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CHAPTER III.

HISTORY OF THE FORMATION OF THE CONSTITUTION OF THE GERMAN EMPIRE.

Ir will not be possible to comprehend the genesis of the modern German state without going back to the Carolingian constitution. What we now term the German Empire received its first political organization in the great European Empire of Charlemagne. It was not distinguished politically from the other parts of the Empire. The Emperor was immediate sovereign, and governed through margraves, counts and bishops, appointed by himself, and amenable to himself. The division of the Empire, in 843, gave that part of the Empire lying east of the Rhine and north of the Alps to Louis the German, under the name "Ostfranken."1 In 870 the western boundary of Ostfranken was, by the compact at Mersen, moved westward, so as to include the larger part of Lorraine and Frisia. With this, the territorial basis of the independent German state was substantially completed. The politi cal system given to it by Charlemagne while it formed a part of the great European Empire, suffered very great modifica tion by the dissolution of the Empire. The ruler was no longer an Emperor, but only a King. I know of no better way to express the idea of this difference than by the proposition that the Emperor was sovereign, but the King was officer; the Emperor was the state, but the King was only the government; the Emperor was the vicegerent of God, but the King was only the leader of the people. The stu

1 Waitz, Deutsche Verfassungsgeschichte, Bd. IV, S. 591 ff.; Giesebrecht, Geschichte der deutschen Kaiserzeit, Bd. I, S. 148. 2 Ibid. S. 150.

dent of the history of the development of the Carolingian imperium, in its connection with Rome and with its theocratic basis, will recognize and appreciate these distinctions. The result of the change was decrease of power at the centre, increase of independence in the localities. The margraves, counts and bishops, who had received their appointments from the Emperor, raised the claim that the King could not remove them, that their right was as sacred as his. That is, the impulse to federalize the system was beginning to manifest itself. The King did not know how to meet this; he even helped it on by dividing the kingdom among his three sons.1 At the extinction of the Carolingian house, in 911, the kingdom had not only become federalized in fact, but the hereditary descendants of the former officials of the Empire had become the bearers of the sovereignty, and in their union were the supreme organization of the state. They now elected their King, and conferred upon him his powers; and they guaranteed to each other their independence of the King. The state had thus become aristocratic. It was represented by the united princes. The King was only the central government; and each prince was local government in his particular locality.2 King Otto the Great succeeded in arresting momentarily the course of this development. In conjunction with the Pope and the bishops, he succeeded in restoring the imperial sovereignty, and in reducing the princes momentarily to the position of officials again.3 The great struggle between the Emperor and the Pope during the latter half of the eleventh century shook the theocratic foundation of the re-established imperial sovereignty, and opened the way for the reappearance of the aristocratic state, with its federal system of government.*

The Hohenstaufen Emperors struggled manfully against this course of things, but without avail. Frederic II was

1 Giesebrecht, Geschichte der deutschen Kaiserzeit, Bd. I, S. 158.
4 Ibid. Bd. III, S. 1020.

2 Ibid. S. 188.

3 Ibid. S. 447 ff.

obliged, himself, to recognize this status of fact and give it, for the first time, the sanction of law. In the imperial instruments known as the "constitutio de juribus principum ecclesiasticorum" of the year 1220, and the "constitutio de juribus principum saecularium" of the year 1232, the Emperor legalized the federal system of government for Germany, by acknowledging the independent rights of the princes to govern in their own localities. The imperium as sovereign state was thus destroyed. The German kingship, as central government, was really all that remained. The imperium was now but a titular appendage. The truth of this proposition is surely made manifest in the "constitutio Francofurtensis de jure et excellentia imperii" of the year 1338, in which the princes and the King agreed that the person elected German King by the princes should be also Emperor without recognition and coronation by the Pope.2

From this event down to the election of Charles V this state of things became fixed in all the details of the constitution. In the aristocratic state the centrifugal forces are always predominant. The individuals who compose the aristocracy are the most capable and self-reliant personalities. Each of them feels his ability to take care of himself and his independence of governmental protection. If they are not compelled to unity over against the monarchy or the democ racy, they drift more and more into political disunion. This was the course of development in the German state from the "constitutio de jure et excellentia imperii" to the accession of Maximilian I in 1493. Maximilian undertook to restrain the princes in their particularistic politics through three very important measures. The first was called "der ewige Landfrieden," the permanent peace, of the year 1495. It forbade the "Fehde," self-help, among the princes, and asserted the jurisdiction of the imperial courts over their disputes. The

1 Zöpfl, Grundsaetze des gemeinen deutschen Staatsrechts, Bd. I, S. 159. 2 Ibid.

second of these measures created the "Reichskammergericht," the court of the Imperial Chamber, consisting of a judge and sixteen assistants, the judge and one assistant appointed by the Emperor, the other assistants elected by the princes.1 This organization was vested with jurisdiction over the controversies between the princes and was intended to displace the appeal to the "Fehde," which had become the universal custom in the aristocratic state. The third measure reorganized, in 1518, the "Reichshofrath," the Aulic Council, which was both an administrative and a judicial body, so as to give it a better hold upon the princes.2 The successor of Maximilian, Charles V, made the attempt to restore the imperial sovereignty. Two bloody and destructive wars resulted, in which the Emperor was worsted, and consequently the German state still further decentralized. The peace of Westphalia, which closed the epoch, presented a constitution for the German system which lacked but little of complete confederatism. It not only recognized the inherent right of the princes to govern independently of the Emperor, each in his own locality, and to participate with the Emperor in the imperial government, but it acknowledged to each prince the power to determine the religion of his land and people and the international powers of war and treaty with foreign states.3 After the middle of the seventeenth century we can, therefore, no longer speak, with any degree of correctness, concerning the German state. The " The "Reichstag" still remained, but it was little. more than a congress of ambassadors. The Emperor remained, but the imperium was little more than an office with very limited executive powers. The sovereignty was rapidly passing from the united princes to the individua!

1 Zöpfl, Grundsätze des gemeinen deutschen Staatsrechts, Bd. I, S. 217. 2 Ibid. S. 224.

3 Ibid. S. 162; Instrumenti pacis Westphalice, Instrumentum pacis Monasteriense, §§ 62, 63; Ghillany, Diplomatisches Handbuch, Bd. I, S. 92.

princes. The destruction of the Empire by Napoleon in 1806 completed the work. There was after 1806 no longer a German state, but a great number of German states. All but four of these, vis; Austria, Prussia, Swedish Pomerania and Holstein, entered the confederation of the Rhine under the protectorate of Napoleon.2 The overthrow of Napoleon terminated this connection, and the congress of Vienna in 1815 recognized finally, within the territory of the former Empire north of the Alps, thirty-eight states in league with each other. With this the confederatizing of the Empire was completed both in fact and in law. With this the successors of the original officials of the Empire had become sovereigns. The aristocratic development had triumphed completely over the monarchic in the Empire.

If the unity of Germany as a single state should ever again be attained, it must be through the power of the democracy, and the state must become national, popular. For thirty years after 1815 this was the dream of the idealists and the patriots. At last, in 1848, it came to the first trial for realization. The result was universal development of the idea and the impulse, but no immediate success in the world of fact. One great lesson, at least, was learned by the experiences of 1848 and 1849, viz; that the people alone could not secure the reorganization of the German state. One of the existing states must take the lead and furnish the organized power to carry the plan successfully through. Which should it be? The people looked to Prussia, but her King was not inclined to accept the responsibility. Prussia, however, was the only state capable of doing this great work. Austria was too un-German, and the rest were too weak.1

1 Schulze, Lehrbuch des deutschen Staatsrechts, Erstes Buch, S. 51 ff.

2 Ibid. S. 81 ff.

3 Ibid. S. 96; Acte du Congrès de Vienne, Art. LVIII; Ghillany, Diplomatisches Handbuch, Bd. I, S. 346.

* Schulze, Lehrbuch des deutschen Staatsrechts, Erstes Buch, S. 123 ff.

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