:2| anteed to Bavaria in this treaty are: that in case Prussia shall be prevented from exercising the presidency of the Federal Council, Bavaria shall have that right, and that in case the imperial ambassadors shall be prevented from representing the Empire at courts to which Bavarian ambassadors are accredited, these latter shall have that right.2 These provisions of that treaty are mentioned in the law passed by the imperial legislature on April 16, 1871, empowering the Emperor to proclaim the revised constitution in force, and are declared in that law to be unchanged by the ( constitution; i.e. they are declared to retain their character as treaties between the Empire, in place of the North German Union, and Bavaria; i.e. they cannot be changed by the process of constitutional amendment without the consent of Bavaria. This is undoubtedly regarded as law by the German jurists, statesmen and publicists, but it certainly is very bad political science. It is bad enough to acknowledge that the sovereign is not sovereign upon subjects expressly and specifically excepted in the constitution. When, however, we go beyond this, we are certainly on the road to Warsaw. Some of the commentators go still further and construct specific rights for certain commonwealths out of the general principles of the constitution, and then assign such implied rights to the class of rights requiring the consent of the commonwealth affected to any change therein. They claim, for example, that the existing distribution of the voices in the Federal Council belongs to this class. Those who do not hold this view in general place, nevertheless, the right of Bavaria to six voices instead of four the number to which Bavaria would have been entitled if the same principle of distribution had been applied to Bavaria as was applied to 1 Bayerisches Schlussprotokoll, IX. 2 Ibid. VII. 8 Von Rönne, Das Staatsrecht des deutschen Reiches, Bd. II, Erste Abtheilung S. 47. the other commonwealths-under this class.1 Laband goes so far as to claim legal equality of the commonwealths in rights and duties as a right of each commonwealth, which cannot be changed without the consent of the commonwealth unfavorably affected. This is utterly indefensible from the standpoint of political science, and I think also from that of the constitutional law of the Empire. The constitution only declares "that those provisions of the constitution through which specific rights are guaranteed to a particular commonwealth" are subject to this particularistic method of change. It therefore excludes everything else from this category. If we depart from the strict construction of this exception to the sovereignty of the Empire, there will be no firm ground at all under our feet. The whole organization of the state will become a matter of conflicting opinion instead of objective reality. Such honeycombing of the constitution is not dictated either by the needs of science or the condition of the Empire. It springs from the blindness of particularism. The other class of specific rights guaranteed by the constitution to particular commonwealths consists of exemptions of the particular commonwealths from the general powers of the imperial government. These are far more numerous than those of the first class. Bavaria is the most richly privileged. The constitution provides that Bavaria shall be exempt from the legislation and supervision of the imperial government in regard to the law of residence and settlement; 3 in regard to the taxation of domestic liquors and beer; in regard to the regulation of the railway system, except in so far as the general defence of the Empire shall require uniformity;5 in regard to the regulation of the internal postal and telegraphic system, and 1 Schulze, Lehrbuch des deutschen Staatsrechts, Zweites Buch, S. 14; Laband, Das Staatsrecht des deutschen Reiches, Bd. I, S. 113. Laband, Das Staatsrecht des deutschen Reiches, Bd. I, S. 109. 8 Reichsverfassung, Art. 4, sec. 1. Ibid. Art. 35. 5 Ibid. Art. 46 also the postal and telegraphic intercourse with her immediate foreign neighbors;1 and in regard to the regulation of the military system, except in so far as imperial control is permitted by the treaty between Bavaria and the North German Union, providing for the union of these two states in the Empire.2 To these exemptions expressly mentioned in the constitution the commentators add those contained in the treaty above mentioned, viz; the control of marriage relations and insurance of realty. Laband even adds exemptions in regard to the fixing of the normal standard of weights and measures, and in regard to the issue of bank notes created by imperial legislation. This seems to be altogether strained and exaggerated. As I have said above, I can go no farther than the treaties made between the North German Union and the several South German states providing for their entrance into the Union, and mentioned, as to certain of their provisions, in the law putting the revised constitution of the Empire into force, as still binding. That makes confusion enough. Anything more stands upon no ground either in science or law. Next in the order of extent of exemption comes Württemberg. The constitution provides that Württemberg shall be exempt from the legislation and supervision of the imperial government in regard to the taxation of domestic liquors and beer;5 in regard to the regulation of the internal postal and telegraphic system, and the postal and telegraphic intercourse with her immediate foreign neighbors; and in regard to the regulation of the military system, except so far as imperial control is permitted by the treaty of the 21-25 of November, 1870, between Württemberg and the North 1 Reichsverfassung, Art. 52. 2 Ibid. Schlussbestimmung zum XI. Abschnitt. 8 Bayerisches Schlussprotokoll, I, IV. Laband, Das Staatsrecht des deutschen Reiches, Bd. I, S. 112. 6 Ibid. Art. 52. German Union. The commentators add to these the exemp tion, contained in this same treaty, of Württemberg from the power of the imperial government to introduce the one pfennig freight charge upon the railways of Württemberg.1 This treaty is mentioned in the law empowering the Emperor to proclaim the revised constitution in force, and this exemption is declared therein to be unchanged by the constitution. Lastly, Baden is exempted by the constitution from the legislation and supervision of the imperial government in regard to the taxation of domestic liquors and beer.2 The commentators Hänel and von Rönne speak of an exemption of Oldenburg from the power and duty of the imperial government to maintain the chaussee-tolls throughout the Empire at the Prussian rates of 1828.3 They find this duty imposed upon the imperial government, and this exemption of Oldenburg from its operation, in the 22d article of the customs-union treaty of the 8th of July, 1867, which they claim to be a part of the present constitution. Article 40 of the constitution declares that the provisions of the customs-union treaty of the 8th of July, 1867, shall remain in force in so far as they shall not be changed by law or constitutional amendment as the particular case may require. If, therefore, this treaty guarantees a special exemption to a particular commonwealth, they argue, that it can be now withdrawn only by constitutional amendment in its exceptional form, i.e. only by consent of the commonwealth so privileged. There are two other points to be explained before I leave this most confusing subject. The first is in regard to the organ through which the privileged commonwealth shall express its assent or dissent in reference to a change of its specifically guaranteed right. I think it is now the universal view that its representation in the Federal Council is the 1 Württembergischer Schlussprotokoll, 2. 2 Reichsverfassung, Art. 35. 3 Von Rönne, Das Staatsrecht des deutschen Reiches, Bd. II, Erste Abtheilung S. 46. + Reichsverfassung, Art. 40. proper constitutional organ for this purpose, and that the commonwealth is bound by the acts of that organ in this respect. If that organ should act contrary to the instructions of the executive which appoints it, or if the legislature of the particular commonwealth should disapprove the instructions of the executive, the questions which would arise therefrom are internal to the particular commonwealth. The imperial government will not inquire into any of these matters, but will treat the word and act of the representatives in the Federal Council as final and irrevocable.1 The second point is, that the consent of the privileged commonwealth to a change of its specific constitutional right does not do away with the power of the fourteen voices to veto the change. The condition that less than fourteen voices must be found in the negative must be fulfilled, as well as that the voice of the privileged commonwealth must not be found in the negative.2 My criticism of this organization of the state within the constitution is based upon three considerations. The first is | the lack of correspondence between it and the real power | back of the constitution, the second is the fact that it is not wholly sovereign, and the third is the confusion in organization of the state with the government. First. The real power back of the constitution is, as we have seen, the German people under the lead of the Prussian organization. The power of the Prussian arms established the German Empire. The many and in some respects petty and misleading legal forms employed in the formal part of the work must never blind us as to where the real power was and is. As the Germans would say, "Preussen ist Deutschland im werden begriffen;" which Mr. Emerson would have translated, “ Prussia is Germany in the making." Now, there 1 Von Rönne, Das Staatsrecht des deutschen Reiches, Bd. II, Erste Abtheilung S. 36 ff.; Schulze, Lehrbuch des deutschen Staatsrechtes, Zweites Buch, S. 19. 2 Laband, Das Staatsrecht des deutschen Reiches, Bd. I, SS. 114, 115. |