to camp in time of peace, or to obtain any permission in order to emigrate;1 finally, every male German between the ages of seventeen and forty-five, who does not belong to the branches of the service above mentioned, shall belong to the Landsturm 2 which shall serve, as the rule, only for defense, and, in time of peace, is not subject in any respect to the military code.3 In regard to the navy, the constitutional requirements are that all German sailors and all male Germans employed in marine service are subject to duty in the navy, but are freed thereby from duty in the army; that the distribution of the quotas among the commonwealths shall be in proportion to the sea-faring population holding citizenship in the respective commonwealths; 5 and that the harbors of Kiel and Jade shall be Imperial harbors.6 The Imperial legislature may thus prescribe the peace footing of the army, construct the army budget, and enact the code for the government of the army. As respects the navy, the legislative power extends apparently only to the fixing and voting of the appropriations for its construction and maintenance. The legislature may, of course, fix the peace footing of the army and vote the army and navy budgets annually if it so determines; but, as I have already pointed out, this would not correspond with the natural conditions and necessities of the great German state. More extended and permanent provisions are required as a matter of policy. As a matter of fact, the imperial legislature has dealt with these subjects septennially instead of annually. The legislation in respect to the navy is exclusive to the Imperial government and subject to no exceptions. No com 1 Verfassungsänderung des Art. 59; Reischgesetzblatt, 1888, S. 11 ff. 2 Ibid. 4 Reichsverfassung, Art. 53, § 4. 8 Ibid. 6 Ibid. Art. 53, § 2. 7 Ibid. Arts. 60 & 61, § 2; Ibid. Art. 62, §§ 3 & 4. Schulze, Lehrbuch des deutschen Staatsrechts, Zweites Buch, S. 285. monwealth of the Empire may legislate at all upon this matter.1 The legislation in respect to the army is also exclusive to the Imperial government.2 The constitution ordained, in the beginning, the immediate introduction of the entire Prussian legislation into the Imperial army except that part referring to religious services and observances.3 This, however, was to hold only until an harmonious organization of the whole. German army should be attained, and was then to give way to Imperial legislation upon the subject. Bavaria was exempted wholly from the introduction of the Prussian military code during this transition period, and allowed to retain her own military legislation.5 Württemberg was partially exempted. In both cases, however, the existing commonwealth laws were to give way to the Imperial legislation whenever that should be enacted. 10. Legislation in respect to Administrative Measures. The constitution confers upon the Imperial legislature the power to provide the measures for the execution of the laws, i.e. the ordinances. The clause of the constitution in reference to this subject is expressed in negative language. It reads as follows: "The Federal Council shall have power to pass the general administrative ordinances necessary to the execution of the Imperial laws, unless otherwise provided in the Imperial laws." This language has led the commentator Laband to make the following distinctions and lay down the following propositions, viz; that in a formal sense there are two classes of ordinances, or measures for the execution of 1 Reichsverfassung, Art. 53, § 1; Schulze, Lehrbuch des deutschen Staatsrechts, Zweites Buch, S. 285. 2 Reichsverfassung, Art. 63; Schulze, Lehrbuch des deutschen Staatsrechts, Zweites Buch, S. 257. 3 Reichsverfassung, Art. 61. 4 Ibid. Art. 61, § 2. 5 Bündnissvertrag mit Bayern, v. 23, Nov., 1870; Bundesgesetzblatt, 1871, S. 9 ff. 6 Militair-Konvention zwischen dem Nordd. Bunde und Württemberg, 21-25 Nov., 1870, Bundesgesetzblatt, 1870, S. 658. 7 Reichsverfassung, Art. 7, § 1, ¶ 2. laws, — the one containing prescripts binding upon the ordinary subjects of the state, the other containing only directions. by superior to inferior officials; that the former are substantially laws, and cannot, therefore, in a constitutional system be issued except by the legislature or by some organ or person to whom the legislature may, in each specific case, delegate the power; that in the German Imperial system the former species of ordinances can be issued only by such organ or person as the legislature specifically designates and invests with the power thereto, but that the second kind of ordinances may be issued by the Federal Council unless the Imperial legislature makes some other provision therefor.1 Zorn, on the other hand, ignores this distinction between ordinances which contain prescripts binding upon the ordinary subjects of the state and those which contain only directions from superior to inferior officials, and, therefore, claims for the Federal Council the power to issue the former as well as the latter, in the absence of any provision made by the Imperial legislature therefor.2 Laband seems to confess that the practice is against him. We need not, for our purpose, go further into this discussion. It is entirely evident that the primary and, so far as the commonwealths are concerned, the exclusive power to issue, either directly or indirectly, the ordinances for the execution of the Imperial laws is in the Imperial legislature, and that the Federal Council has only a residuary power in this respect, dependent for its exercise upon the implied permission of the legislature. Some exceptions to this rule in behalf of the Emperor are provided in the constitution, which will be considered when we come to treat of the powers of the Emperor. 1 Laband, Das Staatsrecht des deutschen Reichs; Marquardsen's Handbuch, S. 85 ff. 2 Zorn, Das Reichs-Staatsrecht, Bd. I, S. 129. 3 Laband, Das Staatsrecht des deutschen Reichs; Marquardsen's Handbuch, S 90, Anm. I. 11. Legislation in respect to Imperial Territory not under the Federal System. The Imperial legislature has exclusive legislative power in Alsace-Lorraine. There is no provision of the constitution which expressly and specifically confers the power, but it springs out of the necessity of the case. Alsace-Lorraine is not a commonwealth of the Empire. It is an Imperial territory, and its relation to the Imperial government is the same as that of the territories of the United States to our central government. The Imperial legislature has naturally, from time to time, made provision for more or less local government in Alsace-Lorraine; but such government has always rested upon an Imperial statute, which might be changed or abolished by a subsequent act of the Imperial legislature, and all the laws made by such local organs can only be regarded as Imperial laws enacted by virtue of a delegated power from the Imperial legislature.1 Alsace-Lorraine came to the German Empire through conquest in successful foreign war. The precedent established by the Imperial legislature in making full disposition in regard to the same, and also the precedent established by the Imperial legislature in making disposition of the war indemnity paid by France to the Empire,2 fixes the custom of the constitution that the Imperial legislature shall make disposition of all captures in war. 12. Legislation in respect to Representation. The constitution confers upon the Imperial legislature the power to fix by statute the election districts for the Diet. The constitution does not require that any notice shall be taken of the commonwealth lines in making such distribution; and it distinctly and expressly declares that each member of the Diet represents the entire Empire. Nevertheless, 1 Schulze, Lehrbuch des deutschen Staatsrechts, Zweites Buch, S. 367. 8 Reichsverfassung, Art. 20, § 2. 4 Ibid. Art. 29. the Imperial legislature has not created any districts which cross commonwealth boundaries.1 13. Legislation in settlement of Constitutional Conflicts within the Commonwealths. The constitution confers upon the Imperial legislature the power to decide, by statute, constitutional conflicts within any commonwealth, provided no constitutional organ shall have been created by the commonwealth for such decision, and provided one party shall have appealed the question to the Federal Council, and the Federal Council shall not have been able to effect the settlement thereof by mediation. Upon the failure of the Federal Council to dispose of the question in this manner, the constitution requires that the Federal Council shall initiate legislation upon the subject and that it shall then be determined by ordinary legislation.2 Conflicts of a political character between commonwealths must be finally determined by the Federal Council alone, when appeal shall be made to it by one of the parties.3 This, however, is one of the judicial powers of the Federal Council, which I shall treat under the title of the Judiciary. 1 Bundesgesetzblatt, 1869, S. 145; Reichsgesetzblatt, 1873, S. 373. 8 Ibid. Art. 76, § 1. |