The Governments of Europe

by Frederic Austin Ogg

The functions of the Emperor as such are not numerous, but, so far as they go, they are of fundamental importance. In the first place, the Emperor is commander-in-chief of the army and navy. He may control the organization of the Landwehr, or national defense; determine the strength and composition of the armed contingents; supervise the equipment and drilling of the troops; and mobilize the whole, or any part, of the forces.[301] A second group of Imperial functions are those relating to foreign affairs. "It shall be the duty of the Emperor," says the constitution, "to represent the Empire among nations, to declare war and to conclude peace in the name of the Empire, to enter into alliances and other treaties with foreign countries, to accredit ambassadors and to receive them."[302] The Emperor's power, however, is not in all of these directions absolute. One important limitation arises from the requirement that, under all circumstances save in the event of an attack upon the federal territory or its coasts, war may be declared only with the consent of the Bundesrath. Another is that in so far as treaties with foreign countries relate to matters which are to be regulated by Imperial legislation, "the consent of the Bundesrath shall be required for their conclusion, and the approval of the Reichstag shall be necessary to render them valid."[303]

222. Powers: Legislation and Justice.—A third group of functions has to do with legislation. By the constitution the Emperor is vested with the right to convene the Bundesrath and the Reichstag, and to open, adjourn, and close them.[304] In accordance with resolutions of the Bundesrath, bills are laid before the Reichstag in the name of the Emperor; and it is the Emperor's duty to prepare and publish the laws of the Empire, as well as to supervise their execution.[305] In so far as is permitted by the constitution, and by laws from time to time enacted, decrees and ordinances may be promulgated by the Emperor, under the countersignature of the Chancellor. Speaking strictly, the Emperor possesses no veto upon measures passed in the Bundesrath and Reichstag, though in practice he may refuse to publish a law in the enactment of which he believes the ordinary formal requirements not to have been complied with. He may not withhold a measure by reason simply of its content.

The Emperor is vested, in the next place, with certain prerogatives in relation to the judiciary. On motion of the Bundesrath, he appoints (though he may not remove) the members of the Reichsgericht, or Imperial Court; and by the Code of Criminal Procedure it is stipulated that in cases in which the Imperial Court shall have rendered judgment as a tribunal of first instance, the Emperor shall possess the power of pardon. The pardoning power is extended likewise to cases adjudged in consular courts, prize courts, and other tribunals specified by law.

223. Powers: Execution of the Law.—Finally, the execution of the laws is intrusted to the Emperor with, however, this limitation, that, under the German system, the execution of law is committed largely to the states and the officials thereof, so that the measures of the Imperial Government whose execution is not specifically provided for by the constitution and the laws are presumably carried into effect by the constituted authorities of the states. There are, however, Imperial agents whose business it is to inspect the execution of Imperial measures by the states and to report to the Emperor infractions or omissions. When such delinquencies are adjudged sufficiently serious, the Emperor may bring them to the attention of the Bundesrath, and that body may order an "execution," i.e., a show of military force to coerce the erring state. The carrying out of the "execution" is intrusted to the Emperor.[306] Incident to the general executive function is the power to make appointments. By the constitution it is stipulated that the Emperor, in addition to appointing the Imperial Chancellor, shall appoint Imperial officials, require of them the taking of an oath to the Empire, and, when necessary, dismiss them.[307] The position which the Chancellor occupies in the Imperial administrative system is of such weight that the power of appointing to, and of removing from, the chancellorship is in itself of very large importance; and the Kaiser's control of administration is still further increased by his power of appointment and removal of subordinate officials.[308]

II. The Chancellor

224. Non-existence of a Parliamentary System.—Within the domain of Imperial government the place filled in other governmental systems by a ministry or cabinet of some variety is occupied by a single official, the Reichskanzler, or Chancellor. When the Imperial constitution was framed it was the intention of Bismarck to impart to the Imperial administration the fullest facility and harmony by providing the Chancellor with no colleagues, and by making that official responsible solely to the Emperor. Such a scheme would have meant, obviously, a thoroughgoing centralization in all Imperial affairs and the utter negation of anything in the way of a parliamentary system of government. The more liberal members of the constituent Reichstag compelled a modification of the original Bismarckian programme; so that when the constitution assumed its permanent form it contained not merely the stipulation that "the Imperial Chancellor, to be appointed by the Emperor, shall preside in the Bundesrath and supervise the conduct of its business," but the significant provision that "the decrees and ordinances of the Emperor shall be issued in the name of the Empire, and shall require for their validity the countersignature of the Imperial Chancellor, who thereby assumes the responsibility for them."[309]

Nominally, this article establishes the principle of ministerial responsibility, even though there is but a single minister to be made responsible. Practically, it does nothing of the sort, for the reason that no machinery whatever is provided for the enforcing of responsibility. There is not even specification of the authority to which responsibility shall lie. The article stipulating responsibility, appropriated from the constitution of Prussia, was merely tacked on the Imperial instrument and has never been brought into organic relation with it. In practice the Imperial Government has always been able to do business without for a moment admitting the right of the Reichstag to unseat the Chancellor by an adverse vote. The Chancellor may be criticised and the proposals which he introduces may be defeated; expediency may even require his removal by his Imperial master; but he has never felt obliged to retire merely by reason of lack of support in the legislative chamber, as would a British or a French minister similarly situated. This does not mean, of course, that the blocking of a governmental programme may not tend to produce the practical effect of a parliamentary vote of "want of confidence." It means simply that the Chancellor, in such a case, is under no admitted obligation to resign. The retirement of Chancellor von Bülow during the crisis of 1908-1909 was more nearly involuntary than that of any one of his three predecessors, but persons most conversant with the circumstances agree that there was involved in it no intention of concession to the parliamentary principle. The Chancellor's fall was, in reality, only his punishment for countenancing the popular indignation occasioned by the Emperor's memorable Daily Telegraph interview, for which the Chancellor himself had been, at least technically, responsible.[310]

There is a clause of the constitution[311] which confers upon the Chancellor the right to delegate the power to represent him to any other member of the Bundesrath; whence it seems to follow that the Chancellor must be himself a member of that body. The relations of the Empire and the Prussian kingdom practically require, further, that the Chancellor be identified with the Prussian contingent in the federal chamber. Since, however, the Emperor, in his capacity of king of Prussia, designates the Prussian delegates in that body, it is open to him to make such an appointment in this second capacity as will enable him when selecting, in his Imperial capacity, a chancellor to procure the services of the man he wants.

225. Functions: in the Bundesrath and the Reichstag.—Speaking broadly, the functions of the Chancellor are two-fold. The first arises from his position within the Bundesrath. Not only does he represent in that body, as do his Prussian colleagues, the king of Prussia; he is vested constitutionally with the presidency of it and with the supervision of its business. He determines the dates of its sessions. Through his hands pass all communications and proposals, from the states as well as from the Reichstag, addressed to it, and he is its representative in all of its external relations. In the name of the Emperor he lays before the Reichstag all measures enacted by the Bundesrath; and as a member of the Bundesrath, though not as Imperial Chancellor, he may appear on the floor of the Reichstag to advocate and explain proposed legislation. Measures which have been enacted into law are binding only after they have been proclaimed by the Chancellor, such proclamation being made regularly through the official organ known as the Reichsgesetzblatt.

226. Functions: Administration.—A second function, so inextricably intertwined with those just mentioned as to be in practice sometimes not clearly distinguishable from them, is that which arises from the Chancellor's position as the principal administrative official of the Empire. As has been pointed out, the work of administration under the German system is largely decentralized, being left to the states; but the ultimate administrative authority is very highly centralized, being gathered in the hands of the Chancellor in a measure not paralleled in any other nation of western Europe. As an administrative official the Chancellor has been described with aptness as the Emperor's "other self." He is appointed by the Emperor; he may be dismissed by him; he performs his functions solely as agent and assistant of the Emperor; and, although according to the letter of the constitution responsible to the Reichstag, he is, in practice, responsible to no one save his Imperial master.