CHAPTER IX.

COMPARISON OF THE CONSTITUTIONS OF THE UNITED STATES

AND OF THE GERMAN EMPIRE UPON THE SUBJECT OF LEGISLATIVE POWERS.

In contrasting the powers of the central legislatures in the two federal systems of government, vis; that of the German Empire and that of the United States, two points stand out quite saliently.

I. The first is that, while the German Imperial government is far less centralized in administration, as we shall see in detail further on, it is far more centralized in legislation. This appears most significantly in the realm of private law. The entire system of private law, both substantive and formal, and the entire system of judicial organization are made subject to Imperial legislation. In the jurisprudence of the United States, on the other hand, this domain is assigned for the most part to the commonwealths.

The explanation of this difference lies undoubtedly in the fact that the system of private law in the United States, upon its substantive side at least, is in very large degree, and always has been, harmonious. It was derived from a common source, vis; the English common law, and has been devel oped more by judicial decision than by legislative acts; ie. it has been chiefly developed by that branch of government which seeks more than any other to establish and perpetuate legal harmony. Through the reception of the Roman law, canon and civil, in the later middle ages the German commonwealths gained, indeed, a common basis for their private law; but in the seventeenth and eighteenth centuries this common

law was overridden by local statutes and codes, apparently fashioned more with the purpose of establishing peculiarity and variety than of perpetuating harmony and uniformity. This status corresponds only with the system of a confederacy of states, and therefore, when the transition from the confederate system to that of the consolidated state with a federal government was accomplished for the German Empire, the Imperial legislature was of course empowered to create a common private law by legislation, i.e. by Imperial codification. There is no reasonable doubt that, should the commonwealths in the United States introduce any considerable degree of variety into their private law, the legislature of the central government would sooner or later be authorized and required to codify the whole system of private law for the United States.

2. The other point of special contrast is the fact that, while the legislative power of the Imperial government extends much further than that of the government of the United States, it is not, on the other hand, so exclusive as that of the government of the United States, so far as the latter goes.

There are undoubtedly two reasons for the more extensive concurrent legislative power in the German commonwealths. The first is the fact, already noted, that the Imperial legislature may, if it will, oust the commonwealths from the legislative control of almost every subject of any importance. The second is the fact that, in the whole political and juristic system of the German Empire, there is but a very narrow and confused conception of a realm of constitutional civil liberty into which no government shall intrude. The idea rather prevails that some government must be able to regulate and control everything; if not the central government, then the commonwealths. This view is not, however, peculiar to the German system. It is common to the whole

1 Munroe Smith, Political Science Quarterly, vol. 2, no. 1; vol. 3, no. I.

of Europe. It is in this respect that the United States has made greatest advance over all the European states. a far greater advance in constitutional law than the change from the hereditary to the elective executive. At the present time, however, we do not seem fully to appreciate this merit of our own system. The exaggerated notions of the police power of the commonwealths, which are becoming current in our judicial decisions, are threatening the constitutional immunities of the individual with impairment, if not with destruction.

It will be seen from this comparison, however, that in a federal system of government it is hardly possible to draw the line exactly and permanently between the subjects which should be brought under the legislative power of the central government and those which should be left to the commonwealths. We can certainly say that the powers vested in the central legislature should include, at the least, the regulation of foreign relations, of commerce and intercourse both with foreign states and between the commonwealths, of the monetary system, the military and naval systems and the postal system. But as the state becomes more and more completely nationalized, the legislative powers of the central government must naturally extend with the growing harmony of view upon all essential subjects; until at last, with the complete nationalization of the state, the commonwealths will be seen to be, in their essence, divisions of administrative autonomy; and commonwealth legislation will be seen to be, in its nature, administrative ordinance. That is to say, federalism in legislation will pass away with the complete nationalization of the state, and there will remain only the principle of local autonomy in administration.

The present royal house, i.e. the house of Brunswick, received the crown by virtue of an act of Parliament, viz; 12 and 13 William III, c. 2. This act provided that upon the death of King William and of Queen Anne without issue the crown should pass to Sophia, the electress and duchess dowager of Hanover. Sophia was a granddaughter of King James I, through his daughter Elizabeth, the Queen of Bohemia, and she was the nearest relative of King James I, who held to the Protestant religion. The act of Parliament did not elect an entirely new family to the throne, but it passed over the branch to which the crown would have descended according to existing laws and customs, and conferred it upon a different branch of the family. No act of Parliament has ever undertaken to do more than this; but if the Parliament can constitutionally do this, there is no reason which can be adduced to prevent it from electing an entirely new royal family. It may undoubtedly do so if it will. It is not likely that an entirely new family would be able to command the loyalty and respect of the masses in the same degree as a branch of the old, and it would therefore be unwise to select

1 Blackstone, Commentaries upon the Laws of England, Bk. 1, c. 3, p. 216

such a family so long as descendants of the old royal house remained, who were otherwise qualified to wear the crown; but that is a question of policy, not of constitutional powers. It looks therefore as if the crown were held merely by an ordinary statute of Parliament. This is true in form, but not in substance. In substance and reality the tenure of the crown is constitutional. I arrive at this conclusion by the following course of reasoning. The crown has, in its absolute veto over the acts of the two legislative bodies, the legal power of self-preservation. This veto power cannot be legally overcome in any possible way except by the election of a new House of Commons upon the direct issue. Such a House of Commons is then not merely a legislative chamber, but the state in sovereign organization; and when it acts upon the question which formed the issue at the election, it makes constitutional law as distinguished from ordinary statute law, for it can then legally compel both Lords and King to bow to its will. It is thus clear that the crown rests upon that portion of the English law, which we term the constitution. There is, however, this peculiarity about the question when viewed from an American standpoint, vis; that this constitutional tenure may be modified, changed, or even destroyed by an ordinary statute, provided the wearer of the crown at the particular moment shall agree to the same. No American executive could thus substitute, at will, statute law for constitutional law and confound the distinction between these domains of law. It is true that the legislatures in the American system may encroach temporarily upon the constitutional prerogatives of the executives, but their acts in this respect remain statute law and are never regarded as parts of the constitution.

II. The Law of Succession to the Crown.

The family or the branch of the family wearing the crown holds, as we have seen, by a constitutional act of Parliament. The succession within the family is regulated by the com