proposition signifies, further, that either the Federal Council or the Diet may originate a project of law upon any subject falling within the domain of Imperial legislation as marked out by the constitution. The Diet is not favored above the Federal Council in regard to financial legislation, nor the Council above the Diet in regard to other subjects of legislation. By project of law, in this connection, I intend statute law, as distinguished from propositions for constitutional amendment. I have already explained the functions of these two bodies in reference to the latter subject. The constitution expressly declares that each member of the Union may originate projects of law in the Federal Council, and that the president is obliged to submit the same to deliberation.1 By the phrase "member of the union" is not meant each individual person who may sit in the Federal Council, but each commonwealth represented therein. The project, of course, must be moved in the Federal Council by a representative of the commonwealth, or, more properly, by the representative of the commonwealth. in that body; i.e. where a commonwealth sends more than one person to the Council, the one who introduces the proposition acts for the others in their common capacity as bearers of the instructions of the commonwealth. The constitution confers no such right upon any member or group of members in the Diet. It leaves that wholly for the Diet to determine in its rules of procedure. The Diet requires for every project the preliminary support of fifteen members. It allows changes of the project to be proposed before or during the second reading by any member; but during the third reading it requires for such proposals of change the preliminary support of thirty members.2 The constitution provides, further, that the resolutions of the Federal Council upon projects of legislation shall be pre 1 Reichsverfassung, Art. 7, § 2. 2 Laband, Das Staatsrecht des deutschen Reiches, Bd. I, S. 534. sented to the Diet in the name of the Emperor and in the form in which they shall have been passed in the Federal Council, and shall be supported before the Diet by members of the Federal Council or by commissioners appointed by the Council. This provision is held by the commentators to mean that the Emperor has no power to pocket the resolutions of the Council or delay unreasonably their presentation to the Diet or change in any manner their contents.2 Laband contends, however, that the Emperor has the constitutional power to determine whether the resolutions of the Federal Council have been passed by that body in the manner prescribed by the constitution, and if, in his opinion, they have not, to refuse their transmission to the Diet. To this end he may not only inspect the formulæ, signatures and attestations necessary to perfect the resolutions, but may examine, and base his determination upon, the contents of the resolutions. For example, if the Federal Council should pass a resolution and clothe it with all the proper and legal forms, signatures and attestations, and deliver it to the Emperor or his representative to be transmitted to the Diet, and the Emperor, upon examining the contents of the resolution, should determine that it involved a change of the constitution, and should find that as many as fourteen voices had been cast against its passage, he may refuse to transmit it to the Diet, and it therewith fails. I cannot reconcile this proposition with the doctrine held by the same jurist that the Federal Council is the sovereign in the Empire, even when acting in ordinary legislation. If its own interpretation in regard to the character of the projects which it sends to the Diet is not final, I do not see what becomes of its alleged sovereignty. 3 The constitution provides, further, that for the passage of a 1 Reichsverfassung, Art. 16. 2 Laband, Das Staatsrecht des deutschen Reichs, Bd. I, SS. 536, 537 8 Ibid. Bd. I, S. 537, Anmerkung. law the agreement of the Federal Council and Diet, by a simple majority vote in each body, is necessary and sufficient.1 This is the general principle. It excludes the veto of the Emperor upon legislation. There is, however, one exception to this principle, viz; that the Prussian representation in the Federal Council — which means the Prussian King — has an absolute veto upon ali projects in reference to the military and naval system and the Imperial taxes.2 There is also one modification of the principle, viz; that in voting upon the projects in reference to subjects which do not by the constitution affect all the commonwealths, only the voices of the commonwealths affected shall be counted in the Federal Council. For example, Bavaria is not affected by the Imperial taxation of domestic spirits and beer. When this subject is being voted upon in the Federal Council, the Bavarian voices are, therefore, not to be counted. The constitution also directs that, in case of a tie in the Federal Council in voting upon any subject, the voice of the Prussian representation shall be decisive. I have already stated that the vote of each commonwealth in the Federal Council must be solid. The commentators, Laband, Meyer, Zorn and Schulze, have undertaken, upon the basis of a distinction between the process of fixing the contents of the law and the act of attaching the sanction to the law, to demonstrate that, after all, the Federal Council alone is the lawgiver in the Imperial system, since it alone has the power to attach the sanction.5 They profess to find the constitutional warrant for this position in Article 7, paragraph 1, which reads that the Federal Council may resolve upon projects to be laid before the Diet, and upon 1 Reichsverfassung, Art. 5, § 1, and Art. 28. 2 Ibid. Art. 5, § 2. 8 Ibid. Art. 7, § 4. 4 Ibid. Art. 7, § 3. 5 Laband, Das Staatsrecht des deutschen Reichs, Bd. I, S. 538 ff; Meyer, Lehrbuch des deutschen Staatsrechtes, S. 413; Zorn, Das Reichs-Staatsrecht, Bd. I, S. 111 ff; Schulze, Lehrbuch des deutschen Staatsrechtes, Zweites Buch, SS. 117, 118. projects passed by the Diet and laid before it (the Council). It seems to me that an unprejudiced mind would find in this expression only the right to initiate legislation and to pass upon the projects initiated by the other legislative body. The older commentators, Westerkamp and von Rönne, did not find any further meaning in it. Moreover, I cannot reconcile the above doctrine with the actual practice. The sanction is defined by these commentators to be the attachment of the formula of command to the bill. "Sanction ist Ertheilung des Gesetzesbefehls."2 Now, every law which has yet been passed by the Imperial government has had its formula of command attached to it expressly by the Emperor. This is the exact transcript: "Wir . . . von Gottes Gnaden Deutscher Kaiser, König von Preussen zc. verordnen hiermit im Namen des deutschen Reichs, nach erfolgter Zustimmung des Bundesraths und des Reichstags, was folgt." If it be the attachment of this formula that designates the lawgiver, then the Emperor, not the Federal Council, is the sole Imperial lawgiver. This line of reasoning has not escaped the notice of these commentators. They have undertaken to break its force by simply asserting and undertaking to demonstrate that the formula used in practice is erroneously expressed, and does not correspond with what they claim to be the legal relation of the different bodies participant in the act of legislation. They labor to show that this act of attaching the formula of command is a substantial and discretionary, not a merely formal and necessary act; and that the authority to attach it is not to be found under the power vested in the Emperor by the constitution, to promulgate the laws. We know, however, that the Emperor alone, in the act of promulgation, attaches the formula of command As a fact, no distinction is discoverable, in the text of a law, 1 Von Rönne, Das Staatsrecht des deutschen Reiches, Bd. I, S. 239. 8 Reichsverfassung, Art. 17. between sanction and promulgation. We know, still further, that promulgation is not merely publication. The constitution provides for publication as something following promulgation.1 Moreover, these very commentators find in the Emperor's prerogative of promulgation a discretionary power to look into the contents of any measure passed by the Federal Council and the Diet, and to determine whether, in his opinion, it be constitutional, and if not, to refuse to promulgate it. To an American jurist, accustomed to the simple formula, "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled," a formula attached, as a matter of course, to any measure which the two houses shall have agreed to establish as law, all these attempted substantial distinctions between the agreement upon the contents of the project, the attaching of the formula of command, and the promulgation, appear very labored. They appear to be a juristic attempt to give the Federal Council a position of power unwarranted by the text of the constitution, the history of its formation, or the actual relations of the political society of the German state. 1 Reichsverfassung, Art. 17. 2 Laband, Das Staatsrecht des deutschen Reiches, Bd. I, S. 549 ff. |