If the National Assembly has not completely realized the unitary state and has allowed traces of the federal rÉgime to remain, it has fully admitted the principle of national sovereignty and has applied it to a greater extent than any other country in the world.

SECTION I
THE PRINCIPLE

The democratic principle was adopted by the majority of the National Assembly without any difficulty. But in the public opinion there became manifest certain tendencies which are either directly contrary to this principle or whose consistency with this principle is debatable; and some of them have received and are still gaining active and influential adherence.

It is important therefore to define in reference to the principle of national sovereignty the theories to which it finds itself subjected in practice.

1.—THE POWER OF THE STATE IS DERIVED FROM THE PEOPLE.

Democracy is defined as government by the people; a democratic government is a government in which sovereignty resides in the people, or, to speak more precisely, one in which the will of the majority determines sovereignty.

That this principle was completely ignored in practice in Germany before the Revolution we already know. According to the Constitution of 1871 sovereignty belonged to the ensemble of confederated princes, Germany being governed by an association of monarchs under the all-powerful direction of one of them, the King of Prussia.

Such a system obviously could not survive the disappearance of the monarchs themselves; and after the Revolution the democratic principle, to which Bismarck had given the semblance of expression in creating a Reichstag elected by universal suffrage, became fully applied. One consideration contributed above all to the establishment of government by the greatest number: The German Princes had governed and had conducted themselves as monarchs by divine right; under their rÉgime no social class could develop to which a certain political power could be given over, which the people would become accustomed to regard as authoritative. There was in Germany no political nobility, no bourgeoisie invested with political power. So that when sovereignty fell from the weakened hands of the monarchs it could be taken over only by the people.

The people are therefore sovereign. German jurists go on to say that the people cease to be the object of sovereignty and become the subject of sovereignty.

But we are here in a federal state, and the problem becomes more complicated because of the particular form of the state. For there are here, in theory at least, two sovereignties: that of the Reich, and that of the State. Which is the primary sovereignty?

In committees the representatives of the states naturally supported the latter of these alternatives. For them the former states at the moment of signing the confederate pact gave up to the federal state a certain number of their powers; but they have kept others. The Revolution has changed nothing in this situation; it has thrown out the dynasties, but it has not at all changed the integrity and the rights of the individual states. It is in these states therefore that sovereignty originally resides. The sovereignty of the Reich is only derived; although the Reich is no longer an alliance of Princes, it is certainly an alliance of the Republics that compose it.

This theory has not prevailed. It is true that one could not go so far as to admit that the sovereignty of the states is derived from that of the Reich and is given to them by the latter; but it is equally true that it cannot be admitted that the sovereignty of the states is expressly limited by the rights that the Reich attributes to itself. It has been admitted, therefore, that the people is sovereign in the Reich, but that it is equally and by the same title sovereign in the states in the spheres of action which are left to the states.

Such is the principle proclaimed by Article 1, paragraph 2, of the Constitution. That does not mean to say, however, that attempts and proposals were not made to make a breach in it or to draw from it debatable deductions. A study of these attempts and proposals will enable us to understand more precisely the sense and import of this principle.

2.—THE COUNCILS SYSTEM, OR THE DICTATORSHIP OF THE PROLETARIAT.

The first projects formulated and presented against this principle, and to the realization of which the Independents and the Communists bent every effort, may be characterized in a word: they aimed to give over all political and economic power to Workers Councils, to organize the dictatorship of the proletariat.

These proposals, such as developed particularly by DÄumig, theoretician of the Independents, may be summed up as follows:

A parliamentary system—the proof is at hand—is powerless to bring about the triumph of social democracy. The revolution throughout the world, if it is to win quickly—and it must win quickly, for the proletariat can no longer wait—cannot achieve its aims except by other methods. As in Russia in 1905 and in 1917, so in Germany the necessary change can be only the product of Workers Councils. It is only within the Councils that the union of the proletariat is possible. Only the Councils assure the co-operation of manual and of intellectual workers, which Russia had not been able as yet to realize but which should be and can be accomplished. The system of Councils in its final aspect realizes the most perfect form of democracy, for it gives political and economic equality to all its citizens. While waiting its ultimate triumph, however, it may be necessary to proclaim the dictatorship of the proletariat; but this dictatorship will not be any heavier than that which is borne by the proletariat itself. It will last if necessary till the complete fusion of social classes does away with the class struggle, till the advent of integral socialism.

Therefore, all power to the Councils! No division of influence, no juxtaposition of political assemblies and economic councils! The Councils are an indispensable instrument to substitute permanently a socialist for a capitalist rÉgime. That is to say, they should fulfil two series of functions: political and economic. Politically the Councils system unites in the same organism both parliament and administration, thus rendering possible that constant control of administration which the parliamentary rÉgime is incapable of exercising, and maintaining a permanent supervision of the elected by the electors. Economically the Councils watch over the execution of socialization measures; later they become the regulators of production and consumption.

To this duality of functions there corresponds a double organization. The political system rests on Workers Councils properly so called (ArbeiterrÄte); the economic system rests on Factory Workers Councils (BetriebsrÄte).

In each commune, workers, employÉs, and peasants, organized as much as possible in vocational groups, elect worker councillors, one for every 1,000 electors. These councillors have as their task, while awaiting the final organization of the system of Councils, the control of municipal administration. Their delegates constitute Local Councils (KreisarbeiterrÄte); the delegates of the latter, in turn, make up District Councils (BezirksrÄte). In addition, so long as the German Republic is still not united, there will sit in the capital of each state a Central Council (Landeszentralrat). These different organizations are respectively charged with the control of administration of each degree of the hierarchy. At the summit of the edifice, finally, sits the Congress of Councils, which controls all political power, and whose meetings must take place at least every three months. This congress elects a Central Council (Zentralrat) which appoints and controls the Commissars of the People. It is in a word a copy of the Russian system.

Parallel to this political organization, there is created in each factory, shop, etc., a Factory Workers Council (Betriebsrat), elected by the workers and employÉs in the proportion of one delegate to 100 electors. Small factories and rural enterprises are grouped so as to form electoral units; the same with the professions. The Factory Workers Councils are charged with the defence of the interests of the personnel, and with the control of the enterprises in which they are employed. They co-operate in the application of measures for socialization. But their action, limited to the factory or the shop, cannot pretend to embrace all the problems of production. Germany is divided, therefore, into a certain number of economic districts (Wirtschaftsbezirke). In each of these districts the Factory Workers Councils of each branch of industry and of commerce designate a Council of Groups of this district (Bezirksgrupenrat). All the Councils of Groups in the same district designate delegates whose assembly constitutes the Economic Council of that district (Bezirkswirtschaftsrat). In the same way the district Councils of Groups of each branch of industry elect for the whole Reich a Council of Groups of the Reich (Reichswirtschaftsrat), to which is entrusted the general supervision of economic life, and which, in accord with the Central Council, determines during the transitional period the necessary measures for the maintenance of production and the application of the laws for socialization. The Economic Councils of the districts and the National Council may add to themselves, if they deem fit, experts, economists, etc.

The whole system, so simple theoretically, rests on the elections of workers as councillors in the Workers Councils and in the Factory Workers Councils. The composition of the electoral body therefore takes on a particular importance. The fundamental principle, in which DÄumig and his friends would tolerate no diminution, was that no employer as such could take part in the system. Only employÉs are eligible as electors. An exception is made in favour of peasants “who do not permanently employ farm hands.” A second axiom stipulates that those elected must remain under the constant control of the electors. The electoral body is therefore free to recall them whenever it seems desirable to it. In any event a worker councillor must not remain such for more than twelve months. He must stay a worker and not become a functionary.

Such is the organization that the Independents and the Communists proposed. In itself lies the proof that it is contrary to the democratic principle; for only part of the nation, manual and intellectual workers, employÉs, the proletariat would have the right to direct public affairs. And this consideration, without counting all the other criticisms that may be made against the system, such as at least the present incompetence of workers to govern, the necessary establishment of a reign of terror, etc., has grouped against it not only the bourgeois parties but also all the Social Democrats, who depend for the triumph of the socialist idea on democratic and parliamentary means. “I do not wish to dwell long on the study of the question of ‘the dictatorship of Workers Councils versus democracy,’” said one of the Social Democratic drafters of the Constitution. “It is sufficient for me to show that this dictatorship is in contradiction to democracy, that we must choose between dictatorship by a minority on the one hand, and democracy or government by the majority on the other. The Committee on the Constitution has declared in favour of democracy, control by the great majority of the people. The idea, therefore, of a dictatorship by the Councils is rejected.” (Sinzheimer in the session of July 21, 1919, of the Assembly; see Heilfron, op. cit., vol. vi, p. 4265.) From the side of the Democrats came the criticism, “Those who demand all power for the Councils, who want to place between the hands of the Councils all administration and all legislation are so indefinite as to the means of realizing their demands, that it astonishes one … that a programme, so little developed, can be put forward without the least explanation of how it is to be realized.… We reject the granting of political right to the Councils. We reject above all the dictatorship of a class that is at the base of these Councils, emphatically and unconditionally.… We reject also the Councils as organs of control. The idea of organizing the Councils as a new assembly of control, side by side with each assembly already in existence, seems to us incompatible with democracy.” (Erkelenz, session of the National Assembly, July 21, 1919. See Heilfron, op. cit., vol. vi, p. 4236-4328.)

The Councils System was, therefore, rejected by the National Assembly. It must be observed, however, that it did not remain the mere formula of isolated theoreticians. The organizations of the Councils, in line with the plan we have just pointed out, was put forward as the programme of all the Independents and the Communists, and, as we will see, these two parties succeeded in casting 5,337,712 votes in the elections of June 6, 1920, sending 83 deputies to the Reichstag.

3.—THE CHAMBER OF LABOUR OR THE VOCATIONAL PARLIAMENT.

There is another project which was rejected in the name of the democratic principle but whose partisans declared to be compatible with this principle—one which in any event under different modalities has determined champions in almost all the parties. That is the plan for the creation of a Chamber of Labour (Kammer der Arbeit) or Vocational Parliament.

The idea of granting to vocational interests a special representation is not new, but since the Revolution it has been studied in Germany by a group of publicists and students of politics, who have delved perhaps more profoundly than ever before into the project and have given it a new form by introducing new concepts into it.

The supporters of the Chamber of Labour declare that at the present time, in contemporary states, the vital duty of a government is to organize the economic life of the nation. This obligation has particular force in a country whose whole economy had been overturned and ruined by a disastrous war and revolution, and which, unless it decides to enter upon a new road, runs the risk of crashing under the burden of its foreign and domestic debts.

In order to reconstruct Germany economically one cannot depend on a political parliament. A study of the history of the parliamentary system brings the conviction that if a parliament has proved to be an adequate organ of political legislation, it is nevertheless admittedly incapable of solving the economic and social problems it encounters. The parliamentary system, that is to say, the system that consists of the formation of a government with the parties of the majority, is much more a product of classical liberalism than the creator of new social and economic forms. All the ideas current to-day and which constitute the guiding principles of our political life, viz., democracy, national sovereignty, the forming of the popular will, division of powers, belong to an epoch in which the economic activity of the state was combatted with passion. When it has created its political system liberalism remains content with forms that answer only to purely political exigences.

But to-day ideas on the rÔle of the state are changing. The state in the last few decades has little by little ceased to limit its activity to the rÔle of “watcher of the night,” which liberalism assigned to it; and more and more the organs of the state have been forced to exercise an influence on public economy. Modern parliamentarism is insufficient to permit the state to fill its new duties. For the political chambers are divided in parties that group themselves according to changeable ideological conceptions, based on the idea of “what should be,” the idea that dominates the parties. But in taking a position in accordance with such articles of faith and political axioms, one does not acquire the necessary technical knowledge to gauge and judge economic questions. In this matter there is only one method of learning, that is to study the facts of economic life. What follows from this is self-evident. We must, if not actually suppress the political parliament, at least put beside it special organs charged with fulfilling the economic duties of the state. (See August MÜller, Socialisierung oder Socialismus? Berlin, 1919.)

And these organs can be nothing but Councils, Workers Councils, Councils of Producers.

Let us not cry immediately, Bolshevism! It is true that the system of Workers Councils was born in Russia. First appearing under the Revolution of 1905, we see them reappear in 1917, but it was not the Bolsheviks who brought them into being. The Soviets were born because in pre-revolutionary Russia the law did not tolerate unions of workers. As a consequence the only form that an organization could take to combat the tyranny of the Czars was to nominate in every factory, shop, etc., men who could be trusted. In 1917, Russian Workers Councils formed the strongest support of the democracy; they were the firmest adherents of the government formed by Kerensky. But when the Bolsheviks seized power they crushed the democratic Soviets in the sense that they would not any longer permit them to elect their members to office, and they, the Bolsheviks, nominated men to represent these unions. In this fashion they erected their dictatorship, a dictatorship of a small group, with the slogan of, “All power to the Workers Councils!” But the advent of Workers Councils has nothing in common with Bolshevism.[19]

To political representation one must join economic representation, constituted essentially by the Councils. Workers Councils, somewhat like those which DÄumig would organize, are retained; to them should be assigned the representation of workers’ rights, which have hitherto been defended by the unions.

But by their side should be created Councils of Production (ProduktionsrÄte) charged, as their name indicates, with supervision of production. There will be organized in each locality and for each branch of economic activity a Council of Production. The enterprises of the locality will each be represented by an equal number of delegates of the employers and delegates of employÉs, for the principle of parity between employers and employÉs is absolute. Above the Councils of Productions of the communes there will be superimposed for each branch Councils of Groups, Councils of the Province, etc., culminating in Central Council of Production (Zentralproduktionsrat). There is thus for the whole territory of the Reich a Central Council of Metallurgical Production, a Central Council of Breweries, a Central Council of Chemical Production, etc.

There is in addition at each stage of the above structure a corresponding economic council or Chamber of Labour, formed by a meeting of the delegates of the Councils of Production of that stage.

The union of the delegates of the Councils of Production of each stage constitutes a Chamber of Labour, that is to say, by the side of the political assembly of the commune, of the district, of the province, as well as by the side of the National Assembly, there is room for a communal Chamber of Labour, a Chamber of Labour of the district, a Chamber of Labour of the Province, and a National Chamber of Labour, where all the economic interests of the commune, the district, the province, and of the Reich, are represented. By means of a Chamber of Commerce, the producers, as producers, participate in political life. It is an economic parliament by the side of a political parliament. Whether in the commune, the province, or the Reich, no assembly elected according to merely habitual democratic principles (Volkskammer) can of itself deliver verdicts or decisions of principle. An ordinance of a communal assembly would have to be submitted to the approval of the corresponding Chamber of Labour just as a law passed by the National Assembly would have to be ratified by the National Chamber of Labour, no matter what its subject matter. The Chamber of Labour thus plays the rÔle of a second chamber and its veto cannot be broken unless for three years in succession the popular chambers vote the same provisions in the same terms in regard to the matter in conflict. The Chamber of Labour and the popular chamber have equally the right to invoke a referendum. Finally, it belongs in principle to the Chamber of Labour to be the first to examine all projects of an economic character; and it can, when it sees fit, take the initiative in proposing a law.

There are between this programme and that of the Independents profound differences. This programme gives the employers a place; the proletariat is not all-powerful; and if it gives to the organs representing the workers part of the public power, it does not thereby completely abandon the employers. Neither dictation by the proletariat, therefore, nor dictation by the Councils; but a political parliament and another chamber in which employers are allowed to keep the right to existence, collaborating by the same title and to an equal measure with the workers in the direction of public affairs.

From the purely democratic point of view the most serious objections can be made to this system and these were amply expressed.

In the first place, said the democrats, these Chambers of Commerce cannot be made up of men who have the sufficient knowledge and experience with economic questions except by selecting them from among the employers, employÉs and the workers in the different branches of any given industry. But these men are personally most strongly interested in the problems they are supposed to solve. The danger is great, therefore, that they would decide not according to considerations of general interest but to considerations of the special interests of their particular industry or their own commerce. The decisions of a Council composed of representatives of different enterprises will be dictated by the delegates of the most strongly represented enterprises; and if the interests of all the vocations that have voice in the Councils can agree on something at the expense of the interests not there represented, one can be certain that this solution will be chosen. The proof of this is already here; councils of producers grow always at the expense of the consumers.

The champions of the Chamber of Labour, continue the democrats, are guilty of a fundamental error. They believe that in economic questions there are only such problems as can be studied by the technicians, and that these can give such problems the only and obvious solutions. Actually, however, even in purely economic questions, we ask always not what is, but what should be, what we want of them and what we can effect. A technical knowledge of circumstances, of causes, and consequences is naturally necessary for a serious decision. But, even after the most scientific examination, one arrives almost always, and above all in important questions, at diverse conclusions, only because different aims have been followed. These conclusions are always dictated by political conceptions. Technicians can decide the best system for cleaning the streets; though even here it may be a political question to know if such a system, which is the best but also the most costly, can or should be employed. But when it comes to questions of Sunday rest, if woman labour should be countenanced, if and how the land should be distributed, how the relations between capital and labour should be organized in the great modern enterprises, and perhaps above all, who should pay the taxes—all these questions and an infinity of others raise up problems not of knowledge but of will. They are the questions in which the concern is not with economy but with the situation of man, his rights, his liberty, and his dignity within the economy. It is a question of the power of deciding for the collectivity on a subject of collective interests. It is not for the technician to decide, but for the man political.

A last and decisive objection, conclude the democrats, against the system of a vocational parliament is that it replaces or annihilates the democratic Chamber elected by the equal suffrage of all, that is to say, by democracy itself, and substitutes for it a professional chamber elected by a plural vote of privileged persons. Let the proposal be remembered which the Prussian conservatives submitted two months before the Revolution of 1918 to effect, as they claimed, the equality of the right to suffrage. Each elector was to have one vote within his professional vocational group; but the representation contemplated by this proposition was that the group of farmers were to have one seat for every 12,295 electors, whereas their labourers would not get more than one seat for every 110,530, a landed proprietor having electoral power ten times as strong as that of an agricultural labourer, six times as strong as that of a factory worker and one-and-a-half times as strong as that of a civil servant. It is true that the division of mandates in a Chamber of Labour would not result in as anti-democratic consequences as these; but the project of this chamber is based on the essential principle of parity between employers and workers; the two are supposed to be rigorously equal in numbers. That would be self-evident and understandable fully if the two groups had to settle questions in which their reciprocal interests were opposed, or if it were a question purely technical, where the number of delegates does not enter into consideration. But it is absolutely impossible to admit that an assembly thus constituted should take decisions or vote resolutions; for, a numerically equal representation both of employers and employÉs would correspond obviously to a proportion of electors much greater for one class than for the other. In any industry, for example, an employer represents considerably fewer electors than a worker, and to give his voice in the direction of public affairs an influence equal to that of a worker, would be, from the point of view of democracy, an absurdity. One thing or the other. Either the seats in the Vocational Parliament are apportioned among the professions according to the number of electors in each, the representatives being elected in each vocation by the equal suffrage of all without distinction between employer and employÉ—in which case there would result a duplication of the political parliament of which the least one can say is that there is no apparent utility in it. Or, the number of seats attributed to each profession must be measured by the economic or social importance of that profession, basing representation in each profession on the principle of parity—in which case there would result a parliament of the privileged, condemned by the democratic ideal. An assembly thus composed could very well draw up reports and give advice on questions in which it possesses special competence. But it cannot be a parliament having rights equal to those of a political parliament.

Such are the objections put forward by democrats against the institution of a Chamber of Labour, and their force cannot be denied. But the champions of an economic parliament reply with vigour.

These objections, say they, all take the point of view of formal democracy, that is to say, the point of view that considers only the external forms of democracy, which contents itself with a purely theoretical equality of right and equality between citizens corresponding not at all to the facts of reality, which reduce this equality to nothing. To this form of democracy, to-day condemned by reality, there must be opposed real democracy, in which one takes into account the special rÔle which certain elements in the life of a nation play. Formal democracy has been fully realized by giving all men and women the right to vote. That is not enough. In a modern democracy public economy must be given its proper place, which is in the forefront. Producers, as such, must play the preponderant rÔle in the state, for the other members of the community live only as parasites on their labour, and the state does not exist except by the labor of the producers. No decision can be taken in a state if it is not accepted by the producers; the latter must be the touchstone of all decisions.

It is not because of their technical competence that producers are proposed as the constituents of a special chamber. It is because they judge things from the point of view of production, which in a modern democracy should count more than any other. It is not a question of abolishing the political parliament, but of placing in juxtaposition to it an economic parliament through which the voice of the producers can be heard and by which the ideology of the politicians can be corrected by the realism of men of affairs.

No division of competence between the two parliaments in such a way that only social and economic questions shall be submitted to the Chamber of Labour can be admitted. This distinction between political affairs and economic affairs is a pure impossibility, for economy, politics and general culture form a unity which must be respected. It is on production, on “creation” that the existence of the people and all its material and intellectual life rests. The two parliaments therefore should have equal power to study these questions. They must also have equal rights. To give the economic chamber only the right to draw up reports and give advice, and even to oppose its veto only, would be entirely insufficient and would not correspond to the primary rÔle which the producers play in the life of a nation.

It is superfluous, continue the partisans of a Vocational Parliament, to present arguments of which history constantly furnishes corroboration. In the countries which practise the system of two chambers, one of the two chambers takes on always a greater importance than the other and plays the preponderant rÔle. It is the one which translates best the will of the nation and best satisfies its needs. The other chamber may be able to resist for some time but in the end it is always forced to surrender. Up to now this preponderant rÔle has been held by the lower houses, which being the product of universal suffrage, are always nearer the people, have more of their confidence and reflect more exactly their aspirations. Let us create now by the side of the former lower chamber, a Chamber of Labour and let us leave to it the care of determining its own future. It will either become a parliament of the privileged, making decisions that will not correspond to the true needs of the nation; in which case it will be promptly annihilated by the more popular chamber. Or, on the other hand, it will show itself to be the more practical and the more useful chamber to the people. In the inevitable conflicts that will arise between the two chambers, the economic chamber will have behind it the support of the people. In case of referendum it will be in favour of the Chamber of Labour that the national sovereignty will decide; in which case the traditional rÔle of a lower house will pass into the hands of a Chamber of Labour. The proponents of the Vocational Parliament are convinced that it will be this last alternative that will be realized.

The German Constituent Assembly has followed their suggestion only to a very slight measure; sufficiently perhaps to attempt the experiment recommended by the advocates of the Vocational Parliament. The Assembly has created an Economic Council, which will be judged by its work, although it is deprived, according to the Constitution, of any real political authority. It is sufficient for the moment to say that in principle it is the classic point of view of formal democracy that guides it.

4.—THE POLITICAL ACTIVITY OF THE UNIONS.

Meanwhile, however, several things occurred that seemed to support the arguments of the partisans of a Chamber of Labour, when they claim that the natural evolution of events must lead shortly to the advent of this chamber.

We know that on March 13, 1920, counter-revolutionary troops led by the Infantry General von LÜttwitz seized Berlin, that the regular government abandoned the capital and that the Director-General of Agriculture, Kapp, was proclaimed at the same time Chancellor of the Empire and Premier of Prussia. It was a coup de main of officers and former reactionary functionaries, all of whose acts aimed at the re-establishment of the old rÉgime. On the 14th the unions of workers and clerks sent an ultimatum to the new masters of Berlin demanding that they immediately withdraw. As this ultimatum was not obeyed, a general strike was proclaimed on March 15.

The counter-revolutionary government lasted four days; then, conquered by the general strike, it disappeared.

But before giving the workers and employÉs the order to return to work the chiefs of the unions wanted to obtain guarantees against the return of a new coup d’État. They called therefore on March 18 the representatives of the parties of the majority to a conference, where they presented to them the following new ultimatum. These representatives were to accept in the name of their groups—which would therefore be bound—the claims which would be submitted to them; otherwise the general strike would be continued in an aggravated form. The unions would not hesitate, if necessary, to prevent the return to Berlin of the Government and the National Assembly. They would even accept the responsibility of a civil war. The representatives of the Democrats and of the Centre refused to pledge their parties. They promised only to do what they could to get them to accept the claims of the unions.

As for the claims themselves, they were presented by the union leaders, and, after a long discussion and some modifications, they were accepted by the representatives of the political parties. These claims formed the celebrated agreement known in Germany as the “Eight Points.” They gave particularly to the unions the right to exercise a veritable veto over the nomination of Ministers and the formation of the Ministry.[20]

This agreement concluded, the regular government came back to Berlin. But then came its turn to negotiate with the trade unions and to attempt to satisfy their new claims.[21] These new engagements secured, the union leaders ordered the end of the general strike and the resumption of work.

Meanwhile in accordance with the “Eight Points” the cabinet of Bauer was formed. The crisis seemed ended on March 24 by the simple replacement of some ministers; but the unions raised difficulties over the new composition of the cabinet. They no longer wanted as Minister of Finance, Kuno, director-general of the Hamburg-American Line; and demanded the resignations of two former ministers, Schlicke and Schiffer, whom they accused of having treated with Kapp and LÜttwitz. After long negotiations, the unions withdrew their opposition to the retention of Schlicke in the Ministry, but kept up their objection against Kuno and Schiffer. These two, therefore, gave up their attempt to enter or to remain in the ministry; but the Democrats took the part of Schiffer and the whole cabinet was compelled to resign. It was replaced with the consent of the unions by the ministry organized by Hermann MÜller.

Meanwhile work far from being resumed, a new kind of civil war developed in the Ruhr. On the one hand armed workers, who had first organized to fight against Kapp and LÜttwitz, remained united and under arms for fear that even after the conclusion of the coup d’État of Kapp and LÜttwitz, there would remain under another mantle a disguised military dictatorship. On the other hand, troops of the Reichswehr, some of whom were accused by the workers of having the support of the counter-revolutionary government and whose powers seemed to be unlimited, alarmed the labouring population. On March 21, there was held at Bielefeld a conference in which met members of the constitutional government, delegates of the parties of the majority, and representatives of the Independents and of Labour organizations. An “armistice” was at first concluded, then an accord was achieved—known in Germany as the “Bielefeld Agreement”—in which to the “Eight Points” of Berlin was added a “Ninth.” This would, at least it was so hoped, bring about the dissolution of the revolutionary organizations and the re-establishment of the regular administrative authorities.[22]

In spite of this agreement, however, fighting continued and on April 6 the unions, to whom the two socialist parties rallied, addressed another ultimatum to the government. But it was precisely the moment at which Franco-Belgian troops occupied German cities on the right bank of the Rhine and attention was thereafter diverted entirely to foreign politics.

Such are the facts. The parties of the coalition have attempted to justify them and to prove that the imperative injunctions addressed by the unions to a government which had to yield almost at every point did not constitute a violation of the constitutional principle of national sovereignty. They pointed out that the first of the “Eight Points” recognizes expressly the rights of national representation; that the decisive influence accorded to the unions in matters of social and economic legislation had to be exercised through the intermediacy of representatives speaking for the unions in the ministries charged with the preparation of law; and that the last word belonged, therefore, always to the popular representation; that, although it is true that the unions protested against the nomination or the retention of Kuno and Schiffer in the ministry, yet in reality the cabinet of Hermann MÜller had been constituted according to the customary forms after an accord with the parties of the majority.

Other members of the governmental parties, on the contrary, pleaded extenuating circumstances. The Minister of Post and Telegraph, Giesbert, after having participated in the “Bielefeld Agreement,” declared that he did not want to examine whether this accord was contrary to or in conformity with the Constitution; for, “extraordinary epochs and extraordinary circumstances compel extraordinary measures. The conviction of those who participated in the conference (of Bielefeld) is that this agreement was the only possibility of avoiding chaos and devastation in the territory of the Ruhr.”[23]

But the opposition parties unanimously insisted that the Government’s attitude was really contrary to the principle of national sovereignty. In a democracy only the parliament elected by the whole people should decide; only it could appoint the Government and it was responsible for its decisions and nominations only to the people of the nation themselves. As for vocational associations, their function is to defend only the corporate interests of their members and they had no right to encroach on the political domain. In the events of March-April, 1920, the unions, leaving their vocational domain, revealed themselves the real masters of Parliament and of the Cabinet, which had to submit to their injunctions. The Independents congratulated themselves and proclaimed that thereafter the Government was placed under a certain surveillance of the organized proletariat. The parties of the Right indignantly refused to acknowledge a “side government” (Nebenregierung) over the regular government. “Henceforth,” said one of the opposition journals, “workingmen’s organizations can say that their orders are always carried out. It is true that the Democrats seem troubled by the state of affairs. But what difference does that make? There are only three parties that govern Germany—workingmen, employÉs, and civil servants.”[24]

These statements are undoubtedly exaggerations in two respects. One fact meanwhile must be noted of importance here. While the government was discussing with the unions the formation of the ministry the newspapers printed vehement protests from vocational associations and from other labour unions and groups of clerks and civil servants, which demanded that they, too, be allowed to participate in the negotiations. For they did not understand why the labour unions should alone have the privilege of participating, for example, in the choice of Ministers—and it is impossible from the democratic point of view to deny the force of their position.

Without deducing from these facts any premature conclusions one may ask if the supporters of an Economic Parliament are not right in saying that formal democracy no longer is able to meet the actual needs of the people.

The events of the months, March-April, 1920, demonstrated, they say, the complete incapacity of political powers to surmount any difficulty as soon as it becomes in the least serious. One of them wrote, “The political party is about to become a superfluous organization; it is being ousted or perhaps absorbed by the vocational association.”[25] A new epoch demands new political forms. It is true that it is inadmissible for a certain class of unions to arrogate to itself the right to impose its wishes on a government of the whole people. We must not think, on the other hand, that in the future the unions would renounce the use of means which have hitherto proved to be powerful. There is only one remedy open: to associate the other productive parties of the nation with the political work of the unions; to transform this present irregular and irresponsible political work, such as it is now, into a constitutional collaboration with the government of the state. It is there that the events of the month of March have demonstrated the necessity of changing the present system. These events appear thereby one of the steps which lead from a formal democracy to a real democracy, from a purely political parliamentarism of the past to a politico-economic parliamentarism of the future.

The democratic principle is one of the bases on which the Constitution of August 11 is constructed; more or less immediate applications of it are found in most of the institutions provided for by this Constitution. We shall confine ourselves here to the study of the principal and most direct of these applications.

1.—THE REPUBLIC.

The normal form of a government in a democracy is the republic. It is logical that if the people is sovereign and if all power comes from the people the chief of the state, like its other organs, should be elected by the people and hold his authority by virtue of it. It is true that there may be and that there are democratic monarchies, such as, for example, England. But this juxtaposition of monarchy and democracy, is, from the point of view of theory, difficult to justify and in practice can be maintained only by reducing the effective power of the monarch to almost nothing. Democratic Germany therefore, must be republican. In reality the National Assembly arrived at a republic much less by logical compulsion than through actual necessity; like the French Assembly of 1875, it adopted the republican form because it was difficult for it, if not impossible, to do otherwise. It seems that the great modern democracies do not become republican until monarchy has been demonstrated as impossible. The republic is at the outset only a last resort; and this must be realized and borne in mind.

Before the Revolution nothing in Germany was republican. Almost totally deprived of political spirit and personal judgment the German people had let themselves be convinced that it was only in the hands of the monarchy, the army, and the bureaucracy that the affairs of the nation were best and most safely conducted; and they naturally came to think that the prosperity in Germany in economic and in technical matters, as well as its development in social matters, was undeniable proof of the excellence of the monarchical system. No political party dreamed of incorporating in its program the establishment of a republic. Not even the Social Democrats themselves really believed that the republican form was a thing which the time had come to demand. They even held that the economic and social interests of the working class could be more solidly assured by a powerful monarchy than by a republic and a democracy of “capitalists.”

After the Revolution the situation changed entirely. The sudden and complete bankruptcy of monarchy demonstrated overnight, with all the convincing force of fact, that this monarchy, in spite of its apparent force, was incapable of fulfilling the duties whose accomplishment alone could justify its existence. The powerful monarchy had not had any clear and co-ordinated foreign policy; it had turned against Germany all the active forces of the world; it had shown itself unable to utilize to its full limit the military and economic capacity of the German people for waging a desperate war to an acceptable conclusion; it had not been able to realize indispensable internal reforms. After November 9, one can say that there were no more royalists in Germany; monarchy had become really impossible and the Reich could not continue except as a republic.[26]

Later the monarchist flag reappeared, rallying about it all the deceptions and discontents. During the discussion of the draft of the Constitution the German Nationalists, among them the former Minister DelbrÜck, declared loudly that they preferred a constitutional, parliamentary monarchy to a republican government; but the other parties did not follow them. In Article 1 of the Constitution it was decided that “The German Reich is a Republic”; and in Article 17 that “each state must have a Republican Constitution.”

As a symbol of this change in the form of government the Constitution changed the colours of the German flag; abandoning the black-white-red of the old rÉgime and adopting the colours, black, red and gold because of their historical significance; because these colours had always symbolized in the courts of the nineteenth century the tendency toward political liberty and towards German national unity.

However, the Constitution does not give the new German state the name “Republic” but keeps the name of “Reich.” The Independents protested against that; they insisted on the fact that “Reich” will be always translated in French and in English as “Empire” and that this word will always signify to foreign powers all that militarist domination implies, the despotic subordination and the dangerous pan-Germanism that characterized the old Empire. But Preuss, followed by all the other parties, observed that abroad “Reich” could not be translated as “Empire” except in bad faith, for Article 1 specifies that Germany is a republic and that the republican character of the state appears clearly in even the most casual reading of the text of the Constitution. For him the distinctive trait of the Constitution was that it places to the forefront German unity. “After all, our historical development is precisely in the words ‘Reich’ and ‘German Reich’ with which are associated the efforts of the German people towards unity and the re-establishment of national unity. I believe that to keep the word ‘Reich’ is entirely compatible with the marked emphasis on republican character with which the whole of the Constitution is impregnated.”[27]

2.—UNIVERSAL SUFFRAGE, THE POLITICAL PARTIES AND THE ELECTORAL LAW.

Democracy being the government of the state by the will of the majority, the next problem, a difficult one, is how to indicate that will.

First of all, does such a will exist? Hegel once said, “The people is that part of the state that knows not what it wants.” It seems at first glance that that is true. How many men there are who, when faced by a political problem, seem completely incapable of judging and making a decision. In regard to questions of prime importance in contemporary politics the great mass of individuals, no matter to what class they belong, remain hesitant and uncertain. There is in the last analysis no firm and conscious will in the many. There are unreflected and obscure impulses which govern men in political matters. And if such are the isolated volitions of individuals, what can one expect of the sum total of these volitions? Is it possible to derive from the sum of these negations anything positive and to extract from these fugitive volitions anything that resembles a collective will?

The individual wills are not only too feeble and too little conscious; they are also too dissimilar and contradictory to permit being constructed into an ensemble. It is a chaos of infinitely diversified indications; making it an absurd project to try by means of an election to secure a parliament that will constitute a faithful mirror of these chaotic indications.

Yet popular will should not be, cannot be, a myth, for in every chapter of modern history it is encountered and its power felt. At the birth of constitutional states and at every epoch of their increase in strength its action is noted; whether in the victorious thrust of the principle of nationalities or in the development of the socialist idea. All these movements—and how many others!—have denoted that there is in the great masses an active and powerful will. In war, too, is it not the popular will that leads masses to consent to sacrifices such as would not have been believed possible? There is such a thing as popular will, and no arguments given against its existence are valid.

It must be examined, therefore, in concrete fashion how what is rightly considered as the popular will is expressed in practice in modern political democracies. If all the processes of this formation are reduced to their essential elements, discarding all complications that may introduce error, there is revealed this: the fact that between the individual and the people as a whole there interposes itself a third element, the political party. What matter if in some respects one may think that, even under the most favorable circumstances, it is only a necessary evil? The political party is a political means not only indispensable but fecund and perfectly rational. Its essential function is to transform isolated volitions into a collective will of the ensemble. Therein, too, the apparent contradiction between the fact that the crowd has no conscious will and the postulate of a popular will is reconciled. The tendencies of individuals, chaotic as they may be, change completely in nature when they are joined to equal or similar tendencies of many other individuals. From the contact of these vague and troubled impulses there springs forth the conscious and clear collective will. Certain impulsive forces particularly powerful disengage from others and unite with adjacent currents to create and to strengthen a movement that can attract the masses. It is only when chaos is thus organized and when impulses are thus transformed into forces that these forces acquire a political significance and can be compared and confronted in a parliament.

Such being the primary function of the political party in a democracy, positive legislation must be such as to permit it to fulfil this function in order that the powerful popular will shall be most clearly and easily clarified and formulated by it. We must examine how this has been embodied in German law.

In conformity with the democratic principle the Constitution in Article 22 provides: “The delegates are elected by universal, equal, direct and secret suffrage by all men and women over twenty years of age, in accordance with the principles of proportional representation. The day for elections must be a Sunday or a public holiday. The details will be regulated by the national election law.”

This law is dated April 27, 1920, and was itself followed by an ordinance on May 1, 1920, which specifies each application.

I.—GENERAL PRINCIPLES.

The system according to which the delegates to the National Assembly were elected has not given complete satisfaction.

The principal objection made against it was directed above all against the law of November 30, which permits parties to unite their lists of candidates, a privilege from which the parties that lent themselves to neither alliance nor compromise naturally suffered. Such lists have been criticized as corrupting political morality and obscuring the results of elections.

But it has been also estimated that the division of representation in accordance with the Hondt system permits the stifling of small groups and that after the apportionment of seats in the different districts there are votes which secure no representation to the detriment of the small parties.

It is found also that the division of the territory of the Reich into electoral districts has been badly done, some districts being in a general way much too extensive. There are, as a rule, an average of eleven members per district in the National Assembly, and experience has shown that this number is too large for the members to be able to know well the needs of their districts and to maintain close contact with their electors.

It has been decided to abandon, therefore, the system of Hondt and to adopt an automatic system which was inscribed in Article 24 in the Constitution of Baden, and which is more customarily known as the Baden System. It is thus defined in the above-mentioned article: “Each party or group of electors is allowed one member for every ten thousand votes cast for its list of candidates. In each district the votes remaining unused are added up for the whole country and are apportioned representation according to the principle described above. Every fraction of more than 7,500 votes is permitted a seat.”

The originality of the system consists in this: First, the number of members, instead of being fixed according to the number of the population or of the electors, depends on the number of those actually voting, in such a way that not until after the elections can one count the number of members that will make up the assembly. The latter, therefore, will be more numerous if the electors are more numerous. There is also a superimposition of the tickets. The votes not utilized in the tickets of the first degree are reassembled on a list of the second degree where a new division of seats is made.

This mechanism represents obvious advantages. It insures to each party exactly as many members as it should receive according to the number of votes cast for it throughout the whole state. It realizes the greatest possible use of remnants of votes, and consequently satisfies as completely as possible the exigencies of proportional representation. All attempts by the government or by a majority at a cunning and dishonest division of the country into artificial electoral districts are thus eliminated. In addition this system permits the possibility on the part of parties to give seats to candidates who have exceptional parliamentary experience and who play political rÔles of the first order, but who despise mixing in local political struggles, such as may be considered among the principal influences in the lowering of the personal character of parliament. The ticket of the Reich permits each elector to vote at the same time for the man in whom the locality has confidence, who knows the needs of his districts and of his electors, as well as for the leaders who direct his party.

The system of Baden can be in turn applied in different modes. To give the public a chance to discuss these modes and to pronounce on this matter, the government of the Reich in January, 1920, published three advance projects of electoral law, each project defining and regulating a particular modality.

Project A introduced the Baden system in its purest form. It provided for electoral districts in which the number of voters was generally sufficient to elect six members; the unutilized votes in each district would be immediately summed up in a ticket for the Reich, where representation would be apportioned in the same manner as within the district.

Project B provided for electoral districts of four members each. But between the district tickets and the ticket for the Reich there would be a third: several adjoining electoral districts being united in “a group of districts,” in which lists called “tickets of the groups of districts” would have to be presented. The unutilized votes in the electoral districts would be first added up within the “union of districts” and credited to the ticket of this union. The ticket for the Reich would then receive only the unutilized fractions of each group.

Project C provided for electoral districts of the same extent and for groups of districts of the same nature as Project B. But parties would be free to present or not tickets in the groups of districts, the understanding being, that if they decided to present for election a list of candidates in each group of districts, they could not present lists within the districts of the group. This provision was designed to answer the following need. Groups of electors, not numerous enough to obtain in the first instance one or more seats in this or that district, could unite in groups of the same party for adjoining districts to present a ticket in common (a ticket of the group of districts) which would apply for the whole group or for only some of the districts entering into this group. While the big parties, to avoid the inconveniences of cumbersome tickets, would present in general a list of candidates by districts, the little parties would be able to present but one ticket for several districts, which would enable them to secure seats they could not otherwise win.

The project of the electoral law which was presented by the Cabinet to the Reichsrat on March 2, 1920, adopted the mechanism of project C.

The Cabinet justified its choice as follows: It is only in small districts that the indispensable contact between electors and their deputies can be maintained and, that long lists of candidates, which always lead to unpleasant surprises, can be avoided. If the electoral districts are reduced to no more than four deputies each, as project C would have it, the first candidate on each list would have in general the best chance of being elected; which would in most cases assure representation to the most intelligent electors in the district. The criticism which can be made against the ticket for the Reich that a certain number of members can be sent to Parliament elected not directly by the people but by the executive committees of the parties, is reduced to a minimum in project C as compared to project A, by the introduction of the tickets for the groups of districts. The number of deputies to be elected on the ticket for the Reich is thereby reduced and the influence of executive committees of the parties is diminished in favour of the influence of local organizations.

On the other hand, project B could not be supported. The establishment, the examination, and the publication of each of the lists of candidates for each of the three degrees to which the division of seats would be made, must offer serious difficulties, given the brief time to which would be reduced the preparations of elections. According to Article 63 of the Constitution, elections must be held at the latest on the sixtieth day after the expiration of the legislature or the dissolution of the Reichstag. Electoral authorities could not, except with hasty and desperate work, assure in such a short space of time the preparation of elections of the three degrees. In addition, system B has the inconvenience of requiring a considerable number of candidates before it is possible to foretell, even approximately, how many candidates of each of the two first degrees would be elected. It is true, however, that it had the advantage of reducing to a minimum the number of candidates elected on the ticket for the Reich.

Finally, project C, in giving to groups of electors the choice of either presenting district tickets or joining groups of neighbouring districts in presenting a common ticket, answered best the need of parties to dispose their forces most effectively within the different districts. It permitted them, so to speak, to group their districts according to their fancy, following their particular needs.

This was in outline the system which the Government designed and submitted to the Reichsrat. But before this assembly finished its scrutiny of it the events of March, 1920, transpired, completely changing the political situation and rendering general elections imperative for the following June. Instead of examining thoroughly, as it had been their intention, the project submitted by the Government, the National Assembly, in considering this project on March 27, was compelled to pass to a vote as quickly as possible. Neither did the Government defend its project with any particular consistency. Minister of the Interior Koch explained that the Government adhered above all to the principle of the automatic system and to the grouping of fractions into a ticket for the Reich. As for the division of German territory into new electoral districts, smaller and more equal in extent than those which had served in the election of the National Assembly, but districts that could be united into “groups of districts,” that was an interesting innovation. But if this was to be effected it would be necessary to adopt in their ensemble the projects admitted to the Assembly. Meanwhile the question presented itself whether the party organizations would be able to accommodate themselves to so radical a change in the division of districts, given the brief delay which would be accorded them until the elections. The Minister referred the question to the deputies themselves to answer, as being in closer contact with the organizations of their parties. The Assembly decided to retain in principle the electoral districts that had served in their own election; the only modifications to be made were those necessitated by very grave imperfections of the distribution.

Having rejected a new distribution of districts, the Assembly had also logically to reject the institution of “tickets of groups of districts” as a substitute for district tickets; it thus came back to the system of Project A—fixed districts for all parties and the assigning of fractions to a ticket for the Reich.

This ticket for the Reich, therefore, would have been presented if there had not been brought forward some modifications of the principle because of grave inconveniences. Foremost of these was the following objection: In trying to apportion the votes cast by the electors for the National Assembly according to the mechanism provided by Project A, it was seen that 18 per cent of the members of the Reichstag, that is nearly one-fifth, would be elected on the ticket for the Reich and it was estimated that such a result in the elections of future Reichstags would be but little compatible with the constitutional principle of the direct vote. It was decided in rejecting “group-of-districts tickets” to create, nevertheless, groups of districts. Political parties could declare in advance that they would “unite” within these groups the whole or parts of their district tickets, in such manner that the votes cast for these tickets and remaining unutilized would be assigned to the district tickets receiving the largest number of votes. It would not be until this second redistribution that the fractions would be transferred to the ticket for the Reich. The object was to avoid the possibility that by assigning fractions to “joined” tickets and to the ticket for the Reich, the big political parties would be thereby risking loss to the advantage of small groups of electors which could not assemble within any district an appreciable number of votes.

For this reason the following double distribution was adopted. No party will be entitled to a seat by “joining” its district tickets unless one of its tickets has obtained at least 30,000 votes (half of the number necessary to elect a member). No party will be assigned on the ticket for the Reich a larger number of members of the Reichstag than had been elected for that party in the districts on the district tickets.

II.—THE ELECTORATE AND ELIGIBILITY.

In principle every German twenty years old is an elector, without distinction of sex.

Causes for the deprivation of the electoral right of individuals are reduced to a minimum. The only ones denied this right are those who are placed under guardianship and those who have been deprived of their civic rights by a court decision. Bankrupts and paupers preserved their electoral rights, in contrast to their situation before the war. Soldiers who had taken part in the elections for the National Assembly were again disenfranchised so long as they remained under colours. Finally certain other conditions, which did not involve the loss of electoral rights, still prevented their exercise: detention in institutions for mental ailments and imprisonment, including preventive imprisonment. The laws specified, however, that individuals imprisoned for political reasons could demand that measures be taken to permit them to exercise the right to vote.

To be able to vote, when one is an elector, one has to be entered on an electoral list or on an electoral roll, or be furnished with an “electoral certificate.” These last two institutions are unknown in France and must be explained.

Germany ignores the principle known as permanence of electoral lists. Before the Revolution electoral lists were in principle revised for each election to the Reichstag. But the granting to women of the right to vote, which doubled the number of electors, and the fact that thereafter the electors of the Reich would have to vote not only every four years for the Reichstag, but also in the election of the President, and in cases of referendum, initiative, and plebiscites provided by the Constitution, have increased the difficulty of retaining the former system pure and simple.

There were in addition different proposals made to abolish it completely and to replace it by a procedure which would do away entirely with electoral lists. There would be given to each elector an “electoral passport” or a “citizenship card”[28] which would be sufficient to enable him to vote. But these propositions were rejected because of the considerable cost of the passports or of the cards, and because of the technical difficulties of furnishing adequate photographs of all the electors, necessitated by this scheme; and in addition because for certain votes, such as plebiscites and initiatives, it is necessary that the number of individuals having the right to vote be known, which would be difficult according to the systems proposed.

Another proposal achieved more success; that of electoral cards. This system consists in this, that electoral lists, instead of being made up by the administrative authorities, are made up by the electors themselves. To this end there are given by the communes to their electors cards which consist of several coupons. The elector fills out his card and returns it to the municipality, which verifies and completes it. The cards are then sent to the seat of the electoral district and are numbered. Then the coupons are detached. Coupons Number 1 make up the electoral lists; coupons Number 2 make up a duplicate; coupons Number 3 are sent back to the electors. This last coupon is for the elector a proof that he is entered on the electoral rolls and establishes his identity and the number he bears on the roll, before the election board. It is his voting card.

This system is a simplification, in the sense that it dispenses with the making of an alphabetical list and puts part of the work on the elector. But in spite of these advantages it has not been completely adopted. The electoral law provides, that, the different districts before each election must prepare lists of its electors; and it leaves to them the choice of preparing this list either according to customary rule for electoral lists, or according to the procedure of electoral cards.

The elector is entered on the list of the district in which he lives, and it is there theoretically that he is supposed to vote. But there is an exception to this rule; if he is away from home on the day of election, either because of business reasons that compel his travelling at the time of election, or because of a necessary absence at some health resort, or because he has had to change his residence before election, he can demand an electoral certificate[29] which will permit him to vote in any electoral district of the Reich.

This innovation has appeared to present little danger, for in the new electoral system a political party is never interested in getting more votes in one district than in another.

Every elector is eligible as candidate for the Reichstag on the double condition that on the day of election he is twenty-five years old, and that he has been a naturalized German for at least a year. In addition to this he must be regularly placed on the list of candidates.

It will be recalled that for the National Assembly every elector was eligible; one could thus be elected member at the age of twenty. Actually, however, the youngest elected was twenty-seven years old. The new law returned to the rule followed for the former Reichstag in fixing the minimum age at twenty-five.

It must be noted that those who, without being permanently deprived of the right to vote, are only prevented from voting by certain special circumstances, because of being under colours, or imprisonment, or because by mistake they have been left off electoral lists, are eligible for election. In the same way civil servants are also eligible. German law does not know relative ineligibilities, which French public law admits.

III.—PREPARATION OF ELECTIONS.

In a country of sixty million inhabitants of whom more than half are electors and vote, above all, where the system of proportional representation has been adopted, preparation of the elections takes on special importance. An organization must be provided which permits to each elector the exercise of his right, and, as far as possible, facilitates it.

German law provides to this end a rather complex machinery. First, it provides for a table of thirty-five electoral districts into which the territory of the Reich is divided, and for seventeen groups of districts, into which districts are joined.

Then it institutes a whole series of organisms appointed by the administration and charged with the duty of seeing that the electoral procedure was carried out properly. These organisms are:

1. Electoral committees, which have as their function the examination of lists of candidates, the union of such tickets, and the compiling of the election results for each degree of the distribution of seats in the Reichstag. There are electoral committees for each district, for each group of districts, and a committee for the Reich. 2. Superintendents of elections, who preside over electoral committees, whose function for each stage of division of seats is to confer with the representatives of political parties, to receive lists of candidates and the declarations in which the parties “join” their tickets or make up a ticket for the Reich; these superintendents announce the decisions. 3. Chairmen of election boards who supervise the electoral operations in their boards. 4. Election boards which consist, in addition to the chairman, of three members and six assistants, who supervise the voting and pass on the validity of ballots. 5. Men trusted by political parties who serve as intermediaries between them and the administrative authorities. 6. Distributors of electoral envelopes, etc.

The law specifies very clearly the manner in which lists of candidates must be drawn up and presented. There are or may be for each party district tickets and a ticket for the Reich; there are no tickets for groups of districts. These tickets must include only eligible candidates, the status of eligibility of a candidate being examined by the competent electoral committee. The lists must be signed by 50 or 20 electors, according to whether the ticket is for a district or for the Reich. A candidate may appear on the tickets of different districts but not more than once within the same district.

Each party may “join” its tickets; which is distinguished from “groups” of tickets, such as were allowed in the elections for the National Assembly. The “group” of tickets was a contract between the signatories of two or more tickets of different parties, the intention being to have these tickets considered in the counting of ballots as one and the same tickets as against other tickets. It was, therefore, an electoral alliance between different parties within the same district. These unions of tickets, as we have seen, are now forbidden. The new law, on the other hand, provides that tickets may be “joined,” that is to say, that a union may be effected of tickets of the same party within different electoral districts, in order to utilize best the electoral fractions. In order to be valid this combination must take place within the same group of districts and between lists belonging to the same party, that is to say, joined on the same ticket for the Reich.

IV.—DISTRIBUTION OF SEATS.

Seats are distributed among the tickets.

Each district ticket receives one seat for every 60,000 votes cast for it in that district; the number of those elected, therefore, depends no longer on the vote of electors or of inhabitants but on the number of those voting.

The votes which cannot enter into this count because their number is less than 60,000 remain unutilized if the ticket has not been joined to another in the same group of districts; or if it has not been combined in a ticket for the Reich. But if, as is the case usually, the situation is otherwise, the votes are treated differently, according as one of two of the following conditions is encountered:

(a) If district tickets of the same party are joined together within a group of districts, the votes constituting the fractions described above are added together and the party receives as many seats as there are groups of 60,000 in the total. These seats are assigned to the ticket that receives the largest fraction, on the condition that this district ticket has already received at least 30,000 votes. The design is to avoid the possibility that small groups, in joining their lists, may obtain a seat at a time when they have not received in any district half the number of votes necessary to elect a member of the Reichstag. If this condition is not fulfilled the vote fractions are not utilized.

(b) If the district tickets are not united, all these vote fragments are immediately transferred to the Reich ticket. Here, too, are assigned the vote fragments that remain after the operation provided in the above provision.

(c) The ticket for the Reich receives a member for every 60,000 votes thereon. Beyond that every fraction in excess of 30,000 is considered equal to 60,000. But the ticket for the Reich can never obtain more seats than the total won by the district tickets whose excess fractions have been united therein; for here, too, the design is to avoid the possibility that small groups may secure more seats by means of the ticket of the Reich than they have received by direct votes in the districts themselves.

The distribution of seats among the candidates of the same ticket is, because of the system which excludes “splitting” and the joining of tickets, extremely simple. Those elected are designated according to the order in which their names appear on the tickets, so that the wish of the electors has no part in this matter.

V.—THE ACTUAL WORKING OF THE LAW.

The electoral system which we have described was applied for the first time in the elections to the first Reichstag of the German Republic on June 6, 1920. From the purely technical point of view it seems to have worked satisfactorily. It is interesting above all to inquire how the two principal innovations in these elections have worked out: woman suffrage and the automatic distribution of seats.

I.—Women already voted in January, 1919, at the elections for the National Assembly. They voted in considerable numbers. Of the women eligible to vote 83 per cent did so. The percentage among the men was 82.4, which is approximately the same as the women. But this equality disappears when we consider the proportion according to the ages of those voting. Among the male electors twenty years old only 59.6 per cent voted; whereas among the women of the same age 80.5 per cent voted. Thus the young women seemed twice as zealous to use the new privileges that had been accorded to both. Of the electors from twenty-one to twenty-five years old, 70 per cent of the men and 80.9 per cent of the women voted. But the statistics change when we come to the older groups. Past the age of twenty-five it was 84.8 per cent of men that voted, and only 82.6 per cent of women.

At the elections of June, 1921, fewer women seemed to have voted than the year before, and this time it was the men who proportionally voted in larger numbers.

But in 1920 there was tried an experiment in several districts which had not been done in 1919. The men and women of these districts voted in separate polling places, in order to determine their respective strength in the various parties. We will cite, among other facts, two instances obtained in cities of differing political complexion.

In Cologne 119,263 men and 110,364 women voted in the sections in which this experiment was carried out. The vote was distributed as follows:

In Spandau 23,294 men voted and 23,359 women. Out of every 100 men and 100 women the different parties receive the following proportion:

Thus in the two districts women voted more for the Centre and the parties of the Right.

Of the total vote cast for the Independent Socialist Party 33 per cent were women. In the Social Democratic party the proportion rose to 40 per cent. For the parties of the Right the percentage was 52. Whereas of the Centre women comprised 60 per cent.

The newspapers of the Left noted bitterly this irony of history, that it is precisely the parties that have always been against woman suffrage that are most strongly supported by women.

II.—The application of the automatic system has had several interesting results.

Throughout Germany there were cast 26,017,590 votes. This gave the Reichstag 466 members. The votes and the seats were distributed as follows:

One may wonder that the Communists with 441,995 votes received only two seats. This is explained by the fact, although they had put up tickets in all the districts they did not receive more than 60,000 votes, that is one seat, in any district other than Chemnitz. The votes that had been cast for them in the other districts and the excess of 60,000 received in Chemnitz were transferred to their ticket for the Reich. But there they could not receive more than one seat according to the provision that no ticket for the Reich may receive more seats than the number which the party in question has won in the districts directly.

Of the members elected 329 were elected directly in the electoral districts; 44 were elected in the district groups; 51 on the tickets of the Reich; 42 other members were sent by territories in which plebiscites had been ordered. These districts had not participated in the elections, and retained until the new system the representation they had received in the election for the National Assembly.

It must be noted finally, what could have been foreseen and what was aimed at by the law, that the number of votes not utilized is extremely small. The smallest fragment discarded was that of the People’s Party with 8,851 votes; then came the Independents with 9,872 votes; the Social Democrats with 11,457 votes, etc.

The cases in which a fragment of more than 30,000 votes became equivalent to 60,000 and therefore won seats were as follows: Democrats, German Nationals, Christian Federalists.

3.—DIRECT GOVERNMENT.

Universal suffrage is the means by which the sovereign people manifests its will in a democracy. Once the election is over it leaves to the representatives it has elected the freedom of directing in its name the affairs of the state. This is the system of representative government. At the same time the people give their representatives only limited powers, and they reserve the right themselves to decide on certain particularly important affairs. In such a case there is direct government. This system constitutes obviously an immediate application of the democratic idea; and it may be said that that Constitution is most democratic which avails itself most of direct government.

The National Assembly has admitted without any difficulty the principle of direct government into the Constitution. According to the expression of Preuss, direct government to-day is a “postulate of democracy”; to this the Social Democrat Quarck has added that direct government is “an essential element of democracy for which to-day there have been found positive, practical, and scientific forms, according to established principles of public law.”[30]

But in this form of government there is found not only a logical consequence of the principle of national sovereignty; there are also in it certain considerable advantages.

First, there is the educational value in the fact that the people participate directly in the conduct of public affairs. It is true it sometimes happens, in countries which have already applied this form of government that a decision of the people, far from constituting progress, actually marks if not retrogression, at least an arrest in the development of social legislation, or even in some matter of general policy. Nevertheless the very efforts that are made to convince the people and to bring them back to primary considerations, constitutes the best kind of civic teaching and gives them a political experience, the value of which in a democracy cannot be exaggerated. The collaboration of great strata of the population in the creation of laws and in political life profoundly educates the masses in the principles of their Constitution; and an institution which has been established in a country after bitter struggles, perhaps after several defeats, becomes thereafter almost impregnable, or cannot be discarded except with extreme difficulty.

In addition direct government constitutes the best system of democratic control over the organs of the state. Care must be taken in a democracy to institute control over control; for democratic government is essentially the reign of trust. The destinies of a nation should not, therefore, depend exclusively on the parliament. While one may be for parliamentary government, one may still fear that a powerful majority may establish a veritable dictatorship and oppress minorities; or that a majority formed by chance combinations may show itself incapable of action and retard indefinitely the adoptions of measures impatiently awaited by the people.

There is, then, place in Germany for direct government; but to what extent? At first this place seems quite limited. Preuss, who in his draft of the Constitution made only limited use of it, presented direct government as convenient above all for small states; but he doubted that one could apply it in any considerable number of ways in a big country like Germany. In spite of this opinion direct government gained ground little by little and in the final text occupies considerable place. One finds in the Constitution not only the classic forms of constitutional and legislative initiative and referendum such as, for example, have been traditionally employed in Swiss and American democracies; but also we find there new applications of direct government.

The people express themselves not only on the text of a law. They are also the great political judges, the supreme arbiters to whom must be submitted all difficulties of vital importance to the nation. The people give to the organs chosen by them the right to legislate and to govern; but if a discord arises between these organs or if these organs once nominated do not bend to the people’s will, they intervene themselves on the appeal of one of the organs or of their own accord. Direct government expresses itself, therefore, when a conflict arises either between the organs of national representation, or between this representation and the nation itself. In these two cases it is the people who decide the conflict.

First, then, discord may arise between the organs of national representation. Being given a multiplicity of these organs the issues in which the people is thus appealed to for intervention may be of several kinds.

(1) The conflict may arise between two legislative chambers of the Reich. If the Reichstag and the Reichsrat cannot agree on the text of a law, the President of the Reich may or must, according to circumstances, order the text to be submitted to a popular referendum. The conditions under which this referendum is to take place are different according to whether the law in question is a constitutional one or an ordinary law.

If the law in question is to be an amendment of the Constitution, the presupposition is, that (Article 76) this change has been passed by the Reichstag and objected to by the Reichsrat. If the Reichstag does not yield to this objection and persists in its first decision, or if it modifies it but in a manner not entirely conforming to the exigencies of the Reichsrat, the latter may demand a referendum and the President must order it.

If, on the other hand, it is an ordinary law that is in question, the presupposition is again that the Reichsrat has objected to a law voted by the Reichstag and that the latter disregards this objection. The President in such a case is allowed to decide whether the situation remains as it is—that is to say, that the projected law fails of enactment; or, that the difficulty between the two Assemblies shall be submitted to a referendum. It must be noted besides that these matters referred for referendum to the people must be limited to the divergencies arising between the two assemblies, and that the people pronounce for either the text of one assembly or that of the other. If, however, the Reichstag has rallied a majority of two-thirds against the objection raised by the Reichsrat the choice on the part of the President is thereby limited. He can only either promulgate or publish the law, or refer it to the people.

(2) The conflict may arise between Parliament and the President; and this may present two quite different aspects.

The two chambers are in accord on the text of a law which the President does not approve; this is the first kind of conflict. In such a case, unless the President wants to promulgate the law adopted, he must submit the text to a referendum (Article 73, par. 2). It is in effect a very strong right of veto given to the President and accorded to him without much difficulty. The Independents, however, in accordance with their thesis of the uselessness of the President, did not want to grant this right to appeal to the people in such a case, except to a responsible minister. Also the members of the German People’s Party opposed the granting of this power as useless, being a duplication of the President’s right to dissolve Parliament. The majority of the Assembly, however, disagreed with them.

The German Nationals saw in this measure new opportunity to strengthen the authority of the President and did not let the occasion escape them. The parties of the coalition, on the other hand, felt that in investing the President with these powers they only applied logically their democratic principles. The referendum appeared to them, in addition in this particular case, less of an increase of the President’s powers than as a corrective of the fact that he has powers too great. A democracy, according to them, can with less risk give itself a strong executive, if it also includes among them his right to call a referendum in case of conflict, which would thereby enable the people to rule on the conflict. On the other hand, the supporters of the principle of separation of powers supported this use of the referendum, which seemed to them more in conformity with their principles than the power to dissolve the Reichstag.

Another kind of conflict which can arise between the Reichstag and the President is not merely a question of legislation but of general policy. According to the terms of Article 43, par. 2, “the President may be removed by the vote of the people on proposal of the National Assembly.” This provision was adopted without discussion and its presence in the German Constitution is quite understandable. The National Assembly wished to create a strong president; in fact, it has given him almost absolute power. He is the man entrusted by the people along with the Reichstag and the Cabinet. If he betrays this trust who other than the people themselves should decide that? But if he has retained the confidence of the people, what is there to fear from his being brought before it as a tribunal? In addition to this Article 43 specifies wisely that the vote, whereby the Reichstag decides to place the question of removal of the President before the public, must be a majority of two-thirds. Finally the same Article logically provides that if the people pronounce against the removal of the President in such an instance, the Reichstag is thereby dissolved, for it is the latter in such a situation that has ceased to be in contact with the people.

(3) A conflict can also arise within the Reichstag itself. The hypothesis is provided by Article 73, par. 2, thus: “A law whose promulgation is deferred at the demand of at least one-third of the National Assembly shall be submitted to the people, if one-twentieth of the qualified voters so petition.”

This procedure complicates the work of the legislator. Dr. Heinze, member of the German People’s party, has developed the following argument with much force: A project of law has been sent by the Cabinet, with the approval of the National Council, to the Reichstag, which, however, votes a different text for it. This text comes back to the Reichsrat, which raises objection to it. The Reichstag on a reconsideration of the text adopts a compromise, as in the great majority of actual instances. But there is always in the Reichstag a minority opposed to this compromise, one which proposes to postpone the promulgation of the law and to submit it to a referendum. For this proposal to become operative, it is required that one-twentieth of the electors of the Reich support it, which, if obtained, compels a popular referendum on this matter. This procedure is extremely complicated and can often become dangerous. For one-third of the Reichstag, forced by the party or the group that is behind it, can feel itself obliged to propose a referendum to the people even when the Reichstag and the Reichsrat have concluded happily a precise agreement. Into this agreement there becomes injected a referendum with all its hazards.[31]

In spite of this criticism the text was adopted because in Germany cabinets are most often formed by temporary coalition of parties; and the provision in question has the effect of giving an existing coalition longer life and permitting the solution of disputes, thereby avoiding the break-up of the coalition or a dissolution of the Reichstag.

(4) A conflict, finally, may arise between the government of the Reich and that of a state over the question which is perhaps the most serious one that can arise in a federal state—the territorial constitution of member states. Suppose the question comes up of either changing the territorial boundaries of a state or forming a new state. If one of the states in question refuses to give its consent the population is then consulted and it decides.

There is another kind of conflict, more serious perhaps than those just examined. These are the conflicts that arise between the people and its representatives. Let us suppose that the latter do not carry out the provisions or the orders given them by the people. The latter in such a case take matters into their own hands, with or without the collaboration of the representatives, and impose their will upon them. Such a procedure is popular initiative.

But here, too, several hypotheses must be distinguished:

(1) The people, for example, want a law which its representatives do not give it. Shall the people be given the right themselves to bring that law into being?

The parties of the Right of the Assembly supported the negative to this question with considerable force. They held that to give the people such a right to initiate legislation is to set up a rule of mistrust against the qualified organs of national representation. Once these organs are elected, they bear the responsibility of their decisions in the eyes of the nation, and the latter must give them freedom to act. But to submit representatives to the incessant control on the part of the people is an exaggerated democratization. Further, if the Reichstag does not pass the law demanded by the people, the President, the man in whom trust has been placed by the nation, has only to dissolve the Reichstag. Modern laws, also, are too complicated for the people to be able to give qualified decision on everything they feel like deciding.

The supporters of such initiative replied that a control of this kind over Parliament could not be instituted by leaving it all to the President of the Reich alone. Occasions may arise in which both the President and the Reichstag have lost contact with public opinion; in which case it would be necessary for the people to make its voice heard. It is also a truth born of experience that all great political and social thoughts are at first the product of very small groups, and it is only little by little that these become impressed on the masses. The initiative is only a particular form of this evolution, and it presents also this advantage, that it gives the popular movement the chance to concentrate on a particular and important question, instead of, as in ordinary elections, becoming dissipated among a large number of questions of unequal interest. Finally, the example of Switzerland is very encouraging. The proof is found there that the people often see more clearly than their government, and that the initiative is the most solid bulwark against the impositions of extremists. In the last analysis the possibility of a popular initiative makes the political activity of the government more living, and influences public agencies democratically in a very desirable sense.

Finally legislative initiative by the people has been included in the Constitution (Article 73, par. 3), but under certain conditions. It is required that a detailed bill be submitted, to avoid the possibility that the people may be called to decide merely on a general principle, about which it is very easy to create an artificial disturbance. It provides that one-tenth of the electors of the nation must support this bill. This approval given, the Cabinet is obliged to submit the text to the Reichstag after stating its own attitude on it. The Assembly then either accepts the bill, thus satisfying the people; or it changes or rejects it; in which case a referendum is then resorted to, in which the people decides as the final resource.

(2) A second hypothesis is that in which a conflict between its people and its representatives, or a part of its representatives, occurs as in the case we have already described, where a third of the members of the Reichstag demand that the promulgation of a law be deferred. It is recalled that in such a case a referendum is obligatory if one-twentieth of the electors of the nation support the demand of these deputies. There is in this a combination of the initiative and the referendum. The action of the deputies of the minority of the Reichstag in order to achieve a referendum must be supported by an already considerable number of the country’s electors.

But it must be noted—and this applies equally to the two kinds of initiative we refer to—that according to the terms of Article 73, par. 4, certain laws are not open to popular initiative, and consequently to referendum. These are the laws which because of their financial character offer to electors a very strong temptation to profit by their sovereignty to make their personal interest prevail. Such laws are those on the budgets and taxes and those relating to the salaries of civil servants.

(3) There is finally a last instance in which popular initiative may operate. It is that provided by Article 18, par. 4, whereby a population wishes the government of its state and the government of the Reich to proceed to a change in the territory of the state or to the creation of a new one. If one-third of the inhabitants demand it the Cabinet of the Reich is obliged to order a referendum.

Such are the conditions and the limits within which the Constitution provides for direct government within the Reich. It prescribes that a law shall be enacted regulating the details of the application of the principles it puts forward; but up to the present time this law has not yet been enacted. The Cabinet has, however, proposed a bill concerning it.[32]

In the case of discord between the organs of the state, that is to say, in the case where the people are called in by one of the organs in conflict, the government proposes to apply, mutatis mutandis, the procedure prescribed by the electoral law.

For the initiative, the procedure is naturally more complicated, for it consists of two phases. One part of the people takes the initiative and collects support for it. If this support attains the numbers prescribed by the Constitution, a referendum is called. The initiative, therefore, is always followed by a referendum, unless in the interim the authors of the initiative have been satisfied otherwise.

The difficulty is to organize effectively the first phase of this procedure, to launch the initiative properly so-called, in a country comprising on the average thirty million electors who vote. In the Swiss cantons, and in the United States of America, the initiative comes into being by the gathering of signatures to a petition. In Switzerland such signatures of electors often require authentification; but this leads to considerable difficulty, for, frequently the electors have their names signed by others whom they delegate to do so. In certain of the United States the conditions for the exercise of the right of initiative are variable. Often it is sufficient that the individuals who gather the signatures to such petitions give assurance that the signers are qualified electors.

In Germany it is believed that such a system could not be accepted and a procedure has been considered in which the electors would inscribe themselves on lists placed at their disposal by district authorities. In addition the formality of inscription on these lists would be preceded by an examination whose purpose would be to see if the conditions provided by the Constitution for the inauguration of a popular initiative have been complied with. This provision has for its purpose the elimination of initiatives doomed obviously to failure. This would permit the public authorities, once the principle of the initiative is accepted, to announce such a possibility officially in order to give the people a chance to take a position on the matter.

A demand that an initiative be admitted must be made by at least five thousand electors. When the proposal for the inauguration of an initiative has been admitted, all the electors can vote on it within a period, which usually is about thirty days. This voting is done under the auspices of the district authorities, to whom the task of gathering and counting the signatures is thus confided as one of their official duties.

If the signatures thus gathered are sufficient in number, the referendum, if it is decided upon, proceeds according to the provisions indicated above and which are analogous to the electoral procedure.