The New German Constitution

by René Brunet

The means by which these rights of control are exercised are the following:

(a) General instructions addressed to the authorities of the states for the execution of the laws of the Reich. These instructions of the government of the Reich are compulsory on the different authorities of the states. But instructions to subordinate authorities of these states must not be given in particular applications of these laws, for otherwise these authorities might receive contradictory orders from different sources; and in that way the governments of the state might lose all authority.

(b) The control of the Reich is exercised in addition by sending to the governments of the states commissioners charged with the supervising of the execution of the laws of the Reich. Such commissioners may even be sent, with the consent of the governments of the states, to subordinate authorities. In the latter case it must be admitted even that the Reich has the right to demand that the files of the state authorities be opened to it and with the consent of the governments of the states the Reich may examine witnesses, take testimony and make surveys within the provinces of the state.

(c) Finally the Reich may demand that lapses observed in the execution of its laws be corrected.

The ensemble of all these measures constitutes a strengthening of the right of control by the Reich as compared to the former régime. On the one hand, the recognized right of the Reich to send commissioners to subordinate authorities with, it is true, the consent of the governments of the states, is new. Formerly such imperial commissioners were received only by the governments of the states themselves, instead of allowing immediate access to subordinates as to-day. In addition and above all when difficulties arise especially from the insufficiency of the measures taken by the authorities of the states, the power to settle these difficulties no longer belongs as formerly to a college constituted by the representatives of states, such as was the Bundesrat; but is now the function of the independent organs of the Reich, such as the government of the Reich or the High Court of Justice of the Reich.

4.—JUSTICE AND THE HIGH COURT OF JUSTICE.

The centralizing influence of the Constituent Assembly is manifested, finally, in the provisions which it adopted relating to the organization of justice. We know that in Germany justice, particularly such as is regulated by the laws on the organization of justice, the Code of Civil Procedure, the Code of Criminal Procedure, is administered by the tribunals of the states. The Reich had only one judicial organism, the Reichsgericht, whose powers are in principle similar to those of the Cour de Cassation (the highest court of appeal in France). The new Constitution has changed nothing in this system. A proposal submitted in committee for the purpose of giving the Reich full control over the administration of justice and making all judges functionaries of the Reich, was defeated. Now as before the sole authority of the Reich in this domain lies in the Reichsgericht.

But the Constitution has introduced a new judicial organism whose authority extends over all important cases of a national scope, and constitutes thereby a powerful element in centralization: that is the High Court of Justice. The task of organizing this Court is left by the Constitution to a special law. Until this law enters into effect the powers of this Court are entrusted to a senate of seven members, of which four are nominated by the Reichstag and two by the Reichsgericht.

The authority of the High Court of Justice is regulated by the Constitution. It is this Court that passes on the difficulties that may arise between states in the cases of division of patrimony where changes or separations of territories are involved. It is this Court also that decides constitutional difficulties within a state when there is no competent tribunal within the state to deal with such a question. It is this Court that adjudicates disputes as to public rights that arise between different states or between a state and the Reich, when there is no other tribunal of the Reich that has jurisdiction over such a dispute. This Court in addition presides over actions instituted by the Reichstag against the President, the Chancellor and the Ministers of the Reich for culpable violation of the Constitution or the laws of the Reich.