Part 2 — CHAPTER IX

THE EMPIRE AND ITS CONSTITUTION

I. Political Development Prior to 1848

202. Napoleonic Transformations.—Among the political achievements of the past hundred years few exceed in importance, and none surpass in interest, the creation of the present German Empire. The task of German unification may be regarded as having been brought formally to completion upon the occasion of the memorable ceremony of January 18, 1871, when, in the presence of a brilliant concourse of princes and generals gathered in the Hall of Mirrors in the palace of the French kings at Versailles, William I., king of Prussia, was proclaimed German Emperor. Back of the dramatic episode at Versailles, however, lay a long course of nationalizing development, of which the proclamation of an Imperial sovereign was but the culminating event. The beginnings of the making of the German Empire of to-day are to be traced from a period at least as remote as that of Napoleon.

203. The Congress of Vienna and the Confederation of 1815.—The collapse of the dominion of Napoleon was followed in Germany by rather less of a return to earlier arrangements than might have been expected. Indeed, it can hardly be said to have involved any such return at all. The Confederation of the Rhine was dissolved, and both the grand-duchy of Warsaw and the kingdom of Westphalia ceased, as such, to be. But the Holy Roman Empire was not revived; the newly acquired dignities of the sovereigns of Saxony, Bavaria, and other states were perpetuated; despite the clamors of the mediatized princes, the scores of German states which during the decade had been swallowed up by their more powerful neighbors, or had been otherwise blotted out, were not re-established; and—most important of all—the social and economic changes by which the period had been given distinction were, in large part, not undone.

204. The Diet.—The Diet was in no proper sense a parliamentary body, but was rather a congress of sovereign states. Nominally, its powers were large. They included both the regulation of the fundamental law and the performance of the functions of ordinary legislation. But, in practice, the authority of the body was meager and exercise of discretion was absolutely precluded. The members, as delegates of the princes, spoke and voted only as they were instructed. Questions relating to the fundamental laws and the organic institutions of the Confederation and "other arrangements of common interest" were required to be decided by the Diet as a whole (in Plenum), with voting power distributed among the states, in rough proportion to their importance. Of the total of 69 votes, six of the principal states possessed four each. The preparation of measures for discussion in Plenum was intrusted to the "ordinary assembly," a smaller gathering in which Austria, Prussia, and nine other states had each one vote, and six curiæ, comprising the remaining states in groups had likewise each a single vote. The presidency of the two assemblies was vested permanently in Austria, and the Austrian delegation possessed in each a casting vote. Proposals were carried in the smaller body by simple majority, but in Plenum only by a two-thirds vote. For the enactment of fundamental laws, the modification of organic institutions, the amendment of individual rights, and the regulation of religious affairs, it was declared by the Federal Act that a majority vote should be insufficient, and, although it was not expressly so stipulated, the intent was that in such cases unanimity should be required. Early in the Diet's history, indeed, the president was instructed solemnly to announce that the fundamental law of the Confederation, far from being subject to revision, was to be regarded as absolutely final.

The Confederation was, and was intended to be, only the loosest sort of a league of sovereign powers. The party of German unity, represented by Stein and the Liberals generally, began by assuming it to be a Bundesstaat, or true federal state; but at the opening of the first session of the Diet (November 5, 1816) the Austrian authorities formally pronounced it a Staatenbund, or federation of states, and from this ruling, according strictly with both the facts of the situation and the intent of the founders, there was no possible escape. The powers and functions which were vested in the Confederation were exercised exclusively through and upon states, and with the private individual it had no sort of direct relation, being, in these respects, essentially similar to the federal government of the United States under the Articles of Confederation. The function of the Diet, in effect, came to be little more than that of registering and promulgating the decrees of the authorities at Vienna.

205. Constitutional Progress, 1815-1848.—Notwithstanding these facts, the decade which terminates with the creation of the Confederation of 1815 contributed enormously to the clearing of the way for the establishment of modern German unity and of vigorous and efficient national government. Among large numbers of the German people there had been engendered a genuine desire, not only for constitutionalism in government, but for a substantial unification of the German-speaking world; and the increased homogeneity and prosperity of the kingdom of Prussia pointed already to the eventual realization of these aspirations under the leadership of that powerful state. The history of Germany during the period from 1815 to 1848 is a story largely of the growth of these twin ideas of constitutionalism and nationality, and of the relentless combat which was waged between their exponents and the entrenched forces of autocracy and particularism. Gradually the results of this conflict found expression through two developments, (1) the promulgation of liberalizing constitutions in a majority of the states and (2) the building of the Zollverein, or customs union.

The original draft of the Federal Act of 1815 pledged every member of the Confederation to establish a constitution within a year. In the final form of the instrument, however, the time limit was omitted and what had been a specific injunction became but a general promise. The sovereigns of the two preponderating states, Austria and Prussia, delayed and eventually evaded the obligation altogether. But in a large number of the lesser states the promise that had been made was fulfilled with despatch. In the south the ground had been cleared by the Napoleonic domination, and the influence of French political experimentation was more generally felt, so that, very naturally, the progress of constitutionalism was most rapid in that quarter. The new era of constitution-making was inaugurated by the promulgation of the fundamental law of Schwarzburg-Rudolstadt, January 8, 1816. In rapid succession followed similar grants in Schaumburg-Lippe, January 15, 1816; Waldeck, April 19, 1816; the grand-duchy of Saxe-Weimar-Eisenach, May 5, 1816; Saxe-Hildburghausen, March 19, 1818; Bavaria, May 26, 1818; Baden, August 22, 1818; Lichtenstein, November 9, 1818; Württemberg, September 25, 1819; Hanover, December 7, 1819; Brunswick, April 25, 1820, and the grand-duchy of Hesse, December 17, 1820. Instruments promulgated later during the period under review include those of Saxe-Meiningen, in 1829; Hesse-Cassel, Saxe-Altenburg, and Saxony, in 1831; Hohenzollern-Sigmaringen, in 1833; Lippe, in 1836; and Lübeck, in 1846. In a number of the states mentioned, including Bavaria, Baden, Württemberg, and Saxony, the constitutions at this time granted are still in operation. Many of them were, and some of them remain, highly illiberal. But, in the aggregate, the ground gained in behalf of constitutional and enlightened government through their promulgation was enormous.

The spread of constitutionalism was paralleled by the gradual creation, after 1818, of the Zollverein. This was a customs union, taking its origin in the establishment of free trade throughout the kingdom of Prussia, and extended from state to state until by 1842 the whole of Germany had been included save the Hanseatic towns, Mecklenburg, Hanover, and Austria. The union was maintained for purposes that were primarily commercial, but by accustoming the people to concerted effort and by emphasizing constantly their common interests it must be regarded as having contributed in a very important way to the growth of national consciousness and solidarity. Under its agency the lesser states were schooled deliberately in independence of Austria and in reliance upon Prussian leadership.

II. The Creation of the Empire

206. The Revolution of 1848.—From 1815 onwards the Liberals advocated, in season and out, the conversion of the Confederation into a more substantial union under a constitutional style of government. Aside from the promulgation of a number of new state constitutions, the effects of the revolutionary movements of 1830 were, in Germany, of little consequence. But during the period 1830-1848 conditions so developed that only the stimulus of a near-by liberal demonstration was required to precipitate to the east of the Rhine a popular uprising of revolutionary proportions. In the constitutional history of the German countries of central Europe few periods are to be assigned larger importance than the years 1848-1849. Taking advantage of the interest created by the contemporary revolution in France, the Liberal leaders began by convening at Heidelberg, March 31, 1848, a Vorparlament, or preliminary meeting, by which arrangements were effected for the election, by manhood suffrage, of a national assembly of some six hundred members whose business it should be to draw up a constitution for a united German nation. This assembly, reluctantly authorized by the Diet, convened May 18 in the free city of Frankfort. The task to be accomplished was formidable and much valuable time was consumed in learned but irrelevant disputation. In the end it was decided that not the whole of Austria, but only the German portions, should be admitted to the new union; that there should be established a full-fledged parliamentary system, with a responsible ministry; and that the parliament should consist of two chambers, the lower to be chosen by direct manhood suffrage, the upper to be made up half of members appointed by the princes and half of members elected for six years by the legislative bodies of the several states. As an executive some desired a directory of three princes and some wanted a single president; but the majority voted at length to establish the dignity of German Emperor and to offer it to Frederick William IV., king of Prussia.

208. The War of 1866.—With the elevation of Count von Bismarck, September 23, 1862, to the presidency of the Prussian ministry, affairs began to move rapidly toward the inevitable conclusion. A month prior to Bismarck's appointment there had been held at Frankfort a conference—the so-called Fürstentag—whose object was the proposal of a plan for the reconstitution of the Confederation. The scheme suggested contemplated the establishment of a directory, an assembly composed of delegates from the various diets, and a federal court of appeal. The conference was held at the instigation of Austria, and it was intended primarily to promote an alignment of the liberal forces against Prussia. The last-mentioned state refused, naturally, to have part in the proceedings, and the enterprise came to naught. A brief interlude in the fast developing contest was afforded by the Austro-Prussian alliance against Denmark in 1864; but the net result of this episode was only to supply the occasion for war which Bismarck desired. In 1866 Prussia came forward with a project for the reorganization of the Confederation (in reality, a counter-bid for popular support), the more noteworthy features of which were the total exclusion of Austria from the league and the establishment of a parliament elected by manhood suffrage. As was inevitable, the Diet rejected the scheme; whereupon, with the object of forcing Austria into helpless isolation, Bismarck and his royal master, William I., in June, 1866, proclaimed the Confederation to be dissolved and plunged the whole of Germany in civil war.

III. The Constitution: Nature of the Empire

211. The Constitution Framed.—As ordained in the treaties of November, 1870, ratified subsequently by the Bundesrath and the Bundestag of the North German Confederation, and by the legislative assemblies of the four incoming states, the German Empire came legally into existence January 1, 1871. It consisted fundamentally of the Confederation, which in the process of expansion did not lose its corporate identity, together with the four states, whose treaties bound them severally to it. The Bund was conceived of technically, not as replaced by, but rather as perpetuated in, the new Empire. The accession of the four southern states, however, involved of necessity a considerable modification of the original character of the affiliation; and the innovations that were introduced called for a general reconstitution of the fundamental law upon which the enlarged structure was to be grounded.

IV. The Empire and the States

In passing, it may be observed that there is, in fact, a distinct tendency toward the reduction of the spheres of authority which formerly were left to the states. One of the means by which this has been brought about is the establishment of uniform codes of law throughout the Empire, containing regulations respecting a multitude of things which otherwise would have been regulated by the states alone. Most important among these is the great Civil Code, which went into effect January 1, 1900. Another means to the same end is the increase in recent years of Imperial legislation relating to workingmen's insurance, factory regulations, industrial conditions, and other matters of a social and economic nature. Not infrequently in recent times have the states, or some of them, raised protest against this centralizing tendency, and especially against the "Prussianization" of the Empire which it seems clearly to involve. In many states, especially those to the south of the Main, the separatist tradition is still very strong. In Bavaria, more than anywhere else, is this true, and in 1903 the new Bavarian premier, Baron Podevils, was able to arouse genuine enthusiasm for his government by a solemn declaration before the diet that he and his colleagues would combat with all their might "any attempt to shape the future of the Empire on lines other than the federative basis laid down in the Imperial constitution."