The Project Gutenberg EBook of The New German Constitution, by René Brunet This eBook is for the use of anyone anywhere in the United States and most other parts of the world at no cost and with almost no restrictions whatsoever. You may copy it, give it away or re-use it under the terms of the Project Gutenberg License included with this eBook or online at www.gutenberg.org. If you are not located in the United States, you'll have to check the laws of the country where you are located before using this ebook. Title: The New German Constitution Author: René Brunet Contributor: Charles A. Beard Translator: Joseph Gollomb Release Date: June 21, 2017 [EBook #54957] Language: English Character set encoding: UTF-8 *** START OF THIS PROJECT GUTENBERG EBOOK THE NEW GERMAN CONSTITUTION *** Produced by Audrey Longhurst and the Online Distributed Proofreading Team at http://www.pgdp.net Transcriber’s Note: Obvious printing errors have been corrected. The German Constitution [i] [ii] SOME RECENT BORZOI BOOKS IN DAYS TO COME By Walter Rathenau EARLY CIVILIZATION: AN INTRODUCTION TO ANTHROPOLOGY By Alexander A. Goldenweiser HUMAN NATURE IN POLITICS By Graham Wallas HOW ENGLAND IS GOVERNED By Rt. Hon. C. F. G. Masterman PRINCIPLES OF SOCIAL PSYCHOLOGY By James Mickel Williams THE HISTORY OF SOCIAL DEVELOPMENT By Dr. F. Müller-Lyer THE FOUNDATIONS OF SOCIAL SCIENCE By James Mickel Williams For sale at all bookshops For further particulars address ALFRED A. KNOPF, Publisher NEW YORK [iii] The New German Constitution by René Brunet Professor of Constitutional Law in the Faculty of Law at the University of Caen, formerly legal advisor to the French Embassy at Berlin Translated from the French by Joseph Gollomb Foreword by Charles A. Beard New York Mcmxxii Alfred·A·Knopf COPYRIGHT, 1922, BY ALFRED A. KNOPF, Inc Published April, 1922. Set up, electrotyped, and printed by the J. J. Little & Ives Co., New York, N. Y. Paper furnished by W. F. Etherington & Co., New York, N. Y. Bound by the H. Wolff Estate, New York, N. Y. MANUFACTURED IN THE UNITED STATES OF AMERICA FOREWORD It is a pleasure to introduce M. Brunet to the American public. He is a French scholar of the finest type, careful, objective, and sincere. The present work on the German constitution bears the impress of these high qualities. In this volume we find the scientific spirit that was to be expected, combined with an intimate, first-hand knowledge of the forces and materials which are described. All this is very significant. The long night of the Great War was hardly over before M. Brunet began an impartial and thorough-going study of the state of affairs created in Germany by the revolution of November, 1918. If a Frenchman who suffered so much can display such good sense and sobriety, then surely American scholars ought to give more than a hearty welcome to this volume. It is an excellent beginning in the reconstruction of the republic of letters. In this book we have a plain and simple account of the German revolution and the conflict of forces which ended in the establishment of the republic. The balance of parties is examined. The results of the elections to the national assembly are summarized. Then follows a systematic analysis of the new plan of government, illuminated by continual reference to the concrete historical circumstances in which the makers of the German constitution had to operate. M. Brunet has tried to steer his way on an even keel between the highly theoretical methods of the German political philosophers and the hard, matter-of-fact methods of the Anglo-Saxons. He has succeeded admirably. Accordingly, the usefulness of his volume extends beyond the information which it presents. It affords an interesting model to young American writers who have occasion to deal with constitutional and legal matters. There is no reason why a doctor of philosophy should not love insight and form as much as the poet does. The great English doctor of law, Maitland, certainly did. M. Brunet’s excellent qualities have enabled him to write the best treatise on the German constitution which exists in any language. Any one who will spend a day comparing this volume with Dr. Fritz Stier-Somlo’s Die Verfassung des Deutschen Reichs vom 11. August, 1919, for example, will soon discover how much more ingenious and penetrating [iv] [v] [vi] is the French commentator. M. Brunet’s volume is to be commended on other grounds than those of intrinsic excellence. It brings information to the American public on a subject concerning which very little is known at present. The new German constitution has been translated into English and there are a few stray articles by the way of commentary available to Americans, but this is the first systematic treatise on the topic in our tongue. It would not be fitting to give in this foreword a résumé of M. Brunet’s volume. The admirable survey presented in the analytical table of contents can be seen at a glance. It may not be out of place, however, to indicate some points of contact between the present course of American thinking and the system of government here described. Notwithstanding the curious constitution worship that flourishes in many places in the United States, there are signs of fresh currents of thinking. Mr. Woodrow Wilson, in his remarkable essay, Congressional Government, set in train new opinions as to our constitutional system which have by no means been lost to view in the general revulsion of feeling that followed the war. Only recently Professor Lindsay Rogers, of Columbia University, took occasion to remark, in the course of an interesting article on modern French politics, that we ought to have a more lively and intelligent discussion of constitutional questions in America. The ink was hardly dry on his paper before Professor William Macdonald accepted the challenge by bringing out his highly suggestive book, entitled A New Constitution for a New America. The rhythm of human affairs is such that we may reasonably expect a return to the constitutional searchings of 1912 on a higher and different plane. Those who fix their eyes not upon the written letter of our Constitution, but upon judicial decisions, political practice, and congressional procedure are never under the delusion that our constitutional system does not change. If, as Professor Seligman long ago pointed out, economic conditions are rapidly becoming the same all over the world with similar legal results, then we may, with proper warrant, expect very soon a new and lively examination of constitutional principles to break in upon us. M. Brunet’s book fits in with the signs of the times. No person who pretends to be intelligent about constitutional matters can neglect it. It would be difficult to imagine anything more illuminating than a comparison of the Constitution of the United States drawn up in 1787, the fundamental law of the Australian Commonwealth adopted in 1900, and the new German Reichsverfassung of 1919, which vibrates with the tramp of the proletariat. In the attempt of the Germans to combine the strength of Hamilton’s government with the democratic control so vaunted by Jefferson we have an experiment that ought to stir our deepest interest. In the provisions for social, not to say socialistic, enterprise, both the Australian and the German constitutions offer noteworthy contrasts to our own fundamental law. It will not escape the close observer that the Germans have not created a supreme court, on the model of our own, endowed with power to set aside acts of the executive and legislative branches of the government. The relations established by the Germans between the federal government and the states, ingenious compromises all must admit, ought to be studied in connection with Mr. Roosevelt’s “New Nationalism”—not as an echo of a dead past but as a prophecy of the future. The science of comparative government is as fruitful to-day as it was a generation ago when it nourished in such vigour. A teacher who will place M. Brunet’s book and “The Federalist” in the hands of a college class cannot fail to evoke a lively interest in politics and a more intelligent consideration of American constitutional problems. To the historian, the introductory part of M. Brunet’s volume will afford food for thought. There is no doubt that the new German constitution is the product of a sharp and determined conflict of classes. M. Brunet records the fact and gives the alignment of parties. No sophisticated person will ever imagine (whatever he may say) that the German fundamental law was drawn from abstract political thinking, theories about the rights of states, or reflections on the fate of Greek democracies and ancient Rome. The pressure of class interests is evident in almost every line. If one should underscore the socialist sections with red, the Centre clauses with yellow, and the capitalist phrases with black, one would have an interesting study in constitutional artistry. From time to time, M. Brunet makes specific references to the precise effect of party pressures upon legal phraseology. It would, however, be a work of supererogation to point out to American scholars the relevancy of these passages. Having recovered from the shock of learning that the Fathers of our Constitution were made of mortal clay, they are prepared to receive M. Brunet’s book with open minds. My hearty thanks are due to Mr. Knopf, who, on my suggestion, undertook to make this volume available to the American public. I am indebted to Professors Munro and Holcombe for the right to use their translation of the “Constitution of the German Commonwealth” issued by the World Peace Foundation. Especially am I under obligation to Mr. Joseph Gollomb for undertaking the translation of M. Brunet’s text. Mr. Gollomb was himself a witness at many of the scenes described in these pages. He has first-hand knowledge of European politics. His long residence in Paris gave him a mastery of the French tongue. In making this English version, he has kept in mind the requirements of the general reader as well as those of technical students. Charles A. Beard. New Milford, Conn., December 14, 1921. CONTENTS Foreword v [vii] [viii] [ix] [x] [xi] CHAPTER I THE ORIGINS Section 1 THE REVOLUTION The Constitution of April 16, 1871, and the reforms of October, 1918 1 The fall of the old régime 12 The republic of councils 16 Section 2 THE NATIONAL CONSTITUENT ASSEMBLY The composition of the Assembly 24 The Provisional Constitution of February 10, 1919 28 The adoption of the Constitution and supplementary laws 35 CHAPTER II TOWARD A UNIFIED STATE Section 1 TERRITORIAL STATUS OF THE STATES The problem of the dismemberment of Prussia 43 Modifications of the territories of states 53 The creation of a state—Thuringia 57 Section 2 DIVISION OF POWER BETWEEN THE REICH AND THE STATES The constitution of the states 59 The legislative power of the Reich 61 (1) Fundamental limits of power 61 (2) Supremacy of national over state laws 65 Administrative services of the government 65 Justice and the High Court 68 Section 3 JURIDICAL AND POLITICAL STRUCTURE OF THE REICH Is the Reich a federal state? 69 Prussia and the Reich 72 CHAPTER III THE DEMOCRATIC PRINCIPLE Section 1 THE PRINCIPLE The power of the state is derived from the people 75 The system of councils, or the dictatorship of the proletariat 77 The Chamber of Labour, or the Vocational Parliament 82 The Political Activity of the Unions 91 Section 2 THE APPLICATIONS The republic 98 Universal suffrage, the political parties and the electoral law 100 General principles 103 The electorate and eligibility 109 Preparations for elections 112 Distribution of seats 113 The actual working of the law 115 Direct government 118 CHAPTER IV PARLIAMENTARY GOVERNMENT Section 1 THE REICHSTAG [xii] [xiii] Privileges and guarantees accorded to the Reichstag 131 The rules of the Reichstag 135 The duration of the powers of the Reichstag 137 Powers of the Reichstag 138 1. Powers of the Reichstag, as principal holder of sovereignty 138 2. Legislative powers; how laws are proposed and passed 139 3. Power of control; interpellations and committees 147 Section 2 THE PRESIDENT OF THE REICH The need for a strong president 153 The election of the President and the length of his term 156 The powers of the President 162 The responsibility of the President 168 Section 3 THE CABINET OF THE REICH The Chancellor and the Ministers according to the Constitution 172 The working of constitutional rules; how a Ministry is formed, how it works and is dissolved 177 Section 4 THE REICHSRAT General features of the Reichsrat 186 The composition and the functioning of the Reichsrat 188 Powers of the Reichsrat 192 CHAPTER V FUNDAMENTAL RIGHTS AND DUTIES OF GERMANS Legal and political aspects of fundamental rights and duties 195 Fundamental rights and duties of the individual 202 Fundamental rights and duties of communities 216 Religion and the churches 222 Instruction and the schools 226 CHAPTER VI THE ECONOMIC CONSTITUTION AND SOCIALIZATION Section 1 THE ECONOMIC CONSTITUTION The “anchorage” of the Councils in the Constitution 236 Constitutional provisions relative to the Councils 244 Factory Workers Councils 248 The Trade Unions and the Councils 257 The Provisional Economic Council 263 Section 2 SOCIALIZATION The problem of socialization 269 Collective economy 275 The regulation of the coal industry 280 CONCLUSION APPENDIX The Constitution of August 11, 1919 (text) 297 The German Constitution CHAPTER I THE ORIGINS [xiv] [xv] [1] Up to the autumn of 1918 Germany was under the Empire of the Constitution of April 16, 1871. Then in November, 1918, the work of Bismarck was suddenly overthrown and military defeat and revolution plunged Germany into chaos. How she worked out of it, through what vicissitudes she passed and with what groping she finally achieved her new Constitution is the question to examine first. SECTION 1 THE REVOLUTION The revolution of November, 1918, was preceded by partial reforms embodied at a late hour in the Constitution of 1871; and when it broke out, in a few hours it completely threw over all the apparatus of the old régime. A new government sprang up which for several weeks held power in the name of a minority and without any right other than that of force. 1.—THE CONSTITUTION OF APRIL 16, 1871, AND THE REFORMS OF OCTOBER, 1918. The principal characteristics of the Constitution of April 16, 1871, are well known. Germany was a federal state, that is to say, above the member states, which renounced a part of their individual independence to strengthen their collective political and economic power, there existed a central state in whose favor they had given up that degree of independence—the German Empire. In the Reich sovereign power belonged to an assembly of Princes and of governments represented by the Bundesrat or Federal Council. This council which consisted of representatives of all the member states shared with the Reichstag the power to initiate and vote legislation. It promulgated the general administrative measures necessary for the execution of the laws; and with the consent of the Emperor it could dissolve the Reichstag. The nation was presided over by the German Emperor. He exercised generally the rights which modern nations reserve to the executive power. In particular he represented the Empire in its international relations; promulgated its laws; watched over their execution; appointed civil and military officials, etc. Several remarkable details have to be pointed out. Although in principle the Emperor’s actions had to be countersigned by a minister he was free from that restriction in such matters as concerned military affairs, particularly in the nomination of the superior officers of the army and the navy. The German Emperor was the absolute chief of the forces of the Empire on sea and land. Furthermore, although he could not declare war without the consent of the Bundesrat he could act on his own authority in case of attack by a foreign power against the territory or the coasts of the German Confederation. The Emperor nominated the Chancellor, who was after the Emperor himself, the sole chief of the political and administrative organization of the Empire. “The Chancellor,” says Article 15, “presides over the Bundesrat and directs its labours.” But as he clearly could not himself assume such an overwhelming task, he was authorized by the law of March 17, 1878, to call assistance and be supplemented at need by high functionaries placed at the head of Imperial departments—those of foreign affairs, of the interior, justice, treasury, railroads, marine, colonies, posts and telegraphs. These officials carried the title of State Secretaries, which seemed to give them something of the nature of ministers, though in reality they were completely subordinated to the Chancellor. Just as the Bundesrat represented the federated Princes so the Reichstag represented the German people. Elected by direct and universal suffrage the Reichstag had the right to initiate legislation; and no law was operative unless it had obtained a majority both in the Bundesrat and in the Reichstag. Furthermore the Reichstag had the right to interpellate, not the Secretaries of State but the Chancellor himself and to ask questions; and discussions of a question could be closed by voting an expression of the confidence of the Assembly. Under the Empire there were twenty-five states[1] and the territory of Alsace-Lorraine. These states were governed by constitutions of the greatest variety. There were three free cities, Hamburg, Bremen and Lübeck; twenty-two monarchies, which carried different titles; Kingdoms—Prussia, Bavaria, Saxony, Wurtemberg; Grand Duchies—Baden, Hesse; Duchies—Saxe-Coburg-Gotha, Saxe-Meiningen; and Principalities—Waldeck, Schaumburg-Lippe, etc. Among these states some, a large majority but the least important, had adopted the system of the single legislative chamber, which, with one or two exceptions, comprised, beside the deputies elected by universal suffrage, members named by the princes of the state, or by special electoral colleges such as groups of the heaviest tax payers, chambers of commerce, industrial and agricultural organizations, the clergy, the professions, etc. The other states, four kingdoms and the Grand Duchies of Baden and of Hesse, had two chambers each. The upper house was almost entirely composed of members of the reigning families or their kin and of personages charged with representing the nobility or the great landed proprietors. The lower house was elected sometimes by universal suffrage, sometimes by a system of plural voting; or by a system that divided the population in such a way that the voice of the people was nullified almost entirely in favor of the big taxpayers as in Prussia. All this would present an erroneous and incomplete picture if one did not take the precaution to search beyond the letter of these constitutions and inquire how the government of Germany was actually conducted. The political [2] [3] [4] institutions of Germany presented a certain number of aspects which it is important to bring out clearly:[2] 1. These institutions were anti-democratic. It is true the Reichstag was elected by universal and direct suffrage. But, on the one hand the electoral legislation of the Reich contained certain provisions which were singularly behind the times, such as the denial to the poor of the right to vote, the fixing of the voting age at twenty-five, etc. On the other hand, the Bundesrat, which was not elected, possessed powers superior to those of the Reichstag; and the latter could do nothing without the Bundesrat. The same situation existed within the individual states, which either did not have a chamber elected by universal suffrage or else limited it in power by the check of an upper house, feudal and conservative in character. 2. These institutions were anti-parliamentary. The Reichstag could interpellate the Chancellor but could not depose him. To a question or to an interpellation the Chancellor was always free to respond that he did not wish to reply; or he could fix his own time for replying; and finally, if he was in the minority in the house he did not have to resign. 3. The Reich encroached more and more on the domain of the individual states. This encroachment, this evolution toward unitarism, manifested itself in most divers ways. In military matters it took the form of a fusion of fighting contingents which belonged more or less nominally to the various states, but which, with the exception perhaps of Bavaria, placed their whole force at the direct command of the Emperor. As for Bavaria, at the outbreak of the war its “reserved rights” had almost completely disappeared. The development of the legislation of the Empire had accentuated this evolution toward unitarism. In the measure that the Reich legislated in a large number of domains, it wiped out in these matters the different regulations that existed up to then in the individual states. It is true that the execution of the national legislation was entrusted to functionaries within these states; but these officials were under the control of the Bundesrat and subject to the supervision of the Reich. Even in financial matters the liberty of the individual states was more and more limited. While it is true that they conserved their autonomy in matters of duties and taxes, the more the Reich discovered new sources of revenue the more the legislation of the Empire imposed on the several states the task of collecting this revenue and the more narrow became the scope in which the states could manage their own financial affairs, and the dependency of the states grew the more on the financial legislation and the budgetary dispositions allowed them by the Reich.[3] 4. In contrast to the other federated states whose Constitutions were based on the principle of equality of the component states, Germany was based on the notion of the inequality of the states federated in it. Prussia exercised a true hegemony in Germany. In the Bundesrat it was represented by 17 votes whereas the other most favoured state, Bavaria, had but 6; two others, Saxony and Wurtemberg, had only 4 each; two, Baden and Hesse, 3 each; Mecklenburg and Brunswick, 2 each; and all the others but 1 apiece. In addition the Rhineland was also represented by 3 votes in the Bundesrat but these votes were instructed by Prussia. The latter, therefore, had 17 votes, 20 with those of Alsace-Lorraine, 21 with that of Waldeck, since the latter by its treaty of entry into the Confederation had abandoned its governmental rights to Prussia. It had therefore numerically a third of the total strength of the Bundesrat, while in actual influence it counted much more. Only Prussia could feel assured that its representation made it mistress of the situation in the Bundesrat; fourteen votes were sufficient to head off a constitutional change. Consequently Prussia possessed absolute veto power. It must not be forgotten that the representatives of the Princes in the Bundesrat received imperative mandates from them and that the representatives of the state had to cast their votes as a bloc—that is, as a unit. It mattered little, therefore, that such and such was the numerical representation in the Bundesrat of the particular states, that Prussia had 17 votes, Bavaria 6, etc. As to legislative changes relating to the army or the navy, and to taxes feeding the treasury of the Empire, nothing of this kind could be enacted if it was opposed by the “presidency.” And the “presidency” belonged by undisputed right to Prussia. In the Reichstag Prussia exercised the same preponderance. The Reichstag was composed of deputies, one for each 100,000 inhabitants. There Prussia counted much more than half, for its population was nearly two-thirds that of the whole Empire—40,165,217 out of 64,925,933. She also elected 236 deputies out of the 397 that made up the Reichstag. To the same degree she was in control of executive action. While sovereignty nominally resided in the assemblage of Princes in the Bundesrath, it resided no less in the hands of the King of Prussia who had full rights as the German Emperor; and it was he who nominated the Chancellor, the sole responsible minister of the Empire. The Chancellor was almost always a subject of the King of Prussia and, following a rule to which there were few exceptions, at the same time the Prime Minister of Prussia. Thus, therefore, Prussia elected a majority in the Reichstag, and if by some extraordinary chance the latter voted against the desire of Prussia the decree could be nullified by the Prussian representative in the Bundesrath. The King of Prussia was Emperor. He nominated the Chancellor, chief of all the administrative machinery of the state. The King of Prussia was master of the government of the Empire. Germany was a veritable Prussia enlarged. [5] [6] [7] We can now distinguish the essential traits that characterized constitutional Germany on the eve of the war. There was in Germany, under the infinite complexity of written provisions, behind a deliberately effected juxtaposition of the most modern formula by the side of some of the most archaic, a living reality. It was a despotic organization that placed full power in the hands of a feudal monarch. It was, to put it in the words of President Wilson, the largest enterprise of domination that the world has ever known. Such a system and that which made it such an anachronism could not survive the test of war and still less that of defeat. Already during the war several demands for reforms made themselves felt. In proportion as the war was prolonged and the heavier became the burdens that weighed on the people together with the sacrifices that were imposed upon them, there developed a pressure on the part of the people for recognition, for compensation, for the right to participate in a more effective fashion in the conduct of public affairs. The Reichstag appointed a commission to investigate to what extent it was possible to modify the Constitution of the Reich in conformity with the desires of the people. On his part the Emperor in a message on April 7, 1917, declared that it was the duty of the Chancellor to satisfy the exigencies of new times with every means appropriate; and to reconstruct the constitutional edifice in such a way as to insure a free and spontaneous collaboration of all the elements of the nation. The Chancellor seemed to be in accord with the Emperor on the necessity and urgency of a “new orientation.” On the 15th of May, 1917, Bethmann-Hollweg spoke of realizing a programme of “trusting collaboration of the Emperor and the nation.” On July 19, 1917, Michaelis foreshadowed the establishment of a close contact between a government and parliament, the creation of a bond of mutual confidence between the government of the Empire and the Reichstag, in the sense that the management of various affairs should be entrusted to men who, aside from their professional abilities, would enjoy the full confidence of the great parties in the popular branch of the government. They were nothing but vague words; and this “parliamentarization” of the government of the Reich did not commence to show itself until the pressure of defeat came, such as was felt in the summer of 1918. The adoption of a parliamentary régime then seemed the sole means of obtaining from the masses the sacrifices which were still expected of them both on the firing line and in the interior. The true reforms commenced with the letter which the Emperor wrote on September 30, 1918, to the departing Chancellor von Hertling, and which was a real message to the German people and to the Reichstag. “I desire,” said the Emperor, “that the German people shall collaborate more effectively than in the past in the determination of the destiny of our Fatherland. It is my wish therefore that men invested with the confidence of the people shall participate in a large measure in the rights and duties of the government.” Legally it was only an expression of the hitherto recognized imperial will. But from a political point of view this message constituted the recognition of a new system of government, in virtue of which the centre of gravity of political institutions passed from the organs of the government, the Bundesrath and the Emperor, to the popular assembly, the Reichstag. The spirit in which the new reforms were to be carried out and the importance which they were to assume were made clearer several days later when, on October 5, 1918, Chancellor Maximilian of Baden in a programme speech addressed in the Reichstag said, “It is in the essence of the system of the government which we are now instituting that I now state clearly and without reservation the principles by which I shall seek to fulfil my heavy responsibilities. These principles were accepted before I assumed my duties as Chancellor in an agreement reached between confederated governments and the chiefs of the parties of the majority of this Chamber.… It is only when the people take an active part to the largest measure in the determination of the destiny of the nation; and when the sense of responsibility is also shared by the majority of the political chiefs freely elected, that a statesman can accept direction of the helm with confidence and himself participate in this responsibility. Otherwise the shoulders of one man will be too feeble to support the immense responsibility that now confronts our government. I am convinced that the manner in which the directing government has been formed to-day with the collaboration of the Reichstag is not temporary in its nature and that in times of peace hereafter no government can be formed that has not the support of the Reichstag, that does not lean on the Reichstag, and that does not take from the Reichstag its principal chiefs.” As a consequence two laws were passed which carried the date of October 28, 1918. They were designed to meet the three most important exigencies of the hour: 1. They realized the parliamentarization of the government of the Reich. Article 15 of the Constitution of 1871, which dealt with the nomination of the Chancellor had the following amendment added: “The Chancellor in order to continue direction of the affairs of the Reich must have the confidence of the Reichstag. The Chancellor is responsible for all the political acts of the Emperor performed in the exercise of his constitutional rights. The Chancellor and his representatives are responsible for the conduct of affairs to the Bundesrat and the Reichstag.”[4] This text established not only the responsibility of the Chancellor; it also recognized constitutionally the right of parties or their parliamentary groups to participate in the nomination of the Chancellor and it specified that when the confidence of the Reichstag is withdrawn from the Chancellor he must resign. The responsibility of the Chancellor, who was answerable both to the Reichstag and to the Bundesrat, extended not only to the general and particular decrees issued by the Emperor and countersigned by the Chancellor but also to acts [8] [9] [10] of a political nature on the part of the Emperor; and it followed from this that the Chancellor and his representatives were also responsible for their own actions of the same character. Further, one of the laws of October 28, 1918, in abrogating paragraph 2 of Article 21 of the Constitution of 1871, permitted thereafter members of the Reichstag to become secretaries of state while fulfilling at the same time their functions as members of the Reichstag. On the other hand the incompatibility between the Bundesrat and the Reichstag (article 9, paragraph 2, of the Constitution of 1871) was not abolished. It followed from that, therefore, that while a member of the Reichstag could become a Secretary of State, he could not become a member of the Bundesrat and therefore could not become Chancellor; for that office was open only to members of the Bundesrat. 2. The laws of October 28, 1918, broadened considerably the authority of the Reichstag and diminished correspondingly the Imperial authority in the right to declare war and conclude treaties. The Emperor could never again under any circumstances declare war in the name of the Reich without the consent of the Reichstag and the Bundesrat. He was required to obtain the same consent of the two assemblies to conclude treaties of peace and all other treaties that touched matters in which either of the assemblies had competence. 3. The authority of the Emperor as military commander was put under parliamentary control. These reforms constituted certainly important progress along the road of parliamentary rule and it can be said that it placed Germany thereafter among the nations that are governed by such a system. The texts of the laws of October 28, 1918, were accompanied by a letter of the Emperor to the Chancellor in which he wrote: “Prepared by a series of governmental acts a new order comes into being in which fundamental rights of the Emperor pass to the people. After the events of these our times the German people must not be denied a single right that is needed to guarantee them a free and happy future. I acquiesce together with my highest colleagues in the decisions of the representatives of the people and do so with the firm determination to co-operate to the greatest effectiveness, convinced that I will thus serve the welfare of the German people. The Emperor is at the service of the people.” German jurists with good reason characterized this letter as a “political abdication.” But the changes which went with it came too late, and a simple “political abdication” appeared thereafter as strikingly insufficient. The German Empire was falling into ruin and it was no longer a question of partial reforms. 2.—THE FALL OF THE OLD RÉGIME. Revolution broke out in Germany at the beginning of November, 1918. From the end of October riots and revolts had been taking place on board the vessels of the Imperial navy. But on November 4 at Kiel there broke out a revolt among the sailors, who became masters of the situation. They formed a Council of Soldiers which presented to the mayor of the city a list of demands—the liberation of arrested sailors; the suppression of a military hierarchy outside of the service; a demand that the approval of the Council of Soldiers be necessary for all military measures, etc. The next day the workers of Kiel declared a general strike and formed Workers Councils which united with Councils of Soldiers consisting of the marines of the city. From Kiel the movement spread the same day to Lübeck and to Hamburg. On the 6th, a general strike was proclaimed in the dock yards of Hamburg and revolution broke out in Bremen. Simultaneously revolution won other cities: Hanover, Cologne, Magdeburg, Brunswick, Leipzig, and Dresden, where Councils of Workers and Soldiers were formed. From November 4th to the 9th all North Germany, the South and the Centre fell into the hands of the Councils. The movement, which at its beginning could be considered as principally a military revolt, took on for the first time a political character most clearly marked in Munich, where in the night of the eighth of November after a great manifestation by the Independent Socialists serious disturbances broke out. The royal family was expelled and the Republic proclaimed. With few exceptions the revolutionists met with no opposition. The bourgeoisie did not react. It was enough for some thirty marines from Kiel to enter a town or for a group of soldiers returning from the fighting front to present themselves at the city hall. Immediately every one yielded to their orders and the Councils were able to install themselves in power without firing a shot. In this revolution, to which no serious opposition had been presented and which appeared rather as the collapse of an old régime whose reason for existence had vanished, there lacked only to complete it the fall of the capital and the abdication of the monarch. At Berlin the military power devoted itself to the defence of the city. On the fifth a state of siege was proclaimed and on the seventh a decree forbade the formation of Councils of Soldiers and of Workers “on the Russian model.” But the same day the Social Democrats sent to Chancellor Maximilian of Baden the Secretary of State Scheidemann, the bearer of an ultimatum demanding the immediate abrogation of the decree forbidding meetings; such a [11] [12] [13] transformation of the government of Prussia that those in control of it should be of the same political complexion as the majority of the Reichstag; the strengthening of the Social Democratic influence in the government; and finally the abdication of the Emperor and the renunciation by the Crown Prince of all claims to the throne. Although confronted with imminent revolution only officials and functionaries were overthrown. The bourgeoisie here as elsewhere looked on passively and attempted no resistance. As for Maximilian of Baden he hoped to find a basis for negotiation. He pondered measures to parliamentarize still further the old government and contemplated the immediate convocation of a constituent assembly to develop a new constitution. Meanwhile he did not reply to the ultimatum of the Social Democrats. Whereupon there were organized Councils of Workers and Soldiers in Berlin who made themselves felt with their first act on the morning of the ninth of November by declaring a general strike. The Chancellor could no longer delay action. On the ninth at two o’clock in the afternoon, after a telephonic conversation with William II, he announced officially that the Emperor had abdicated and that the Crown Prince had renounced the throne. He declared that he, Maximilian of Baden, would remain in office until the installation of the Regent. He would propose to the Regent the nomination as Chancellor of the Social Democratic leader Ebert, and the convocation of electoral colleges with the view of choosing a national constituent assembly to which would be given the task of directing the future of the state. Thus the Chancellor hoped to the last moment to effect in an almost legal manner the transition from the old to the new Germany. But the pressure of events was too strong for him and he was not able to realize his hope. In the early part of the afternoon, Ebert accompanied by Scheidemann appeared at the Chancellery and declared in the name of their party that in order to avoid bloodshed and to maintain public order they considered it necessary to take power in their hands and assume the direction of the government. When Vice-Chancellor von Payer asked Ebert if he intended to conduct the government on the basis of the Constitution or in the name of the Councils of Workers and Soldiers, Ebert replied, “Within the frame work of the constitution.” After short deliberation and in view of the fact that the troops in Berlin had deserted the old government the cabinet of Maximilian decided to place in the hands of Ebert the powers of Chancellor of the Empire “subject to the approval of the legislature.” Ebert at once entered into office without the question of the regency being decided. But the Socialist parties pressed for the proclamation of a republic. This proclamation took place several minutes after the installation of Ebert as Chancellor. In answer to the clamor of a great gathering of the people in front of the Reichstag Scheidemann appeared on the terrace and declared in substance, “We have conquered everywhere along the line. The old régime is no more. Ebert is Chancellor. Our deputy, Lieutenant Göhre, is associate minister of war. We must now strengthen our victory and nothing will stop our march. The Hohenzollerns have abdicated. Let us see to it that this magnificent day is marred by nothing. May this be a day of eternal glory in the history of Germany. Long live the German Republic!” The same day and almost the same hour similar events took place in all the states of Germany. Everywhere under the threat and under the pressure of the Councils of Workers and Soldiers the old Diets and the old governments vanished. The kings, the grand dukes and the dukes resigned or were simply replaced. The republic was proclaimed. One can say that on November 9, 1918, when at two in the afternoon in front of the Reichstag Scheidemann proclaimed the Republic, the ancient régime had fallen in Germany. From this date on all the organs of government which had incarnated the old régime disappeared or were entirely transformed. The Bundesrat, in which the sovereignty of the old Reich was incorporated, ceased to exist as such. It is true that the new leaders of the Reich permitted the Bundesrat “the right to continue the exercise of administrative powers according to laws and regulations” (decree of November 14, 1918); and thus there continued a Bundesrat of limited power. But it was no longer the old Bundesrat, for the governments of the individual states, having changed through revolution, sent new delegates who no longer represented princes but republics. Naturally there was no longer any question of the Emperor. Having lost his crown on November 9, he fled across the Dutch frontier on the 10th, as a private individual and his letter from Amerongen on November 28, 1918, in which he, William II, declared that he expressly renounced for all time the crown of Prussia and thereby “the Imperial German crown,” had only, so to speak, a moral effect. After the resignation of Maximilian of Baden there was no longer a Chancellor of the Empire. It is true that he had passed on his powers to Ebert but we will see shortly that Ebert did not consider himself as such except for a few hours. As for the Reichstag whose last session ended on October 26, 1918, it was not exactly dissolved after the revolution. At the same time no formal dissolution was necessary, for a new sovereignty had been installed and had taken the place of the old Reichstag. Meanwhile, taking advantage of the fact that no formal decision had been made as to the old Reichstag the chairman of that assembly, Fehrenbach, refused to recognize its implied dissolution. On November 12, 1918, he addressed a circular to the deputies in which he declared that owing to the exigencies of the hour and without the consent of the government he would convoke the Reichstag, reserving to himself the right to announce later the time and place of the assembly. The revolutionary government thereupon notified Fehrenbach that a [14] [15] [16] conflict would ensue thereat. Notwithstanding this Fehrenbach several days later repeated the announcement of the convocation. But the old Reichstag never met again. In February, 1919, it was dissolved by decree which also declared that its last session was dated as of November 9, 1919. 3.—THE REPUBLIC OF THE COUNCILS. While the Empire was collapsing there arose quickly on the ruins of the old edifice a new structure. In place of the Empire, the government of a bourgeois and military oligarchy, came the dictatorship of the proletarian masses at one blow, the republic of the working class. Everywhere Councils of Workers and Soldiers were formed, which, taking political power in their hands, appeared to be thereafter the only and real holders of sovereignty. But the Councils lacked the needed agreement in aim and action. Two diametrically opposed tendencies divided the new powers in control. On the one hand the members of the Social Democratic party within the Councils pursued a purely political goal—the creation of a German republic on a democratic basis to be effected by a Constituent Assembly to be convoked as soon as possible. On the other hand the Independent Socialists, the Communists, the Spartacists and other left wing elements set up as the principal aim an economic change—the quick and complete socialization of all means of production. But they also had in view a political objective, the establishment of a dictatorship of the proletariat on the model of the Russian Soviet Republic, by the complete organization of the system of Councils of Workers and Soldiers. The particular question on which the antagonism between these two groups broke out was whether or not there should be called a new constituent assembly. The revolution was undoubtedly the work of the Independents. Their leader, Ernest Däumig, had been to Moscow to study the Bolshevist movement, and Russia had come back with him in the persons of Joffe and his agents of propaganda. Already during the strikes of January, 1918, which had been organized by them, there had appeared for the first time in Germany Workers Councils; and in the days preceding the insurrection of November, 1918, Councils of Workers and Soldiers had been secretly organized at Kiel as well as in Berlin. The Social Democrats, on the other hand, to the last moment warned the people against the consequences of an ill-considered insurrection. But when the success of the revolts seemed assured it was seen that many who had condemned it were now joining it. Thanks to Maximilian of Baden it was the Social Democrats, Ebert and Scheidemann and the trade unions that were installed in power on the 9th of November, 1918. The history of the German revolution is the story of a revolution made by one political group and its fruits garnered by another. At first the two Socialist parties divided power equally. But after several weeks of collaboration the Social Democrats eliminated the Independents and remained in sole control of the government. 1. At first the two socialist parties participate equally in control.—On the 9th of November early in the afternoon Ebert had received from the former Imperial cabinet his functions of Chancellor of the Empire. He considered himself such at the time. His intention was to nominate Scheidemann and Landsberg as secretaries of state, but to keep in the cabinet the old state secretaries; in addition to which the Independent Socialists were to enter the government. He proclaimed immediately several decrees signed, “Chancellor of the Empire, Ebert.” It must be observed that up to then the change which had been brought about constituted without doubt a revolution, but a revolution remarkably moderate. It is true that constitutional right did not give the Chancellor the authority to name his successor; from the legal point of view the nomination of Ebert certainly constituted a violation of the old constitutional law. Nevertheless in its outer aspect the new government with Ebert at the head sought to appear as the expression of the will of the former government. The idea of a radically new law had not yet made its appearance. In the course of a few hours, however, the situation completely changed. The Independents submitted as the condition of their entry into the government the following twofold demand: The cabinet was to consist only of socialists, and it was to recognize officially that political sovereignty resided in the hands of the Workers and Soldiers Councils. The next day the Social Democrats accepted these conditions—for the Independents were still the actual power in control and “the street belonged to them”—and a government of six chiefs was constituted. It comprised three Socialist Democrats, Ebert, Scheidemann and Landsberg, and three Independents, Haase, Dittmann and Barth.[5] In the evening there was held at the Busch Circus a plenary session of the Workers and Soldiers Councils of Berlin. This assembly passed a resolution which declared among other things the following: “Old Germany is no more. The dynasties are gone forever. The holders of thrones are stripped of their power. Germany is now a Republic, a Socialist Republic. The Workers and Soldiers Councils are now the holders of political power.” Then the assembly nominated an executive committee (Vollzugsrat) of twenty-four members, six Social Democrats, six Independents, and twelve Soldiers, and they proclaimed as the men in control of the government the six named above. Following this meeting the cabinet was constituted. It formed a “college” of which all the members had equal rights and which took the name of “Council of Commissars of the People” (Rat der Volksbeauftragten); Ebert and Haase were nominated chairmen. All the decrees of the government would have to be promulgated by these two in accord and signed jointly by them. It was, so to speak, a Chancellorship of two. The Council of Commissars of the People thus found itself invested with political power by the General Assembly of the Councils of Workers and Soldiers of Berlin. Making immediate use of its power the Council of Commissars issued on November 12, 1918, a proclamation which constituted a declaration of rights of the new régime: The state of siege [17] [18] [19] was revoked. Freedom of assembly and meeting were restored without restriction. All political offences were amnestied. The eight-hour day went into effect on January 1, 1919. All elections thereafter would be held on the basis of equal, direct, universal suffrage based on proportional representation for all men and women who had passed the twentieth birthday, etc. But difficulties arose soon between The Council of Commissars of the People and the Executive Committee of the Workers and Soldiers Councils of Berlin. Each of these two bodies considered itself the chief holder of sovereignty a...