232. Powers of Legislation.—By reason of the pivotal position which the Bundesrath occupies in the German constitutional system the functions of the body are fundamental and its powers comprehensive. Its competence is in the main legislative and fiscal, but also in part executive and judicial. By the constitution it is stipulated that the legislative power of the Empire shall be exercised by the Bundesrath and the Reichstag, and that a majority of the votes of both bodies shall be necessary and sufficient for the enactment of a law.[322] The right of initiating legislation is expressly conferred upon the Reichstag, but in practice it is exercised almost exclusively by the Bundesrath. Even finance bills all but invariably originate in the superior chamber. Under the normal procedure bills are prepared, discussed, and voted in the Bundesrath, submitted to the Reichstag for consideration and acceptance, and returned for further scrutiny by the Bundesrath before their promulgation by the Emperor. In any case, the final approval of a measure must take place in the Bundesrath, by whose authority alone the character of law can be imparted. Speaking strictly, it is the Bundesrath that makes law, with merely the assent of the Reichstag.
233. Executive Authority.—The Bundesrath's executive functions represent a curious admixture, but the sum total is very considerable. In the first place, the body possesses supplementary administrative powers. By the constitution it is required to take action upon "the general administrative provisions and arrangements necessary for the execution of the Imperial laws, so far as no other provision is made by law," as well as upon "the defects which may be discovered in the execution of the Imperial laws."[323] This function is performed through the issuing of ordinances so devised as not to contravene the constitution, existing law, or the proper prerogatives of any constituted authority, Imperial or state. In the second place, certain powers vested in the Emperor may be exercised only with the Bundesrath's consent. Most important of these are: (1) the declaration of war, save in the event of an attack upon the territory or coasts of the Empire; (2) the concluding of treaties, in so far as they relate to matters falling within the range of Imperial legislation; and (3) the carrying out of an "execution" against a delinquent state. Finally certain relations are maintained with the Reichstag which involve the exercise of authority that is essentially executive. With the assent of the Emperor, the Bundesrath may dissolve the popular chamber; and every member of the Bundesrath has the right to appear in the Reichstag and to be heard there at any time upon his own request, somewhat after the manner of a minister in a parliamentary government.[324] Large functions in connection with public finance, likewise, are vested in the body. By it the annual budget is prepared, the accounts which the Empire carries with the states are audited, and important supervisory relations with the Imperial Bank, the Imperial Debt Commission, and other fiscal agencies, are maintained. Lastly, there is some participation in the power of appointment; for although that power, as such, is vested in the Emperor, officials of some kinds (e.g., judges of the Imperial Court) are actually chosen by the Bundesrath, and in many other instances the body preserves an acknowledged right to approve appointments which are made.
234. Judicial Powers.—In its judicial capacity the Bundesrath sits as a supreme court of appeal, to which cases may be carried from the tribunals of a state, when it can be shown that justice is not to be had in those tribunals.[325] It serves also as a court of last resort for the settlement of disputes between the Imperial Government and a state; or between two states, when the point at issue is not a matter of private law and when a definite request for action is made by one of the parties. Finally, in disputes relating to constitutional questions in states whose constitution does not designate an authority for the settlement of such differences, the Bundesrath is required, at the request of one of the parties, to effect an amicable adjustment; or, if this shall prove impossible, to see to it that the issue is settled by Imperial law.[326]
CHAPTER XI
THE IMPERIAL GOVERNMENT: REICHSTAG, PARTIES, JUDICIARY
I. Composition of the Reichstag—Electoral System
In complete contrast with the Bundesrath, which is a purely federal institution, the Reichstag is broadly national. It represents, not the states, nor yet the people of the states, but the people of the Empire as a whole. From what has been said regarding the preponderance of the autocratic principle in the German system it follows that there is no room in that system for a parliamentary chamber of the nature of the British House of Commons or of the French Chamber of Deputies. None the less, restricted as are its functions, the Reichstag is one of the world's most vigorous and interesting legislative bodies.
235. Allotment of Seats.—Members of the Reichstag are chosen for a term of five years,[327] by direct and secret ballot, at an election which takes place on a given day throughout the entire Empire. The number of seats, fixed tentatively by the constitution of 1871 at 382, was, by law of June 25, 1873, providing for the election of fifteen members from Alsace-Lorraine, increased to 397; and it thereafter remained unchanged. The electoral "circles," or districts, each of which returns one member, were laid out originally in such a way as to comprise 100,000 inhabitants each, and also in such a manner that no district would embrace portions of two or more states. Since 1871 there has been no redistricting of the Empire, and the populations comprising the various constituencies have become grossly unequal. Berlin, with more than two million people, is still entitled to but six seats; and the disproportion in other great cities and densely inhabited regions is almost as flagrant.[328] There has long been demand for a redistribution of seats; but, by reason of the proneness of urban constituencies to return to the Reichstag socialists or other radicals, the Government has never been willing to meet the demand. By states, the 397 seats are distributed as follows: Prussia, 236; Bavaria, 48; Saxony, 23; Württemberg, 17; Alsace-Lorraine (Imperial territory), 15; Baden, 14; Hesse, 9; Mecklenburg-Schwerin, 6; Saxe-Weimar, 3; Oldenburg, 3; Brunswick, 3, Hamburg, 3; Saxe-Meiningen, 2; Saxe-Coburg-Gotha, 2; Anhalt, 2; and all others, one each. As in the American House of Representatives, a state is entitled to one member regardless of its population.
236. Time and Method of Elections.—Electoral procedure is regulated by the Election Law of May 31, 1869, amended in minor particulars at subsequent dates, and extended in 1871 and in 1873 to the southern states and to Alsace-Lorraine respectively. Elections are held uniformly throughout the Empire on a day fixed by the Emperor. In the event of a dissolution prior to the end of the five-year term an election is required to take place within a period of sixty days, and the new Reichstag must be convened not later than ninety days after the dissolution.[329] For election on the first ballot an absolute majority of the votes cast within the circle, or district, is required. If no candidate obtains such a majority, there follows a second balloting (Stichwahl) a fortnight later, when choice is made between the two candidates who upon the first occasion polled the largest number of votes. In the event of a tie, decision is by lot.[330] Secrecy of the ballot is specially safeguarded by regulations enacted April 28, 1903. Each voter, upon appearing at the polls, is furnished with an envelope and a white voting-paper bearing an official stamp. In a compartment arranged for the purpose in the polling room he marks his ballot and incloses it in the envelope. As he leaves the room he hands the envelope to the presiding officer or deposits it in a voting urn. Once elected, a member, according to constitutional stipulation, is a representative, not of the constituency that chose him, but of the people of the Empire as a whole, and he may not be bound by any order or instruction.[331]
237. The Franchise.—The franchise is broadly democratic. Every male who, possessing citizenship in the Empire, has completed his twenty-fifth year is entitled to vote in the district in which he has his domicile, provided his name appears on the registration lists. He is not required to be a citizen of the state in which he votes. The only exceptions to the general rule of universal manhood suffrage arise from the disfranchisement of persons under guardianship, bankrupts, beneficiaries of public charity, persons suffering judicial deprivation in respect to certain of their rights as citizens, and persons in active service in the army and navy. Any male citizen, possessed of the right to vote, twenty-five years of age or over, and a resident of a state of the Empire during at least one year, is eligible as a candidate. He is not required to be a citizen of the state from which he aspires to be elected.[332]