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wealths cannot be preserved through the ordinary legal supervision which the imperial judiciary exercises over the commonwealth judiciaries, this extraordinary remedy exists, which is intended and calculated to cover every possible case not otherwise provided for.1

C. The Suspension of Civil Liberty.

I have sufficiently explained in the previous chapter the necessity, under certain exigencies, for the temporary suspension of civil liberty by the general government, and for the assumption of the whole power of the state by the government. No constitution can claim completeness which does not make provision for such exigencies, and which does not regulate, so far as the nature of the case permits, the manner and the results of the suspension, and the conditions of its termination.

The German constitution vests the power to declare war in the Emperor, with the consent of the Federal Council; 2 the power to defend the Empire against attack in the Emperor; 3 the power to wage war in the Emperor; the power to make peace in the Emperor; the power to supervise the execution of the laws of the Empire in the Emperor; and the power to coerce a commonwealth in the Emperor, with the consent of the Federal Council.

We should be amply warranted in concluding generally, from these provisions, that the imperial government has the constitutional authority to assume a temporary military dictatorship in time of war or great public danger, and to determine when the exigency, justifying the exercise of dictatorial powers, arises, and when it ceases to exist. We should conclude specifically also from these provisions that the Emperor, with the consent of the Federal Council, determines when this exigency arises in the cases of offensive war and in

1 Schulze, Lehrbuch des deutschen Staatsrechtes, Zweites Buch, S. 28. 2 Reichsverfassung, Art. 11, § 2.

3 Ibid.

4 Ibid. Art. 63. 5 Ibid. Art. 11, § 1. 6 Ibid. Art. 17. 7 Ibid. Art. 19.

the coercion of a commonwealth; that the Emperor alone determines when it arises in defensive war, or in the employment of the military power in the execution of the laws; and that the Emperor alone, in all cases, determines when the exigency requiring martial law ceases to exist. The constitution does not, however, leave us to inferential conclusions. It makes explicit declaration. It ordains that the Emperor may declare the state of siege to exist in any part of the Empire when the public security is threatened.1 The Emperor may thus introduce the reign of martial law, and he alone can determine exactly when it shall terminate. This is distinct, exact and strong. It places the dictatorship just where a sound science of government would advise. It places it just where the logic of events will always finally fix it.

These last remarks, however, are a little aside from my purpose at this point. Here I am dealing only with the relation of the whole government to civil liberty. If the whole government may introduce martial law, then is my proposition established that there are exigencies, upon the happening of which the government may suspend the whole liberty of the individual, and assume to itself the whole powers of the state; and that the government is the sole determiner of the question as to when these exigencies arise and when they cease to exist.

From the provisions of the constitution which I have cited, there can be no doubt that the imperial government has this power. The sixty-eighth article, which expressly confers this power upon the Emperor, ordains that, until an imperial law shall be passed, designating the conditions and prescribing the form and the effect of the declaration of a state of siege by the Emperor, the Prussian law of June 4, 1851, shall be regarded as the imperial law. This Prussian law is still

1 Reichsverfassung, Art. 68.

2 Laband, Das Staatsrecht des deutschen Reichs, S. 164; Marquardsen's Handbuch.

the law of the Empire. It designates both war and insurrec tion as the conditions warranting the declaration. It provides that, in the first case, the commander-in-chief, or the commanding officer on the scene of war, may make the dec laration; while in the second case, the ministry must make it. It further provides that the first effect of the declaration shall be the suspension of the constitutional liberties of the individual.1 The only modification which this law requires, to make it fit the machinery of the general government, is the substitution of the chancellor for the ministry, since there is no imperial ministry, and no minister except the chancellor. The Emperor, then, as commander-in-chief of the military and naval forces, may immediately, or through any of his military subordinates, declare the reign of martial law in any part of the Empire, when a war exists which in his opinion threatens the public security; and, as chief of the civil administration, he may make the like declaration through the chancellor, when an insurrection exists which in his opinion threatens the public security. From whatever point of view the subject may be regarded, there is no question that the constitution vests in the general government full power to suspend temporarily the whole constitutional liberty of the individual and assume the whole power of the state, and to determine itself the existence of the exigencies which will warrant the assumption, and the moment of their cessation. The law of 1851, which the constitution adopts, provides, indeed, that the suspension can only be made in time of war and insurrection; but when the imperial government declares that there is war, then there is war legally, and when it declares that there is insurrection, then there is insurrection legally; and therewith the power of the government becomes constitutionally unlimited.

1 Preussische Gesetz-Sammlung für 1851, S. 451 ff.

2 Von Holtzendorff, Rechtslexicon, Bd. I, 1, S. 262. Dritte Auflage.



I PASS over the subject of civil liberty in the constitutional law of England and France, for the simple and entirely convincing reason that there is none in either. It may be said that, as to the English constitution, this fact results from its unwritten character; but the constitution of France is a written instrument, and yet it contains not a trace of what we call civil liberty. Every particle of civil liberty in both systems is at all times at the mercy of the government. There is a large domain of civil liberty in both of these states. In fact, that domain is nearly identical in both, and corresponds very nearly with the same sphere in the systems of the United States and of Germany; but it was not created by the state as distinct from the government, and it is not defended by the state against the government. When the English barons first constituted the Parliament as the state, and enacted Magna Charta, and established a committee to protect its provisions against the King, i.e. the government, there was then in England a constitutional civil liberty; i.e. a civil liberty created by the state and defended against the government. But when this baronial Parliament, this organization of the aristocratic state, became, half a century later, a part of the government, then the sovereign, the state, became merged in the government, so far as civil liberty was concerned, and civil liberty lost its supra-governmental source and support.

In France, also, the first work of the revolution of '89 was,

as we have seen, the organization of the state back of the King, i.e. back of the government, and then the creation of the constitution, in which civil liberty was defined and secured against the government. The constitutional character of civil liberty was preserved in all the changes of the French system, down to the present, except in the Napoleonic instruments. The fact that civil liberty has no place in the present democratic constitution is striking. It is to be explained largely, but not wholly, upon the ground of the fragmentary and incomplete character of the constitution. There is no doubt that the French Republic needs a revision of its constitutional law. It needs a constitutional civil liberty and a more independent executive power. It is to be confessed and regretted, however, that these are not the subjects which seem uppermost and most important in the minds of the revisionists. There is another reason, as I have indicated, for the omission of the charter of liberties from the constitution. It is the psychology of the Gallic mind, which confuses civil liberty with political equality, and which, therefore, is ready to confide everything to a government proceeding from universal suffrage. This is altogether unscientific in theory and unsatisfactory in practice.

I said, at the beginning of this chapter, that I would pass over the topic of civil liberty in the English and French systems, because it is no part of their constitutional law. I might, indeed, present its principles, as worked out in these systems by legislative enactments, or by custom subject to legislative action, or both; but that would tend to obscure the great fact which I wish to keep in mind: That upon. this side of the Atlantic constitutional law has made advances far beyond anything which has been accomplished upon the other side. A true and perfect political science will require, as I have already pointed out, first, the organization of the state, ie. the sovereignty back of the constitution; second, the continued organization of the sovereignty within the con

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