render the decision if it will. The term settlement certainly includes decision. How the settlement shall be accomplished is, therefore, a question for the Federal Council itself to determine. It is also a question for the Council alone to determine whether the controversy to be settled be of a political or a private nature. 2. The constitution confers upon the Federal Council the power to adjust, by friendly intermediation, constitutional conflicts within the commonwealths, when called upon by either party to the conflict, in case the constitution of the commonwealth concerned does not provide any organ for the decision of such questions; and if the Council should be unable to effect a settlement in this manner, the constitution confers upon it the further power to bring the conflict to conclusion by way of Imperial legislation.1 The constitutional conflicts within a commonwealth here referred to are conflicts between the legislature and executive only, in regard to their respective powers and relations under its organic law. In the case of the three city commonwealths such conflicts can arise, in the sense here intended, only between the Senates and the Common Councils. A dispute within a princely commonwealth, concerning the succession to the princely power therein, is not included under this title. The Federal Council is, indeed, the organ provided by the Imperial constitution to decide such a conflict; but this power is not conferred by the provision which we are here considering. The Federal Council must pass upon the credentials of its own members, and in doing so it must decide whether the person claiming membership from and for a particular commonwealth shall have been appointed by the rightful prince, or, in case of the city commonwealths, by the rightful Senate. I do not class this 1 Reichsverfassung, Art. 76, § 2. 2 Schulze, Lehrbuch des deutschen Staatsrechts, Zweites Buch, S. 61. function, however, under judicial powers, as the phrase judicial powers is employed in this title. It will be observed here again that the Federal Council can act only when appealed to by one of the parties. It cannot of its own motion assume jurisdiction. It will be further remarked that, in the case of constitutional conflicts within the commonwealths, the Federal Council is, in no event, vested with the power of decision. It can, in first instance, only mediate an agreement between the parties; and if its mediation should fail to bring about the settlement of the question or questions, it can then, in last resort, only refer the matter to the Imperial legislature, which latter organ is to decide the conflict by a statute. This procedure certainly makes the Imperial legislature a court of last instance in the settlement of constitutional conflicts within those commonwealths whose organic law provides no organs therefor.1 The fact that the decision may be pronounced in the form of a statute should not be regarded as changing its character; i.e. the legislature should determine the question according to law and justice, and should not be influenced by party affiliations. Viewed from the standpoint of this requirement, I am inclined to pronounce the Imperial legislature a very badly composed court for the settlement of such questions. The Federal Council in all such cases would be likely to sympathize with the executive of the commonwealth and the Diet with the legislature; and the Imperial legislature would thus be unable to reach any decision. The result of this state of things would probably be chronic strife within the commonwealth concerned. 3. The constitution confers upon the Federal Council the power to intercede with the government of a commonwealth in which justice shall have been denied or unreasonably delayed to any person, and, if necessary, to compel that 1 Schulze, Lehrbuch des deutschen Staatsrechts, Zweites Buch, S. 62 ff. commonwealth to give the judicial relief proper to the case.1 In determining whether there has been a denial or delay of justice, however, the Federal Council must be governed by the laws of the commonwealth affected.2 The Imperial constitution also limits the Federal Council to the consideration of cases in which relief can not be obtained in the regular legal way.3 From these provisions, we conclude that the Federal Council is authorized to exercise a general supervision over the administration of justice within the several commonwealths; and that, where complaint of failure of justice is made by the party aggrieved, the Council has the power, after friendly intercession with the commonwealth government, to apply force to the commonwealth for the purpose of obtaining for the complainant such relief as the Council may, under the laws of the particular commonwealth, judge to be proper to the case.4 4. The constitution confers upon the Federal Council the power to determine when a commonwealth fails to discharge its constitutional duties to the Empire.5 Among these duties must, of course, be included the duty to obey the requirements of the Federal Council in the cases above mentioned. The Council may assume jurisdiction in this question of its own motion and, in the event that it finds the commonwealth recusant, may vote that compulsion be applied. The constitution then requires of the Emperor the execution of the compulsion.6 1 Reichsverfassung, Art. 77. 2 Ibid. 8 Ibid. 4 Schulze, Lehrbuch des deutschen Staatsrechts, Zweites Buch, S. 64. 5 Reichsverfassung, Art. 19. • Ibid., Laband, Das Staatsrecht des deutschen Reichs, Bd. I, S. 247 ff. CHAPTER IV. THE ORGANIZATION AND POWERS OF THE JUDICIARY IN THE FRENCH CONSTITUTION. AN examination of the French constitution will reveal the fact that it makes no provision for the judicial department of the government. The French judiciary is therefore a purely statutory body. As such, it has no place in this treatise, the purpose of which is to expose rather than conceal the defects. in the constitutional law of the several states. There is, however, a single exception to this general statement. The constitution creates the Senate a court for certain specified purposes. The exact language of the constitution is as follows: "The Senate may be constituted as a court of justice to pass judgment upon the President of the Republic and the ministers, and to take cognizance of attacks upon the security of the state." 1 The phrasing of this provision immediately gives rise to the questions: Upon whose motion the Senate may be organized as a judicial body; who are the lawful accusers of the persons who may be brought before its bar; and whether it is unlimited in the jurisdiction assigned to it. The questions are answered in some degree by other arti cles of the constitution. 1. It is provided in another clause that the Senate may be organized as a court of justice for trying any person accused of an attack upon the security of the state, by a decree of the President, rendered in the Council of Ministers.2 The 1 Loi constitutionnelle du 24 février, 1875, Art. 9. clause does not declare, however, that the organization of the Senate as a court shall be effected in this manner only. If such were the fact, great embarrassment would certainly arise in case the President himself, or a minister, should be the accused person. He, or his cabinet, would only find it necessary to remain passive, and the constitutional power of the Senate to try him or a minister would be defeated. M. Eugène Pierre, the chief secretary of the presidency of the Chamber of Deputies, speaks, in a note to Article 9. of the constitutional law of February 24, 1875, of the Senate constituting itself as a court.1 I think that the sound interpretation of the constitution would accord to the Senate this power of self-organization, at least when the President or a minister is accused. The constitution should, however, have made this plainer. Its failure to make explicit provision upon this most important point renders it possible for the President to claim, as his constitutional prerogative, the power to disperse the Senate by force, if necessary, whenever it shall organize itself as court of justice, without his decree authorizing the same. 2. The constitution provides that the President can be placed in accusation before this court by the Chamber of Deputies, and by that body only, and that the ministers may 'be placed in accusation by the Chamber of Deputies.2 I conclude from this language that any other person may be placed in accusation either by the Chamber of Deputies or by the "Chambre des mises en accusation" of the regular "Cour d'appel," and that the ministers themselves may be accused by this latter body. Another clause of this same article is confirmatory of this interpretation. It declares, that if the prosecution should be begun by the ordinary judicial process, the decree convoking the Senate may be issued at any time before the "Chambre des mises en ac 1 Lois constitutionnelles et organiques de la République française, p. 45. |