GERMANY. From the dissolution of the Holy Roman Empire in 1806 to the reconstruction of the German Empire in 1871 the constitutional history of Germany may be divided into three distinct periods: (1) The preponderance of France (Confederation of the Rhine); (2) the preponderance of Austria (German Confederation); and (3) the preponderance of Prussia (North German Confederation). The Confederation of the Rhine, established in July 1806, included practically all of the German States except Austria and Prussia. With the fall of Napoleon it was replaced by the German Confederation. The Confederation Act of 8 June 18151 was amended by the Vienna Final Act of 15 May 1820,2 which united the States for the repression of liberal principles. Until the revolution of 1848 the movement for German unity was confined largely to liberal theorists. This revolution forced the governments to act. A German National Assembly met on 18 May 1848 and eventually adopted the Imperial Constitution of 28 March 1849. But by this time the liberal movement had begun to lose force. Austria had gained the victory over the revolutionary forces within its borders and firmly opposed any scheme which would give to Prussia the leadership of a united Germany. The German Confederation was reestablished and continued until Austria was expelled from Germany by force of arms. The Schleswig-Holstein affair led to an open conflict between Prussia and Austria in 1866. In the war which followed, Austria and her allies among the small States were signally defeated, and, by the Peace of Prague of 23 August 1866,3 Austria gave its "consent to the new organization of Germany without the participation of the Austrian Empire." The relations of the South German States to the new Confederation of the North German States, which had been established on 10 June 1866, were to be established by future negotiations. With the adhesion of the four South German States to the Confederation, the latter became the German Empire. By the treaties with the South German States changes had been introduced into the Constitution of the North German Confederation 1 English translation in EDWARD HERTSLET, Map of Europe by Treaty, vol. I (London, 1875), pp. 200-207. German text and French translation in parallel columns in the British and Foreign State Papers, 2: pp. 114-136. 2 English translation in HERTSLET, op. cit., pp. 636-657. British and Foreign State Papers, 7: pp. 399-414. French translation in the 3 English translation in HERTSLET, op. cit., vol. III (London, 1875), pp. 1720-1726, and in the British and Foreign State Papers, 56: pp. 1050-1054. 88381-1915 and therefore the Constitution of the Empire was now contained in the following four documents: 1. The Constitution of the North German Confederation of 16 April-14 June 1867.1 2. The Protocol of 15 November 18702 between the North German Confederation, Baden and Hesse. 3 3. The Treaty of 25 November 1870 between the North German Confederation, Baden and Hesse on the one side and Württemberg on the other. 4. The Treaty of 23 November 1870 concerning the adhesion of Bavaria to the North German Confederation. The Imperial Constitution of 16 April 1871 was practically a consolidation of the permanent provisions of these four instruments. This Constitution has been amended 10 times since 1871, and in the text given below not only have these formal amendments been inserted in their proper places, but also many other important changes which the Constitution has undergone by means of addition of territory, interpretation in practice, and of ordinary legislation have been indicated in the footnotes.5 CONSTITUTION OF 16 APRIL 1871.6 His Majesty the King of Prussia, in the name of the North German Confederation, His Majesty the King of Bavaria, His Majesty the King of Württemberg, His Royal Highness the Grand Duke of Baden, and His Royal Highness the Grand Duke of Hesse and Rhenish Hesse for those parts of the Grand Duchy of Hesse lying south of the Main, conclude an eternal Confederation for the protection of the federal territory, and of the rights of the same as well as for the promotion of the welfare of the German people. This Confederation shall bear the name of the German Empire, and shall have the following Constitution. 1 English translation in HERTSLET, op. cit., pp. 1807-1828. 2 English translation in the British and Foreign State Papers, 61: pp. 110-113. 3 English translation in the British and Foreign State Papers, 61: pp. 128-131. 4 English translation in the British and Foreign State Papers, 61: pp. 113-127. 5 These introductory paragraphs are based upon W. F. DODD, Modern Constitutions (Chicago, 1909), vol. I, pp. 321-324, and F. R. DARESTE ET P. DARESTE, Les Constitutions modernes (3d edition, Paris, 1910), vol. 1, pp. 170-172. 6 German text in FELIX STOERK, Handbuch der deutschen Verfassungen (2d edition, by F. W. VON RAUCHHAUPT, Munich, 1913), pp. 8-25, and in PAUL POSENER, Die Staatsverfassungen des Erdballs (Charlottenburg, 1909), pp. 46-63. French translation in DARESTE, op. cit., pp. 172–200. English translation in DODD, op. cit., pp. 325-351, and by E. J. JAMES in Foreign Constitutions [The Convention Manual of the Sixth New York State Constitutional Convention, 1894, part 2, vol. 3] (Albany, 1894), pp. 266-286. The translation given here is based on the one in DODD, which has been brought up to date by a comparison with STOERK-RAUCHHAUPT. I.-FEDERAL TERRITORY. ARTICLE 1. The federal territory shall consist of the States of Prussia with Lauenburg, Bavaria, Saxony, Württemberg, Baden, Hesse, Mecklenburg-Schwerin, Saxe-Weimar, Mecklenburg-Strelitz, Oldenburg, Brunswick, Saxe-Meiningen, Saxe-Altenburg, SaxeCoburg-Gotha, Anhalt, Schwarzburg-Rudolstadt, SchwarzburgSondershausen, Waldeck, Reuss, elder line, Reuss, younger line, Schaumburg-Lippe, Lippe, Lübeck, Bremen and Hamburg.1 II. LEGISLATION OF THE EMPIRE. ART. 2. Within this federal territory the Empire shall exercise the right of legislation 2 in accordance with the provisions of this Constitution; and the laws of the Empire shall take precedence of the laws of the States. The laws of the Empire shall receive their binding force by imperial promulgation, through the medium of a Reichsgesetzblatt [Imperial Gazette]. If no other time is designated for the published law to take effect, it shall become effective on the fourteenth day after its publication in the Reichsgesetzblatt at Berlin. ART. 3. There shall be a common citizenship for all Germany, and the members (subjects or citizens) of each State of the Confederation shall be treated in every other State as natives, and shall accordingly have the right of becoming permanent residents, of carrying on business, of filling public offices, of acquiring real estate, of obtaining citizenship and of enjoying all other civil rights under the same conditions as those born in the State, and shall also have the same treatment as regards judicial remedies and the protection of the laws. No German shall be limited in the exercise of these rights by the authorities of his native State or by the authorities of any other State of the Confederation. The regulations governing the care of paupers and their admission into the various local unions shall not, however, be affected by the principle enunciated in the first paragraph. In like manner, until further action, those treaties shall remain in force which have been concluded between the several States of the Confederation in relation to the taking over of persons liable to be deported, the care of sick and the burial of deceased citizens. With respect to the performance of military service in the severalt States, the necessary laws will be passed by the Empire. 1 The Duchy of Lauenburg was joined to the crown of Prussia 13 September 1865, and incorporated in the Kingdom of Prussia by the Law of 23 June 1876. Alsace-Lorraine was joined to the Empire by the Law of 9 June 1871 and incorporated in the federal terri tory by the Law of 25 June 1873, Article 2. The Law of 9 June 1871 invested the Em peror with the exercise of the right of sovereignty over Alsace-Lorraine. The island of Helgoland was incorporated in the federal territory by the Law of 15 December 1890 Article 2. 2 The Law of 2 May 1877 governs the exercise of the legislative power in Alsace Lorraine. As against foreign countries all Germans shall have an equal claim upon the protection of the Empire. ART. 4. The following matters shall be under the supervision of the Empire and subject to imperial legislation: 1. Regulations concerning the freedom of migration,1 matters of domicile and settlement,2 citizenship, passports, surveillance of foreigners, exercise of a profession, including insurance, so far as these matters are not already provided for by Article 3 of this Constitution; in Bavaria, however, exclusive of matters relating to domicile and settlement, and likewise matters relating to colonization and emigration to foreign countries." 2. Legislation concerning customs duties, commerce, and such taxes as are to be applied to the uses of the Empire." 3. Regulation of the system of measures, coinage and weights, and the establishment of the principles for the issue of funded and unfunded paper money. 4. General banking regulations.9 5. Patents for inventions.10 6. The protection of the ownership of intellectual works.11 7. The organization of a general system of protection for German trade in foreign countries, of German navigation and of the German flag on the high seas, and the establishment of a common consular representation, which shall be maintained by the Empire. 8 8. Railway matters, subject in Bavaria to the provisions of Article 46, and the construction of highways and waterways in the interests of national defense and of commerce in general. 9. Rafting and navigation upon waterways common to several States, the condition of such waterways, taxes collectable upon rivers and other waterways, and also the signals of maritime navigation (beacons, buoys, lights and other signals).12 10. Postal and telegraph affairs; in Bavaria and Württemberg, however, only in accordance with the provisions of Article 52. 1 Law of 1 November 1867 on freedom of migration. 2 Law of 1 June 1870 on the acquisition and loss of federal nationality and State nationality. 3 Law of 12 October 1867 on passports. 4 Law of 21 June 1869 on industry, amended by numerous subsequent laws. 5 Law of 15 June 1883 on workmen's health insurance (amended in 1892, 1900 and 1903); Law of 30 June 1900 on workmen's accident insurance; Law of 22 June 1889 on workmen's old age and disability insurance (completed by the Law of 13 July 1899). 6 Law of 9 June 1897 on emigration. See below, Articles 35 and 70. s Law of 4 December 1871 and Coinage Law of 9 July 1873; Ordinance of 17 August 1868 on weights and measures (amended in 1873, 1884, 1893 and 1900). 9 Law of 7 June 1899. 10 Law of 25 May 1877 on patents (amended by the Law of 7 April 1891); Law of 30 November 1874 on the protection of trade-marks. 11 Law of 11 June 1870 on authors' rights. 12 6 And also . . . signals." Added by the Law of 3 March 1873. |