may exercise; and the principle of interpretation followed in the practice is that what is not granted, either expressly or by reasonable implication, is denied.2

Lastly, the German government is partly democratic and partly monarchic. No restrictions as to qualifications for membership in either house of the legislature are to be found in the constitution; and the act of the legislature, in regard to this subject, only requires a moderate age, citizenship, the full enjoyment of civil rights and short residence, for membership in the lower house, and makes no requirements for membership in the upper house. On the other hand, only one person in the entire Empire is eligible to the office of the presidency, viz; the King of Prussia.1

2. The German government is federal government. This proposition is to be taken in the same sense as in the case of the United States government, vis; that the whole governmental system of Germany consists of two separate and substantially independent parts, the Imperial central government and the commonwealths; that to each is assigned by the constitution a particular and, in large degree, independent sphere; that the sphere of the central government is definitely marked out in the constitution, while the sphere of the commonwealths comprehends all the remaining powers of government; and, finally, that neither of the two governments can be regarded, in origin or in the substance of its existence, as the agency of the other, and that therefore neither can legally destroy the other.

The German government apparently retains many elements of the confederate system. This is due to the fact that the state has not received a satisfactory and thoroughly sovereign organization in the constitution. The constitution does

1 Reichsverfassung, Arts. 3, 4, 11, and 35.

2 Schulze, Lehrbuch des deutschen Staatsrechts, zweites Buch, S. 12.

3 Bundesgesetzblatt, 1869, S. 145. Reichsverfassung, Art. 20.

4 Reichsverfassung, Art. II.

not fully express the actual conditions. In fact, the powers of the commonwealths are far more limited in the German system than in that of the United States. The legislatures of the German commonwealths have been reduced much nearer to the position of administrative boards than have the corresponding bodies in the governmental system of the United States. The powers conferred upon the central government in the German constitution are more numerous and wide-reaching than those conferred upon the central government in the constitution of the United States. On the other hand, the organization of the state in the system of the United States is far more complete and commanding, and likewise the organization of the official system of the central government. In the German system, as we have seen, many things are excepted from the power of the state under its ordinary organization in the constitution; and, as we shall see, the central government is made to depend very largely upon the commonwealth officials in the execution of Imperial law. Still we must consider, I think, that the governmental organization of Germany has passed the boundary line between confederatism and federalism. It is now substantially a federal form, but still more of the debris of the old system of 1815-1866 must be swept away before this change can be clearly and consistently expressed in the terms, phrases and provisions of the constitution.

ernment.

The German Imperial government is also co-ordinated gov The constitution creates a legislature and an executive, distributes powers between them and determines the principles of their correlation.1

3. The German government is, as to tenure, partly elective and partly hereditary. The constitution prescribes the tenure of election for the members of the lower house of the legislature,2 and the tenure of hereditary right for the

1 Reichsverfassung, Arts. 4-18, 20-32.

2 Ibid. Art. 20.

executive (i.c. so long as that shall be the tenure of the King of Prussia), while the tenure of the members of the upper house of the legislature, if such we may term the Federal Council, is made to depend upon the will of the princely heads of the twenty-two commonwealths in which the hereditary principle prevails in the chief executive office, and of the senates of the three city commonwealths.2 The Federal Council is made by the constitution to consist of the representatives of these several personages and bodies, and these personages and bodies are severally left to designate their representatives in any manner they may choose. Naturally the hereditary executives appoint them and the senates elect them. No one principle of tenure, therefore, is exclusive in the organization of the Federal Council. Finally, the Imperial officials, both civil and military, are appointed by the Emperor. From the standpoint of tenure, accordingly, the system is not simple but mixed. The government cannot be classed, from this point of view, under any one consistent form.

4. The German Imperial government is presidential government. The constitution makes the Emperor entirely independent of the legislature, both as to the origin and termination of his tenure. It creates no ministry responsible to the legislature. It confers upon the Emperor a sphere of independent prerogative, and vests in him the power to preserve this sphere from legislative encroachment. He may declare any legislative act which menaces his prerogative to be an amendment to the constitution, and he may prevent the passage of any such amendment by means of the voices in the Federal Council which he, as King of Prussia, instructs and controls. Moreover the Emperor, as King of Prussia, is vested by the constitution with the power of abso

1 Reichsverfassung, Art. 11.

3 Ibid. Art. 18.

5 Ibid. Arts. 6, 17, and 78.

2 Ibid. Art. 6.

4 Ibid. Art. II.

lute veto over all legislation in reference to military and naval affairs and in reference to taxation and the ordinances of administration of the Imperial tax-system.1 He is further vested with the power to call, open, adjourn and prorogue the legislature, and (with the consent of the Federal Council) to dissolve the Diet. Lastly, the constitution confers upon him the power to appoint all the members of the committees in the Federal Council for the army and the navy, except only the Bavarian member in the committee for the army.

This is certainly presidential government, and very strong presidential government. It really places in the hands of the executive the balance of governmental power.

It is utterly impossible to find a concise phrase by which to designate this representative, limited, partly democratic, partly monarchic, federal, co-ordinated, partly elective, partly hereditary, presidential form of government. It contains the republican elements of representation, limitation, departmental distribution of powers and election, but these are counterbalanced by monarchic and hereditary elements. It defies the power of science to invent any term or simple phrase which will characterize it.

From the scientific point of view we should be obliged to condemn this form as containing not only heterogeneous but hostile elements. From the scientific point of view we should be compelled to predict conflict à l'outrance between the elements that compose it. Practically, however, it appears to be a most excellent form for the present needs of the great German state. It has produced and secured more individual. liberty than the German people have ever heretofore enjoyed, and at the same time it has developed a greater power than Europe has witnessed since the era of Napoleon I. So long as the monarchic and hereditary elements in this form pursue, as at present, a popular policy, the conflict with the republican

1 Reichsverfassung, Arts. 5, 35, and 37.

elements may be successfully avoided. If, however, they should abandon this line of action and give themselves over to a policy of reaction and oppression, the predictions of science would be speedily realized.

IV. The Form of the English Government.

1. The English government is immediate government; i.e. the organization of the state and the organization of the government are identical.1 No organization of the state behind the constitution has framed the constitution, organized the state within the constitution, laid out a realm of individual immunity, constructed a government and vested it with powers either enumerated or residuary. Consequently the English government is unlimited. There is no such thing as an unconstitutional act of the Parliament, and there can be no such thing. Whatever the Parliament ordains is in fact and in law constitutional; and whatever the Crown ordains, provided it has not been forbidden or otherwise ordained by the Parliament, and provided the ordaining of it has not been placed by the Parliament in other hands, is also constitutional. No judge can pronounce the acts of these bodies unconstitutional. The judges of the high courts have seats in the House of Lords, and are consulted whenever any question of the organic law is in issue, but their advice. may be disregarded with perfect impunity. They have influence within the legislature, but they have no power over the legislature, either to nullify its acts or defeat their execution in a particular case. Any judge making any such attempt may be removed by a petition of the Parliament to the Crown. The liberty of the individual is thus completely at the mercy of the Parliament. This is utterly despotic government in theory, however liberal and benevolent it may be in practice.

The English government is mixed: it is at once demo

1 Dicey, The Law of the Constitution, p. 35 ff.