Seydel ; Commentar, 276 ff. 
 
 \ Cons., Art. 24. James, German Constitution, p. 26. 
 
 | In the case of the Army Committee, the Constitution provides
 
 42 The German Bundesrath. 
 
 other five are designated by the Bundesrath itself.* On 
 these devolve respectively the consideration of matters per- 
 taining to the customs and federal taxes, trade and com- 
 merce, railroad, post and telegraph, justice, and, lastly,f 
 finance (Rechnungswesen). The duties of the committees 
 are generally confined to the preparation of bills for the 
 Plenum. They may not transact business themselves nor 
 issue orders, but simply report to .the main assembly. 
 
 An eighth committee provided for by the Constitution 
 occupies a peculiar position. It consists of the plenipoten- 
 tiaries of the kingdoms of Bavaria, Saxony, and Wiirtem- 
 berg, and two other members of the Bundesrath ap- 
 pointed by that body. This is the Committee on Foreign 
 Affairs. It has in practice failed to take the important 
 place for which it might seem destined, and is chiefly 
 interesting as an illustration of the underlying principles of 
 the German Constitution. One of the most important ser- 
 vices of the Bundesrath is, as we have seen, that it furnishes 
 a means of intercommunication between the individual 
 cabinets. Opinions are there exchanged, purposes dis- 
 closed, and misunderstandings avoided. The political en- 
 ergy of the different states is in this way correlated and a 
 general unity of action insured: all of which is much 
 more essential in a federal system like that of the German 
 Empire than in one like our own. In the United States 
 . the individual state does not, as such, participate directly 
 in the conduct of the affairs of the E'ederation, whereas in 
 
 that Bavaria shall always be represented. The same privilege is in- 
 sured to Wiirtemberg and Saxony by Military Convention. 
 
 * The Bundesrath satisfies itself with indicating the states which 
 are to be represented in the committee, and dues not appoint the 
 members themselves directly. This is not in accord with the Consti- 
 tution, Art. 8. See Haenel, II., 30, and Laband, I., 264, and note 2. 
 
 f Three more permanent Committees have been established since 
 the formation of the Constitution, namely, that for Alsace-Lorraine, 
 one on the Constitution, and one on the Form of Procedure. See on 
 tin. 1 whole subject the excellent account in Labaud, I., 261-9.
 
 The German Bundesrath. 43 
 
 Germany the weightiest functions of the federal govern- 
 ment devolve upon the state governments. Not only do 
 they as a whole form the most important organ of the cen- 
 tral government, but to them individually is intrusted, as a 
 rule, the execution of the federal laws in their respective 
 territories. The committee just mentioned is a part of this 
 system of correspondence. It has nothing to do with the 
 instruction of diplomatic agents, or with the conclusion of 
 treaties and conventions with foreign nations, nor even 
 with the preparation of bills for the Bundesrath. It is 
 there solely for the purpose of receiving communications 
 regarding foreign affairs, which are in this manner brought 
 before the ministers of the chief states, who consult on 
 the ends to be pursued and the means best adapted to reach 
 these ends. In this committee alone Prussia is not repre- 
 sented, for the obvious reason that the Emperor, to whom 
 falls the direction of the foreign policy of the country, is 
 .necessarily the source of the information of which the 
 committee is the recipient.* 
 
 III. 
 
 We have thus far directed our attention to the historical 
 development, the nature, composition and organization of 
 the Bundesrath; it remains to consider its functions as an 
 organ of the central government. So soon as the plenipo- 
 tentiary has cast his vote, this loses its previous connection 
 
 *Tliis committee was not among those founded by the Constitution 
 of the North German Federation, but was established by the treaty 
 between this Union and Bavaria (Nov. 23, 1870), evidently as a con- 
 cession to the three kingdoms which were to compose it for their 
 diminished international importance. Of the significance of .this com- 
 mittee, Delbriick said in the Reichstag, 1870: " Er wild seinerseits 
 Kenntniss von der Lage der Dinge nehnien und wild in der Lage sein, 
 durch diese Kenutniss, durch Antriige, die er an den Buudesrath 
 stellt, durch Bemerkungun, die er dem Presidium macht, auf die Be- 
 handlung der Politik Eiuttuss auszuiiben.'' Quoted by Seydel, Cotu- 
 mentar., p. 110.
 
 44 The German Bundesrath. 
 
 with, and dependence upon the individual state. It passes-- 
 from the sphere of state law to that of federal law, and 
 becomes a factor in the determination which the Bundes- 
 rath reaches as a unit. Hence the decisions of this body 
 do not assume the form of an agreement between the indi- 
 vidual cabinets or a majority of them, but are an expres- 
 sion of the will of a simple organ of government. The 
 activity of the Bundesrath is confined to no single one of 
 the departments of government, for it exercises at once 
 legislative, administrative and judicial functions. These 
 we shall consider in the order enumerated. 
 
 I. The Bundesrath is pre-eminently a legislative body. 
 Its other functions are, when compared with its part in 
 making the imperial laws, of subordinate importance only. 
 The Constitution provides that the legislative power of the 
 Empire shall be exercised by the Bundesrath and the 
 Reichstag, and that the agreement of the majority of both 
 the assemblies shall be requisite and sufficient for the en- 
 actment of a law * The legal equality of the two assem- 
 blies in respect to legislation would thus appear to be es- 
 tablished. We are indeed very apt to class Germany with 
 the countries which have adopted the bicameral system, 
 and to see in the Bundesrath and Reichstag the upper and 
 lower houses so universally encountered in the existing 
 constitutional organizations of Europe and America. This 
 is, however, a mistake. The Bundesrath is not an upper 
 house in the ordinary acceptance of the term, although, as 
 Bismarck has said, it performs in a degree the functions of 
 one.f We have already dwelt on its peculiar composition. 
 
 * " Die Reichsgesetzgebung wird ausgeubt durch den Bundesrath 
 und den Reichstag. Die Uebereiiistimmung der Mehrheitsbeschluss 
 beider Versammlungeu 1st zu einem Reichsgesetze erforderlich und 
 ausreichend." Cons., Art. 5. James, German Cons., p. 21. 
 
 f During the discussion of the Constitution, Bismarck made the fol- 
 lowing significant declaration: " Es ist mir an und fiir sich nicht 
 leicht, mir eiu deutsches Oberhaus zu denken, das man einschieben
 
 The German Bundesratli. 45 
 
 We have found it in no sense a representation of any class 
 of the nation, and formally, at least, in no sense a delibera- 
 tive assembly. The Reichstag alone in the imperial con- 
 stitution possesses the attributes of a representative, delib- 
 erative body. But while foreign analogies are misleading, 
 within the bounds of the Empire itself, we find a highly 
 satisfactory archetype of the relation existing between 
 Bundesrath and Reichstag, namely, that which has, since 
 the introduction of constitutional government, existed in 
 
 kounte zwischen den Bundesrath, der, ich wiederhole es, vollkora- 
 nien noentbehrlich ist, als diejenige Stelle, wo die Souveranetat der 
 Elnzelstaaten tbrtfiihrt ihren Ausdruck zu findcn das man also 
 einschieben konnte, zwischen diesem Bundesrath und diesem Reich- 
 stage, ein Mitglied. welches dera Reichstage in seiner Bedeutung anf 
 der soeialen Stul'enleiter einigermassen uberlegeu wiire, und dem Bun- 
 desrathe und dessen Vollmaehtgebern hinreichend nachstunde, inn 
 die Classification zu reclitfertigen. Wir wurden in der Versaramlung 
 nicht souverane Pairs, Mitglicder haben, die ihrenseits geneigt sind, zu 
 rivalisiren mit den mindermaehtigen Souveriiuen in ihrer socialen 
 Stellnng. Der Bundesrath repiiisentirt bis zu einem gewissen Grade 
 eiu Oberliaus, in welehem Se. Majestiit von Preussen primus inter 
 pares ist, und in welchem derjenige Ueberrest des hohen deutschen 
 Adels, der seine Landeshoheit bewahrt hat. seinen Platz findet. 
 Dieses Obeiliaus nuu dadurch zu vervollstandigen, dass man ihm 
 nicht souverane Mitglieder beifiigt lialte ich praktisch fur zu 
 schwierig, um die Ausfiihrung zu versuchen. Dieses souverane 
 Oberliaus aber in seinen Bestandttheilen ausserhalb des Prasidiums sa 
 weit berunterzinlruckeu, dass es einer Pairskamriier ahnlich wiirde, 
 die von unten vervullstandigt werden konnte, halte ich fur unmoglich 
 und ich wiirde niemals wagen, das einem Herrn gegenuber. wie der 
 Konig von Sachsen ist, auch nur anzudeuten. Der haupt*aehliche 
 Grund aber. warum wir keineTheilung des Reichstags ia zwei Iliiuser 
 vorgeschlagcn liaben, liegt immer in der zu staiken Complieirnng 
 der .Maschine. Die Gesetzgebuug des Bundes kann schou durch 
 einen anhaltenden Widerspruch zwisclien dem Bundesrathe und dem 
 Reichstage zum Stillstand gebracht werden, wie das in jedem Zwei- 
 kammersystem der Fall ist; aberbei einer Dreikammersystem wenn 
 ich einmal den Bundesrath als Kammer bezeichnen darf wurde die 
 Moglichkeit, die Wahrscheinlichkeit dieses Stillstandes noch viel 
 naher liegen, \\\v wiirden zu schweriiillig werden." Sten. Ber., S. 430. 
 Quoted by Seydel, Comm., 99.
 
 46 The German Bundesrath. 
 
 the individual German states between the monarch and his 
 Cabinet on the one hand and the Parliament or Landtag 
 on the other.* 
 
 In tracing the history of a law through its several stages, 
 the divergence of the German system from the prevailing 
 type of constitutional government becomes even more appa- 
 rent. We find that the Bundesrath and Reichstag are not 
 even legally on the same footing in the execution of their 
 common task of legislation, and that in practice the pre- 
 eminence of the former body is assured, not only by its in-* 
 herent nature, but by deep-rooted tradition. First, as to 
 the inception of a bill, the Constitution provides that both 
 bodies may propose bills, f and thus places the two on an 
 equality in respect to the initiative. Neither is limited 
 to a simple veto, nor forced to accept or reject a proposed 
 law as a whole. There is, in short, no legal necessity why 
 a bill should originate, as it usually does, in the Bundes- 
 rath. The Reichstag, however, looks to the Bundesrath to 
 take the lead in proposing measures, directing a petition to 
 that body if necessary, respectfully asking that it formulate 
 a bill in accordance with its sentiments and submit it to 
 the consideration of the representatives of the people. 
 This is easily explained. The initiative in the German 
 states was, until comparatively recently, confined to the 
 monarch acting through his cabinet; for the proposing of 
 laws on the part of the Landtag was held to be out of har- 
 mony with the monarchical principle.:}: It was thus not 
 only expedient, but absolutely necessary, if the people de- 
 sired any particular form of legislation, that they petition 
 the monarch to lay a bill before them. This tradition no 
 
 * "Dem Reichstage gegenuber niramt der | Bundesrath niclit die 
 Stelle eiues zweiten Factors der Representation (einer ersten Kammer 
 oder eines Oberhauses), sondern diejenige Stellung ein, welche in 
 constitutionellen Staaten die Regierung besitzt." Meyer I. c., 351. 
 
 f Art. 7 and 23. Cf. Laband, I., 534. 
 
 % Meyer, Staatsrecht., 463.
 
 The German Bundesrath. 47 
 
 doubt lingers in the minds of members of the Eeichstag, each 
 one seeing in the Bundesrath the person of the monarch of 
 whom he is a subject, and the wisdom of the leaders of his 
 own state government. This is illustrated by the fact that 
 the Reichstag addresses the assembly associated with it in 
 legislation not as the Bundesrath, but as the " Verb'dndete 
 Reyierunyen" or, as we may roughly translate it, allied 
 cabinets. 
 
 As one enters the assembly hall of the Reichstag at 
 Berlin, he is immediately struck by a double row of ele- 
 vated seats, reaching across the end of the apartment on 
 either side of the president's chair. These are the places 
 reserved for the members of the Bundesrath, who, the Con- 
 stitution provides,* may appear in the Reichstag to repre- 
 sent the views of their respective governments, and must 
 be heard at any time upon request. Not only do the 
 Rules of Procedure of the Reichstag provide for this emer- 
 gency, but they go so far as to lay down the rule that, after 
 the discussion of any point is regularly closed, it must be 
 considered as reopened if a member of the Bundesrath 
 asks to speak upon the matter, f The practice has not un- 
 naturally grown up in the Bundesrath of informing the 
 Reichstag, during the discussion of important bills, of the 
 character of the amendments which will be acceded to by 
 the Bundesrath.;}: The preparation of bills, the formula- 
 tion of their contents and the statement of motives, al- 
 though not so provided for by law, falls to the Imperial 
 Chancellor and the high government officials under his 
 
 * Art. 9. Jedes Mitglied des Bundesrathes hat das Recht, irn Reichs- 
 tage zu erscheinen und muss daselbst auf Verlangen jederzeit gehort 
 werden, urn die Ansiehten seiner Regierung zu vertreten. 
 
 f Geschaftsordnung, 48. " Nimmt ein Vertreterdes Bunderathes 
 naoh dem Schlusse der Diskiission das Wort, so gilt diese aufs neu fur 
 eroffnet." 
 
 \ See Labaud I., 537, note 5.
 
 4:8 Tlie German Bandcsrath. 
 
 control.* It is thus apparent that, while the Reichstag is 
 legally quite free to exercise its power of initiative, the 
 preponderance of the Bundesrath is not only indicated by 
 the provisions of the Constitution, but confirmed by prac- 
 tice. In the final stage of the law making, however, in the 
 so-called Sanction, the ascendency of this body appears 
 even more clearly. 
 
 Every law, we find on analysis, to consist of at least two 
 easily distinguishable elements, the rules or provisions of 
 which the bill consisted before it became a law ; secondly, 
 the command or order which renders the observance of 
 these rules incumbent upon the citizen. The latter element, 
 or that which converts a bill into a law, is the Sanction. It 
 is obvious that the rules, which form the content of a law, 
 may be derived from many sources. They may be suggested 
 by a minister, by a committee, or even indirectly by some- 
 one wholly outside the government organization. The 
 specific effect of the power of the state appears, not in the 
 formulation of the bill, but in the sanction alone, in the 
 binding force which it may bestow upon any rule of conduct 
 by which that rule is made law.f In the individual mem- 
 bers of the Empire the monarch is invested with the 
 supreme power of the state, and, although he is not free to 
 determine the character of a law without the cooperation 
 of the representatives of the people, he alone can convert 
 a bill into a law. The question presents itself, to which 
 of the organs of the imperial government does this 
 exalted prerogative belong ? The answer would seem to 
 be at hand. All the imperial laws begin with the 
 formula, "We . . . by the Grace of God German Emperor, 
 King of Prussia &c., ordain herewith the following." The 
 power of sanction seems thus to be assumed by the Em- 
 peror. But this formula, taken as it is from the Prussian 
 
 * Labaud, I, 533. 
 
 | This subject is treated with great care in Laband, 515 ff.
 
 The German Bundesrath. 49 
 
 constitution, is not applicable to the Empire. The authori- 
 ties on the subject agree that the supposition that the power 
 of sanction is vested in the Emperor is neither in harmony 
 with the theory of the Constitution nor with its specific 
 provisions. For the right to exercise this power implie 8 
 the right to refuse to exercise it at will. The obverse side 
 of the sanction is the absolute veto. As we have seen, the 
 monarchs of the individual German states possess both these 
 powers; strictly speaking both aspects of the single power 
 of sanction are apparent in their case. The Emperor, how- 
 ever, has no veto. The Constitution says explicitely that 
 the agreement of the two assemblies is sufficient for the 
 creation of a law. The Emperor must publish all laws 
 constitutionally passed, whether he be in accord with their 
 provisions or no. The article which gives him, as King of 
 Prussia, a veto in the Bundesrath on proposed changes in 
 the military arrangements, would be without significance 
 if, as Emperor, he possessed this power in all cases. It is 
 the Bundesrath, not the Emperor, who sanctions the laws.* 
 That this is entirely in harmony with the principles on 
 which that institution is based, as developed in the preced- 
 ing pages, is obvious.f The sanction of the Bundesrath 
 may appear as a separate act or in conjunction with, and 
 indistinguishable from, the simple approval of the contents 
 of a bill. The Constitution makes it necessary that every 
 decision of the Keichstag shall be acted upon by the Bund- 
 
 * Laband, 542, aud note 1 ; Haenel, II., 52; Meyer, 472; Sclmlze, 
 II., 118. 
 
 f See Laband, 541 : " Tiiiger der souveranen Reiehsgewalt ist die 
 Gesammtheit der deutschen Staaten, als ideolle Einhuit gedacbt. Nur 
 von ihr kann daher der eigentliche Gesetzgebungsact, die Sanction der 
 Reichsgesetze ausgehen. Die Gesammtheit der deutsclien Landesher- 
 ren und freien Stadte ertheilt den Entwiirfen zu Reichsgesetzen die 
 Sanction, welclie sie in Reichsgesetze umwandelt. In alien Fallen 
 aber, in denen die deutschen Bnndesglieder ihren Antheil an der 
 Reicbsgewalt auszuiiben haben, ist der Bundesrath das dafur verfas- 
 sungsniassig bcstimmte Organ, nicht der Kaiser."
 
 50 The German Bundesrath. 
 
 esrath, even if it be the acceptance, as a ichole and unchanged, 
 of a bill or iy matin <j in the Bundesrath itself* The Bundes- 
 rath might legally refuse its assent, just as the monarchs of 
 the various members of the union may, even to a bill 
 which it had itself formulated. In this second acceptance 
 of its own approved measures we have the sanction of the 
 Bundesrath distinctly separated from the other aspects of 
 its legislative activity. The analogy of the position it oc- 
 cupies to that of the individual German monarchs is clear, 
 for the Bundesrath has a veto as well as they. It is always 
 legally possible for it to refuse its assent at the last moment 
 to every bill. The act of sanction is not, however, men- 
 tioned explicitly in the Constitution, and politically it is 
 almost wholly devoid of significance. It is, nevertheless, of 
 no little importance from a legal and theoretical stand point, 
 to determine who is the real law-giver of the Empire. 
 
 But the legislative activity of the Bundesrath is not lim- 
 ited to the laws passed in conjuction with the Reichstag. 
 Very important measures may take the form of ordinances, 
 issued by the Bundesrath alone. The ordinances i'all into 
 two distinct classes, which must be carefully distinguished. 
 They may, on the one hand, be simple administrative meas- 
 ures affecting the government officials only. Those to 
 whom they are directed are bound to obey them, not as 
 subjects of the Empire, but as employees of the government. 
 These administrative ordinances will be again referred to in 
 connection with the administrative functions of the Bundes- 
 rath. In sharp contrast to these, are those which modify or 
 supplement the law of the land, and bind the subject as 
 such. These are in their nature legislative enactments, and 
 differ from an ordinary law in their origin only. They 
 want the usual qualification of a law, inasmuch as they are 
 created without the concurrence of the representatives of 
 the people. This is obviously a grave defect, so grave as 
 
 * Meyer, 472, aud note 3. Laband, 512.
 
 The German Bu.ndesratli. 51 
 
 to make a legislative ordinance a complete anomaly in a 
 constitutional system based on the division of powers. 
 For, however free the administration may be to conduct it? 
 own affairs, it must act in a constitutional system within the 
 bounds of the law. The laws must, however, according to 
 the modern ideas of government, be made with the concur- 
 rence of the people, acting through their representatives 
 this in Germany as well as elsewherehence, any diver- 
 gence from this rule must have strong legal justification. 
 The German Imperial Constitution grants no general power 
 to any of the organs of the state to enact laws under the form 
 of ordinances,* but on the contrary says explicitly that the 
 
 * Art. 7, 2, of the Constitution reads, " Der Bundesrath beschliesst 
 . . . iiber die zur Ausfuhrung der Reichsgesetze erforderlicheu all- 
 gtmeinen Verwaltmigsvorschrifteu und Einrichtungen, sofern nicht 
 durch Reichsgesetz etwas anderesbestinimt ist." This clause is sub- 
 ject to various constructions. Does it give the Bundesrath any right 
 to issue legiuln-tite ordinances ? If so, to what extent ? Meyer claims 
 that the article does not refer simply to administrative ordinances, but 
 that the ' An*fii}irnngsrerordnungen' > ' may be, although rarely, legis- 
 lative ordinances (p. 485, and note 12, also p. 4(36, and note 8). Loen- 
 ing (Verwaltungsreehr, p. 229) says, " Sofern die Unterthaueiiaberdie 
 Gesetze auszul'iihren habcn, konnen durch Verordnung auch Vorschrif- 
 tcn iiber die Art und Weise der Ausfuhrung an sie gerichtet werdeu." 
 This species of ordinance would be a law according to Laband, and 
 could not legally be Issued under Art. 7, 2. Laband's narrower 
 construction of the clause in question is very fully and ably supported 
 in his great work, I., 595, flf. In controverting Arudt ( Verordnungs- 
 rccJii des deutschen Reickes. Berlin and Leipzig, 1884) he sums up their 
 points of difference as. follows : " Arndt erkeunt aber . . . dass die 
 Verordnnngen des Bundesrathes sich intra legem halteu miissen, d. h. 
 nur zur Ausfuhrnriy dues Reichsgesetzes dieuen durfen, und dass die 
 Befugniss des Bundesrathes stets auf eine Delegation zurfickzufuiiren 
 sei. Nur halt er nicht eine specielle Delegation in dem einzelnen Gesetze 
 lur erforderlich sondcrn er erblickt in dem Art. 7, Abs. 2 der Reichs- 
 verfassung eine generdle Ermiichtigung auch zum Erlass von Rechts- 
 vorschriften. Da es nun iiblich gewonlen ist, in alien Reichsgesetzen 
 die dazu irgend Yeranlassung geben, specielle Errmichtiguugen zum 
 Erlass von Ausl'iihrungsvorschriften zu ertheilen, so ist die praktische 
 Differenz zwischen der von Arndt verfochtenen Lehre und der hior 
 vertheidigten, nicht so bedeutend, als es vielleicht den Anschcin hat"
 
 52 The German Bundesrath. 
 
 legislative functions shall be exercised by the Bundesrath 
 and Keichstag, and that the assent of both bodies shall be 
 requisite to the passage of a law. Even the power of enact- 
 ing temporary laws in special emergencies, when the ordi- 
 nary legislative bodies are not in session, a power commonly 
 exercised by the monarch of the individual German state, 
 is unknown to the Empire.* These general provisions do 
 not, however, prevent a delegation on the part of the usual 
 factors of legislation of a specified portion of their power to 
 other organs of the Government to the Bundesrath, the 
 Emperor, the Imperial Chancellor, or even to the individ- 
 ual state administration. Such a delegation, although 
 quite foreign to our conceptions of the nature of constitu- 
 tional restrictions, is not only recognized by the eminent 
 authorities of Germany, but is, as we shall see, sanctioned 
 by a long series of precedents of unquestionable legal 
 validity.! The laws which contain delegations of this char- 
 acter usually designate the organ which shall exercise the 
 power; if not, the duty devolves upon the Bundesrath. :{: 
 The law-making, which takes the form of ordinances, is 
 
 (p. 596, note 4). The Bundesrath has, however, exercised its power 
 of issuing ordinances with a freedom which does not appear to be jus- 
 tified by the Constitution. Both Arndt and Haenel (IL, 80-81) have 
 brought together a number of instances of this character. Laband, 
 while rejecting many of the cases as beside the point, admits that the 
 remainder prove, "dass die Praxis eine schwankende und der Bundes- 
 rath nicht in alien Fallen der ihm durch die Verfassung gezogenen 
 Schranken sich klar bewusst gewesen ist" (p. 599). 
 
 * Meyer, pp. 469 and 486, and Schulze, 188 and 288. " Nach 
 TJeichsstaatsrecht mussen, wie Laband sagt, alle Gesetze im materiel- 
 len Sinne auch Gesetze ira formellen Sinne sein." Schulze, II., p. 123. 
 
 f'Ein Gesetz kann demnach anstatt unmittelbar Rechtsregeln auf- 
 zustellen, Anorduungen daruber enthalten wie gewisse Kechtsregelu 
 erlassen werden sollen. . . . Eine vielfach bethiitigte Praxis deren 
 Rechtsmassigkeit niemals wecler vom lleichstage noch vom Bundes- 
 rathe oder der lieichsregierung angezweifelt wordeu ist, hat diesor 
 Auffassung augeschlossen." Laband, p. 600, 
 
 \ Meyer, p. 485. Laband, p. GUO, note 4.
 
 Ihe German Bundesrath. 53 
 
 generally, if not always, a sort of secondary legislation that 
 fills in the details of laws of whicl} the general character 
 has been already determined by the joint action of the two 
 assemblies.* Within the limits already outlined, the 
 Bundesrath, or other organ of state to which the power is 
 specifically delegated, proceeds to amplify the general pro- 
 visions by a process which Laband compares to the develop- 
 ment of a sketch into a painting. Obviously there is 
 scarcely any limit to the extension of this delegated power, 
 nor to the importance of the secondary legislation in mod- 
 ifying the law as it comes from the representatives of the 
 people; in other words, the sketch leaves a considerable lat- 
 itude for the coloring and chiaroscuro. The number of 
 laws which grant the power of secondary legislation to the 
 Bundesrath is considerable. Ilaenel mentions thirty-five in 
 eleven years.t All laws relating to the customs and taxes, 
 and most of those affecting the financial and industrial in- 
 terests of the Empire, are of this class.* 
 
 Properly to judge this system, so far as the Bundesrath is 
 concerned, two tilings must be kept in mind ; first, the 
 variety of functions assumed by the German state, and, sec- 
 
 * For example, the so-called Dynamite Law of 1884 is to be inappli- 
 cable to explosives generally used for ammunition. The law does not 
 specify what shall be included in the category mentioned, but dele- 
 gates the determination of this to the Bundesrath. 
 
 f Studien, II., p. 85. 
 
 | Laband, p. 601, note 1. The delegated power of issuing ordinances 
 may be more or less limited. Sometimes a law provides that the ordi- 
 nances issued in accordance with its provisions must receive the assent 
 of the Reichstag. In other cases, they must be submitted to the Reichs- 
 tag, which is at liberty to demand their repeal. Ordinances of the 
 former class can be repealed only with the forms of law, while those of 
 the second category may be revoked by the power issuing them, inde- 
 pendently of the Reichstag. (See Meyer, p. 486.) The right to issue 
 ordinances is very frequently delegated to the Emperor, acting either 
 independently or with the knowledge and consent of the Bundesrath. 
 For a list of the laws containing delegations of this character see 
 Haenel, II.. 70-77.
 
 54 The German Bundesrath. 
 
 ondly, the peculiar character of the Bundesrath as already 
 described. The German Constitution, like our own, has a 
 " general welfare " clause. Everything, however, depends 
 on the construction put upon a somewhat vague formula. 
 It is unnecessary to say that views prevail in the Empire 
 widely divergent from those traditional in the United 
 States. "The whole activity of the state," writes an emi- 
 nent authority on German administrative law, "has for its 
 end and aim the promotion and development of the na- 
 tional civilization and culture." * This is not too broad a 
 statement of what would be known in our country by the 
 question -begging epithet, "government interference." The 
 administration in Germany has assumed such proportions 
 as to give rise to a new and important branch of public 
 law. The field is thus altogether too considerable for a 
 popular assembly, consisting even of the best qualified 
 members, to be able in every case to formulate a law, com- 
 plete in its details and yet adapted to the exigencies of the 
 occasion. Obviously those called upon to conduct the ad- 
 ministration learn better than any one else the rules accord- 
 ing to which it is most expedient to act. The laws which 
 determine the limits of their activity must, while insuring 
 the rights and liberties of the subject, hamper as little as may 
 be the administration in the accomplishment of its very 
 comprehensive ends. The representatives of the people 
 may content themselves with a general determination of the 
 limits of a series of legislative measures, leaving the details 
 to more competent hands, the Bundesrath or the Emperor ; 
 in other words to those organs of state which conduct the 
 administration. The Bundesrath, although in the main a 
 legislative body, has, as we shall see, important administra- 
 tive functions as well. Not only this, but its members are 
 as we have noted, the heads of the administration in the in- 
 
 * " Die gesammte Thiitigkeit ties Staates hat die Forderung der 
 Kultureiitwickluug-des Volkes zura Zweck." Loaning, Vencaltunys- 
 recht, p. 3.
 
 The German Bundesrath. 6-~> 
 
 dividual states, men versed in affairs, specialists qualified, 
 if any one, to judge of the form a law may best take in or- 
 der to realize its ends. Thus a power which, if delegated 
 by our Representatives to the Senate, would be at once un- 
 constitutional and inexpedient, is in Germany, owing to the 
 complexity of the functions of state and the peculiarity of 
 the chief legislative body, both in accord with the system 
 and necessary to its success. 
 
 The Bundesrath is an organ of the administration, but 
 not in the sense that it may interfere directly, through spe- 
 cific orders addressed to the government officials. On the 
 contrary, the actual carrying out of administrative meas- 
 ures devolves either upon the Emperor or his representa- 
 tives, or falls within the scope of the self-administration of 
 the individual state governments.* The term administra- 
 tion, is not, as has already been implied, applicable solely, or 
 even chiefly, to the simple execution of the laws. It is a 
 much broader word, including everything which remains, 
 after setting aside the legislative and judicial functions of 
 government. f It is the conduct of the government business 
 in a country where nothing is foreign to the sphere of gov- 
 ernment regulation. The administration may not only do 
 what it is explicitly empowered to do by law, but every- 
 thing which is not forbidden by law.:}; It is the free ac- 
 tivity of the government within thebounds of law.| The 
 cases in which the Bundesrath may exercise administrative 
 
 *Laband, I., p. 236. Schulze Deutsches Stautsrecht, II., p. 50. 
 
 f This negative definition is adopted by Meyer : " Unter devBezeieb- 
 nung Verwallung fasst man die gesammte Tbatigkeit der staatlicben 
 Oigane welche nicbt Gesetzgebung uud uicbt Jnstiz ist zusammeu," 
 p. 515. 
 
 \ ' Die Verwaltung ist keine blosse Ausfiihrung der Gesetse sonderu 
 ein Ilandeln innerhnlb der gesetzlichen Schranken. Die Verwaltnng 
 darf nicbt bloss dasjenige tbun, wozu sie durcb Gesetz ausdriicklicb 
 ermacbtigt, sondern alles was ibr nicbt durch Gesetz untersagt ist.'' 
 Meyer, p. 521. 
 
 \ Tbe precise nature of the administration from a legal and pbilo-
 
 56. The German Bundesrath. 
 
 functions may be altered by new laws from year to year. 
 There are thus no absolutely determined limits to its 
 sphere of action, deducible from the condition or the na- 
 ture of the assembly itself. The following classification 
 gives, however, a very just view of the range of its ac- 
 tivity.* 
 
 According to the express provision of the Constitution,f 
 the Bundesrath decides upon the general administrative 
 measures and arrangements necessary for the execution of 
 the imperial laws, unless that function be delegated by law 
 to some other organ. The individual laws generally pro- 
 vide specifically for the exercise of this power, and, although 
 often delegating it to the Emperor, his minister, or the state 
 governments, the practice has been to leave the determina- 
 tion of the general rules for the administration to the Buu- 
 desrath.ij: This class of ordinances must, of course be distin- 
 guished from those already described, which are really laws 
 in the form of ordinances. 
 
 Farther, the Bundesrath " decides upon defects" which 
 may appear in the execution of the imperial laws or the ad- 
 ministrative measures and arrangements mentioned above. 
 This clause is very awkwardly expressed, and hence diffi- 
 cult to construe, but it is at least obvious that the Bundes- 
 
 sophic standpoint is the subject of much discussion in Germany. 
 Laband's plausible theory (Staatsrecht, I. pp. 671, tt') is criticised by 
 Haeuel iu his most recent ess-ay Das Gesetz imformtllen und mater it l- 
 len Sinne, (p. 81, ff.) The best kno\sn general tieatmeiits of the 
 administrative law are those of Prof. Loening of Halle (Dentschtx 
 Verwaltungsrecht, 1 vol.), and of Prof. G. Meyer of Heidelberg (Deut. 
 Verwaltunysrecht, 2 vols). 
 
 * For this classification see Laband I., p. 236, and Schulze, Dent. 
 Staatsr., II., p. 56. 
 
 f Art. 7, 2. Der Buudesrath beschliesst . . . iiber die zur Ausfuh- 
 rung der Keichsgesetze erforderlicheu allgeiueiuuu Verwaltungsvoi- 
 schriften und Eiurichtungen." 
 
 } Laband, I., p. 237. 
 
 1 Cons., Art. 7, 3. James, German Cons., p. 22.
 
 The German Bvtuksratli. 57 
 
 rath is not to " decide upon the defects," as the Constitution 
 reads, but to provide for their remedy. The remedy in 
 case of a law which proves inapplicable to the existing con- 
 ditions, would, of course, take the form of a bill to be laid 
 before the Eeichstag for the alteration or repeal of the 
 undesirable measure. If the defect were confined to the 
 administrative ordinances issued by the Bundesrath alone, 
 it could alter them as it saw fit. There is, however, a far- 
 ther signficance in the clause, which may be inferred from 
 its history.* From its origin it is clear that it forms the 
 correlative of the articlef which vests in the Emperor the 
 duty of overseeing the execution of the imperial laws. The 
 Constitution, in defining the competence of the Empire, 
 (Art. 4),* does not, as might be expected, designate a cer- 
 tain number of departments which shall fall to the federal, 
 as distinguished from the state governments, but limits the 
 competence of the federation, in the first instance at least, to 
 the "oversight and legislation' 1 ' 1 in the matters enumerated in 
 the article. This is very striking. Oversight takes prece- 
 dence of legislation. Of the execution of the laws when 
 made, nothing is said. The execution of the laws made by 
 the federal government is left to the states. The funda- 
 mental difference which here presents itself between our 
 system and the German, is pertinently expressed in the defi- 
 nition of a federative government which a recent German 
 writer has put forth: "//*," he says, " we wish to gain an 
 accurate conception of a Federation (Bundesstaat), as t/w- 
 thi<juished,ontheonehandfroma loose Confederation (Staat- 
 enbund), on the other from a unitary government, we must 
 vest in the unity of the federated states, the sovereignty, and 
 the regulation of the law. The final exercise of the sovereign 
 
 * Laband, I., p. 138. 
 
 f Art. 17. James, German Cons., p. 25. 
 
 \ " Der Beaufsichtiguiig seitens des Reiches mid der Gesetzgebuug 
 dcsselben unterliegen die nach.stehenden Angelegenlieiten."
 
 58 TJie German Bundesrath. 
 
 power, (hat ts, the immediate execution of the functions of the 
 state, must, however, in order to maintain the existence of the 
 individual states, be vested in the said states, tinder the over- 
 sight of the Union.* This definition, while adapting itself 
 to the German Empire, obviously excludes our own Union 
 altogether. Its significance lies, however, not in its general 
 applicability, but in its reflection of the underlying charac- 
 teristics of the government we are considering. The Em- 
 pire is sovereign. Many functions of the state are specifi- 
 cally subject to its legislation, and it may increase the field 
 of its legislative activity, virtually almost at will. On the 
 other hand, the individual state, within the bounds described 
 by the Empire, may carry out the laws in accordance with 
 its traditions, adapting the mode of execution to the local 
 peculiarities of its situation.f It is the right and the duty 
 of the federal government always to have a thorough 
 knowledge of the manner in which its administrative bodies 
 conduct their business.";}: To the end that it may satisfy 
 itself that the state governments are fulfilling their consti- 
 utional duties, the right of oversight is given it. It is the 
 Emperor's duty to appoint such officials as are requisite 
 for collecting the necessary information.! Any reported 
 cases of imperfect execution of the federal laws are laid 
 before the Bundesrath for consideration. The Bundesrath, 
 therefore, decides upon the proper interpretation and appli- 
 cation of the laws, so far as it is necessary, in order to obvi- 
 
 *Rumeliu: "Das Beaufsichtignngsrecht des deutschen Reiclis." 
 Zeitschrift fur die gesammte Staatswissenschaft. (1883.) Vol 39, 
 p. 202. 
 
 t Rumelin, 1. c., p. 211. 
 
 . I Das Reich hat vor alleni das Redd und die Ffi'-ftt von der Ge- 
 schaftsfuhrung seiner Verwaltungs-Korper eine eiiigehende und voll- 
 knmmene Keuutnihs zu nekrnen. Rumelin, 1. c., p. 21-3. See also 
 Laband. I., p. 703. 
 
 \ The Emperor may demand reports from the state governments on 
 tlieir method of conducting the administration of federal laws. La- 
 band, I., p. 707.
 
 The German Bundesrath. 59 
 
 ate the concrete difficulty which has made itself apparent. 
 "The issue of orders through which the decision of the Bun- 
 desrath is executed belongs, however, to the Emperor.* 
 The " defects" under consideration may consist in an erro- 
 neous interpretation of the Constitution, the laws, or the 
 administrative ordinances of the Empire, from which results 
 a wrong application of their provisions, or in a tardy exe- 
 cution, or even in a refusal to carry out the laws on the plea 
 that they are unconstitutional. f This important function 
 of the Bundesrath is exercised, it must be remembered, by 
 the leading statesmen of the individual states, who conduct 
 the administration at home. The Bundesrath cannot, how- 
 ever, annul a decision of the state officials, nor issue any 
 orders to the said officials.;}; Its power extends no farther 
 lhan determining the general duty of all the states, as exem- 
 plified by the decision of the case in hand. 
 
 The farther powers of the Bundesrath which relate to 
 the administration, (such as the influence it exercises on the 
 nomination of certain officials,! as well as the part it plays 
 in the determination of certain peculiarly important mat- 
 ters, such as the declaration of war, the conclusion of 
 treaties,^ the dissolution of the Reichstag,** (where the 
 Emperor may act only with 'its consent,) inasmuch as they 
 are easily assimilated to the arrangements existing in most 
 constitutional governments, need not be considered here. 
 
 The so-called " Execution" (Bundesexekutioti) merits, 
 
 * See Schulze, II., pp. 5G and 57. Labaud, I., p. 241. 
 
 f Thudiclium. HoltzpndoriTs Jahrbueli, vol. I., 22, note 2. 
 
 \ " Der Bundesrath bildet keine Instanz iiber den Centralbehorden 
 der Einzelst-iau-n so dass an ihn im Wege der Beschwerde oder des 
 Recurees der einzelne Fall znr definitive!! Entscheidung gezogen wer- 
 di'ii konnte." Laband, I., 242. 
 
 || For the list see Laband, I., p. 243. 
 
 Cons., Art. 11, 1. James, German Cons., p. 24. 
 
 ^ Cons., Art. 11, 2. James, German Cons., p. 24. 
 
 **0ons., Art. 24. James, German Cons., p. 26.
 
 60 The Gftrman Bundesrath. 
 
 however, a few word?, as it is wholly foreign to our institu- 
 tions. The German Constitution provides that in case the 
 members of the union do not fulfil their constitutional 
 duties toward the federation, they may be forced to per- 
 form them by means of the "execution," The Bundesrath 
 determines upon the "execution," which is carried out by 
 the Emperor. This is all that is paid on the subject, and it 
 seems at first sight a very insufficient treatment of so im- 
 portant a matter as the coercion of the states, the pis-alhr 
 in a federal system. This simple statement takes the place 
 of a more extended one in the constitution of the North 
 German Federation of 1866, which in its turn suggests the 
 elaborate provisions in relation to the "execution "contained 
 in the fundamental law of the preceding German union.* 
 The diminished clause of the present constitution reflects,. 
 to some degree at least, the changed relations of the federal 
 members. There is, perhaps, an unconscious admission 
 that the existing distribution of power is more potent than 
 legal formulas.f Naturally an execution directed against 
 Prussia is out of the question. On the other hand, the Em- 
 peror, to whom two million soldiers are bound by oath to- 
 execute unconditionally his commands, will scarcely find 
 himself obliged to mobilize a single regiment to carry out 
 the decrees of the Bundesrath.^ 
 
 " Ce qu'vn etranyer comprend avec le plus de pelne 
 aux Etats-Unis test V organization judiciaire" [ writes De 
 Tocqueville. Similarly, one of the most puzzling depart- 
 ments of German constitutional law for us is that which 
 relates to the Judiciary. Our supreme and inferior courts 
 play such an important constitutional role in our federal 
 
 * Wiener Schlussakte von 1820, Arts. 31 and 34, and the Exeku- 
 tionsordnung, 1820. 
 f Seydel, Comm., p. 138. 
 
 I Thudichum. Holtzendorff's Jahrbuch. Vol. I., p. 28, note 1. 
 | Democratic en Ame'rique, I., 163.
 
 The German Bitndesrath. til 
 
 system that we are apt to infer that a judicial organization,, 
 at least analogous to our own, is a necessity of every federal 
 government. The Imperial Court at Leipzig, however, al- 
 though a court of last resort, exercises no influence com- 
 parable to that which the highest tribunal of the United 
 States exercises on the development of the constitutional 
 law of the union.* The attempts which have Hot been 
 wanting to introduce a system in some degree resembling 
 our own, have failed.f The Reichsobergericht is not, like 
 the Supreme Court at Washington, one of the great organs 
 of the central government, included in and forming a vital 
 part of the original plan, but first came into being some 
 years after the formation of the union. \ But who, then, 
 interprets the Constitution ? How is the boundary line 
 separating the province of the federation from that of its 
 members, defined and maintained ? To answer these ques- 
 tions a long excursus would be necessary, for the most fun- 
 damental differences between our legal traditions and those 
 of Germany are here involved. Suffice it to say that the 
 insignificant role played by the Imperial Court in the form- 
 ation of the constitutional law of the federation is attribu- 
 table, mainly, to four peculiarities which distinguish the 
 German Union from our own, viz., the long established 
 monarchical institutions, the peculiar composition of the 
 Bundesrath, the facility with which the competence of the 
 Empire may be enlarged, and, lastly, a much lower estima- 
 tion of the significance of judicial decisions in comparison 
 
 * Schulze observes (Dent. Staatsr.. II., 59) that the Courts may 
 decide constitutional points incidentally. The insignificance of their 
 decisions in this re pect may be judged by the fact that but two or 
 three cases ure, so far as my knowledge extends, ever cited as shed- 
 ding any light on the constitutional law. 
 
 f The constitutions proposed in 1848-9 contain elaborate provisions 
 for a Supreme Court, although differing essentially from our own. 
 The federal jurisdiction is, for example, extended to constitutional 
 difficulties arising in, and confined to, the individual states. 
 
 J 1879.
 
 <>'2 TJie German Bundesrath. 
 
 with free philosophical reasoning which prevails in 
 Germany.* 
 
 The jurisdiction in constitutional questions is not dele- 
 gated to the courts, but, so far as it is provided for at all, it 
 is exercised by the Bundesrath. That this body, whose 
 members vote according to instructions, is as ill adapted to 
 perform 'judicial functions as one can well imagine, is clear.f 
 Nevertheless, by general consent, the Bundesrath is pitched 
 upon as the proper organ to exercise any important 
 function which seems to lie outside the sphere of the 
 other constituted powers. Hence it acts as judge when no 
 other judge is forthcoming. Something has been said al- 
 ready of the judicial activity of the Bundesrath in its decis- 
 ions concerning defects -in the laws or their administration. 
 This often involves an interpretation of the laws, but 
 rarely does their determination take the form of an actual 
 
 *The following quotations show the strong repugnance which is 
 entertained by some of the ablest thinkers in Germany towards any 
 interference of the courts in cases of alleged unconstitutional action 
 on the part of the federation. . . . " Es rnusste als ein gerade zu un- 
 ertiaglieher Zustaud angesehen wt-rdfii. wemi Gerichte ein ordimngs- 
 niassig verkundetes Gesetz bei der Eutscheidung concrtjter Rechtsfalle 
 fur nichtig erachten, wahrend Kaiser, Bundesrath und Reichstag es 
 als verfassungKinassig zu Stande gekuminen aufrecht erhalten" 
 (Laband, I., 556, note 1). Haenel, Laband observes farther on, " or- 
 blickt gerade in dem richterlichen PrufuugSrecbt der Verfassungsmas- 
 bigkeit der Reichsgesetze eiiien indiri'i'ten. Rechtsschntz tlen Eiiizthtuutes 
 gegen rechtswidrige Eiugi'iffe des Reiches in seine Rechtsordnung. 
 Die Einzelstaaten wiirden inn denselben nicht zu bcneiden seiu ; denn 
 sie konnten in die eigenthumliche Lagekommen, dass der Bundesrath 
 von ihnen die Durchfuhruug eines Reichesgetezes verlangtund sie mit 
 Bundesexecution bedroht, wall rend die Gerichtshofe dasselbe Reichs- 
 gesetz fur nicht nach Massgabe der Reichsverfassung erlassen und 
 deshalb fur unanwendbar und nichtig erldaren (558, note 8). Far- 
 ther, see Bismarck on the interpretation of the constitution by the 
 courts, quoted in Buseh, Unser Reichskanzler L, 32. Radically differ- 
 ent views are met in Haenel, Studien, I., Chap. V., particularly p. 
 268 ; also Westerkamp, Ueber die Iteichscerfitssung, 184, ff. Both the 
 latter are fatailiiir with our institutions. 
 
 t Martitz, 1. c. f 37.
 
 The German Bundesrath. 63 
 
 decision of the specific case which gave rise to the discussion, 
 as tli at may have been determined long before. The deci- 
 sion of the Bundesrath serves simply as a guide to those to 
 whom the decision of the case in question, or similar cases, 
 is intrusted.* In a few instances, however, determined by 
 special laws, decisions of the Bundesrath, or its commit- 
 mittees, are in nature precisely those of an administrative 
 court ; for example, deciding whether, and to what extent, 
 the gates of a fortress may be widened in the interest of 
 traffic. f The three cases particularly enumerated in the 
 Constitution, in which the Bundesrath is called upon toper- 
 form judicial functions, are as follows: 
 
 I. It may receive complaints of a refusal of justice on the 
 part of the state courts. The decision must be based upon, 
 and be in accordance with, the constitution and laws of the 
 state in which the case arises. If it be found that justice 
 has been refused or retarded, the Bundesrath has the power, 
 by appropriate measures, to force the state to remedy the 
 wrong.;}: If the state courts are, however, by state law in- 
 competent to decide the case on which the claim is based, 
 the claim is invalid, as there is obviously, under the cir- 
 cumstances, no refusal of justice. 
 
 * Laband. I., 240. An example summarized b.y Laband (I., 246, 
 note I) will serve as an illustration of this side of the Bundesrath's 
 activity. During the session of Februry 27th, 1871. the President of 
 the Bundesrath announced that a difference of opinion had become 
 apparent between the Federal Chancellor's Office (Bnndeskanzleramt) 
 and the Senate of Bremen, as to whether an order issued in Bremen 
 forbidding paddling, was or was not in harmony with the imperial 
 law relating to industries. The matter was, at the suggestion of the 
 President, referred to the IV. Committee to be reported upon. The 
 committee decided that the order was in opposition to the objects of 
 the federal law. The Plenipotentiary of Bremen thereupon declared 
 that the Senate of his city would repeal the order in question. 
 
 f See Laband, I., 247. The decision which devolves on the Bundes- 
 rath in regard to the federal execution is judicial in its nature. 
 
 JSchulze, Deut. Stasitsr., II., 63-4. Laband. 248. Cons. Art. 77, f., 
 the clause of the constitution which treats this subject is copied from 
 the 29th Art. of the Wiener Schlusxacte.
 
 64 The German Bundesrath. 
 
 II. The Bundesrath is also empowered by the constitu- 
 tion, (Art. 76, 1) to decide, on the appeal of one of the par- 
 tie?, cases arising between different members of the union, 
 so far as they are not simply civil cases falling within the 
 jurisdiction of the regular courts. This is only a species of 
 last resort, a means to promote the possibility of a peaceful 
 solution of difficulties, for war between the conflicting states 
 is of course absolutely excluded.* 
 
 III. Finally, Article 76, 2, of the Constitution confers upon 
 the Bundesrath a power, to say the least, somewhat startling 
 in its nature that of arbitration when difficulties of a con- 
 stitutional character arise between the different factors of 
 the state governments. The clause reads, " In case of con- 
 flicts of a constitutional nature in states where there is no 
 appointed authority to decide such matters, the Bundesrath 
 shall, upon the application of one of the parties, settle the 
 difficulty amicably. If this does not succeed, the matter 
 shall be disposed of with the forms of federal legeslation."f 
 It is to be observed that the Bundesrath is to interfere only 
 when appealed to by one of the parties concerned. Should 
 the conflict, however, be of a nature to prevent the fulfil- 
 ment of the duties of the state towards the federation, the 
 Bundesrath (in accordance with article 19 of the constitu- 
 tion relating to the execution} has the right to interpose 
 without being called upon. Farther, where the throne in 
 
 * Recognizing the un fitness of the Bundesrath to act in this capa- 
 city, Martitz (1. c., p. 37) observes : " Man wird kaum umhin konnen. 
 nach dem Vorgange der nordamerikamschen und schweizerischen 
 Verfassung auch fur die norddeutsche Union ein Bundesgericht mit 
 der Aburtheilung der Streitigkeiten zwisuhen den Bundesgliedern zu 
 betrauen." See also Seydel, Holzeudorfl', and Brentano's Jahrbuch, 
 III., 28ft, ft. 
 
 f "Verfassungsstreitigkeiten in solchen Buudesstaaten, in deren 
 Verfassung nichteine Behorde zur Entscheidung solcher Streitigkeiten 
 bestimmt ist, hat auf Anrufeii eines Theiles, der Bundesrath giitlich 
 austugleichen, oder, weuu das nicht gelingt. im Wege der Reichs- 
 gesetzgebung zur Erledigung zu bringeii."
 
 The German Bundesrath. 65 
 
 a state is the object of contention between two or more 
 pretenders, the Bundesrath not only may. but must exert 
 an influence on the outcome, inasmuch as the rights of 
 membership in the Empire are exercised by the head of 
 the state. The Bundesrath would be forced to decide 
 which aspirant to the throne was entitled to be represented 
 in its midst by his plenipotentiaries. 
 
 Conflicts of a constitutional nature are very apt to be 
 directly and indirectly connected with a misunderstanding 
 between the monarch and his subjects, or, more specifically, 
 between the cabinet (Regierung) and the representatives of 
 the people. In the decision of a case of this character, the 
 Bundesrath is obviously no impartial judge. It is itself an 
 assembly of rulers, and possesses all the prejudices of rulers. 
 Where the sympathies of the arbitrator would be, is clear. 
 The influence its members might exert on one of their own 
 number, in their attempt amicably to bring about an un- 
 derstanding, would be neutralized by the well-founded sus- 
 picion with which an angry parliament would view their 
 intervention. Thus it is expedient that ultimately a coun- 
 terbalancing factor, the Reichstag, should be called in, 
 or, as the Constitution expresses it, that the decision of the 
 question should take the form of a legislative act. Com- 
 posing this bicameral court we have, on the one hand, the 
 plenipotentiaries of the Bundesrath, voting according to the 
 instructions of the monarchs, whose brother ruler is in- 
 volved, on the other hand, the representatives of the people, 
 influenced by a variety of political tendencies and ready to 
 defend their fellow representatives in the state. As Laband 
 says,* when two such bodies are called upon to exercise 
 the functions of a court of justice, for which they are in 
 no way adapted, and attempt to agree upon a verdict, the 
 probability that the motives of the decision will be of a 
 purely judicial character is extremely small. The consti- 
 
 * Page;252.
 
 66 The German Bundesrath. 
 
 tution does not, in fact, require that the decision should 
 have a judicial character. 
 
 The solution of the difficulty may take the form of a 
 change of the state constitution, or of an annulling of that 
 portion of the constitutional law of the state which gave 
 rise to the conflict. For Article 2 of the imperial Consti- 
 tution, which declares that federal law takes precedence of 
 the state laws, applies to a case of legislation based on the 
 clause we have been considering, by which the existing law 
 of one of the states is modified by the Empire.* 
 
 The moral of all this, which is not likely to escape a cit- 
 izen of the United States, is formulated by probably the 
 most distinguished authority on German constitutional law, 
 as follows : " A consideration of this clause yields two sig- 
 nificant results: first, it is apparent that the individual state 
 is not sovereign in the field left to it, but the Empire stands 
 above it, in reality the highest power, in truth the real sov- 
 ereign ; secondly, it is obvious from the functions of the 
 organs of the Empire, in particular those exercised by the 
 Bundesrath, that legislation, administration and justice are 
 not sharply defined departments, but are simply forms in 
 which the one and indivisible power of the state manifests 
 itself." f 
 
 *Laband, 252. 
 
 fLaband, 2~>2. This power of interfering with the state constitu- 
 tions is sharply criticized by Martity.in his suggestive little book on the 
 North German Constitution (Betrachtungeu uber die Verfassung des 
 Norddeutschen Bundes 18C8). But while he calls the provisions on this 
 matter " in hohem grade bedenklicfi," and asserts that " der gesammte 
 verfassungsnmssige Rechts7Aistand der deutschen Staaten in Frage- 
 gestcllt wild" (pp. 29 and 31) he admits that "der Bund deu Verfas- 
 suiigscouflikteu der Eiuzelstaaten schlecterdings nicht gleichgiltig 
 gegeniibersteht-n kann, dass ihm in jedem Falle die Moglichkeit 
 gewalirt werden muss, denselben die gefahrlichen Spitzen abzu- 
 schneiden, diese Nothwendigkeit bedarf keines Erweises." In other 
 words, this contingent interference with the affairs of the individual 
 state is a tradition so deeply rooted in the German mind that even the 
 liberal thinkers canuot free themselves from it. A further example 
 is to be found in the liberal constitution of 1848-9.
 
 The German Bundesrath. 67 
 
 The preceding study ought, it seems to me, to help us to a 
 truer view of the real nature of our own government. As 
 we have seen, the German Constitution was not the pro- 
 duct of abstract political speculation, but was strictly con- 
 ditioned, at its formation, by existing national traditions and 
 by the specific demands of the moment. We find in it no 
 room for institutions copied from other federal systems. It 
 is relative to the German nation, purely indigenous, and 
 hence, BUI generis. But is not the same true of our own 
 form of government ? Have the principles enunciated in 
 the Federalist, for example, a universal applicability, or are 
 they, to a much greater extent than we are wont to suppose, 
 simply rules for a single nation, at a particular period of its 
 development? We may seek an answer to this question in 
 two directions. We may investigate the origin of our con- 
 stitution, and determine whether or no its founders were 
 governed in their work, by a desire to realize abstract 
 ideals, or were contented, in the main, to adopt such 
 arrangements as were sanctioned by the experience of the 
 states. Or we may compare our constitution with other 
 examples of federal organizations, and see whether there be 
 a unity running through them all which would justify us 
 in assigning an absolute value to those rules which have 
 been observed in the formation of our own federation. In 
 respect to the origin of the constitution of the United 
 States, I have attempted to show in a previous article,* 
 that our existing form of government had a much more 
 gradual development than is generally supposed. The 
 work of the Convention of 1787 consisted chiefly in what 
 may be called the federating of the political institutions 
 of the individual states, even the original features being 
 strictly in harmony with the national traditions. The 
 second method by which it seems possible to reach a 
 solution of the problem suggested above, we have pur- 
 
 *The Original and Derived Features of the Constitution. Annals 
 of the Am. Acad. of Political and Social Science, Oct., 1890.
 
 68 The German Bandesrath. 
 
 sued in the foregoing pages. The result is clear. We 
 have found upon studying the constitution of the chief 
 example of a federal state in Europe, that it is not formed 
 according to the same plan as that of the United States. 
 The German Federation is, as De Tocqueville once said of 
 our own union, in reality, a new tiling with an old name. 
 In attempting to study it with our national preconceptions, 
 we find ourselves at first baffled by the constant disregard 
 of the formulations of our classical works on politics. It 
 is only when we recognize the possibility of independent 
 constitutional development in lines wholly different from 
 those which the United States has followed, and cease to 
 try to classify all political phenomena according to a sys- 
 tem applicable in general only to our own national evolu- 
 tion, that we begin to perceive the real nature of the Ger- 
 man Imperial Constitution. But if, as we seem warrantel 
 in concluding, the political institutions of a nation must be 
 relative to its social and economic status, the attempt to lay 
 down general principles of government applicable to every 
 country, or even to a single country in every stage of its de- 
 velopment, must always prove futile. Every nation is, 
 however, in a constant state of flux. Our own, in particu- 
 lar, has undergone the most profound changes since the close 
 of the last century, and we have, perhaps, cause to envy the 
 good fortune of those countries where the constitution is 
 not so rigid as to preclude a more or less unconscious re- 
 adjustment between the political institutions and the con- 
 stantly changing social and economic life of the nation.
 
 
 
 A 000533117 e 
 
 3 1970008720564
 
 Univen 
 
 Sout 
 
 Lib