priations, only by a minister of the Crown; in the case of taxation, if the project imposes new burdens, only by a minister of the Crown.1 Finally, if the project relates to a private matter, it is initiated by a petition on the part of the person or persons concerned, which must be deposited in the Private Bill Office of the House of Commons by the 21st of December of the year before the bill is to be brought to consideration in the House. Examiners, appointed by the House of Lords and by the Speaker of the House of Commons, must scrutinize the petition and indorse it as having fulfilled or not fulfilled the forms required by the standing orders of the House of Commons for the presentation of the petition. Three days after the indorsement has been made, whether it be affirmative or negative, the petition is presented by some member to the House of Commons.2 The mode of procedure in the passage of projects through the two houses is also conditioned in some degree by the content of the propositions. A public bill not touching revenue and supply may be modified, amended and rejected by either house at will.3 A money bill cannot be modified, amended or rejected by the House of Lords. A private bill may be modified, amended and rejected by either house at will; but both houses act in this case as much like courts as like legislative bodies. They examine witnesses, and hear arguments from counsel for and against the bill, etc.5 Lastly, the approval of the Crown is necessary in all cases, and its disapproval would be legally fatal to any measure. As a fact, however, the approval is now never withheld, and has not been since the year 1707.6 1 Anson, Law and Custom of the Constitution, p. 230; May, Parliamentary Practice, pp. 624, 625. 2 Anson, Law and Custom of the Constitution, pp. 241, 242. 3 Ibid. p. 224 ff. 4 Ibid. p. 231; May, Parliamentary Practice, pp. 595, 603. Anson, Law and Custom of the Constitution, p. 242 ff. 6 Ibid. p. 252 ff. CHAPTER III. THE CONSTRUCTION OF THE GERMAN IMPERIAL LEGISLATURE. I. The General Principle of Legislative Organization. The constitution adopts the bicameral system, with substantial parity of powers in the two bodies, in so far as legislation is concerned.1 I am perfectly aware that the German commentators upon the constitution will object to the Federal Council (Bundesrath) being designated as an upper house of the legislature, and to the statement that it is only equal in power with the Diet (Reichstag). I do not intend by my proposition to affirm that the Federal Council is only the upper house of the legislature, or that it has not other than legislative powers. I mean that it acts as a legislative body, and that in legislation it and the Diet have equal powers as to the initiation and adoption of projects. I am sure the text of the constitution and the practice of legislation will sustain me in this statement. Article 5 declares that the legislation of the Empire shall be exercised by the Federal Council and the Diet, and that a majority vote of the two assemblies shall be necessary and sufficient for the making of the imperial laws. Article 7, section 1, provides that the Federal Council may initiate legislation, and Article 23 makes the same provision in regard to the Diet. The anxiety of particularistic commentators to show that the Federal Council is the sovereign in the whole system, the state, has, it appears to me, led them into a confusion of ideas 1 Reichsverfassung, Art. 5. 2 Von Rönne, Das Staatsrecht des deutschen Reichs, Bd. I, S. 194 ff.; Schulze, Lehrbuch des deutschen Staatsrechts, Zweites Buch, S. 45 ff.; Laband, Das Staatsrecht des deutschen Reiches, Bd. I, S. 215 ff. and of language upon this subject. They feel that the constitutional power of the Diet to reject the projects of the Federal Council does not well comport with their doctrine of the sovereignty of the Council. It certainly does not; and an unbiased mind will be more likely to deny that doctrine than to accept the fanciful attempts to explain away the plain and express language of the constitution. This instrument, as we have seen, declares that the legislation of the Empire shall be accomplished by these two assemblies; that each may initiate projects upon any subject falling within the legislative power of the imperial government, and that each may reject the projects initiated by the other. The fact that the Federal Council holds powers which are not legislative cannot deprive it of its legislative character, any more than the possession of judicial powers by the British House of Lords or the possession of administrative powers by the Senate of the United States can take these bodies out of the category of legislative assemblies. The Federal Council of the German Empire, it is true, has more extra-legislative powers than either of the bodies just mentioned; but that does not affect the principle. From the legislative point of view the Council is a legislative body, and has no more power in this respect than the Diet. Of its other powers we have spoken, and shall speak further, under the proper headings. The regular period of mandate in the Diet is five years, and the renewal of the Diet at each election is total.1 In the Council, on the other hand, the mandate of each representative depends upon the will of the commonwealth which sends him. 2. The Sources from which the Legislature proceeds. The Diet rests upon the direct suffrage of all resident citizens of the German Empire (Reichsangehörige), of the male sex, who have attained the age of twenty-five years. 1 Reichsverfassung, Art. 24; Reichsgesetzblatt, 1888, S. 110. These are the qualifications. The disqualifications are active service in the army or navy; subjection for any reason to guardianship, or to a process of bankruptcy or insolvency; reception of poor relief within a year preceding the election, and judicial condemnation to the loss of political or civil rights.1 This is manhood suffrage, pure and simple,2 with the requirement of a little more maturity than is demanded in England and America and, as we shall see, in France. The entire law of elections for members of the Diet is regulated by imperial statute and is not, therefore, constitutional law, except only the direction that the ballot shall be secret.3 The Federal Council, on the other hand, rests upon appointment. The governments of the twenty-five commonwealths of the Empire choose the members of this body. We mean by the term governments, in this case, the twentytwo princely executives and the senates of the three city commonwealths. In those commonwealths in which the princely executives administer government through ministries responsible to the respective legislatures, the appointment of the representative or representatives of the commonwealths in the Federal Council proceeds through the ministries and is thus, more or less, controlled by the respective legislatures. In legal form, however, it is the princes who make the appointment.1 3. The Principles of Representation. In the Diet the representation is not distributed by the constitution, but by statute. It is distributed according to the census of the population, upon the ratio of one representative to every 100,000 of the population. This is the general rule, which however is subject to the modifications 1 Bundesgesetzblatt, 1869, S. 145; 1870, S. 647; 1870, S. 654; Schulze, Lehrbuch des deutschen Staatsrechts, Zweites Buch, S. 76. 2 Reichsverfassung, Art. 20. 8 Ibid., and that the Diet shall be the final judge of the election of its members. 4 Reichsverfassung, Art. 6; Laband, Das Staatsrecht des deutschen Reichs, in Marquardsen's Handbuch, S. 40. that the lines of the electoral districts must not cross the lines of the commonwealths, that a residue of more than 50,000 inhabitants in any commonwealth shall send one representative, and that the population of every commonwealth shall send at least one representative. The electoral districts are fixed by Imperial statute; the question of district ticket or general ticket is likewise determined by Imperial statute, at present, in favor of the former, and, as I have already said, the whole procedure of the elections is subject to Imperial regulation. The number of members of the Diet stands, at this moment, at 397.2 The representation is uninstructed. This is expressly declared in the constitution, which provides that the members of the Diet are representatives of the whole people, and are not bound by any instructions; i.e. each member is referred wholly to his own judgment and conscience in the direction of his voice and vote.3 Representation in the Federal Council, on the other hand, is distributed by the constitution. The ratio is somewhat artificial, but has an historical justification in that (except in the case of Bavaria) it holds to the distribution adopted for the German Confederation by the Vienna Acts of 1815. The representation of Bavaria is increased above the number to which that commonwealth was entitled in the Diet of the Confederation, not on account of any relative increase of strength either in territory or population, but from considerations of policy connected with the formation of the present constitution. The number of members, or rather of voices and votes, is now 58. Of these, Prussia has 17, Bavaria 6, Saxony 4, Württemberg 4, Baden 3, Hesse 3, Brunswick 2, Mecklenburg-Schwerin 2, and the others I each. AlsaceLorraine does not and cannot have a vote in this body, because 1 Laband, Das Staatsrecht des deutschen Reiches, Bd. I, S. 293 ff. 8 Reichsverfassung, Art. 29. 4 Ibid. Art. 6. |