forming the power that stands over it. The German States are not subjected to the domination of any one of them, nor to any foreign sovereign, but rather to a corporate State builded out of themselves. "The German States are as a totality sovereign." Sovereignty, according to the German jurists, is not an essential element of a State. It may constitute the basis of recognition in international law, but from the standpoint of constitutional law it is an insufficient test of statehood. The true mark of a State consists in its possession of original and underived power. This mark belongs to each of the German States. There is a large field in which the State is left free to govern itself. The powers of the Empire are specifically defined. It may enlarge those powers, but until it does the State enjoys a free hand. This independence is not granted to it by the Empire. It forms no part of the imperial powers. It is State power, pure and simple. The State wields it as of right and not by concession. It existed before the founding of the Empire. It survives that act. It is that autonomous area of power belonging to the State which has not yet been invaded by the Empire.

By Art. 4 of the Imperial Constitution the Empire is given the power of supervision and legislation with reference to a number of matters which affect more or less the general interests of the country. In all such matters the action of the States is excluded and their power is renounced in favor of the Bund. The field covered by imperial legislation and oversight is quite extensive.

What, then, remains as the exclusive field of State legislation? Every State has the absolute control of its own organization. It determines the laws of succession and settles questions which arise over its internal administration in accordance with its own constitution. It has the right to determine what that constitution shall be, subject only to the condition that there shall be nothing in its organic law that is contrary to the Imperial Constitution. It makes its own budget and its legislative bodies enact laws governing a large part of its internal affairs. Police regulations touching public meetings; fire and building regulations; water rights; road laws, so far as these do not fall within the competence of the Empire; matters of ordinary credit not represented by the banks; the regulation of the domestic agricultural situation; the breeding of cattle; forestry; mines; hunting and fishing; the relation of church and state; the control of public instruction all these matters fall within the competence of the individual State, and are provided for by State legislation. . . .

Turning to the executive sphere, we find a wholly different principle at work. In the division of competence between the Empire and the several States, a strong unitary tendency is seen. In matters of military

control, naval affairs, and of justice, the legislative authority is taken wholly from the States and is vested in the Empire. In finance about two thirds, and in affairs touching the internal administration of the country about one half, are removed from State legislation. . . .

In matters pertaining to foreign affairs, however, as well as in regard to the navy and fortifications, the control of the Empire is quite supreme. Here the Empire exercises not alone the legislative authority, but the administrative as well. The ambassadors to foreign lands are imperial officers, while the consuls and officials in the protectorates are imperial appointees. . . .

With regard to the army there is a dual arrangement. The authority of the Empire goes farther than the mere right of oversight. It regulates directly all the activity of the officers in command. On the other hand, the subordinate officers are under the control of the several States and the whole system of military organization, instruction, religious care, and justice is left in their hands. . . .

So far as the execution of the laws is concerned, the powers of the individual States exceed that of the Empire, and in the division of competence the federal principle is strongly carried out. The Empire has but a fragment of the general executive powers, save in the matter of foreign affairs. It is practically excluded from the judicial, financial, and internal administration. In the German Empire we have a strongly unitarian power to legislate joined to a strongly federal power to execute.

CHAPTER XVIII

THE LEGISLATURE

I. STRUCTURE OF LEGISLATURES

320. Development of the lawmaking department. The general process through which the modern representative legislature developed has been summarized as follows:

As the wealth and population of a state increase, it becomes more and more difficult to govern along autocratic lines. Numerous interests arise which do not receive adequate attention from the rulers; men whose capacity and attainments deserve recognition are slighted, and the private interests of ruling classes absorb most of their energy, to the neglect of public interests. Under such conditions there are historically several possibilities of action:

(1) The status quo may be maintained and discontent suppressed by force, in which case the state would probably slowly decay until absorbed by some rival after defeat in war.

(2) A system of decentralization may be encouraged, and each important province be allowed to regulate its own affairs subject to general supervision and tribute, the provinces being held together by mutual interests.

(3) The central authority may retain its power but gradually develop a system of representation whereby important interests and persons may receive due recognition.

This last possibility involves a national application of the idea contained in the organization of a primitive horde or village community. All interests and persons of importance were included in the small gatherings of these early groups. Even in confederate tribal life the idea had survived in the periodic gatherings of heads of tribes and districts to administer general business. So in the assemblies of the city states of the classic period, every important citizen was able to make his influence felt in the assembly if he were so inclined. The difficulty was to apply the principle to a great national system, and no ancient state ever proved equal to the emergency. Local representation was

common enough, and representation of privileged classes in great councils was known, but no system was devised whereby the interests of all the people might be represented in government.

Through a series of events natural enough in themselves, there developed in England during the thirteenth century an assembly of delegates who represented the common people and petty nobility, as distinguished from the usual assembly of the higher nobility and clergy. Such an assembly was by no means an anomaly at that time. A rude form of representation existed among the Scandinavian people as early as the ninth century. About the tenth century the Icelandic Althing and the Tynwald of the Isle of Man (which still survives) were established. These were made up of elected delegates who prepared laws, which were promulgated as the law of the land. Similar bodies may be traced in other countries of Europe, but they did not attain political importance. The English assembly came when that country was breaking away from agriculture and developing commerce and manufactures, and when kings, ever engaged in war or the suppression of rebellion, were forced to rely more and more upon the support of the common people and on taxes raised from urban centers. So constantly was the king in need of money grants and military support, that the first two hundred years of the history of the assembly of the commons marked an almost steady growth in its power and prestige. During the sixteenth century the historic council of nobles and clergy, who formed the house of lords, was relatively weak. This was due to its depletion in numbers owing to the civil wars and to the nationalization of the church, which deprived that body of much of its power and representation. In consequence the two houses during the Tudor period were fairly equal, and were firmly welded together into a parliament. The rapid development of commerce and manufactures under the Tudors and Stuarts (1485-1688) gradually transferred the balance of power from the lords to the commons as the representatives of these interests, and the rise of England to world supremacy in the nineteenth century made the commons supreme in governmental policy.

The political importance of this development lies in the fact that it revolutionized men's notions of governmental machinery. The ancient principle of governing through privileged classes, basing their claims on noble birth and landed wealth, was superseded by a system of government through persons who represented all the important interests of the state, and who had influence in proportion to the weight of interests and the proportion of the population they represented. The economic advantages of such a system were so plainly manifest that other nations found it expedient to imitate it, modifying the English system to suit

their own peculiar needs. In this way developed the modern bicameral legislative body, the center and pivot of the modern democratic

movement.

321. General principles of legislative organization. Burgess, analyzing the legislative departments of France, Germany, England, and the United States, finds substantial agreement on the following points:

1. We may say that modern constitutional law has settled firmly upon the bicameral system in the legislature, with substantial parity of powers in the two houses, except in dealing with the budget; and that, in the control of the finances, a larger privilege is regularly confided to the more popular house; i.e. the house least removed in its origin from universal suffrage and direct election. . .

2. These four typical states are in substantial harmony upon the question of the source from which the lower houses of their legislatures proceed. In all four, the source is universal suffrage, or a suffrage very nearly universal. . . .

The four systems which we have examined agree also in the mode of electing the members of the lower houses, at least so far as the general principles are concerned. These general principles are direct ballot, district ticket and relative majority.

In the construction of the upper houses, however, the same uniformity does not exist. No two of them proceed from the same immediate source. It may be said, however, that they all proceed from the same ultimate source. The manner of their choice is, in all cases,

3. In regard to the principles of representation, there is more harmony in these four systems than is at first apparent. In all four legislatures the distribution of the representation in the lower houses is made according to population. Some regard is paid to the permanent administrative or local governmental divisions; but the resultant modifications are concessions to convenience, merely, and do not represent any compromise of the principle of proportionality.

In all four legislatures the distribution of the representation in the upper houses is made with but little regard to the census of the population. In England and in the United States, no regard at all is paid to the principle of proportionality; in Germany, not much; in France, considerable. If there is any one controlling principle applicable to all these cases, it is the representation of local governmental organizations. . .