[1] Prussia, Bavaria, Saxony, Wurtemberg, Baden, Hesse, Mecklenburg-Schwerin, Saxe-Weimar, Mecklenburg-Strelitz, Oldenburg, Brunswick, Saxe-Meiningen, Saxe-Altenburg, Saxe-Coburg-Gotha, Anhalt, Schwarzburg-Rudolstadt, Schwarzburg-Sondershausen, Waldeck, Reuss (elder line), Reuss (younger line), Schaumburg-Lippe, Lippe, LÜbeck, Bremen and Hamburg.

[2] See Joseph-BarthelÉmy, les Institutions politiques de l’Allemagne contemporaine, Paris, Alcan, 1915.

[3] See Laband, Die geschichtliche Entwicklung der Reichsverfassung in the Jahrbuch des oeffentlichen Rechts, 1907, p. 1, et seq.

[4] Piloty, Die Umformung der Reichsregierung und die Reichsverfassung, Deutsche Juristen Zeitung, 1918, p. 651, et seq.; Stier-Somlo, Reichsverfassung, p. 6.

Page 13, footnote 1. See the text of these claims in Gentizon, la RÉvolution allemande. 1 vol. Payot, Paris, 1919, p. 222.

[5] It is interesting to note that with the exception of Barth all these men were members of the Reichstag before the Revolution.

[6] See Jean de Granvilliers, Essai sur le libÉralisme allemand, Paris, 1914.

[7] See page 73, et seq., of this book.

[8] German jurists get much pleasure in pointing out the following constitutional curiosity: the condition necessary for a law enacted by a parliament to become operative is that this law shall be promulgated, that is to say, authenticated and published. But these operations suppose a government. Now, the law of February 10, created the government; but this law could not be promulgated by a government which this very promulgation would create. It was decided, therefore, that the law should become operative immediately and be authenticated by the President of the National Assembly.

[9] These concepts of “unitarism” and “federalism” must be compared with “centralism” and “particularism,” which correspond to them, but which, nevertheless, also differ from them. When one speaks of “particularism” one means, beyond the legal and political differences which may exist between the member states of a federated state, the peculiarities of race, special traits of culture, geographic and ethnographic characteristics which give to populations their own stamp and a distinct collective sentiment. Political “particularism” and federalist tendencies may co-exist naturally; but “particularism” is not necessarily anti-centralistic: a “particularism” inspired by the love of a little fatherland and its individuality gives to the population a certain national consciousness which is not necessarily antagonistic to the establishment of a strong central power. On the other hand “unitarism,” if it preserves for the state the character of a federated state and does not tend to a complete fusion of the member states, may well recognize that races and provinces wish for individual existence and may be ready to accord them corresponding liberty.

[10] See Preuss, Deutschlands republikanische Reichsverfassung, p. 8.

[11] See Jacobi, Einheitsstaat oder Bundesstaat, Leipzig, 1919.

[12] Since the Revolution, Coburg has detached itself from Saxe-Coburg-Gotha and become a distinct state without the decision of any authority whatsoever sanctioning this situation.

[13] There was in this a true provisionally federated state within a federal German state. For several months there was thus, in central Germany, a triple superposition of states.

[14] It must be recognized nevertheless that with the exception of the Hanseatic cities the monarchical form was implied. For Prussia it was obligatory.

[15] See Giese, Die Reichsverfassung, vom II, August, 1919, p. 65; Jacobi, Einheitsstaat oder Bundesstaat, p. 6, et seq.; Poetsch, Handausgabe der Reichsverfassung, p. 25, et seq.; Wenzel, Festgabe fÜr Bergbohn, 1919, p. 159, et seq.

[16] See Stier-Somlo, op. cit., p. 79, et seq.; Walter Jellinek, Revolution und Reichsverfassung, in Jahrbuch des Öffentlichen Rechts, p. 81; Arndt, Reichsverfassung, 1919, p. 35.

[17] In reality the states still exchange ambassadors and, in the official German language, the agreements reached either between two states or several carry the name of StaatsvertrÄge (international treaties). See particularly the international treaty adopted between the Reich on the one hand, and Prussia, Bavaria, Saxony, Wurtemberg, Baden, Hesse, Mecklenburg-Schwerin and Oldenburg on the other, concerning the transfer to the Reich of the railroads of these states, the treaty approved by the National Assembly, April 30, 1920.

[18] See Heilfron, Die deutsche Nationalversammlung im Jahre 1919, vol. ii, p. 1176.

[19] See Julius Kaliski, Der Kern des RÄtegedanken, in Welt-Echo, June, 1919.

[20] This is the exact text: “1. For the immediate formation of the cabinets in the Empire and in Prussia, the questions of individual appointments will be decided by the political parties in agreement with the organizations of workers, salaried employÉs and civil servants taking part in the general strike, and a decisive influence will be accorded to these organizations in the new policies of economic and social legislation, all with the view of safeguarding the rights of popular representation. 2. Immediate disarmament and punishment of all those guilty of participating in the pronunciamento or the overthrow of the constitutional government, as well as of all civil servants who placed themselves at the disposal of the illegal governments. 3. All public and industrial administrations must be radically purged of counter-revolutionary personalities, in particular of those who participate in the management, and these personalities must be replaced by trusted elements. Re-employment of all the representatives of organizations in public services who were made the victims of disciplinary measures. 4. The earliest possible realization of administrative reform on a democratic basis, with the co-operation of the economic organizations of wage-workers, salaried employÉs and civil servants. 5. The immediate execution of all existing laws and the enactment of new social laws that will accord to wage-workers, salaried employÉs and civil servants complete social and economic equality; and the immediate enactment of liberal legislation in behalf of civil servants. 6. The immediate socialization of the branches of industry ripe for socialization on the basis of the decisions of the Committee on Socialization, in which representatives of vocational organizations shall take part. The immediate convocation of the Committee on Socialization. The transfer to the Empire of the coal and potash corporations. 7. More effective appropriation and, if need be, the expropriation of available necessities of life; more vigorous war against usurers and profiteers in the country districts and in the cities; guarantees that obligations of deliveries will be executed, insured by the organization of societies for delivery of goods, and the establishment of definite fines and punishments for all violations of these obligations due to ill-will. 8. The dissolution of all counter-revolutionary military organizations that did not remain faithful to the Constitution, and their replacement with organizations recruited from the masses of tried republican population, in particular workers, salaried employÉs and organized civil servants, without favour to any class whatever. In this reorganization the rights of all troops and organizations that have remained faithful shall remain intact.”

[21] Retreat of the Berlin troops to the line of the Spree; the lifting of the state of siege; no attack on armed workers, particularly in the Ruhr; negotiations with labour organizations with the view of recruiting of workers in the troops of Prussian safety police.

[22] The principal of the new “Nine Points” are: 1. The troops of Reichswehr remain in their position and must not advance on the industrial area except with the express authorization of the Cabinet. 2. The red army dissolves and gives up its arms. 3. Adequate police is assured by the constitutional authorities, supported by “committees on public order” and of “local armies” composed of workers, salaried employÉs and civil servants of all parties. 4. The “committees of action” and the “executive committees” are dissolved.

[23] Deutsche Allgemeine Zeitung, March 28, 1920.

[24] Lokal Anzeiger, April 8, evening.

[25] Lensch, ErwÜnschte Nachwirkungen, in Der Tag, No. 83.

[26] Preuss, Deutschlands republikanische Reichsverfassung.

[27] Session of July 2. (Heilfron, op. cit., vol. V, pp. 2960-2961.)

[28] There are differences of detail between these two modes, but of no importance.

[29] The origin of this provision goes back to the “certificate” that was given in the elections for the National Assembly to soldiers and sailors returning from the front and to troops assigned to service for the preservation of order in polling places.

[30] Session of July 7, 1919. (Heilfron, op cit., vol. V, p. 3314.)

[31] Session of July 7, 1919. (Heilfron, op. cit., vol. V, pp. 3299-3300.)

[32] See the analysis of this bill in the Deutsche Juristen Zeitung, 1920, p. 385.

[33] Heilfron, op. cit., vol. II, p. 969.

[34] Reichsgesetzblatt, 1920, p. 909.

[35] Bismarck was always against the granting of salaries to members of the Reichstag. He hoped thereby to prevent making of politics a career. The members of the Reichstag since 1906 have been receiving compensation which, at first fixed at 3,000 marks a year, was increased in 1918 to 5,000. National Assembly members were paid 1,000 marks a month. The new Reichstag in one of its first sessions decided (1) that its members are to receive 1,500 marks a month; (2) that those of its members who, in the intervals of the Reichstag’s sitting, worked on committees, should receive 50 marks a day. In addition, members of the Reichstag have the right to travel free on all railroads of the Reich.

[36] There were formerly six important permanent committees: on procedure, petitions, commerce and industry, finance and customs, justice, and budget. We shall see that the Constitution has added to this list a committee on foreign affairs, and a committee on the protection of the rights of popular representation when the Reichstag is not meeting. It goes without saying that the Reichstag may name special committees for such and such functions decided upon.

[37] There are thus three kinds of treaties: Those made by a law of the Reich, those made by agreement between the President and the Reichstag, and those made by the President alone.

[38] It must be noted that, contrary to the practice in most parliamentary countries, there is no distinction made between ordinary laws and fiscal laws. The latter, particularly the budget, audit laws, loans, are subject to the same regulation as the former. This is explained by the fact that, unlike most other parliamentary countries, Germany does not practice, properly speaking, the two-chamber system.

[39] Heilfron, op. cit., vol. V, p. 3193.

[40] See in general the work of Redslob, Die parlamentarische Regierung in ihrer wahren und in ihrer unechten Form, TÜbingen, 1918. It is curious to note that every argument and all the investigations of Redslob take as their point of departure the criticisms addressed by Professor Duguit against the French system, particularly in his TraitÉ de Droit Constitutionnel, 1911, vol. I, pp. 411-412.

[41] This law has never been applied. President Ebert, now in office, was, it will be remembered, elected by the National Assembly.

[42] The President of the Reich has not, what is called in France, le pouvoir rÉglementaire, that is to say, the right to issue general ordinances obligatory on all citizens. He cannot make regulations of this kind except in cases where the Constitution or an ordinary law gives him special power to do so. In such a case either he issues the regulation, naturally with the countersignature of a Minister (Articles 48, 49, 51, 59 of the Constitution, for example), or he must first obtain the consent of the Reichstag.

[43] See particularly the decree of March 19, 1920, Reichsgesetzblatt, 1920, p. 467.

[44] At the meeting of the Committee on the Constitution on April 4, 1919, Preuss, then Minister of the Interior, declared that such was already the practice in Germany and that President Ebert presided over the most important meetings of the Council of Ministers.

[45] It includes in addition two members that do not belong to any party—the Minister of Foreign Affairs and the Minister of Transport.

[46] Article 64 provided also that after the reunion of Austria with the German Reich the latter would have the right to be represented in the Reichstag numerically in proportion to the size of its population. Until such union the representatives of German Austria would have only a consultative voice. This provision, contrary both in letter and spirit to Article 80 of the Peace Treaty, brought a protest from the Supreme Council of the Allied Powers and their associates. The first note on September 2, 1919, demanded the abolition of the offending provision by constitutional amendment within a fortnight. On September 5, the German government replied that no article of the Constitution could be in contradiction with the Treaty of Peace, for Article 78, paragraph 2, expressly provides that no constitutional provision may carry any attempt against the treaty. This reply justly seemed to the Allies insufficient. Article 78, paragraph 2, constitutes, it is true, on the part of the drafters of the Constitution an excellent measure of precaution against contradictions between the Constitution and the Treaty not provided for in advance and revealed in practice. But the contradiction pointed out by the note of the Allies of September 2 was too clear and evident to have been accidental. The Allied Powers, therefore, demanded that the German Government send by means of a diplomatic document the interpretation contained in its note of September 5. This is the text, therefore, of a supplementary declaration drawn up by the German Cabinet and ratified by the National Assembly:

“The undersigned, duly authorized in the name of the German Government, recognize and declare that all provisions of the German Constitution of August 11, 1919, that are in contradiction with stipulations of the Treaty of Peace signed at Versailles on June 28, 1919, are without force, and that particularly the admission of the representatives of Austria as members of the Reichstag cannot be effected except if, in conformance with Article 80 of the Treaty of Peace, the League of Nations sanctions a change in the international situation of Austria. The present declaration must be ratified by the competent authorities within a fortnight after the Treaty of Peace becomes operative.”

[47] The committees thus formed are eleven in number and each consists of nine members. They are, committees on foreign affairs, political economy, interior administration, commerce and audits, taxes and customs, justice, the Constitution and interior regulation, the army, navy, and the execution of the Treaty of Peace.

[48] See Koch, Die Grundrechte in der Verfassung, Deutsche Juristen Zeitung, 1919, p. 609, et seq.

[49] It should be observed that this provision has been decreed by a law; consequently there can be no question in regard to it whether it is a provision having the force of law or only a moral maxim. It is a legislative provision. The fact that it was later inserted into the Constitution has only the effect of preventing its abrogation or its modification other than by constitutional amendment.

[50] This principle of civil law has also become now a provision of constitutional law (Article 152).

[51] It must be also noted that up to now the States have not as yet complied with this order of the Constitution. In Prussia in particular it does not seem that measures have yet been enacted against the “fideicommis.”

[52] Reichsgesetzblatt, 1920, p. 876.

[53] The question of the length of the working day has not been touched by the Constitution. Up to now it has been regulated exclusively by special decrees based on the eight-hour day. The decrees of November 23, 1918, and of December 17, 1918, introduced the eight-hour day for workers in industries with the exception of industries which must not be interrupted. The decree of November 23, 1918, prescribed the length of the working day in bakeries; that of March 18, 1919, did the same for salaried employÉs. A general law that provides for an eight-hour day and regulating its application is in preparation.

[54] Reichsgesetzblatt, 1920, p. 98.

[55] As yet there has not been organized insurance against non-employment.

[56] The political parties interested themselves in these elections, the platform being “for or against religious instruction.” The number of socialists elected was less than that of bourgeois parties.

[57] See Chapter III.

[58] Max Schippel, Schicksalstunden der Arbeitsgemeinschaft, Sozialistische Monatshefte, 1920, p. 328.

[59] It has been changed by a law of May 31, 1920. (Reichsgesetzblatt, 1920, p. 1128.)

[60] Deutsche Allgemeine Zeitung, April 29, evening.

[61] In the discussion that arose on this subject an expression used in it has achieved popularity and is in current use. The strikers demanded and obtained the “anchorage” of the Councils in the Constitution.

[62] See p. 307.

[63] It will be recalled that in order to obtain increase in authority for the Factory Workers Councils, the Independents organized a great manifestation in Berlin in January, 1920, in the course of which about forty of the participants in the manifestation were killed on the steps of the Reichstag.

[64] These enterprises are: Stock companies, limited joint-stock companies, mutual insurance companies, and eventually limited liability companies.

[65] See Paul Umbreit, das BetriebsrÄtegesetz, Berlin, 1920, pp. 20-21.

[66] It met for the first time on June 30, 1920.

[67] This memorandum did not represent the personal opinion of the Minister. The ideas expressed in it were the opinions of a group that included both socialists and bourgeois elements, men like Walter Rathenau, von MÖllendorf (under-secretary of State under Wissel), Andreas, a banker, Georg Bernhard, editor of the Vossiche Zeitung, and others.

[68] Reier, Sozialisierungsgesetze, Berlin, 1920, p. 14.

[69] Wissel, then Minister of Public Economy, on March 7, 1919, before the National Assembly thus defined collective economy properly so-called: “Collective economy means the organization and management of private economic enterprises in the interests of the Reich, the subordination of private interests to collective interests. The application of this general principle to particular cases must be adapted to the special conditions of the different branches of the economy. Nothing can be worse than to want to make the economy rigidly uniform. Every economic group is a different organism that demands forms appropriate to it. This seems to be indicated in the exterior forms of union, such as capitalist economy practiced in its associations and cartels. But the spirit that prevails in these organizations must be raised above purely private considerations up to a sense of responsibility toward the people as a whole, up to the conception of a collective economy. Collective economy does not mean state economy, but autonomy. The State is not the master of economy. It can and should exercise supreme supervision and hold in equilibrium the opposing interests with justice and wisdom.”

[70] These sixty members are divided as follows:

• 3 representatives of states;
• 15 representatives of colliers’ organizations;
• 15 representatives of mine workers;
• 1 employer and 1 worker in gasworks;
• 2 salaried employÉs of the technical service of the mines;
• 1 salaried employÉ of the commercial service of the mines;
• 5 coal merchants;
• 1 employÉ in the wholesale coal trade;
• 2 employers and 2 workers in industries using coal;
• 2 representatives of consumers’ societies;
• 1 user of coal in the cities, 1 in the country;
• 2 representatives of small industries using coal;
• 1 user of coal for railroads;
• 1 user of coal for maritime navigation;
• 1 user of coal for river navigation;
• 3 mine and boiler experts.

The representatives of the states are named by the Reichsrat from among the municipal administrations and consumers of coal. The representatives of employers and employÉs in the mining industries as well as the twelve representatives of the colliers’ associations are elected by the mine groups of the Arbeitsgemeinschaft. Two representatives are named by the Prussian Minister of Commerce and Industry. The representatives of the coal trade are named by the German Congress of Commerce and Industry. The representatives of the employers and employÉs of the industries using coal, and the representatives of the employÉs of gasworks are elected by their Arbeitsgemeinschaften. The representatives of the small industries using coal are elected by the German Chambers of Commerce and Industry. The other representatives are appointed, on the advice of those they represent, by the Minister of Public Economy of the Reich.

[71] Stricken out at the demand of the Supreme Council of the Allied and Associated Powers. The Supreme Council addressed the following demand to Germany on September 2, 1919:

“The Allied and Associated Powers have examined the German Constitution of August 11, 1919. They observe that the provisions of the second paragraph of Article 61 constitute a formal violation of Article 80 of the Treaty of Peace signed at Versailles on June 28, 1919. This violation is twofold:

“1. Article 61 by stipulating for the admission of Austria to the Reichsrat assimilates that Republic to the German States composing the German Empire—an assimilation which is incompatible with respect to the independence of Austria.

“2. By admitting and providing for the participation of Austria in the Council of the Empire Article 61 creates a political tie and a common political action between Germany and Austria in absolute opposition to the independence of the latter.

“In consequence the Allied and Associated Powers, after reminding the German Government that Article 178 of the German Constitution declares that ‘the provisions of the Treaty of Versailles can not be affected by the Constitution,’ invite the German Government to take the necessary measures to efface without delay this violation by declaring Article 61, Paragraph 2, to be null and void.

“Without prejudice to subsequent measures in case of refusal, and in virtue of the Treaty of Peace (and in particular Article 29), the Allied and Associated Powers inform the German Government that this violation of its engagements on an essential point will compel them, if satisfaction is not given to their just demand within 15 days from the date of the present note, immediately to order the extension of their occupation on the right bank of the Rhine.”

Article 29 of the Treaty of Peace refers to Map No. 1 which shows the boundaries of Germany and provides that the text of Articles 27 and 28 will be final as to those boundaries. Article 80 reads as follows:

“Germany acknowledges and will respect strictly the independence of Austria, within the frontiers which may be fixed in a Treaty between that State and the Principal Allied and Associated Powers; she agrees that this independence shall be inalienable, except with the consent of the Council of the League of Nations.”

A diplomatic act was signed at Paris on September 22, 1919, by the representatives of the Principal Allied and Associated Powers and Germany in the following terms:

“The undersigned, duly authorized and acting in the name of the German Government, recognizes and declares that all the provisions of the German Constitution of August 11, 1919, which are in contradiction of the terms of the Treaty of Peace signed at Versailles on June 28, 1919, are null.

“The German Government declares and recognizes that in consequence Paragraph 2 of Article 61 of the said Constitution is null, and that in particular the admission of Austrian representatives to the Reichstag could only take place in the event of the consent of the Council of the League of Nations to a corresponding modification of Austria’s international situation.

“The present declaration shall be approved by the competent German legislative authority, within the fortnight following the entry into force of the Peace Treaty.

“Given at Versailles, September 22, 1919, in the presence of the undersigned representatives of the Principal Allied and Associated Powers.”