was clearly manifest that the great change could not be accomplished through the process of peaceable reform. The Diet was for the maintenance of the status quo under the leadership of Austria.

In the conflict of ideas and of interests between Austria and Prussia which at the moment was becoming most critical upon the question of the disposition which should be made. of Schleswig-Holstein, then held by those two states conjointly and entirely independently of the German confederacy, the Diet was, therefore, easily persuaded by Austria to assume the settlement of the dispute and, when Prussia resisted this unwarranted stretch of its powers, to order the mobilization of the armies of the confederated princes against Prussia. This occurred on the 14th of June, 1866. The Prussian ambassador in the Diet immediately pronounced this resolution to be a violation of the constitution of the confederacy, and declared that Prussia would regard the constitution as broken and no longer binding. At the same moment he said: “His Majesty, my King, will not regard the national foundation upon which the confederacy rested as destroyed with the extinction of the confederacy. Prussia holds fast, on the contrary, to these foundations, and to the unity of the German nation under the transitory forms of its expression."1 The institutional bond of connection between the German states was now rent in twain, and each stood for itself with such alliances as it might be able by way of diplomacy to secure. The princes might go with Austria, and probably would; but the people now looked to Prussia for the establishment of German unity and the organization of the national popular state. Prussia. was therefore in position to cut the sinews of the princely power everywhere. She followed up her advantage with great wisdom and energy. On the 15th of June the Prussian government addressed identical ultimata to the govern

1 Schulthess, Europäischer Geschichtskalender, 1866, S. 90; Ghillany, Diplomatisches Handbuch, Bd. III, S. 208.

ments of Saxony, Hanover and Electoral Hesse, demanding the demobilization of their armies and their assent to the summoning of the "German Parliament."1 On the 16th it issued a manifesto to Germany, and ordered the Prussian troops to distribute the same among the people in the states which they might invade. The manifesto contains this significant clause: "Only the basis of the confederation, the living unity of the German nation, is left; and it is the duty of the governments and the people to find for this unity a new and vigorous expression." 2 On the same day Prussia addressed identical notes to the governments of all the states north of the river Main, except Hanover, Saxony, Electoral Hesse, Hesse Darmstadt, and Luxemburg, containing a proposition for an alliance, which was accepted by all, except Saxe-Meiningen and Reuss elder line.

The triumph of Prussia in the trial of arms resulted in the absorption of Hanover, Electoral Hesse, Nassau and Frankfort, and in the accession of all the other German states north of the Main to the alliance agreed upon, on the 18th of the previous August, between Prussia, Saxe-Weimar, Oldenburg, Brunswick, Saxe-Altenburg, Saxe-Coburg-Gotha, Anhalt, Schwartzburg-Sonderhausen, Swartzburg-Rudolstadt, Waldeck, Reuss younger line, Schaumburg-Lippe, Lippe, Lübeck, Bremen and Hamburg. These remaining states were Mecklenburg-Schwerin, Mecklenburg-Strelitz, Reuss elder line, Saxe-Meiningen, Saxony and Hesse-Darmstadt. These twenty-two states now pledged themselves to an offensive and defensive alliance, and agreed to place their military power under command of the King of Prussia. They pledged themselves, furthermore, to secure the formation of a constitution of perpetual union between themselves, based upon the principles already put forward by Prussia in the Confederate Diet. To that end, they agreed to send representatives,

2

1 Schulthess, Europäischer Geschichtskalender, 1866, S. 94.

Ghillany, Diplomatisches Handbuch, Bd. III, s. 210.

appointed by themselves, to Berlin, who should draft a constitution; to cause the election of members to a popular convention, upon the principles of universal suffrage and direct vote; to call the convention together and lay before it the proposed constitution, and in agreement with it to establish the same. The alliance was to terminate upon the 18th of August, 1867, one year from the date of its formation. If, therefore, the constitution should not be established before this date, nor the alliance renewed, the German states would be, after this date, entirely disconnected from each other. If, on the other hand, the constitution should be established before this date, it would take the place of the alliance.

The several state executives began the fufilment of their obligations under the treaty by laying before the legislatures of their respective states the draft of the law of suffrage and elections for the choice of the members to the popular convention, as agreed upon in the treaty. In the discussion of the bill in the lower house of the Prussian legislature, the idea was advanced that the constitution agreed upon between the body of representatives appointed by the governments (i.e. executives) of the several states and the body of representatives elected by the people of all the states, must be submitted to the Prussian legislature, and consequently to the legislatures of all the other states, for ratification, on the ground that it might, and undoubtedly would, alter many provisions of the Prussian constitution by the withdrawal of powers from that state to the advantage of the union, and that such alteration could not be legally effected except by agreement of the legislature as well as of the King thereto. In other words, the Prussian legislature proposed to degrade the convention of popular representatives from the position of a resolving, constituent body to that of a merely deliberative and recommending body. It seems to me that

1 Laband, Staatsrecht des deutschen Reiches, Bd. I, S. 15 ff. 2 Ibid. S. 18 ff.

the proposition reduced the body of governmental representatives to the same position, although the commentators do not dwell upon this point. The Prussian legislature insisted upon this principle and procedure, and the allied governments (i.e. executives) gave way. The delegates appointed by the governments met in Berlin, on the 15th of December, 1866, and framed a constitution for the North German Union. The representatives elected by the people were called by the Prussian King, by authority from the allied governments, to assemble in Berlin on the 24th of February, 1867. The draft of the constitution was laid before them. They amended it in forty-one points, adopted it, and returned it as adopted to the body which drafted it. The vote in the convention was 230 to 53. They voted by heads, not by states; were uninstructed; and a simple majority was all that was necessary, according to their rules of procedure, for the validity of their acts. The representatives of the governments approved the changes, and unanimously resolved to accept the constitution as returned to them by the convention. It was then laid by the governments (ie. the executives) of the states before their respective legislatures, and ratified by them all in the manner prescribed in each for making constitutional changes. The 1st of July, 1867, is the date at which the new constitution went into effect.

This was the constitution of the North German Union, not yet of the German Empire. The states of Bavaria, Württemberg, Baden and Hesse south of the Main were still outside of this Union. Immediately following the peace with Austria, in 1866, these states had formed offensive and defensive alliances with Prussia; and after July 1, 1867, it was considered that the North German Union was the legal successor to the rights and duties of Prussia in these treaty relations. These connections were strengthened and made

1 Laband, Staatsrecht des deutschen Reiches, Bd. I, S. 23 ff.

closer by the "Zollverein" of the 8th of July, 1867; whereby these states entered into a customs union with the North German Union and created a sort of government for the administration of the customs.

The attempt of France to prevent the complete union of all the German states into one national state, precipitated that union. At the moment of the triumph of the German arms over those of France, the King of Bavaria took the initiative.1 The President of the North German Union, the King of Prussia, was already empowered, by the second paragraph of the seventy-ninth article of the North German constitution, to lay propositions before the legislature of the North German Union for the entrance of the South German states or any of them into the Union; which entrance would be accomplished, so far as the North German Union was concerned, by a legislative act. During the course of the month of November, 1870, the President of the North German Union entered into treaties with the Grand Dukes of Hesse and Baden and with the Kings of Württemberg and Bavaria, which contained the articles of union of these states. with the North German Union and the pledge to establish the German Empire on the 1st of January, 1871. These treaties were submitted by these respective Princes to the legislatures of their respective states and were ratified in the manner prescribed by the constitutions of these respective states for making constitutional changes. The constitution of the North German Union already specially provided for this case, in Art. 79, authorizing the Federal Council and Diet to ratify such agreements by way of legislation. The constitution of the German Union or the German Empire was thus, at first, contained in several instruments. This was clumsy and confused. The union of the several instruments into one was manifestly necessary. After the representatives from

1 The diary of the Emperor Frederic seems to show that he did so under considerable pressure from the Prussians.