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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.

the new states had appeared in both the Federal Council (Bundesrath) and Diet (Reichstag), the chancellor proposed a revision of the constitution as to form. This was carried by great majority in both bodies. No new provisions were introduced into the organic law, and no existing provisions were modified.1 The revision was, we may say, wholly formal. It bears the date April 16, 1871, while the birth moment of the Empire must be placed at January 1, preceding.2

Such was, in brief, the history of the formation of the constitution of the present German Empire. The question of political science now is: Where is, or where was, the sovereignty, the original organization of the German state, upon which the constitution rests, and from which it derives its legitimacy and legal force? Three different organizations or classes of organizations participated in the formation of the constitution of the North German Union, viz; the governmental heads of the several states, i.e. the Princes of the nineteen so-called monarchic states and the Senates of the three free cities; the representatives of the people of the North German states assembled in one Convention Parliament; and the legislatures of the several states. When the North German Union was expanded into the German Empire by the entrance of the South German states into the Union, three classes of organizations again participated, viz; the governmental heads of the North German Union and the South German states; the Federal Council and Diet of the North German Union; and the legislatures of the South German states; these legislatures acting, however, in all these cases in the manner prescribed by the constitutions of these respective states for making constitutional changes.

1 Except a clause providing for the constitution of a committee in the Bundesrath for foreign affairs.

2 Laband, Staatsrecht des deutschen Reiches, Bd. I, S. 36 ff.; Schulze, Lehrbuch des deutschen Staatsrechts, Erstes Buch, S. 168 ff.

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Which now of these organizations or classes of organizations represented the sovereign, the German state? Which ordained the constitution, and which were merely the ornamental and theatrical addenda? If we take a purely juristic view of the subject, — i.e. if we start with the condition existent just after the dissolution of the German confederacy in 1866, as the normal condition, and proceed upon the principle that legal authority must be found for every act done in reaching the consummation — then we come to the conclusion that the separate states, each sovereign and independent, first formed an international league of limited duration and promised to establish a state in which their separate sovereignties should become a united sovereignty; that the new sovereignty upon which the present constitution rests therefore came into existence through a voluntary merging of the sovereignties and of parts of the governmental powers of twentyfive states into one state and one government.1 According to this view, the new state was organized in the body representing the original states in their organic capacity, i.e. in the Federal Council (Bundesrath).2 The Convention Parliament, the Diet, and the state legislatures had no constituent powers, only ratifying powers.

I find two great difficulties with this view, the one historical and the other technical. In the first place, it ignores the revolutionary character of the conditions out of which the North German Union and its expansion, the German Empire, sprang. When the Diet of the German confederacy threatened Prussia with coercion, and Prussia seceded from the legally "indissoluble" union, and issued her ultimata to the state governments and her call to the German people, it seems to me that she abandoned legal ground and made appeal to power. It was no longer "Rechtsfrage," but Machtfrage." Legal methods and processes had been tried


1 Laband, Staatsrecht des deutschen Reiches, Bd. I, S. 32. 3 Deutsche Bundesate, Art. 5, Schlussacte.

2 Ibid. S. 88.

until it was found that they could furnish no solution to the existing complications and no satisfaction to the existing needs. The moment had arrived, in the development of the political history of Germany, for the change not only of the form of government, but also of the form of state. The sovereignty was not as a fact where the confederate constitution recognized it to be. Fact and law were in conflict. Fact could not give way, and law would not. Prussia's justification stands firm upon grounds of political morality; but, measured by the existing principles of legality, she was guilty of rebellion. Only the successful appeal to the ordeal of battle could change the rebellion into revolution and become the foundation of a new legality. What can Laband himself, the thoroughly juristic interpreter of the history of the formation of the constitution, mean other than this, in that beautiful sentence on the tenth page of his great work on the public law of Germany, which reads: "darin liegt die historish-politische, die sittliche Berechtigung des Krieges von 1866, dass er nicht im Sonderinteresse Preussens, sondern in dem Gesammtinteresse Deutschlands geführt wurde und dass von Anfang an nicht die Vergrösserung Preussens, sondern die Erlösung Deutschlands. von dem politischen Elend, welches die Verträge von 1815. über dasselbe gebracht haben, das hohe Ziel des Kampfes war." But if this be the true view, then we must treat the formation of the German state upon which the constitution rests as a spontaneous rallying of forces about a natural centre of unity, following natural principles of attraction and repulsion, and using the forms and fictions of existing, or once existing, legality so far as possible in the attainment of the transcendent purpose.1 We must not, then, take the form for the substance. In this great act the German princes and the several state legislatures were but the representatives of the German people in their historical organiza

1 See Jellinek, Gesetz und Verordnung, S. 264 ff.

tions,1 and the Convention Parliament was the representative of the German people in their newly found totality. The German people were, therefore, the ultimate sovereign in the new system; and they put to themselves, under three forms of organization, the question of the adoption of the constitution, in order that it might escape the errors and imperfections of haste and one-sidedness, and correspond to the wants and wishes of the people as a whole and in every part. We must not, then, call either of these classes of organizations sovereign, and the others only ratifying bodies.

If it had come to a conflict between them, one could have triumphed over the other two, or two over one, only by the strength of the popular support; i.e. only by the people renouncing the two or the one as unfaithful representatives of the people. If the people resident within the state of Prussia had undertaken to prevent the formation of the imperial constitution, either through their King or their legislature or through the Convention Parliament, they could undoubtedly have done so, since they constituted the great majority of the German people; but if the people resident within any other state had made this attempt through those bodies in which the rule of the simple popular majority was not followed, i.e. in the Federal Council and in the combined legislatures, let the fate of Hanover, Hesse, Nassau and Frankfort answer as to what might have been the result.

The technical difficulty which I find with the juristic view leads to the same results. If either one of these three forms of organization was sovereign, then it must have been able to do what it would, as well as to prevent what it would. If the test of sovereignty is only the power to propose and prevent, then each of the three forms of organization was sovereign and equally so. The test of sovereignty is rather the

1 Laband, Staatsrecht des deutschen Reiches, Bd. I, S. 89.

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