XX.] CONSTITUTION OF THE GERMAN EMPIRE. 389 XX. THE CONSTITUTION OF THE GERMAN EMPIRE.* WE are going to aim at a mark which is somewhat hard to reach-namely, to try to look at the main result of the great struggle which has just turned Europe upside-down as a matter of purely dispassionate and scientific inquiry. We have before us the original text of the Imperial German Constitution, the Verfassung des deutschen Reiches, and we wish to examine it with as calm and critical an eye as if we had lighted on the earliest constitution of Phôkis or Lokris in a newly-discovered fragment of Aristotle.† It is not simply the latest form of political being which has been chosen by what is now the foremost nation in Europe. To the scientific student of these matters it is something more. It is the first real attempt to solve a problem which has often suggested itself to political thinkers; it is the first ascertained example of a form of government which has often been spoken of as possible, but which has hitherto existed in theory only. It is a confederation-even in becoming a Reich it has not cast aside the name of a Bund— yet its constitution is not republican, but monarchic. Its chief is an hereditary king who, in virtue of his chieftainship, has been clothed with the rank of Emperor; its other members are mainly monarchies ruled by kings, dukes, or other princes; three only are free cities, whose constitutions are of course republican. Now for ages past all the chief federal systems of the world, Achaia, Switzerland, * [1871.] + [Pity that, instead of Phôkis or Lokris, I did not dream of the coming Athenian discovery. Only that is not federal.] America, and a crowd of others of less fame, have all been republican. For an union of princes really worthy to be called a federal system we shall look in vain in the pages of undisputed history. It has always been plain that the thing might be; but for actual examples the student has had to grope into distant or mythical times or places, to flatter himself that something of the kind might possibly be found in the days of the Twelve Kings of Egypt or the Seven Lords of the Philistines, or, at the very least, among the Tetrarchs of Galatia. If it be objected that the German Confederation which vanished in 1866 and on the ruins of which the present Empire has grown was a confederation of princes, the answer would naturally take the form of a question whether that body was, in any strict sense, a confederation at all. At the outside it was only a Staatenbund, while its present successor at least aims at being in the strictest sense a Bundesstaat. It has its Federal Executive and its Federal Legislature, with its two Houses, the one representing the States as States, the other representing the nation as the nation, just as naturally as America and Switzerland. The nature of the Executive and that of one House of the Legislature are widely different from the Swiss and American models, and the functions of the different powers of the Bund are by no means the same in the Empire as they are in the two commonwealths. Still there it is, an union of States with a Federal Executive and a Federal Assembly of two Houses. If it does not answer the perfect Federal ideal, it at least comes so near to it that it would be mere pedantry to refuse it a place among federal systems. Yet, if it be a confederation at all, it is eminently a monarchic confederation. Its President is an Emperor, and one House of its Legislature is chiefly made up of Kings and Dukes or their representatives. The fact that the chief of the new League or Empire is an hereditary king is the most obvious difference between the new League and its republican fellows. It is a difference on the surface which every one can see at a glance. XX.] A MONARCHIC CONFEDERATION. 391 But in truth it helps to hide a difference which is really more important still. It is not merely that the powers, and more than the powers, which America gives to its President, and Switzerland to its Federal Council, are given to an hereditary chief. Something like an hereditary chief of a Confederation had already been seen in the Stadholder in the commonwealth of the United Provinces. Though such a form of Executive may seem eccentric, there is nothing in it abstractedly contrary to any federal principle. The arguments for and against hereditary succession would be very much the same in a federal government as the arguments for and against it in any other government. The really more important point is that the hereditary chief of the Empire is also the hereditary chief of one of its States, and that incomparably its greatest State. The rank of German Emperor, with the Federal authority vested in that office, is attached by the constitution to the crown of Prussia.* This is the real novelty. No doubt under the old German Bund the presidency was vested in Austria. * [The Imperial crown was accepted by the first Emperor William for himself and his successors in the kingdom of Prussia. This suggests a question. If the house of Hohenzollern should become extinct, and the Prussian Parliament should raise some other family to the crown, must the Empire accept the new Prussian king without having any voice in the matter? The question would be harder still if Prussia should at any time dispense with kings altogether. At the death of the Emperor William the First, Prince Bismarck announced that the Imperial Crown of Germany had passed to Frederick the Third, King of Prussia.' This was perfectly accurate. To know who was the new Emperor, it was first necessary to know who was the new King of Prussia, and the proper description of the new King of Prussia was undoubtedly Frederick the Third. But the newspapers at once began to talk about the Emperor Frederick the Third.' Now in reckoning the holders of the new Empire, either the old Emperors and Kings are to be reckoned, or they are not. If they are not to be reckoned, the second Emperor was undoubtedly Frederick the First. If they are to be reckoned, he was Frederick the Fourth, or, according to Austrian measure, Fifth. In no case could he be Frederick the Third in the Empire. The Emperor Charles the Fifth was Charles the First in Castile and Aragon.] But then the League was so much laxer, and the powers of the federal President were so much smaller, that there is no great likeness between the two cases. In this case the presidency of the League, with very important powers indeed, is vested in a chief, who is not chosen by the Federal Legislature or by the League itself in any shape, a chief whose feelings and interests are necessarily bound up with one particular State of the League, and that the State which is more powerful than all the rest put together. To translate from royal into republican language, it is as if the Governor of the State of New York should be ex officio President of the United States. We know not whether this analogy ever struck any one before, but, so far as the arrangement of the several federal powers and their relations to one another are concerned, the analogy is exact. The real difference between the two cases is that in the German case the hereditary nature of the presidency goes far to counterbalance the evils which would be so glaring in our supposed American case. The absurdity of the Governor of New York being ex officio President of the Union need not be pointed out. It would be far worse than the privileges of the Vorort in the old state of things in Switzerland, because the powers of the American President are so much greater. The President so chosen would be almost. sure to direct the policy of the Union, so far as he had the means of guiding it, to the interest of his own particular State and not to that of the whole Union. He would be almost sure to be chosen for the direct object of so doing, and that object would be only the more consciously followed because New York, though the greatest State in the Union, is by no means so much greater than the other States as Prussia is greater than the other German States. Hereditary succession, whatever may be said against it, is really likely to do much to lessen evils of this kind. The chief of the German Empire, not being chosen at all, will at least never be chosen with any particular factious motive. Succeeding by right of birth to the Imperial crown of Germany as well . XX.] THE PRESIDENCY OF PRUSSIA. 393 as to the local crown of Prussia, brought up, it may be hoped, with a view to the greater post as well as to the smaller, a German Emperor may easily learn to feel as a German and not merely as a Prussian. He may learn to make the interests of the lower office, if the two should ever clash, yield to those of the higher. If the headship of the League is to be attached to the headship of a particular State, it is plain that in this case monarchical forms have an advantage over republican forms. The hereditary Emperor may easily rise above any temptations to sacrifice the interests of his Empire to those of his kingdom. The analogous temptations could hardly be withstood by Bootarchs chosen by Thebes only to be federal magistrates of all Boeotia. In fact, under the circumstances in which the NorthGerman League was founded, the presidency, or rather the supremacy, of Prussia was a thing which could not be helped. It was in fact, and it could not help being, so undisguised a supremacy that it hardly occurred to political thinkers to discuss the North-German League, while it remained a North-German League only, as a real example of a federal system. It had the form of a League; it was hardly possible that it could have the spirit. The accession of the Southern States, States not at all the equals of Prussia, but still quite strong enough to have a will and a voice of their own, has brought the German League or Empire much nearer to the true federal type than its North-German forerunner. And this is the case none the less because the accession of the Southern States has carried with it a certain departure from strict federal forms. It is certainly against the idea of a perfect federation that any of its States should have exceptional privileges, or that Federal law, within its own range of subjects should not have the same authority in every corner of the lands forming the Confederation. Yet the German Empire is placed in this position by the accession of Bavaria. Bavaria was strong enough to make her own terms, and to |