CHAPTER VI.

THE POWERS OF THE EMPEROR.

I. Diplomatic Powers.

The Emperor is vested, by Article 11 of the Imperial constitution, with the power to represent the Empire internationally, and for this purpose to send and receive ambassadors, to make agreements, treaties and alliances with foreign powers, and to declare war and make peace. But if the treaties touch any subject already regulated by an Imperial law, constitutional or statutory, then the consent of the Federal Council is necessary to their conclusion and of the Diet also to their validity; and to every declaration of offensive war the consent of the Federal Council is necessary.1 These are most important and thoroughgoing limitations upon the treaty-making and the war powers of the Emperor. They provide, in the first place, against any conflict which might arise between the treaties and the constitution and laws, by requiring the consent of the amending power to such treaties as may touch upon a provision of the constitution, and of the legislative power to such as may touch upon a provision of the statute law.2 A treaty cannot change a law in the Imperial system, without the consent of the law-making power, but a law may change a treaty without the consent of the Emperor. There is, thus, no chance for arbitrary action on the part of the Emperor in the exercise of this power.

The Emperor is likewise most heavily handicapped in the exercise of the power of declaring offensive war. He can 1 Reichsverfassung, Art. 11.

2 Schultze, Lehrbuch des deutschen Staatsrechts, Zweites Buch, S. 328.

act only in agreement with the majority of the Federal Council. As King of Prussia he controls, as we have seen, seventeen voices in the Federal Council, and he may cast these votes in favor of the declaration (or against it, of course), but the constitution requires thirty votes, i.e. thirteen more than Prussia possesses, to legalize the act. Only one other state possesses as many as six votes in the Federal Council, viz; Bavaria. Most of them possess but one. An agreement between the princely heads of at least three commonwealths besides Prussia, and probably of many more, would thus be necessary to a declaration of offensive war. Now these German princes are, for the most part, very conservative men, hostile to centralization of power in the Imperial government, and they know that war tends toward that end; many of them are old men; many of them are connected by intermarriage with the dynastic interests of almost all the reigning houses of Europe; and many of them act, in the instruction of their delegates to the Federal Council, through ministries subject to legislative control in their respective states; while the interests of the three free cities represented in the Federal Council, being commercial, would as a rule be upon the side of peace. here are not sufficient safeguards against arbitrary, ill-considered or unnecessary declarations of war, I must confess that I do not know how they could be devised.

If

The independent prerogative of the Emperor, as international representative of the Empire, consists, thus, only of the powers to appoint and receive ambassadors, other public ministers and consuls,1 to negotiate all treaties, to conclude treaties of peace and such other treaties as do not conflict with the constitution and the laws, and to wage defensive war. The president of a republic should not be intrusted with powers less than these.

1 The Emperor can appoint the consuls only upon hearing the committee of the Federal Council for commerce and intercourse; Reichsverfassung, Art. 56.

II. The Powers of the Emperor in Legislation.

The constitution confers upon the Emperor the power to call, open, adjourn and prorogue both the Federal Council and the Diet, and to dissolve the Diet. It imposes, however, the following limitations upon the exercise of these powers: the Emperor must call the two bodies annually; he cannot call the Diet without the Federal Council, but may call the latter without the former; he must call the Federal Council when this is demanded by one-third of the voices in that body; he can adjourn the Diet only once during the same session, and for no longer than thirty days, except it consent to another or a longer adjournment; he can dissolve the Diet only by consent of the Federal Council, and in case of dissolution, he must order new elections within sixty days, and reassemble the Diet within ninety days. Moreover, the annual voting of the budget requires the yearly assembly of the legislature.1

The Emperor appoints the chairman of the Federal Council. He appoints, also, the members of the standing committee for naval affairs, and, with the exception of one voice, the members of the standing committee for the army and fortifications, with the limitation, however, that four states besides Prussia must be represented in each. On the other hand, he is bound to submit the propositions of each member of the Union to deliberation in the Federal Council, and to lay before the Diet the resolutions of the Federal Council in the exact form and wording given to them by the Council.2

This is the sum and substance of the powers and duties of the Emperor in legislation. It will be seen from this that he has no immediate power to initiate legislation either in the Federal Council or in the Diet, nor to veto the acts of either of these bodies. His powers in legislation would be altogether too weak to sustain his own prerogatives, except 1 Reichsverfassung, Artkl. 12, 13, 14, 24, 25, 26, 69, 71. 2 Ibid. Artkl. 15, 8, 7, 16

for the fact that, as King of Prussia, he is represented in the As King of Prussia he may, like any other

Federal Council.

His

German prince, initiate legislation in the Federal Council, through his delegates in that body, but not in the Diet. delegates, like those of any other member of the Union, may appear in the Diet and explain to this body the views of the government sending them. As King of Prussia, his seventeen votes in the Federal Council enable him to veto any amendment to the constitution; and, like any other member of the Union, he can prevent the change of any of the guaranteed rights of his own commonwealth. As King of Prussia, he has the casting vote in case of a tie in the Federal Council. Finally, as King of Prussia, he can veto, in the Federal Council, all projects of law which propose a change in the existing military, naval, customs or excise systems and arrangements, or in the existing administrative ordinances for the execution of the customs and excise laws.1 The meaning of all this is simply that the King of Prussia can prevent the existing instruments of power, confided by the constitution and laws of the Empire to the Emperor, from being withdrawn from the latter. These are very wise provisions, under existing conditions. I do not see how the Emperor would be able to discharge his great duties to the nation without them.

In the promulgation of the laws, the constitution confers upon the Emperor the powers of furnishing the bills passed by the Federal Council and the Diet with the formula of command and of proclaiming the same as law. At first view these would appear to be only ministerial functions. From a consideration of the provision, alone and apart from the remainder of the instrument, one would naïvely conclude that the Emperor must furnish with the form of law, and proclaim as law, all bills whose passage through the Federal Council and Diet had been regularly attested by the proper officers

1 Reichsverfassung, Artkl. 7, 9, 78, 5, 37, 35.

2 Ibid. Artkl. 17.

of these bodies. But if this interpretation of the provision be the true one, then the simple majority in the Federal Council and the Diet could render nugatory the veto power of the King of Prussia in the Federal Council against attempted changes in the constitution and in the laws regulating the military, naval, customs and excise systems of the Empire, by simply calling the measures effecting these changes ordinary legislation. On the other hand, if the prerogative of the Emperor to formulate the bills as law contains the power to determine, from their content, whether they are ordinary or extraordinary legislation, and to leave them unpromulgated when and in so far as, in his opinion, they have not received the majority in the Federal Council prescribed by the constitution for the class of projects to which he may decide they belong, then we concede to the Emperor the means of blocking any bit of ordinary legislation which may be distasteful to him, by simply declaring it to be a constitutional amendment, which he, as King of Prussia, may always prevent. The commentators do not yet agree as regards the interpretation of this provision. Von Rönne, for example, holds that the question whether a project belongs to the class of ordinary or to that of extraordinary legislation is itself a preliminary question of constitutional interpretation and, as such, is to be determined by the Federal Council and Diet by the course of ordinary legislation; i.e. by simple majority, with no power of veto against it, either in the Emperor or the King of Prussia, except in case of a tie vote, when the voice of Prussia would be decisive. On the other hand, Laband and Schulze teach that the guardianship of the constitution lies ultimately with the Emperor, and that the prerogative of furnishing the bills of the Council and Diet with the form of law contains the power and the duty to deter mine whether or no the bills have been constitutionally passed by these bodies, and to ignore them if, in his opinion, they

1 Von Rönne, Das Staatsrecht des deutschen Reiches, Bd. II, Ab. 1, S. 35