The second part of the Constitution of Weimar is devoted entirely to the fundamental rights and duties of Germans. It is the Declaration of Rights of the new Germany. Aside from several articles relating exclusively to the economic organization of the Reich, the five sections of this part contain a long enumeration of the rights and duties granted to or imposed on the Germans. To enter into details of this enumeration would be to undertake a study of all of German public and private law. Nevertheless an attempt must be made to outline the principal ideas.

1.—LEGAL AND POLITICAL ASPECTS OF FUNDAMENTAL RIGHTS AND DUTIES.

The articles relative to fundamental rights and duties, during the discussion of the draft of the Constitution, were the subjects of lively differences of opinion. It was questioned whether it was necessary and useful to insert such provisions into the Constitution; moreover, every one of these provisions one after another was debated. The Bismarckian Constitution of 1871 contains no declaration of rights. On the other hand, the drafters of the Constitution of 1849 proposed such a great number of fundamental rights and applied themselves with such complacence to the elaboration of these rights that the Constituent Assembly of that time was unable to make itself heeded, and this defeat contributed largely to the defeat of the whole of the project of such rights.

The first proposal of the Cabinet following the tradition of the proposal of 1849 and also the Declaration of Rights of the French Revolution, as well as of the American, Belgian and Prussian Constitutions, enumerated in a few paragraphs several essential legal principles and enunciated some fundamental dogmas which have been considered for a century and in all civilized countries as self-evident truths. But in the Constitutional Committee the discussion went far beyond these generalities. Desirous of creating an intellectual background in which justice and administration would have to operate, desiring also to furnish in the form of some suggestive maxims a guide for the conduct of some of the most important matters in the legal domain, and to furnish a solid foundation for the juridical culture of the German people, the members of the Constitutional Committee nominated a sub-committee, which prepared a new draft whose provisions were embodied in the draft of the Cabinet, in different bills prepared on private initiative, as well as in the new Constitutions of Baden and Wurtemberg. In the drawing up of this new draft the principal rÔle was played by Beyerle, member of the Centre.

In the course of the discussions in sub-committee, in Committee, as well as in plenary session, three currents appeared. Some wanted to suppress drastically all declarations of rights in the Constitution of the Reich; for they saw in these principles no stable system, but only a collection of “declarations and declamations,” to which were joined some legal maxims figuring already in other laws. Others wanted to retain the system embodied in the cabinet draft, adding to it, however, several provisions to assure the protection of the rights acquired for religious denominations. A third group, among whom principally was Frederick Naumann, held that the cabinet draft, even thus extended, was retrogression and did not correspond to the actual development of German culture. They demanded that there be substituted for it a declaration of fundamental rights which would constitute a recognition of the principal ideas that characterize the most recent development of this culture.

The Constitutional Committee, and after it the National Assembly itself, adopted a middle course. The propositions by Naumann as a whole were rejected; and it was decided not to inscribe in the Constitution, in political sentences and aphorisms without any legal content, a complete and solemn recognition of the directing ideas of the present and of the future. Nevertheless there would be inserted in the Constitution a certain number of political maxims and of “programme thoughts.” This done, the Constituent Assembly wished, in the words of DÜringer, to give a foundation to the existing legal culture, and to furnish a mirror to German juridical life, and at the same time afford a programme for future juridical development. In addition the principles voted, since they would figure in the text of the Constitution, would have to be placed under the express guarantee of the Constitution and thus become part of the fundamental law of the Reich. The Assembly hoped, finally, that these articles would exercise a certain educational function. They would constitute the basis of the civic and political education of the people. The fundamental rights would have to be not only “the keystone of the edifice, but must also become the substance whereby the Constitution would live.”

This was a magnificent programme; unfortunately it was difficult to carry it out and the most severe criticisms were rightly, it seems, made against the manner in which it was carried out.

When the articles relating to the fundamental rights and duties were being drawn up, the members of the National Assembly of necessity remained party men, and were guided, even when they voted on philosophico-legal questions, by party considerations. Also some of these “fundamental rights” had the appearance of being simply extracts from programmes or brochures of political parties. On the other hand, the members who drew them up naturally put in the foreground the problems which, at the time of the discussions, were the burning questions in both Parliament and in public opinion. The result is that the second part of the Constitution regulates questions of the day rather than of the future, and issues prescriptions for circumstances more than it proclaims fundamental rights.

However, all this would have been admissible, if there had been one big party that could have without constraint and without difficulty incorporated its own principles in the Constitution; or even if there had been two or more parties with fairly similar conceptions, which were able to agree on fundamental rights. There would have been at least a Declaration of Rights that might have corresponded to the conceptions of the majority. But there was no such majority in the National Assembly. To be sure, there was an impressive majority that agreed on a democratic Constitution. But on questions of schools, church, the family, and of economic and agrarian reforms—questions that had to be dealt with in the statement of fundamental rights—there was in the National Assembly and in the parties of the majority such divergence of opinion that it was impossible to construct of it any logical or coherent edifice. Also, in reading each provision of the fundamental rights, one can guess which party has furnished the first part of a phrase and which the second. When, for example, referring to property one reads, “The right of property is guaranteed by the Constitution. Its nature and limits are defined by law”; or, when in Article 152 a phrase declares, “There is an economic liberty in the measure indicated by the law,” every one, no matter what may be his personal conceptions, may find himself entirely satisfied, according to whether the first or the last words of each provision are emphasized. This evident compromise between the political parties on political conceptions so widely divergent was emphatically pointed out by Member of the Assembly Koch, who characterized the fundamental rights as “an interfractional political programme.”[48]

From the legal point of view, the defects of this programme are no less serious. It is extremely difficult, if not impossible, to know what authority and what meaning should be attached to the fundamental rights. What precisely does such a phrase as one in Article 109 mean? “Privileges or discriminations due to birth or rank and recognized by law are abolished.” Does, again, the provision in Article 115, according to which “The house of every German is his sanctuary and is inviolable,” prevent a commissioner of buildings from dividing spacious lodgings in order to combat a housing crisis?

What is still more regrettable is that the Constitution never specifies to what extent the fundamental rights have or have not legal force. Do all previously enacted laws that are irreconcilable with fundamental rights in the Constitution cease to operate the moment the Constitution comes into force? Should not this solution be applicable only to laws enacted after the adoption of the Constitution and for such of their provisions as are contrary to the Constitution? Or must it be interpreted that the fundamental rights have no importance other than to constrain legislatures to subject existing legislation to the principles these rights proclaim, and to vote only for laws that conform to these principles? Finally, are not these fundamental rights merely general indications which may be expected to have such moral force as they can impose on the legislature?

It was attempted to bring some clarity into the chaos of the discussions on this head. At first a proposal was made according to which any one had the right to complain before a tribunal of all injurious violations of fundamental rights. This was rejected; for otherwise any one belonging to the middle classes could complain on the basis of the provision of Article 164, according to which “The independent … middle-class shall be fostered,” and claim that the provision was a dead letter. There was voted, however, on the first reading a provision according to which the fundamental rights would constitute “a course and a limitation for legislation, administration, and jurisprudence in the Reich and in the States.” This phrase would have increased, without any possible ambiguity, the immediate legal efficacy of the fundamental rights. It was, however, done away with at the second reading, for it would not have been applicable except to provisions which have a positive content, and it would have had, aside from this, only the character of an abstract maxim for scholastic manuals. It was decided, therefore, not to specify in any way whatever the legal significance of the articles of the Constitution relating to fundamental rights and duties. It would fall to legislators, judges and public officers to interpret in the future each of these articles separately, and to be guided according to the results of this interpretation. If, however, one may attempt such an interpretation, it would appear that these articles, from the point of view of their legal efficacy, may be divided into three categories.

(1) Those having the force of law. These create actually and immediately some new law, and consequently abrogate contradictory provisions of antecedent laws. Such, for example, is Article 109, par. 6: “No German may accept a title or order from a foreign Government.”

(2) Others limit themselves to indicating to legislators of the Reich and of the States the course which they must in the future follow and prescribe the laws they must enact. But these provisions do not in themselves constitute laws, and, therefore, cannot abrogate ipso facto, contradictory provisions in antecedent laws. Such is the principle in Article 145, according to which “Instruction and school supplies … are free.” This cannot have for its effect the immediate doing away with payments by pupils in the schools for supplies furnished them. There is no doubt that the principle of gratuity cannot enter into operation except through a special law expressly prescribed.

(3) Other provisions express general truths, which are most often ordinary philosophico-legal commonplaces, whose exact meaning and bearing in a text such as the Constitution is difficult to grasp. For example, it is hard to see the special significance which a phrase can have in a constitutional document such as the one which declares that marriage is placed under the special protection of the Constitution.

However diverse may be the conceptions that prevailed at the drawing up of the fundamental rights, and whatever uncertainty they may present from the legal point of view, it is possible, nevertheless, when the whole of the second part of the Constitution of Weimar is surveyed, to discover in these articles some common characteristics and to unfold the fundamental ideas that have inspired the majority of the Constituent Assembly.

It is evident that the Assembly conceived the fundamental rights and duties in a manner quite different from that of the authors of preceding Declarations of Rights in America, France, or even in Germany. These declarations were inspired by purely individualistic doctrine. Man is by nature free and independent; he holds rights that are limited only by such other rights as will assure to other men the enjoyment of the same rights as his. From this ensues a twofold consequence. First, he may act in his own right provided that he confines himself within the limits of the right in question. Within these rights he is truly sovereign, and the state may not encroach on them to impose any obligation whatsoever. On the other hand, conversely, the state does not owe any positive service or pledge to the profit of the individual. It must abstain from all interference and allow him free individual activities. The State owes nothing to the individual, who in turn can claim nothing from it.

This doctrine does not appear in the new German Constitution. The Assembly at Weimar has substituted for it a conception by virtue of which man, while still, it is true, enjoying a certain number of individual prerogatives, nevertheless must place them at the service of the collectivity. In whatever concerns liberty properly so-called, property, the means of production, the intellectual development of man, there is found everywhere this dominant idea of the social function of man. Individual liberties are no longer an end in themselves, nor do they constitute any longer an independent good. They are limited and conditioned by the duty of the individual to co-operate in the well-being and the development of the collectivity. They have no value and are not protected except in the measure that they serve for the accomplishment of this social duty.

2.—FUNDAMENTAL RIGHTS AND DUTIES OF THE INDIVIDUAL.

The Constitution commences by enumerating as completely as possible individual liberties such as traditionally figure in most declarations of rights. Not a single one of them is left out, and there have been even others added: equality, at least in theory, of men and women; protection of minorities; the right to secrecy in telegraphic and telephonic communication; liberty of opinion extended to manifestations of thought by means of motion picture films, etc.

One may, therefore, apply for the Germans the classic table of individual liberties.

First, the civil equality. The suppression of privileges of birth or of class. Titles of nobility have no other value except as a part of a name. Titles may not be conferred except as they designate an employment or a function. The state may no longer confer orders or honorary insignia and no German may accept a title or order from a foreign government.

Then come the individual liberties properly so-called; not only the right to come and go, but also the right to settle in any part of the Reich, to emigrate to any non-German country, to be protected from surrender to a foreign government for prosecution or punishment; guarantee against arbitrary arrests, imprisonment, and other penalties; the inviolability of domicile and correspondence.

In a third place, the right to freedom of activity; liberty to engage in work, commerce and industry; liberty of creed and conscience; liberty to practise religion; liberty of instruction; liberty to express publicly one’s thoughts by words, speeches, printed matter, figures, films and in any other manner; liberty of assembly and association.

In the fourth place the liberty of individual property. This cannot be expropriated except for the common good, by virtue of a legislative provision and must be indemnified.

The enumeration of rights and duties is complete, but the idea that prevailed at its adoption is different from that which inspired the authors of preceding Declarations of Rights. In recognizing the liberties of the individual, the object is no longer to protect him against the State, but to permit him to co-operate in the most effective fashion in the well-being of all.

This leads naturally to the imposition on the liberty of the individual of a certain number of restrictions hitherto unknown. On the other hand, it imposes on the state a certain number of new duties, the discharge of which affords, as corollaries, new rights to the individual.

I.—Individual rights are subject to certain new restrictions in the interests of the collectivity.—The individual is no longer merely entitled to work. It is his duty. This obligation is provided for by Article 1, par. 1, of the socialization law of March 23, 1919, which has become Article 163, par. 1, of the Constitution. “Every German has, without prejudice to his personal liberty, the moral duty so to use his intellectual and physical powers as is demanded by the welfare of the community.”[49]

It is true, therefore, that personal liberty is conditioned. The draft of the socialization law submitted by the Cabinet did not contain these conditions, and the Social Democratic Minister, Wissel, in open session of the National Assembly, expressly rejected the principle of the liberty of the individual. In the same manner the Social Democrats and the Independents proposed amendments according to which the sole liberty guaranteed to the individual was that of choosing his profession; this one right availed of, the liberty of the individual was thereupon used up, and he must thereafter conduct himself exclusively according to the needs of community. But a coalition of all the representatives of the bourgeois parties organizing against the conceptions behind the Socialist proposal, the provision concerning the principle of the liberty of employment was introduced into the law of March 23, 1919, and into the Constitution.

Saving his personal liberty, therefore, every German also has work as his moral duty; that is to say, he should contribute all the economic work that he is capable of according to his physical and intellectual abilities. In addition, this work must correspond to a definite condition; it must be such as is “demanded by the welfare of the community.”

In Germany many see in this provision a central point of the law and hold that it constitutes as a real transition from the old world to the new. Formerly every German could, under the protection of the law, so dispose of his work that it served only his selfish ends. Without regard to the interests of his fellow citizens or those of the community, he could, provided that he observed the outer forms of the law, so to speak, “walk over dead bodies” without violating a single legal provision. In a general way and aside from insignificant exceptions, there reigned in the century of economic liberalism an unlimited egoism of the individual, protected by the adage qui jure suo utitur, nemine lÆdit. The socialization law radically changed this state of affairs. Hereafter every German is obliged, for the well-being of the whole German people, to furnish all the productive labor of which he is capable, and must abstain from all action liable to hinder this well-being. It is only within these limits that economic egoism may hereafter move.

However, this novel duty to work is as yet only a “moral duty.” These words, which were not found in the original draft by the Cabinet, were added by the Constitutional Committee; and the Independents tried, but in vain, to have them omitted. It does not seem, however, that the majority which has adopted them, has ever given them a clear, unequivocal meaning. One thing is clear, however; the law wished to distinguish between a moral duty and a positive legal obligation, whose execution can be expressly compelled. But it is perhaps possible to interpret this provision in such a way that the violation of the duty to work may involve legal consequences, which can have as a result the right on the part of the state to exercise indirect constraint on the individual who does not carry out his duty. The German who does not work, or who lets himself be dominated in his work by purely selfish ends, has no longer the right to demand protection of the laws; he cannot demand that his work shall be protected by the Reich. Perhaps one may even go so far as to appeal to the article of the Civil Code, according to which all legal procedure that violates good morals is null;[50] and hold it applicable to acts and contracts that do not correspond to the moral duty imposed by the socialization law and by the Constitution. In the same way perhaps also Article 826 of the Civil Code may be applied, according to which any one who in a manner contrary to good morals deliberately causes damage to others is obliged to repair this damage; and it may be argued that an act or contract inspired by a selfish end falls under the provision of this law and brings about in such a case an obligation to compensate the community.

Being obliged to work, is the individual at least master of the product of his toil? May he dispose of his property as he wishes? No longer. As with his work, the individual must place his property at the service of the community. And the same idea that has resulted in the restriction of his liberty to work now leads to a corresponding restriction of his right over property; “Property rights imply property duties.” (Article 153.) These restrictions are several kinds.

First, that of expropriation. It is true that this was already admitted in individualist doctrine. But this doctrine hemmed the right of expropriation on the part of the state within narrow limits, inasmuch as it prescribed strictly the cases in which the state could use this right, and provided always the payment of a just and, usually, a previously ascertained indemnity. These two guarantees given to property owners are strikingly diminished in the new German constitutional law. On the one hand, it is true the principle is retained that expropriation must not be resorted to except for the welfare of the community. But this notion of general welfare has been particularly elastic. Thus in Article 155 the State is permitted to expropriate in cases of housing crises, in the interests of settlement and reclamation of land, or in the improvement of agriculture. Thus the Socialization Law and after it the Constitution in Article 156 permit the state to transfer to public ownership private business enterprises adapted for socialization. On the other hand, the principle of a just indemnity seems to have been retained. However, there is but one case in which indemnity is imposed and guaranteed by the Constitution; it is that where the Reich expropriates “the property of the States, municipalities, and associations of public utility.” In all other cases the restriction provided in Article 153 applies; expropriation takes place with indemnity “in so far as is not otherwise provided by national law.”

In addition to expropriation, the Constitution provides other restrictions on the right of property:

Land owners are under the obligation to cultivate it and utilize it. However, there is no provision made in case this duty is not carried out.

The right of inheritance is guaranteed, but the State has the right to take part of the inheritance according to provisions determined by the laws of the Reich, in particular fiscal laws.

An increase in the value of land arising without the application of labour or capital to the property accrues to the benefit of the community as a whole.

Entailments are dissolved. This provision is an obligatory prescription imposed on the legislatures of the States, which obliges them to put an end to entailments, for this matter is given over by the Civil Code to the rights of States. By entailments is understood the legal institution by which a patrimony, particularly holdings of land, because of the limitation of the right to sell and the establishment of a certain succession provided by a testament, creates for the owning family in the person of the holder of the entail an economic position of security and thereby of increased advantage. These entails often go back considerably in time, but they are very frequent in Germany, to such an extent that land holdings subject to this legislation comprise, for example, in Prussia about seven per cent of all the landed properties, with about two and a half million hectares. In certain sections entailed property represents about twenty-two per cent of the whole agricultural service. For a long time now it has been questioned whether this institution, which tends to the concentration of more and more land into fewer and fewer hands, should not be abrogated. It is argued in particular against the entails that the community cannot allow a mere decision taken by the private will of a proprietor to be perpetuated; that entails have an unfavourable effect on the distribution of land and that they finally tend to wipe out the small and the average property. It follows of itself that with the victory of the democratic idea and in an epoch in which the tendency is to divide each piece of land as far as possible, entailments must be dissolved. In leaving to the States the legislation on this dissolution, the Constitution has only applied logically the democratic principles on which it rests.[51]

II.—In turn the state is obliged to fulfil a certain number of duties to the benefit of individuals.—The classic individualist doctrine limits the rights of the State but does not impose upon it any positive service, no obligation to the benefit of its citizens. The State must abstain from certain interferences, but the individual may claim no more than that of it. German constitutional law, however, adopts another conception, and while it restrains individual rights for the benefit of a community, it also imposes upon the latter obligations to the profit of the individual. From this there arise to the profit of the latter new rights corresponding to the restrictions to which he is subject.

The individual owes the duty of working, but the State owes him the chance to work, must protect his work and according to circumstances must furnish him with the necessities of life. From this is derived for the individual the right to work, the right to the protection of his work and the right of subsistence.

The State must furnish work to the individual. This obligation explains itself very easily. When the individual is left free to use his labour as he pleases, that is to say, when he is free to work exclusively in the interests of purely selfish ends, he must also be left the right to look for such work and to dispose of his labour where and how he pleases. The community disassociates itself from a work in which it is not directly a beneficiary or from which it may even suffer. But if it demands of the individual that he devote himself only to such labour as will benefit the whole of the nation, and if it forbids him, therefore, a certain number of occupations which benefit only the individual, it is indispensable that it take measures to guarantee him sufficient remunerative work. Article 163, par. 2, provides therefore: “Every German shall have the opportunity to earn his living by economic labour.”

Of what exactly consists this duty on the part of the State? It is certainly not a legal obligation that gives the individual the right to demand before a tribunal the execution of this promise. It is a promise that the Constitution makes and which it sufficiently fulfils if the Reich institutes a general system to make known all the available possibilities for work. An individual may ask only what kind of work is available and what opportunity there is of securing it. The proposal of the Socialization Law provided that every German shall receive work corresponding to his powers. The final text of this law, like that of the text of the Constitution, limits itself to prescribing that every German must be given the opportunity to earn his living by economic labour, that is to say, by labour that produces goods, utilizing to the utmost the available conditions of work. In addition, the compensation to the individual must be sufficient for a livelihood.

The State in addition protects labour. The Socialization Law declares that the power of labour is the most precious economic good and it imposes on the Reich the legal obligation to protect it. The Constitution of Weimar applies in Article 157 the terms of the law of March 23, with the exception of the words, “the most precious economic good.” But the Constitution also extends and organizes in outline the duty of the State in this respect. It amplifies this duty in expressly specifying in its Article 158 that intellectual labour also is under the special protection of the Reich. As to the measures for the protection of labour, some of them come under domestic law, others under international law. Within the Reich itself the Constitution prescribes the creation of uniform labour legislation. In addition it guarantees to every individual and to every vocation the liberty of organization for the defence and the development of the conditions of labour and of economic life, and it accords to each employÉ and laborer the free time necessary for the exercise of the civil duties and free public functions that may be given to him. Finally, it promises a complete system of social insurance to be established for the maintenance of health and standards in labour. In international relation, the Constitution imposes on the Reich the obligation to protect abroad the products of German science, art and technique, and to strive for the establishment of an international regulation of the legal status of workers.

Finally the State must provide for the needs of individuals out of work; and this obligation logically results from the principle that inspires all of this part of the Constitution. Since the Reich imposes on every German the obligation to work only for the good of the community, it must see to it—apart from any humanitarian or financial considerations—that every German’s capacity for labour shall be maintained as long and at as high a standard as possible. That is why, not content with merely protecting this capacity of labour, the Socialization Law and the Constitution provide that every German must receive what is necessary for his livelihood, to the extent that a possibility of adequate employment cannot be assured to him (Article 163).

The draft of the Socialization Law provided as a condition to this duty on the part of the State that the individual shall not have been able to find employment. The final text of the law which the Constitution also uses provides only that such opportunity for employment shall not have been offered.

The burden of the proof is thus reversed from the general rule and an attitude purely passive on the part of the individual in this respect is sufficient to entitle him to public succour. On the other hand, it is not sufficient for the discharge of all such obligations on the part of the State if it merely offers the individual any employment whatsoever. For it does not serve the community in any way, as the most interested party, when an individual is employed in work for which he is not fitted. The community, therefore, must procure work corresponding to the mental and physical powers of the individual and to his capacity. If the State does not succeed in doing so, it is obliged to furnish him a livelihood.

To put into operation the principles thus enunciated by the Constitution, different laws are necessary—a law on the offer of employment, a law protecting labour, a law on the help to be given to the unemployed. Such laws have not yet been enacted. However, a certain number of ordinances have been passed that constitute on the part of the Reich the beginning of the execution of the new obligations imposed upon it.

First, measures have been taken to procure employment for individuals. To this end, aside from the ordinance of December 9, 1918, which imposes on municipalities the obligation of organizing employment bureaus, public and impartial, there is also an ordinance of May 5, 1920,[52] creating for the Reich a bureau devoted to finding employment. This agency has for its principal function a survey of the labour market and the editing of periodical bulletins on the situation in this market for the purpose of establishing an equilibrium between supply and demand in the different regions and in the different vocations.

Measures have been taken also to protect labour. The first step toward the creation of uniform labour legislation was made by the provisional ordinance of January 24, 1919, which, supplementing the divisions of the Civil Code, regulates labour in agricultural and forestry exploitations.[53] Social insurance legislation, such as is found codified in the law of the Empire of July, 1911, i. e., as sickness, accident, disability and death insurance, has been supplemented by different provisions, particularly by a law of December 29, 1919, relative to the protection of pregnant women.

Finally, regarding the obligation to provide livelihood for unemployed, different ordinances have been issued which were codified by an ordinance of January 26, 1920.[54] According to these ordinances, the duty of organizing a service for the supplying of the needs of unemployed—a service which must not take on the character of charity—falls upon the municipalities, which are assisted financially by the Reich to the extent of six-twelfths of the total expense and by the State with four-twelfths of this expense. The municipalities must refuse this help to those who do not accept the work offered them, even if this work does not fit the vocation of the one refusing and even if it must be done away from home, provided always that this work be adapted to the physical capacity of the unemployed. The only ground on which one may refuse such work is that the pay is not sufficient, given local conditions, to support the individual and, if married, his family.[55]

In the same way that restrictions on the liberty of labour have created for the State a number of duties relating to the employment of individuals, so the restrictions on the rights of private property have, as a consequence, engendered a number of obligations on the part of the State to assure to every one, if not a minimum of property, at least a minimum of well-being.

The Constitution guarantees individual property, but on the condition that the distribution and the utilization of land do not present abuses. The aim of this is to, “to insure to every German a healthful dwelling and … homestead corresponding to his needs” (Article 155). To this end colonization must be favoured, the development of agriculture and the utilization of the soil must be promoted; a survey must be made of all the mineral resources and all economically useful forces of nature.

In accordance with their conception of the duties of the State, the Constituent Assembly outlined a vast programme of agrarian and social policy. In addition they themselves passed several laws which form the commencement of the execution of this programme and which are intended to guide future legislation.

In order to insure every German a habitation and a homestead, the Reich first promulgated a decree, July 31, 1919, “On small gardens and little farms,” according to which tracts of land, which cannot be used profitably, must be rented out at rates fixed by administrative authorities after expert appraisal, or may be leased, and later sub-leased, for gardens, by the authorities.

Later the law of April 11, 1919, was passed “on colonization.” This law obliges the State to create interior colonies and small undertakings. To this end territory belonging to the State must be put on sale to “collective colonization enterprises”; these enterprises may be subsidized by means of expropriations of swamps and uncultivated tracts. They have the right of pre-emption in the sale of tracts of land of less than twenty-five hectares. On the other hand, to develop colonization tracts, there must be organized “associations for the furnishing of tracts” in all districts where more than ten per cent of the cultivatable soil is in the hands of big holders, that is, of more than one hundred hectares per holder. These associations, formed by a union of big landholders, must, on the demand of collective colonization enterprises, put at the disposal of the latter at reasonable prices tracts of land taken from the big properties. Their obligations in this respect cease when they have thus given over to colonization a third of the utilizable surface of the large properties, or when the total area of these properties is not more than ten per cent of the area of the district. The right of pre-emption by the colonization enterprises in respect to large properties is exercised through the associations for the furnishing of tracts. In urgent cases these associations may proceed by means of expropriation.

The Reich, finally, in order to assure a habitation to individuals, must take a whole series of measures in the case of housing crises. Already before the Revolution a decree of September 23, 1918, gave to municipalities the right to make regulations for the prevention of the demolition of buildings or their use for other purposes than dwelling. The municipalities had the right to draw up leases, even against the wish of the owners, through the intermediacy of “offices for the distribution of lodgings,” and to appropriate all unused buildings for the purpose of converting them to dwellings. A later decree of November 7, 1918, provided that associations of municipalities and groups of municipalities could be created to fight against housing crises. After the Revolution, a new decree of January 15, 1919, contained more important provisions for meeting the most urgent needs created by such crises. The State Cabinets were obliged to appoint “housing commissioners,” charged with the care of homeless families and the creation of small and average appropriate lodgings. To this end, they received considerable powers. They could expropriate by a summary procedure unoccupied buildings they deemed necessary, or have such buildings erected on grounds which they had authority to lease for terms as long as thirty years. They could dispense with the requirements of legislative provisions, expropriate tile and other building materials necessary for the rapid construction of buildings; they could seize building lumber and forbid unnecessary construction. The service of these Housing Commissioners was under the Minister of Labour for the Reich.

Finally, in order to protect tenants, the ordinances of September 23, 1918, and of June 22, 1919, sanctioned and supplemented by the law of May 11, 1920, limit considerably the rights of owners to dispose of habitable quarters and entrust to the “offices for distribution of lodgings,” extensive rights relative to the renting out of apartments and the terms of lodgings. In particular, according to the law of 1920, if grave inconveniences result from the lack of lodgings, the states may, with the consent of the Minister of the Reich, authorize or constrain the municipalities to take, or themselves take, measures that constitute encroachments on the liberty of settlement and the inviolability of domicile, on condition that these measures be expressly necessary to meet a housing crisis or to combat it. This law specifies, in addition, that decisions taken in the fight against the shortage of houses may be executed by administrative constraint.

3.—FUNDAMENTAL RIGHTS AND DUTIES OF COMMUNITIES.

The Constituent Assembly did not limit itself to the establishment of a list of rights and duties of the individual. The social conceptions by which it was dominated led it to proclaim, after the rights and duties of the individuals, the rights and duties of certain groups and communities that seemed to it to play a particularly important rÔle in society—the family, associations, municipalities, civil service.

I.—The family.—For the first time the family, the natural foundation of all ordered national life, finds itself mentioned in the Declaration of Rights of a modern state. The Constitution of Weimar formulates the general principles which should dominate legislation relating to marriage, to the education and the protection of children and to the duties of education devolved upon parents.

Article 119 places marriage under the special protection of the Constitution. Marriage, which forms the basis of family life and on which depends the increase of the population of the nation, is based on the equal rights of both sexes. Marriage and the family are recognized as the basis on which social life reposes and as the primary source from which develop German customs and culture. In consequence Article 119 enunciates a legislative course of considerable social and political importance. It prescribes the care of the purity, the health and the social advancement of the family as a duty of the state and of the municipalities. Families with numerous children have a claim to equalizing assistance. Motherhood has the right to the protection and care of the State.

Proposals were made, during the discussion of the draft of the Constitution, to lighten the lot of illegitimate children. They were aimed to assimilate, from the point of view of family rights, illegitimate and legitimate children. The majority of the National Assembly decided, because of the difficulties of regulating in a constitutional text questions of private rights, to leave this matter to legislation and to later development. The Assembly limited itself to forming guiding principles only. Legislation must assure to illegitimate children the same conditions for physical, moral and social development that legitimate children have. But convinced of the need of legislative reform on this matter, the Assembly passed a resolution that there should be taken, as soon as possible and by legislative means, a new ordering of the legal and social status of illegitimate children.

Concerning education, Article 120 declares only that parents have the right and the duty to educate their children; “The physical, mental, and moral education of their offspring is the highest duty and natural right of parents.” But the State must not leave it entirely to parents and intervenes as an organ of surveillance. The political community watches over the execution by the parents of these duties imposed upon them.

In addition the State assumes as an obligation in a general way the protection of youth; the care of children and youth comes under the legislative authority of the Reich. As a guide for the accomplishment of this obligation, Article 122 specifies that youth shall be protected against exploitation as well as against physical and mental neglect.

II.—Association.—The right of assembly and association was already regulated by the law of April 19, 1908; in addition to this the Civil Code contained some provisions on the acquisition of civic rights. The Constitution contents itself with taking as its own the principles that inspired these laws, but it makes certain changes in the existing laws.

As to the liberty of assemblage, Article 123 holds to rules previously adopted, “All Germans have the right of meeting peaceably and unarmed without notice or special permission.” The obligation that public meetings be reported in advance to the authorities, which formerly existed, is abolished. Furthermore, while the law of 1908 demanded that public meetings in the open air and manifestations on public ways and squares receive in advance authorization by the police—authorization which must be applied for at least twenty-four hours in advance—the Constitution, on the other hand, declares that in theory these meetings are free and do not need to be authorized. It adds, however, that in the interest of security and public order, liberty of assembly may be limited by law, this limitation consisting furthermore not in the need of authorization, but only in the obligation to give the police notice in advance.

As to liberty of association the Constitution still holds to the principle of the regulations of 1908. “All Germans have the right to form associations or societies for purposes not contrary to the criminal law. This right cannot be limited by preventive measures.” (Article 124.) Associations may acquire a legal status according to the regulations provided by the Civil Code. Hitherto these regulations gave administrative authorities the right to oppose the acquisition of legal status by associations of a political, social or religious character. This opposition resulted in the associations in question being kept from the register of associations, and thereby prevented them from acquiring legal standing. This restriction is abolished by the Constitution as contrary to the modern principle according to which liberty of association must be kept intact. To this effect it is expressly provided, “Every association has the right of incorporation in accordance with the civil law. No association may be denied this right on the ground that it pursues a political, social-political, or religious object.”

III.—Municipalities.—Article 127 provides, “Municipalities and unions of municipalities have the right of self-government.…” Thus the principle of decentralization is found introduced in the list of fundamental rights.

The Constitution declares that this autonomy must be exercised “within the limits of the laws.”

IV.—Civil servants.—Finally, the Constitution reaches the question of civil servants, to which it devotes no less than six articles.

Before the Constitution went into effect, the status of civil servants of the Empire was regulated by the law on civil servants, March 31, 1873, as amended by the law of May 18, 1907. The new Constitution left this law intact, but it superimposed a series of general rules, some of which were borrowed from the preceding laws applying to the civil servants of the Empire, and which are destined hereafter to hold good for all German civil servants, as well as those of the states and of public corporations.

The principles that serve as a point of departure are: that civil servants are in the service not at all of the party in power, but of the community; that, therefore, civil servants who remain faithful to the community all their lives have the right to be kept in office for life and to have guaranteed them a financially adequate situation; finally that outside of his office every civil servant is neither more nor less than any other citizen. These principles the Constitution applies in the provisions relative to the free access of all citizens to public functions, to the political liberty of civil servants and finally to their financial responsibility.

(1) “All citizens without distinction are eligible for public office in accordance with the laws and according to their ability and services.” (Article 128.) In the future, citizenship in a particular state may no longer be demanded by the laws of the States as a condition for public employment; for the Constitution expressly provides that citizens must be admitted to public employment “without distinction.” In addition, Article 110, par. 2, formally declares, “Every German has the same rights and duties in each State of the Commonwealth as the citizens of that State.” On the other hand, Article 16 provides that as a rule officers directly charged with the administration of services that depend directly on the Reich, and who are assigned to a State, shall be citizens of that State. From this it must be concluded that the civil servants of a State may as a rule be recruited from among the citizens of that State without violating the spirit of the Constitution.

Already in preceding laws one finds no legal obstacle to the admission of women to civil service. The Constitution declares, meanwhile: “All discriminations against women in the civil service are abolished.” By this—a logical consequence of the provision of Article 109, by which men and women have in principle the same civil rights and duties—all obstacles to the admission of women to the service of the State on the same conditions as men are abolished.

(2) Civil servants are in principle appointed for life. However, exceptions are provided for, either in case future legislation on civil servants contains contrary provisions, or if, up to then, the law on civil servants of the Empire and the laws of the states have provided a different rule. A proposal by the Independents, according to which civil servants would have to be chosen by election and therewith lose all guarantees the Constitution and the laws accord them, was rejected by a great majority. The rights acquired by civil servants must be inviolable. Claims in money matters must be heard by tribunals. Civil servants may not be temporarily deprived of their function, retired for a time or permanently, or be given new work of a lower nature except under conditions and according to forms provided by law and not by simple arbitrary administrative measures.

Against any disciplinary measure, civil servants may enter protests and commence procedure for damages. Furthermore, the system of secret reports on persons employed is abolished. Every civil servant has the right to consult his record, and no disparaging entry may be introduced in it without the opportunity being given to the employÉ to explain himself on this matter.

(3) Civil servants are in the service of the State, of the community and not at all the servants of a party or the party in power. In consequence of this they retain the liberty of political conviction and of association. A later law of the Reich was provided for organizations in which civil servants are represented and which are supposed to co-operate in the regulation of all questions concerning them. The same idea that led to the recognition of the right of workers and clerks to co-operate in the form of Factory Workers Councils applies to civil servants and gives them the right to co-operate in all matters concerning them.

(4) Finally the Constitution prescribes in a uniform manner for the whole Reich, for the public servants of the states as well as those employed by public corporations, the limits of the financial responsibility of public servants.

The responsibility of civil servants is regulated by Section 838 of the Civil Code. “Every employÉ, who through premeditation or negligence, violates the duty imposed upon him by his function, to the damage of a third party, must recompense this party for the damage thus caused.” As to the manner in which this compensation is to be awarded, the Civil Code leaves it to the legislatures of the individual states to determine. Making use of this authorization, most of the States individually have decided that the State shall be responsible instead of the civil servants, and that the public treasury assume the indemnity to the limit for which the civil servant is responsible, the treasury retaining, however, the right to proceed against the civil servant. Prussia adopted this system in the law of April 1, 1909, and the Empire followed it, for the employÉs of the Empire, in the law of May 22, 1910. However, there are still member states, Saxony for example, in which this solution has not yet been adopted and where the civil servants are still directly responsible to any individual who suffers damage through them.

The Constitution confirms in Article 131 a state of affairs that exists in most of the States and in the Reich, and declares that if a civil officer in the exercise of the authority conferred on him by the law fails to perform his official duty toward any third person, the responsibility is assumed by the state or public corporation in whose service the officer is. The right of redress against the officer is reserved.

4.—RELIGION AND THE CHURCHES.

Declarations of Rights generally contain, justly so, principles relative to religious liberty and the free exercise of creeds. But the Constitution of Weimar could not limit itself on this point to traditional general maxims. The question of the relations of church and state forms an essential article of the programme of the Centre, and also of the programme of the Social Democrats. Their solutions would seem to be self-contradictory. The Centre wanted to guarantee to the Church a privileged and preponderant situation within the State. The programme of Erfurt, on the other hand, declared religion to be a purely private matter, and refused all subsidies levied on public resources in behalf of ecclesiastical or religious needs. But these two parties entered at that moment into a coalition which, together with the Democrats, governed the Reich. As neither of these two opposed conceptions was able to prevail, the conflict of the two theories was finally settled by a compromise—which before consummation required laborious negotiations.

The Constitution first proclaims the principle of liberty of belief and conscience and the free exercise of religion. These liberties are expressly placed by the Constitution under the protection of the State. They are guaranteed against every invasion no matter from what side it comes. But the general laws of the State remain intact and religious liberty finds itself limited by the general regulations for the maintenance of order and public security. Every abuse in the exercise of religious liberty is punished by ordinary law. Civil rights and duties must not be restrained or conditioned by the exercise of religious liberty. The enjoyment of civil and civic rights as well as the admission to public employ are independent of the religion professed. No one is obliged to divulge his or her religious convictions before any authority whatsoever, and the right of an authority to inquire into the sect to which one belongs may not be exercised except as one’s rights and duties depend upon this, as, for example, in the matter of church tithes or in the matter of guardianship or instruction; or where it is necessary for the gathering of statistics ordered by law. No one may be forced to attend any Church ceremony or to take part in any religious exercise. No one may be forced to make use of any religious oath as was formerly prescribed in civil and penal procedure. It is sufficient, in taking an oath, that the one swearing shall declare without a religious formula, “I swear!”

On the other hand, the Constitution contains several provisions regarding the exercise of religion. Sundays and legal holidays remain protected by law as days of rest and spiritual edification.

These principles being admitted, there still remained the difficult problem of the relations of State and Church. The following solution was adopted: There is neither complete separation nor any close union of the Churches and the State. The Churches are emancipated from the State, but they enjoy certain privileges.

The Churches are free. “There is no State Church.” The union that formerly existed between the Church and the State, in Prussia, for example, and in the majority of the German States between them and the evangelical church, has disappeared, and the principle according to which religious affairs depend upon the state is abolished.

This freedom of the Churches is manifested first, in that the creation of religious denominations and sects is free, and that the assembly of religious denominations in associations within the Reich is subject to no limitation whatever. It is also revealed in the complete independence of the Churches in regard to the State. Each religious denomination administers and conducts its affairs freely, provided that it observes the laws that apply to all. It conducts its work without the co-operation of the State or of the municipality. The new system realizes thus the emancipation of ecclesiastical administration from secular control. The State may neither decree regulations affecting faith, nor appoint any one to ecclesiastical service nor demand that its assent be required to the nominations made by ecclesiastical authority.

However, the Constitution does not push the principle of the separation of Church and State to such a point as to allow religious denominations no more than the merely private rights accorded by law to natural persons. Recognizing the social force and the importance in public life exercised by the Churches, the Constitution accords them privileges similar to those given to public corporations. Religious denominations existing in Germany at the time of the adoption of the Constitution remain recognized as public corporate bodies. As for other similar organizations, the same rights are accorded them on the motion of the state government if, by their constitution and the sufficient number of their adherents, they offer guarantees of permanence. While recognizing that in theory the smaller religious groups, chapels, and sects may be invested with rights similar to those of the principal churches, the object of the above limitation is to prevent ephemeral organizations from acquiring the standing of public corporate bodies.

The Constitution does not expressly state of what the rights of public corporations consist, for these rights result from provisions made in the legislation of the various states. In a general way, however, public corporations, in addition to the legal standing that private law gives them, are under the special protection of the State. Their organizations are indirectly public agencies, and they have the right to levy taxes. This right, practically the most important of those accorded public corporations, is expressly emphasized and guaranteed in the Constitution.

Religious denominations that are public corporate bodies have the right to levy taxes on the bases of the lists established for the collection of civil taxes. The right to levy the taxes granted to public religious denominations is limited, as a rule, to their members. They may, however, in exceptional cases levy on certain other taxables, particularly corporations and joint stock companies, etc., to the same extent as on their co-religionists, if the laws of the particular State authorize this.

If several religious bodies combine into one association, the latter, without being required to secure any special authorization, becomes a public corporation. This provision is important and has been voted out of consideration for the evangelical churches of the States which up to now were territorially separated, and which are seeking to unite in a German ecclesiastical organization, such as had to be formed after the disappearance of the rÉgime in which reigning princes ruled the churches.

The financial situation of religious bodies is regulated by Article 138. The property and other rights of religious bodies and associations for the maintenance of their cultural, educational, and charitable institutions, their foundations and other possessions, are guaranteed. As a consequence of the separation of Church and State, the Constitution provides that the obligations hitherto imposed on the State to participate financially in the expenses of the Churches no longer exists. But on this point the Constitution compromises. Payments due from the State to the Churches because of some law or of legal title to such, must be commuted by state legislation, on bases fixed by the Reich. The States, however, cannot proceed to do this before a law of the Reich has fixed these bases. Till then, these payments continue. (Articles 138 and 179.)

The liquidation must include not only the payments owed because of a law or treaty, but also those due by virtue of some special legal title, particularly those resting on customary law and tradition.

The question whether, in the new legislation relative to the Churches, there subsists still any special right of supervision by the States, cannot be answered uniformly. Properly speaking there is no right of supervision by the States. But the latter may exercise over the Churches the same control as over public corporations for the purpose of maintaining order and public security.

5.—EDUCATION AND SCHOOLS.

After having regulated the question of the relations between Church and State, the Constituent Assembly took up the problem of education. It approached it in the same spirit that inspired the provisions it adopted relative to fundamental rights and duties. Here, too, it exerted itself to give its work a marked social character; and to a very large measure it succeeded.

However, the Articles concerning the schools were the subject of long deliberations and lively discussions in committee and in the full session of the Constitutional Assembly. In the debates on schools, on the relations of Church and State, and on the relations of schools and churches, two conflicting conceptions were manifested. Whereas the Centre and the parties of the Right declared in principle for religious schools, the Social Democrats championed the idea of secular schools, and long negotiations were required to find a compromise between these two apparently irreconcilable doctrines.

The Constitution, in its final text, contains provisions relative to public instruction, and to private instruction as well as provisions applicable to both of these.

I.—Public instruction must form an “organized whole.” That is to say, it must not consist of a collection of schools of different kinds without any logical bond between them; but on the contrary it must be systematically organized, in such a manner that each kind of school will be part of a harmonious whole, constructed on a rational plan and answering a definite object. This instruction must be systematized by co-operation of the Reich, the States and the municipalities.

But what principles should guide this organization and what should be its aims? It is here that the social doctrine of the Constituent Assembly reappears. Public instruction whose detailed organization is left to the regulation by ordinary laws to be enacted must present certain characteristics, all arising from the same idea—guaranteeing to every individual a maximum of development to the end that he may co-operate in the most effective fashion in the well-being of the community.

(1) At the base of the educational edifice there is the common or elementary school (Grundschule), which gives all children an equal education, from the point of view of length of time and content. This is the principle of the “uniform” school. This does not mean, however, that everywhere and in all the states public schools must be organized after an invariable pattern. They are uniform in the sense that they are one in the conception underlying their establishment, in that they are inspired in every respect and exclusively by the same democratic principles, that no difference in instruction is made and that the economic and social position and the religious beliefs of parents are deliberately disregarded in according to children the right to an education.

(2) Above the common schools are the secondary and higher schools. The Constitution does not say how these are to be organized. It indicates only the idea that is to serve as a guide to legislators when they construct the educational edifice. The State is not to yield to the will and the desires of individuals, but is to be guided before all by the aptitudes and the interests of the children.

(3) All children are naturally not compelled to go through the whole educational curriculum, but there is an obligatory minimum of instruction. Educational obligations are notably extended in the Constitution as compared to their former limits. “Attendance at school is obligatory. This obligation is discharged by attendance at the elementary schools for at least eight school years and at the continuation schools until the completion of the eighteenth year.” Formerly the obligation to attend school was only for seven years for the public schools. Supplementary instruction, therefore, thus becomes an essential part of public education in all the Reich.

(4) Instruction is free, at least in the elementary and supplementary schools. This is a necessary result of compulsory education. The secondary and higher schools are in theory not free, but “to facilitate the attendance of those in poor circumstances at the secondary and higher schools, public assistance shall be provided by the Commonwealth, States, and municipalities, particularly, assistance to the parents of children regarded as qualified for training in the secondary and higher schools, until the completion of the training.”

(5) Instruction in public schools, with some exceptions, remains religious. The most serious disputes arose over this point. Undoubtedly obvious progress has been realized by withdrawing the public school from the local supervision of members of the clergy; and by making hereafter public instruction as a whole subject to the inclusive control of the State. Municipalities may in addition be summoned to participate in this supervision. This will permit future educational laws of the Reich and administrative laws of the States to give the municipality a share in supervising the instruction—not only over the work of the schools but also over the spirit in which it is carried on. Even parents will be allowed the right to co-operate in it and teachers will be given a voice in the management. The supervision of the schools on the part of the Reich will be hereafter solely by civil servants, who will have this as their principal function and who will be especially appointed for this purpose.

But the principal question was whether the public school, even when supervised by the State, should be neutral or whether it should remain religious in teaching.

Three systems were submitted. One was the system of the secular school, where no religious instruction is given. Another was the mixed school, where children of all religious faiths are admitted without distinction and where the parents indicate whether they wish their children to receive religious instruction, and if so, what. The third was the denominational system, properly so-called, in which the public school is specialized by religious denominations, each denomination having its own school where the child receives the religious instruction of its denomination.

The discussions on this question went through three successive phases. At first there was some agreement on a plan according to which schools would be mixed, in theory, but the denominational school, properly so-called, would not be completely excluded; for the law could admit, on the proposition of parents, the creation of schools in which only the children of a single denomination would be received.

This compromise not completely satisfying the Centre, which used its influence to effect a change, a new plan was therefore accepted. This introduced the denominational school, properly so-called, into the Constitution. According to this plan, the wish of parents would decide whether a school should be secular, mixed or denominational, the free choice by the parents being limited only by the requirements of well-ordered scholarship. The parties of the Left vigorously opposed this. The most serious objection they raised was that it would have as a consequence the necessity on the part of some states, such as Baden and Hesse, which had already introduced mixed schools legally, to renounce them again. A new compromise was thereupon arrived at, which under the new form became the final text. Denominational schools and lay schools would constitute exceptions and could not be established except when demanded by heads of families and conditioned by the requirements of well-ordered scholarship. As for the rest the educational questions must be regulated, the principles by an educational law for the Reich, the details by the legislation of the States.

Thus in principle the public school is mixed. The public school is attended by all children no matter to what religion they belong, and religious instruction forms part of the regular school curriculum. (Article 149.) The imparting of religious instruction in the school must take place within the general framework of educational legislation. In other words, it is not the church but the State which gives instruction. It is the State that must take into its hands the organization of religious instruction. It is the State that decides what place religious instruction shall hold in its curriculum. It goes without saying, however, that, as to the content of religious instruction, this must be in agreement with the principles of the religious society concerned. No teacher, according to Article 149, par. 2, can be compelled to give religious instruction or to participate in religious exercises. In the same way no pupils are obliged to take religious instruction or to participate in ecclesiastical ceremonies and festivities. They may only be compelled to do so if the persons who have the right to decide on their religious education express the desire that they do so.

But public secular schools and public denominational schools, properly so-called, also may continue, and their existence is constitutionally guaranteed. These schools, by the same title as the mixed schools, are elementary schools, on which may be based secondary and higher education. But these cannot be established in municipalities except under certain specified conditions. There must first be a formal demand on the part of a sufficient number of heads of families. Then the organization of the school asked for must conform to high educational standards. From all this it may be concluded that the system of the uniform school and the transition from the public school to secondary and higher schools must not be interfered with. In addition, the arrangement of instruction based on the diverse vocational needs, must not be made impossible. Finally, public instruction must not be handicapped by the unnecessary establishment of useless and inefficient schools. The wishes of heads of families, as far as possible and in accordance with the above conditions, must be taken into consideration and their proposals accepted. Questions of detail, such as, what is understood by “head of a family”; how many such are sufficient within a municipality to be able to demand a sectarian or a secular school; how many schools there shall be and of what kind, must be settled by educational laws of the Reich and by laws of the States which must follow those of the Reich.

II.—Private instruction is permitted. (Article 142.) However, this liberty is subject to important restrictions (Article 147) in the case of private schools considered as substitutes for public schools.

In general, establishments of private instruction, no matter of what grade, can be created only by the authorization of the State. This authorization is subject to the following conditions: the programme and the equipment of private schools must not fall below the programme and equipment of public schools. The scientific training of teachers of private schools must be of as high a standard as that of public school teachers. The economic and legal position of private school teachers must be guaranteed. Finally, private schools cannot become the schools of class or caste.

Elementary private schools are subjected by the Constitution to several special conditions. Their establishment is authorized when in any municipality there does not exist for a minority of heads of families, whose needs must be considered, a public school of their denomination, or one that conforms to their ethical system. Such a school may also be established if educational authorities recognize in the demands of such a group a special pedagogical interest. The Constitutional provisions relating to programmes and free instruction apply also to private elementary schools.

Private preparatory schools are abolished.

Finally, for private schools that are not substitutes for public schools, such as commercial and professional schools, the laws formerly in existence still operate.

III.—The Constitution contains a number of provisions for instruction, both public and private. It provides that vocational instruction and moral and civic education shall be part of the programme of all schools. By means of vocational instruction children must be made to understand the great importance of work, for the individual as well as for society as a whole. Civic instruction must acquaint children with the rights and duties of citizens, with the organization of the German State, and with the public life of Germany. To this end, every scholar on completion of the course in compulsory education shall receive a copy of the Constitution.

Such are the provisions relative to instruction in the schools. They constitute, as compared to the former state of affairs, a considerable change. But these provisions cannot be effectively put into operation except by a series of laws on the part of the Reich as well as of the States, a process which threatens to be a long one in point of time.

However, in April, 1920, the first law on this matter was passed by the National Assembly. It was the law on the elementary school. According to this law, primary schools must be so organized that the first four years may at the same time serve as a preparation for secondary and higher education. Every child who has successfully graduated from the highest class of the elementary school must be sufficiently prepared to enter immediately a secondary or a higher school. Public preparatory schools and public preparatory classes are abolished. As for private preparatory schools, their suppression will take place only after a sufficiently long reprieve; their complete abolition need not take place until the commencement of the school year 1929-1930; since economic difficulties prevent the earlier abolition of these schools, and means must be taken to provide for the teachers who will be deprived thus of their occupations. Private instruction is not allowed except in particular cases and can only in special circumstances be substituted for the elementary school. The law does not touch instruction and training in auxiliary classes; nor does it concern itself with the instruction of children physically or mentally diseased.

In addition a certain number of interesting innovations have been enacted into legislation. These have as their purpose the participation by parents and pupils in the administration of schools. On the one hand, in the secondary schools there are organized Students’ Councils (Schulgemeinden). These Councils are formed by pupils of the three upper classes, who meet periodically in assembly to discuss questions of instruction—educational matters, quarterly reports, discipline, duties, etc. Teachers attend these meetings without the right to vote. Up to now these assemblies have had only the right to propose reforms without power as yet to make them operative. On the other hand, parents elect for each school a Parents’ Council, one member for every fifty pupils.[56] This Council concerns itself mostly with classes, examination and discipline. If a pupil has committed a fault involving the possibility of expulsion from the schools, it is before this Council that this question is taken. Teachers are sometimes admitted to these deliberations but have not the right to vote.