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THE GERMAN EMPEROR'S POSITION
WHILE many people have discussed whether Germany was responsible for the War, nobody has inquired whether the German Emperor, in declaring war upon Russia and France, acted in accordance with the German Constitution, or whether he exceeded his powers.
It is fairly generally assumed that the Emperor was entitled to make war upon the two countries-that the question of war and peace lay within his discretion. In the following pages it will be shown that the Emperor exceeded his carefully limited powers-that he acted unconstitutionally.
The question whether the Emperor acted constitutionally or unconstitutionally is not merely a professorial but a very practical one. British statesmen and rulers enjoy a very great latitude because the British Constitution is unwritten. They can either find for their action some precedent in the past or construct a precedent from the past. In case of need they can create a new precedent, and the question whether their action was constitutional or not is one which may be discussed by experts in constitutional law, but is incomprehensible for the broad masses of the people. In Germany matters are different. All citizens are familiar with the written Constitution, with which they are made acquainted in the schools. Popular editions with explanations can be bought in every bookshop for a few pence, while the educated are acquainted with the commentaries on the Constitution by Laband,
Arndt, and many other writers. The question whether the Emperor, in making war upon Russia and France, acted constitutionally or unconstitutionally may in due course become a very urgent one. The German people do not object to unconstitutional action on the part of their rulers if the measures taken prove successful and beneficial. That may be seen by the ease with which the Prussian Diet passed an Act of Indemnity with regard to Bismarck's Government in opposition to the will of Parliament, when the victory of 1866 over Austria had proved that the Prussian Government had been right in increasing the army very considerably against the will of Parliament. Nothing is as successful as success. If, however, the present War should end in Germany's defeat the German people will not only ask whether Germany commenced the War, but whether the German Emperor, in declaring war, acted lawfully or unlawfully, and he may be held to account.
The widely held belief that Germany is a highly centralised State, that William the Second is the sovereign and the practically unlimited ruler of the country is erroneous. Germany is a federation of independent States. The sovereignty of the empire reposes not in the King of Prussia, but in the allied States themselves. The King of Prussia, being the most powerful of the German monarchs, is merely the hereditary president of the Federation. The best definition of the German Empire has, perhaps, been given by President Wilson in his book The State,' in which we read:
The German Empire is a Federal State composed of four kingdoms, seven grand-duchies, four duchies, seven principalities, three free cities, and the Imperial domain of Alsace-Lorraine, these lands being united in a great corporation of public law' under the hereditary Presidency of the King of Prussia. Its Emperor is its President, not its Monarch. . . . The new Empire bears still, in its constitution, distinctest traces of its derivation. It is still a distinctly Federal rather than unitary State, and the Emperor is still only its constitutional President. As Emperor he
occupies not an hereditary throne, but only an hereditary office. Sovereignty does not reside in him, but in the union of German Federal Princes and the free cities.' He is the chief officer of a great political corporation. . . . It is a fundamental conception of the German constitution that 'the body of German sovereigns, together with the Senates of the three free cities, considered as a unit-tanquam unum corpus-is the repository of Imperial sovereignty.'
The fact that the German Emperor is not the sovereign of the Empire but merely its hereditary President, that the Imperial power is possessed by the allied States themselves, is known to almost every German. In the last issue of Meyer's Encyclopedia' we read:
According to the Imperial Constitution of the 16th April, 1871, the German Empire is an everlasting confederation which the German Princes and free towns have concluded ' for the protection of the territory of the confederation and the rights thereof as well as for the promotion of the welfare of the German people.' The Imperial power is possessed by the Allied States. Their organ is the Federal Council. The Presidency of the Confederation belongs to the Prussian Crown. The Presidential rights are a Prussian privilege, and they are enumerated in the German Constitution. With the Presidency of the Confederation is connected the title German Emperor, not Emperor of Germany, for the Emperor is not sovereign of the Empire. He exercises his powers ' in the name of the Empire' or 'in the name of the Allied Governments."
If we wish to discover whether the Emperor, in making war upon Russia and France, acted constitutionally or unconstitutionally, we should study the text of the German Constitution and the commentaries upon that document by the most authorised statesmen and professors, and especially by the allied sovereigns themselves. The preamble of the Constitution states:
His Majesty the King of Prussia in the name of the North German Confederation, His Majesty the King of Bavaria,
His Majesty the King of Würtemberg, His Royal Highness the Grand Duke of Baden, and His Royal Highness the Grand Duke of Hesse and by Rhine, for those parts of the Grand Duchy of Hesse which are south of the river Maine, conclude an everlasting Confederation for the protection of the Territory of the Confederation and the rights thereof, as well as for the promotion of the welfare of the German people. This Confederation will bear the name 'German Empire.'
It should carefully be noted that in the short preamble it is explicitly stated that the German Empire was formed for the purpose of defence.
The fourth chapter of the Constitution, which is superscribed The Presidency,' consists of articles eleven to nineteen. The first portion of article eleven reads as follows:
The Presidency of the Confederation belongs to the King of Prussia, who bears the name of German Emperor. The Emperor has to represent the Empire internationally, to declare war, and to conclude peace in the name of the Empire, to enter into alliances and other treaties with Foreign Powers, to accredit and to receive Ambassadors.
The consent of the Federal Council is necessary for the declaration of war in the name of the Empire, unless an attack on the territory or the coast of the Confederation has taken place.
The purely defensive character of the German Empire is expressed not only in the short preamble of the constitution, but also in this most important article eleven, from which we learn that the German Emperor may not declare war in the name of the Empire unless an attack on the territory or the coast of the Confederation has taken place,' that for the declaration of a war of aggression,' the consent of the Federal Council is necessary.' The Federal Council is not a popular representative body, but a body which represents all the individual States themselves. In other words, the Constitution stipulates that the German Emperor
may make war only if Germany has actually been attacked, that a war of aggression on Germany's part can be effected only by the will of the individual States united in the Federal Council.
The German Empire is the successor of the North German Confederation, which was formed by Prussia, Saxony, and various other States after the Prusso-Austrian war of 1866. The German Constitution of 1871 is almost word for word the same Constitution as that of the North German Confederation of 1867. There is only one material and important difference between the two Constitutions. It consists in the alteration which was made in the most important article eleven. That article was worded as follows in the Constitution of the North German Confederation of 1867:
The Presidency of the Confederation appertains to the Crown of Prussia, which, in the exercise thereof, has the right of representing the Confederation internationally, of declaring war and concluding peace, of entering into Alliances and other Treaties with Foreign States, of accrediting and receiving Ambassadors in the name of the Confederation.
The King of Prussia, as President of the North German Confederation, had the right of declaring war and concluding peace.' As no condition was attached, he could in the name of the Confederation declare not only a war of defence but also a war of attack. That right was limited four years later, when the Prussian King and German Emperor was restricted to declaring war only if an attack on the territory or the coast of the Confederation has taken place.' The war-making power of the King of Prussia was thus limited by the express wish of the South German sovereigns, who did not desire to be dragged into a war against their will, who had seen Prussia victorious in three consecutive wars, and possibly feared that she might rashly embark upon another war which might have a less fortunate result than the previous ones. Besides, the South German