Bismarck and the Foundation of the German Empire

by James Wycliffe Headlam

And now let us turn to that which after the organisation of the army was of most importance,—the arrangement of the administration and legislation. Here it is that we see the greatest originality. German writers have often explained that it is impossible to classify the new State in any known category, and in following their attempts to find the technical definition for the authority on which it rests, one is led almost to doubt whether it really exists at all.

There are two agents of government, the Federal Council, or Bundesrath, and the Parliament, or Reichstag. Here again we see the blending of the old and new, for while the Parliament was now created for the first time, the Council was really nothing but the old Federal Diet. Even the old system of voting was retained; not that this was better than any other system, but, as Bismarck explained, it was easier to preserve the old than to agree on a new. Any system must have been purely arbitrary, for had each State received a number of votes proportionate to its population even the appearance of a federation would have been lost, and Bismarck was very anxious not to establish an absolute unity under Prussia.

It will be asked, Why was Bismarck now so careful in his treatment of the smaller States? The answer will be found in words which he had written many years ago:

"I do not wish to see Germany substituted for Prussia on our banner until we have brought about a closer and more practical union with our fellow-countrymen."

Now the time had come, and now he was to be the first and most patriotic of Germans as in old days he had been the strictest of Prussians. Do not let us in welcoming the change condemn his earlier policy. It was only his loyalty to Prussia which had made Germany possible; for it is indeed true that he could never have ruled Germany had he not first conquered it. The real and indisputable supremacy of Prussia was still preserved; and Prussia was now so strong that she could afford to be generous. It was wise to be generous, for the work was only half completed; the southern States were still outside the union; he wished to bring them into the fold, but to do so not by force of arms but of their own free will; and they certainly would be more easily attracted if they saw that the North German States were treated with good faith and kindness.

Side by side with the Council we have the Reichstag; this was, in accordance with the proposal made in the spring of 1866, to be elected by universal suffrage. And now we see that this proposal, which a few months ago had appeared merely as a despairing bid for popularity by a statesman who had sacrificed every other means of securing his policy, had become a device convincing in its simplicity; at once all possibility of discussion or opposition was prevented; not indeed that there were not many warning voices raised, but as Bismarck, in defending this measure, asked,—what was the alternative? Any other system would have been purely arbitrary, and any arbitrary system would at once have opened the gate to a prolonged discussion and political struggle on questions of the franchise. In a modern European State, when all men can read and write, and all men must serve in the army, there is no means of limiting the franchise in a way which will command universal consent. In Germany there was not any old historical practice to which men could appeal or which could naturally be applied to the new Parliament; universal suffrage at least gave something clear, comprehensible, final. Men more easily believed in the permanence of the new State when every German received for the first time the full privilege of citizenship. We must notice, however, that Bismarck had always intended that voting should be open; the Parliament in revising the Constitution introduced the ballot. He gave his consent with much reluctance; voting seemed to him to be a public duty, and to perform it in secret was to undermine the roots of political life. He was a man who was constitutionally unable to understand fear. We have then the Council and the Parliament, and we must now enquire as to their duties. In nearly every modern State the popular representative assembly holds the real power; before it, everything else is humbled; the chief occupation of lawgivers is to find some ingenious device by which it may at least be controlled and moderated in the exercise of its power. It was not likely that Bismarck would allow Germany to be governed by a democratic assembly; he was not satisfied with creating an artificial Upper House which might, perhaps, be able for one year or two to check the extravagances of a popular House, or with allowing to the King a veto which could only be exercised with fear and trembling. Generally the Lower House is the predominant partner; it governs; the Upper House can only amend, criticise, moderate. Bismarck completely reversed the situation: the true government, the full authority in the State was given to the Council; the Parliament had to content itself with a limited opportunity for criticism, with the power to amend or veto Bills, and to refuse its assent to new taxes. In England the government rests in the House of Commons; in Germany it is in the Federal Council, and for the same reason—that the Council has both executive and legislative power. Constitutions have generally been made by men whose chief object was to weaken the power of the Government, who believed that those rulers do least harm who have least power, with whom suspicion is the first of political virtues, and who would condemn to permanent inefficiency the institutions they have invented. It was not likely Bismarck would do this. The ordinary device is to separate the legislative and executive power; to set up two rival and equal authorities which may check and neutralise each other. Bismarck, deserting all the principles of the books, united all the powers of government in the Council. The whole administration was subjected to it; all laws were introduced in it. The debates were secret; it was an assembly of the ablest statesmen in Germany; the decisions at which it arrived were laid in their complete form before the Reichstag. It was a substitute for a Second Chamber, but it was also a Council of State; it united the duties of the Privy Council and the House of Lords; it reminds us in its composition of the American Senate, but it would be a Senate in which the President of the Republic presided.

Bismarck never ceased to maintain the importance of the Federal Council; he always looked on it as the key to the whole new Constitution. Shortly after the war with France, when the Liberals made an attempt to overthrow its authority, he warned them not to do so.

"I believe," he said, "that the Federal Council has a great future. Great as Prussia is, we have been able to learn much from the small, even from the smallest member of it; they on their side have learnt much from us. From my own experience I can say that I have made considerable advance in my political education by taking part in the sittings of the Council and by the life which comes from the friction of five and twenty German centres with one another. I beg you do not interfere with the Council. I consider it a kind of Palladium for our future, a great guarantee for the future of Germany in its present form."

Now, from the peculiar character of the Council arose a very noticeable omission; just as there was no Upper House (though the Prussian Conservatives strongly desired to see one), so, also, there was no Federal Ministry. In every modern State there is a Council formed of the heads of different administrative departments; this was so universal that it was supposed to be essential to a constitution. In the German Empire we search for it in vain; there is only one responsible Minister, and he is the Chancellor, the representative of Prussia and Chairman of the Council. The Liberals could not reconcile themselves to this strange device; they passed it with reluctance in the stress of the moment, but they have never ceased to protest against it. Again and again, both in public and in private, we hear the same demand: till we have a responsible Ministry the Constitution will never work. Two years later a motion was introduced and passed through the Reichstag demanding the formation of a Federal Ministry; Bismarck opposed the motion and refused to carry it out.

He had several reasons for omitting what was apparently almost a necessary institution. The first was respect for the rights of the Federal States. If a Ministry, responsible to Parliament, had existed, the executive power would have been taken away from the Bundesrath, and the Princes of the smaller States would really have been subjected to the new organ; the Ministers must have been appointed by the President; they would have looked to him and to the Reichstag for support, and would soon have begun to carry out their policy, not by agreement with the Governments arrived at by technical discussions across the table of the Council-room, but by orders and decrees based on the will of the Parliament. This would inevitably have aroused just what Bismarck wished to avoid. It would have produced a struggle between the central and local authorities; it would again have thrown the smaller Governments into opposition to national unity; it would have frightened the southern States.