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2. Legislation in respect to Foreign Commerce.

The constitution confers upon the Imperial legislature the power to regulate commerce and intercourse between the Empire, its citizens and subjects, and foreign states, their citizens and subjects.1 This power is not in all respects exclusive to the Imperial legislature. As the general rule,

indeed, we may say that the power is concurrent with that of the commonwealths, subject always to the fundamental principle enunciated in Article 2. of the constitution, viz; that the Imperial legislation shall take the precedence of, and displace and exclude, the legislation of the commonwealths upon the same subject, provided always the subject be one upon which the Imperial legislature may constitutionally act. This general statement is, however, limited by two exceptions and by one modification. To the commonwealths of Bavaria and Württemberg is reserved the power to regulate exclusively their postal and telegraphic intercourse with their immediate foreign neighbors.2 The Imperial legislation is exclusive in regard to customs, and in regard to postal and telegraphic intercourse with foreign states, except in the cases just mentioned; and the tolls or charges which may be levied and collected by the commonwealths for the use of the harbor privileges and maritime establishments, located within their respective borders, are restricted to the amounts necessary to maintain the same in good order and repair.5 3. Legislation in respect to Internal Commerce.

The constitution confers upon the Imperial legislature the power to regulate commerce and intercourse between the commonwealths. The constitution does not make this power exclusive to the Imperial legislature except when such commerce and intercourse is mediated by the post-office and the telegraph. In all other cases, the commonwealths

1 Reichsverfassung, Art. 4; §§ 1, 2 & 7; Art. 35 & 54.
8 Ibid. Art. 35, § 1.
4 Ibid. Art. 52, § 2.

2 Ibid. Art. 52, § 3.

5 Ibid. Art. 54, §§ 2 & 3. 7 Ibid. Art. 52, §2.

Ibid. Art. 4, §§ 1, 3, 8, 9, 10; Art. 45 & 48; Art. 52, § 2; Art. 54.

may act, in respect to this subject, concurrently with the Imperial legislature, under the limitation that the Imperial legislation takes the precedence of, and displaces and excludes, the legislation of the commonwealths, when directed to the same point. Furthermore, as in the case of commerce and intercourse with foreign states, the constitution prohibits the commonwealths from levying and collecting charges for the use of harbor privileges and maritime establishments located within their respective borders beyond the amounts necessary to maintain the same in good order and repair.1

The constitution confers upon the Imperial legislature the power to regulate commerce and intercourse within the commonwealths, in so far as the same shall be mediated by the railways, the post-office and the telegraph.2 From this power of the Imperial legislature the commonwealth of Bavaria is exempted as to the regulation of the internal railway system, except in the case of the railways constructed or chartered by the legislature of the Empire for the general defense or the general welfare. Since the Imperial legislature is the body which must determine when the necessity for such construction or authorization to construct arises, the constitutional exemption of Bavaria may be made substantially nugatory by Imperial legislation. The commonwealths of Bavaria and Württemberg are exempted as to the regula tion of the internal postal and telegraphic systems, in so far as the fixing of the charges and ordinances of administration is concerned.5

This power of regulating commerce and intercourse within the commonwealths through the railway, postal and telegraphic systems of communication is not exclusive to the Imperial legislature in the case of the railway system, but is

1 Reichsverfassung, Art. 54, §§ 2 & 4.

2 Ibid. Art. 4, §§ 8 & 10.

3 Ibid. Art. 41, § 1.

4 Schulze, Lehrbuch des deutschen Staatsrechts, Zweites Buch, S. 204.

5 Reichsverfassung, Art. 52, § 2; Schulze, Lehrbuch des deutschen Staatsrechts, Zweites Buch, S. 194.

so in the cases of the postal and telegraphic systems.1 The commonwealths have, therefore, the power of legislation in reference to the railway system concurrently with the Imperial legislature, subject always to the modification that the Imperial legislation takes the precedence of, and displaces and excludes, the legislation of the respective commonwealths when directed to the same point.2

The constitution confers upon the Imperial legislature the power to restore roads and waterways, and to build railroads in the interest of the common defence and the general intercourse.

As I have already pointed out, the fact that the Imperial legislature may determine freely and finally what waterways, roads and railroads are to be regarded as necessary to the common defence and general welfare makes the limitation illusory from the standpoint of powers. The Imperial legislature may enact the construction of any waterways, roads or railroads anywhere in the Empire. This power is of course concurrent with that of the respective commonwealths, under the modification always that the Imperial laws take the precedence of, and displace and exclude, those of the respective commonwealths when directed to the same point.5

The constitution confers upon the Imperial legislature the power to regulate the system of weights and measures for the entire Empire. This power is one which the commonwealths may also exercise in the absence of Imperial legislation upon the given subject, but the Imperial legislation will always displace and exclude the acts of the commonwealths when directed to the same point.

4. Legislation in respect to the Monetary System.

The constitution confers upon the Imperial legislature the power to regulate the monetary system, in respect to

1 Schulze, Lehrbuch des deutschen Staatsrechts, Zweites Buch, SS. 194, 204. 2 Reichsverfassung, Art. 2.

5 Ibid. Art. 2.

8 Ibid. Art. 4, § 8.

6 Ibid. Art. 4, § 3.

4 Ibid. Art. 41. 7 Ibid. Art. 2.

the coinage of money,1 the emission of bills of credit2 (i.e. paper currency), the banking system, and the borrowing of money or the assumption of security under any form of indebtedness which that legislature may determine.

The power to borrow money or assume a guaranty on the credit of the Empire is, of course, exclusive to the Imperial legislature. On the other hand, the commonwealths have still the power of concurrent action in reference to coinage, the emission of bills and the regulation of the banking system, under the limitation always that the Imperial legislation upon these subjects takes the precedence of, and displaces and excludes, that of the respective commonwealths.5

5. Legislation in respect to Crime and Civil Relations. The constitution confers upon the Imperial legislature the power to regulate criminal law, private law and judicial organization and procedure within the Empire. The extent of the power conferred is thus expressed in an amendment to Article 4, paragraph 13. The original provision was not so comprehensive. It read: "The law of contracts, criminal law, the law of commerce and exchange and judicial procedure," shall be subject to Imperial legislation. These categories do not cover the whole domain of private law. Consequently we find other provisions of the original constitution bearing upon this subject. Paragraphs 5 and 6, Article 4, confer legislative power over patents and copyrights; paragraph 1, Article 4, confers it in regard to insurance, domicile and settlement, and the pursuit of industries; paragraph 16, Article 4, in regard to the press and the right of association; and paragraphs 11 and 12, Article 4, in reference to the certification, effect and execution of the judicial proceedings of one commonwealth within another, and requisi

1 Reichsverfassung, Art. 4, § 3.

4 Ibid. Art. 73.

2 Ibid. Art. 4, § 3. 8 Ibid. Art. 4, § 4.

5 Ibid. Art. 2.

6 Ibid. Art. 4, §§ 11, 12, 13, und Verfassungsänderung, Reichsgesetzblatt, 1873,

S. 379.

tions made by one commonwealth upon another. All of these provisions, except perhaps the last, may now be regarded as comprehended by the general language of the amendment to Article 4, paragraph 13.

To this all-comprehensive power of the Imperial legislature over the entire system of criminal law, private law and judicial procedure, there is one exception. The power to regulate its own law of domicile and settlement is reserved to the commonwealth of Bavaria.1 This is a provision of the original instrument, and it might be argued that the amendment of 1873 above mentioned abolishes it, since the amendment expresses the last will of the sovereign. It is distinctly declared, however, in the introductory words to the amendment, that the amendment shall take the place of paragraph 13, Article 4 of the constitution. of the constitution. It does not prescribe, indeed, that its effect shall be limited to that article and paragraph. I have not found any commentator who claims that the amendment abolishes the above-mentioned exception in behalf of Bavaria, and the practice still follows the original provision; but there is certainly here an important hermeneutical question, and a technical way open for disposing of one of those annoying immunities, whenever the public opinion may strongly favor its removal.

The power of the Imperial legislature in this entire domain is, however, not exclusive. The commonwealths may act, in the absence of Imperial legislation, upon any subject of this category, under the modification, however, that Imperial legislation will, at any time, displace and exclude that of the respective commonwealths, when directed to the same point.2 6. Legislation in respect to Citizenship.

The constitution confers upon the Imperial legislature the power to regulate the subject of citizenship. I have already pointed out, in another connection, that the commentators upon the constitution deny that there exists any citi1 Reichsverfassung, Art. 4, § 1. 3 Ibid. Art. 4, § I.

2 Ibid. Art. 2.

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