Taken from chapter twelve of Friedrich Julius Stahl, The Doctrine of State & the Principles of State Law (WordBridge Publishing), pp. 275-314.
The Monarchical Principle (1)
§. 110. The English Parliamentary Principle
The German Confederation set up as its supreme rule of the German estates system the maintenance of the monarchical principle. Current German constitutions also have more or less a certain common character when compared with those of foreign states, which one cannot but consider to be the expression of this principle. But a clear and comprehensive discussion of what is to be understood as the monarchical principle and what it contains has not yet been given, either officially or scientifically. Concept and content of the monarchical principle would now most securely be clarified by firstly seeking out and examining the contrast.
As such, there is initially the principle of popular sovereignty and the principle of the separation of powers with the restriction of the king to the executive, as these principles of the French Revolution have been realized in their various phases. The Charter of 1814, in which all official order stems from the king who unites the collective state power, is opposed to these, and the German constitutions have for the most part taken on these principles following its example. In all of this, however, we find much rather the sovereignty of the king rather than the monarchical principle, for the sovereignty of the king excludes popular sovereignty and the separation of powers. Should this be understood by it, then the monarchical principle would not have to be emphasized. But that not simply this is to be understood is demonstrated by the fact that partly the Confederation, partly the constitutions include a series of institutions which collide not with the sovereignty of princes but only with the monarchical principle.
The actual and specific contrast with the monarchical principle is therefore much rather the parliamentary principle in the manner in which we use this term, i.e., the predominant position of the parliament vis-a-vis the king, as developed in England and of course as pursued in the constitutions based in popular sovereignty not in lesser but in greater degree. The investigation of this position of the English parliament will therefore prepare for the certain understanding of the monarchical principle.
To describe this from the start, it consists in the parliament legally having a form of joint sovereignty with the king which factually, i.e., in terms of result, is beyond all comparison the decisive power on behalf of the public condition. It rests only partly on legally established rights, partly on mere custom and ruling viewpoint, which however, as will be shown, are the inevitable result of those rights. They are the following:
Regarding legislation, Parliament not only has the petition but also the initiative (bill), i.e., the drafting of laws, the detailed statement of proposed laws, while the king has only the approval or rejection of the drafts presented to him. The crown as such presents no draft legislation. Instead of the king being the legislator, such as is part of the age-old concept of kingship, while the estates agree, refuse, suggest, the reverse is the case here, the parliament is the legislator, i.e., it is the form-giving power on behalf of the legal condition, the king merely confirming or refusing. In terms of its innermost essence, the petition is only the expression of the popular desire toward a higher authority, the proposition (initiative) by contrast is the activity of a legislative authority. But even the royal right of hindrance (veto) must factually be undermined by the initiative of Parliament. The mere petition for a law can freely be rejected, but when Parliament has spent its sessions in the outworking of a developed [durchgeführten] bill, for months perhaps captivating the attention of the nation, it would be difficult for the crown to say no, just as in actuality in England since Queen Anne no use has been made of the royal veto.
Add to this the enormous extent which in England the concept of law has, and thereby the parliamentary approval and initiative. All general regulations, even for the public welfare, and administrative regulations in general, are there valid as laws, so that apart from the mere execution of these laws only a few scanty regulations for the sphere of “proclamation” (ordonnance), i.e., the royal enactment apart from Parliament, remain. In fact, even disposition on behalf of specific relations, which on the Continent is everywhere allotted to the administration, such as e.g. consent to a monopoly for the inventor, a street for a community or county, authorization to dissolve the bond of marriage, dispositions regarding encumbered property [gebundenen Gütern] and the like, fall under the title of private bills (derived from the position of Parliament as court of law) within the sphere of law and therefore are looked after by Parliament under the bare approval or refusal of the king.
It is therefore in connection with these rights of Parliament, even unto the drafting and administration of laws, for which detailed inquiries are everywhere required, that subjects and officials also can independently subpoena and examine, apart from the mediation of the crown.
Regarding the state budget, Parliament has the right of unconditional refusal to approve taxes. This early medieval, private-legal, arbitrary capacity in connection with the more recent institution of the budget (through which the right of refusal extends to the entirety of the state budget as one indivisible whole) has indirectly the result that with every extreme disunion between king and Parliament the king necessarily yields, that he therefore cannot deny demands which Parliament states categorically, particularly the lower house with its approval of funding, even if he wishes to. Certainly it is now public opinion and political custom that the right of refusal to approve taxes ought not be resorted to, that such counts as a revolutionary measure; but it has only come to that point after from the other side public opinion and political custom already became such that in general and without resorting to it, the king is not allowed to refuse anything to the Parliament and in particular the lower house, in fact that (to which we must return) no other system of government can be complied with than that which the lower house gives him.
Apart from this indirect result which the connection of unconditional refusal to approve taxes and budget has brought about, there is however already the direct one that Parliament establishes the state budget. The specification of the budget there has no limits, and the lower house can not only reduce outlays in their entirety but can also decide on reductions in every item and in fact can determine their form and object in detail, and the crown must consent to all of it, since apart from it it has no taxes. (2)
A no less effective competence than the approval of the budget is the approval of the mutiny bill. The law of subordination, apart from which no army can exist and which otherwise is valid in itself as something always existing, expires yearly in England and when it is not reapproved by Parliament there is no longer any army, the soldiers are thereby released from all military duties. The way this institution as well of necessity leads to the king not being able to oppose any resistance to Parliament in extreme conflict is quite plain. In itself however it is a consequence of the co-sovereignty of Parliament, for it does not include a joint command of the army (wherein Parliament appoints the leader who must follow its commands, as the Long Parliament sought regarding the militia) although it does include a joint authorization for that.
The position of Parliament vis-a-vis the supreme judges is similar. By the Act of Settlement, these are secure in their positions as long as the continue in good behavior (Quamdiu se bene gesserint); therefore the king cannot remove them on his own, but such can occur at the request of Parliament. (3)
The competence of each house to punish slander inflicted either on its own members or on anyone else on behalf of its own members lends Parliament a form of sovereign position.
Finally, Parliament legally has a power over the person of the minister and thereby factually over the state government in its entirety, which is virtually without limit. Because Parliament in both its houses joins the roles of prosecutor and judge over the ministers; because its punishment is capital; because crimes for which an official can be condemned are not legally restricted, but rather anything can be characterized as a crime through the broad proviso in the law of high treason of Edward III; and because of the exorbitant institution of the bill of attainder; all of this taken together puts the ministers in an unconditional dependence upon Parliament, while having hardly anything to fear from the king. For his part, the king cannot make the slightest disposition, not even the slightest expression, without a countersignature of such ministers, themselves totally dependent upon Parliament.
Out of this unconditional dependence of ministers on Parliament, in particular in connection with Parliament’s other rights, emerges by factual necessity that which is customarily known as parliamentary government. It consists in nothing other than ministers having the entire government put into their hands apart from any consideration of the will of the king, and conducted with unconditional consideration for the will of Parliament. Above all it is a political maxim that ministers suffer no interference from the king either in details or in principle, and therefore it is another political maxim that ministers no longer remain in office if they lose the confidence of Parliament, especially the lower house, either through an express vote or by failing to attain the requisite majority for their proposals. Thereby the factual condition is for Parliament to be split into two large political parties each of which having its own determinate leaders designated by its own acknowledgment. The king therefore can do nothing other than make ministers of the leaders of the house majority party, and can do nothing other than leave the government to them. His conviction, his will does not come into consideration, Parliament of itself produces the ministers, and they rule on the basis of parliamentary sentiment as the chosen leaders of Parliament, not as servants of the king, or in other words, the majority party in Parliament always rules the kingdom by means of its leaders.
Therefore one can hardly raise an objection to our discussion to this point, that the king likewise has a means against Parliament in the right to dissolve the lower house just as Parliament has against him ministerial accountability and the right to refuse to approve taxation. The result of these means lies entirely outside his power. The political party which predominates through its “connections” sets against him the commanding majority. It is a general, natural demand that the ministers as experts of the administration essentially are left independent regarding the overall scheme thereof; this holds true even of absolute monarchy, and even Parliament restrains itself vis-a-vis its leaders regarding individual questions, waives its own judgement when they so require. But the characteristic thing regarding the English establishment is that even in the total direction of the government the king has no decisive share, that he is excluded not only from the administration but also from the government. The king can certainly exercise some influence: because the predominant party is not always as closely united and certain of its triumph, and within it in turn the leaders are not so exactly indicated, finally individual questions are not always the logical expression of a principle, therefore both the parties and the ministers have some ground to maintain contact with the king, by which his own will is of some weight. Yet it is by far the rule that the king must allow unpopular ministers and an unpopular manner of government to fall without his own influence, and in any case he can gain some influence only through chance circumstances and the prudent utilization thereof or through the special steadfastness of his character; he has no influence of himself and everywhere by virtue of his royal position. In England one speaks of the prerogatives of the crown; apart from the appointment of top officials, it is in particular representation outward, thus the position of the nation in the great international relations, which is a prerogative of the crown. Legally this is also simply subordinate to the crown. But if one investigates the matter more closely to see in which hand this prerogative factually lies and must lie, then here again it is with the ministers, and thus those whom the ministers designate and who are dependent upon the ministers. In fact even the selection of persons for ambassadorships form an object of debate in the houses and therefore are matters of moral necessity, and it happens that the ministers fill top offices against the will of the king.
It thereby stands in the closest relation and correspondence to this that no act of government can be attributed to the king, but rather to the countersigning minister. Even the King’s Speech, spoken by his own mouth, is considered to be given him by the ministers, and naming the king in Parliament in any way is strictly prohibited, apparently out of reverence for the king but in fact out of zeal for the total power of the houses, which makes room for the king’s personal unaccountability but allows no step by the government to be withdrawn from its judgement, the demand of its sovereign accountability. The fiction “the king can do no wrong” sounds like a thoroughly monarchical principle, but he can do no wrong because he cannot do anything at all. The elevation here provided him is only the elevation of the knob atop a church steeple, about which no one cares. All of this has now been developed much further in theory, especially in France, by which a so-called “constitutional state law” has been developed requiring “absolute neutrality” of the king. It is viewed as a violation hereof that, for instance, Louis Philippe indicated his joy at a vote which accorded with the sentiment of his ministry. The king is not only to have no power, he is not to have a will, a conviction, an inclination in political matters. This entire system, which one calls parliamentary government, developed completely beginning with the rulers from the house of Hanover and rests immediately on custom, maxims, an image of statesmanlike honor, not on law, and precisely because of this, because it does not rest on law, the king may still exercise a degree of influence on it. However, in accordance with a natural necessity it is an unavoidable result of the rights befitting Parliament in accordance with law, and by that it is the higher power over the king. Where in the case of extreme opposition Parliament legally possesses the means to force the king unconditionally to yield, to subordinate himself to it – the unconditional refusal to approve taxes, refusal to fund the military, unconditional ministerial accountability – there it is legally, i.e., not according to the expression but rather the inevitable effect of the law, the supreme power in the state, and that the entire government be directed in accordance with its will and not the king’s is as necessary as a stone falling down rather than up.
Summing all of this up, the current English constitution can be characterized herein: by law the king is sovereign in that he has the power of absolute veto, cannot be coerced into anything, imparts to all laws their sanction, is elevated and unaccountable; but already legally Parliament has co-sovereignty, since with its rights it not only permeates the entire sphere of the government but in many parts even participates in the authorization thereof. With this accords the current manner of speaking by which Parliament is characterized as the king and both houses as one undivided, undifferentiated power, as the one supreme state authority, as with the German imperial constitution a similar relation is depicted with the similar expression, “emperor and empire.” Even more so in terms of factual consequence, the king is not the decisive and shape-giving power for the entire ship of state (legislation, administration, state budget), Parliament is. The nation in its parliamentary representation rules itself and the king only stands over it while he (formally) imparts the sanction to the government and, as the case may be, moderates it to the degree that circumstances support him. This is what we call the parliamentary principle. It is totally unmistakably a gravitation toward the republic. For every state must be a republic in the broad sense, i.e., a legally ordered commonwealth existing in accordance with its own requirements and goals, but in the strict sense the republic consists in the nation which forms the state ruling itself, the way the local community does, and has no independent power decisive to the public condition over it, for such a power is the concept of the king. (4)
§. 111. The Monarchical Principle
In distinction to this, we must discover the monarchical principle in the princely power, in terms of law standing over and unleavened by the popular representation, factually being the center of gravity of the constitution, remaining the positive formative power in the state, the leader of development. This demonstrates that the monarchical principle is something other, in fact something greater than the sovereignty of the king. In England, the sovereignty of the king exists as opposed to popular sovereignty and the separation of powers, but the monarchical principle does not. Vice versa, in the German territories during the time of the imperial association no princely sovereignty existed, not even inwardly, while the prince vis-a-vis his subjects had to submit to the legal proceedings of higher courts for his governing actions; but the monarchical principle did exist in the prince, in his being the center of gravity of the constitution and the estates not having any co-supremacy. The sovereignty of the king is a pure and direct legal concept, while the monarchical principle characterizes a factual position, which yet is the consequence, the effect of rights. This, then is the monarchical principle.
In the old German territorial constitution, in accordance with which the estates only exercised certain private-legal privileges in a sphere separated from the collective guidance of the state, the monarchical principle went without saying and maintained itself without further ado, and underwent no challenge, for the estates had little significance for the state as such. The difficulty and problem for Germany, however, is currently for the monarchical power to maintain itself in this significance, given the state-oriented character of the estates-system, which includes a concurrence of the estates for essential spheres of the state and as integrating element of the public constitution. It definitely would seem that the adoption of such a state-oriented (constitutional) character of the estates-system, as developed in England, would of necessity and inexorably lead to the adoption of the predominant position of the parliament, that accordingly the German princes would find themselves faced with the alternative either of rejecting or impeding the recent development of the estates-system, or of relinquishing their truly monarchical position, and climb down to the subordinate level in which the king of England undeniably finds himself. Yet this is not the case: the state-oriented (constitutional) character of the estates constitution, which is a necessary requirement of the times, and the parliamentary principle are by no means inseparable, and it is by no means necessary to restrict the estates to isolated rights (approval of certain taxes, consent in the interference with jura singulorum) or to exclude them from any cooperation for the joint guidance of the state in order to maintain the monarchical principle. Precisely the institution upon which the supremacy of Parliament in England rests as upon its foundations also shows us upon which institution, by contrast, the monarchical principle is based, and it is to be emphasized that this can be held fast to without yielding the state-oriented character.
§. 112. The Estates’ Consent to Laws
In terms of the monarchical principle, the prince not only has the execution of the laws and regulations necessary to this end, which is what he is restricted to by constitutionalism, but also the entire sphere of administration, which is his alone. Regulations for the public welfare [polizeiliche … Anordnungen] and the like which do not prescribe the legal condition or, besides, administrative dispositions and decisions in individual cases (private dossiers), therefore cannot be subject to the consent of the estates. Similarly, in terms of the monarchical principle the drafting of laws (initiative, proposition) accrues to the princes, while the petition accrues to the estates. All of this is however not in contradiction with the estates-oriented right of consent to the laws drafted by the princes, which is an outflow of the constitutional principle.
In this regard, one of the most significant tasks of German constitutional state law is the sphere of estates-oriented rights of consent regarding legislation, or in other words to determine more closely the boundaries of law and of decree [Verordnung]. Most of the German constitutional charters designate the sphere of estates-oriented approval (in Prussia, the estates-oriented advisory council) as the laws which “concern freedom or property of state members.” This is an extremely flimsy regulation. If one understands by this all regulations restricting the freedom of subjects, then the entire administration falls under the estates. How few administrative decrees are there which do not restrict freedom! That subjects are not to travel without passes, that workmen are not to visit this or that country, property owners are not to build in such and such a manner, that plans entailing fire hazard or danger to health are prohibited, as are dance parties on certain days or for certain ages, etc., all of this restricts, and so in this sense concerns, freedom. Should one however understand that regulation to pertain only to laws which abolish freedom in the strict sense, i.e., freedom of spatial movement (vis locomotiva, in English legal terminology), then the right of consent by the estates only extends to penal and public-welfare punishments, while a divorce law, laws regarding the appointment and custody of a guardian and the like, are removed from them, which in turn is unnatural. The thought underlying that regulation is certainly none other than: the laws which affect the legal sphere of the individual shall require the consent of the estates. This has a twofold significance. Firstly, it embraces the entire private-legal condition, and this concept is entirely other than that of the older jura singulorum, as it does not include merely laws which withdraw the object of an already acquired right but also those regarding future acquisition, content, loss of private rights, and personal integrity, thus not merely laws which pronounce expropriations, the abolition of privileges, etc., but also the entire civil- and criminal legislation and the procedural norms in both dimensions as appendix. Secondly, the legal sphere of the individual also includes his freedom vis-a-vis state power, to the degree that this exists as a legal relation. In this respect all norms which put burdens on subjects, such as laws regarding military service obligation, billeting obligation, compulsory school attendance, jury duty, and the like, require estates’ consent. This can also be extended to mere restriction of subjects where such, as far as form is concerned, until now has neither legally nor customarily existed, in particular in their employment, e.g., a new prohibition on peddling. By contrast, regulations regarding health, construction, security policy and the like are no laws, for they do not put positive burdens on subjects which they as individuals have to bear, but only restrictions in consequence of public establishment and in a sphere in which the competence of public regulation and thereby restriction of individual freedom in itself already is established legally. Thus they factually restrict freedom but they do not do so as legal relation. Therefore, the measure and limit of punishment for the violation of public welfare ordinances [Polizeystrafen] is an affair of law, while prohibitions in terms of public welfare punishment within traditional spheres of activity (against games of chance, secret societies) are not everywhere of necessity laws.
Apart from these laws regarding the legal sphere of the individual, there is another class of regulations pertaining to the estates, i.e., the laws regarding the constitution itself, the constitutional laws. This is the sphere in the present day corresponding to the ancient sphere of the jura singulorum. As a rule no estates’ consent (only advice) was then required for laws pertaining to the private legal condition, for instance a new civil code; these were the “indifferent laws,” as is the case still in Mecklenburg. By contrast, to remove or to change noble jurisdiction or privileges of the cities or immunities of the clergy did require their consent. The jura singulorum therefore did not include the civil condition but rather the constitution of the country. This is now otherwise. In place of such jura singulorum, the constitution as embodiment of public systematically connected principles has now arisen. In German constitutional charters, therefore, amendments of the constitution, the constitutional laws are subject to consent in addition to the laws concerning freedom and property. Accordingly, the following in general is established:
In terms of German constitutional state law, firstly norms concerning the public legal formation of the state, i.e., the constitutional laws, are subject to estates’ consent; secondly norms which concern the legal sphere of individuals (i.e., judicial sentencing, private-legal relations, legal relations of subjects’ freedom vis-a-vis state power). By contrast, administrative norms, i.e., norms of public functioning in the sphere of public welfare, finances, the military, etc., are not subject to it. These together form much rather the field of regulations, while according to English and French state law these as well in great degree require consent. In terms of German state law, therefore, to this belong only the norms of legislation which ground an actual legal relation (private or public), not those which merely ground a legal regulation of government action. That beyond this, even in the field of law the instructions for implementation can be issued as regulations, is self-evident. Notwithstanding variations in implementation, one will find these principles confirmed in essentials by the practice of German states even in the case of dissimilar expression in constitutional charters.
§. 113. The Estates’ Control of the Budget
According to the monarchical principle, an unconditional refusal to approve taxes which puts the government itself in question, which compels the prince to obey the estates in everything, cannot exist. Furthermore, according to the monarchical principle the state budget itself must be set by the prince and not the estates. None of this is in contradiction with the constitutional institution of the budget and its specification. The monarchical principle above all here calls for specification not to descend into details, so that for instance regarding the budget, it can be arranged with the estates which buildings are to be paid for out of the agriculture budget, how much of the military budget is to go to the infantry, cavalry, etc. That is administration. This does not however exclude that the main positions – the more or less, of course, is not based on principle – are set so that lawfully they cannot be exceeded. (5) Secondly, the monarchical principle requires that the estates not be able to modify the proposed budget at will by erasures on the one hand and additions on the other, so that the prince, just as with a bill, either accepts the amendments or must abandon the entire law for the state budget, thus including all taxes. Such a dictatorship of the estates for the state budget is simply in contradiction to the monarchical principle. This does not rule out, though, that the estates, even though no dictatorship, nevertheless have an influence on the state budget and that not merely in terms of quantity, the level of public outlays, but partly also quality, the objects of expenditure. This can be arranged in many different ways. They can have the right of reduction regarding individual specific items, in order to direct the tax reduction, the ancient right of the estates, to the specific object. The increase of revenues or the increase of outlays can be subject to their right of approval. There can be distinguished between necessary and voluntary outlays. The institution would also answer to the state-oriented character of modern times if the collective budget, in the manner in which it, as it traditionally developed according to a certain inner necessity, in revenues and outlays is maintained as a legal basis that the estates in no way can modify; but likewise the prince can do nothing either without the consent of the estates, that thus every amendment in both revenues and outlays, but only the amendment, is the object of their influence, their hindrance. This of course cannot be implemented or is of no use where specificity of the budget descends into details, for in details the state budget is too much undergoing constant change. These institutions necessarily mutually condition each other, as they are consequence of one principle. If the estates are jointly to administer the state budget, which is what the general specification consists in, then they cannot be hindered from dictating it as well. By contrast, it can be implemented where specification is restricted to main items. Here remains a broad basis for regularity, amendments are only gradual, needed now for this item, now for that one. The result in terms of this institution, then, is: the estates are not to get into the position of dictatorially prescribing the state budget or any other wish to the government, while besides they do not approve the taxes, the budget, for the prince can continue to govern even when the proffered amendment is not conceded, the cancelled sum is not replaced; but on the other hand, taxes are not demanded of the estates for a system of outlays which the government out of plenitude of power sets every time apart from its will, and by means of the financial budget they maintain an equilibrium, not a dictatorship, for their other wishes, in that it is up to the government to stay in their good graces even regarding these individual amendments.
This then is the proper constitution of the estates of the realm, that the prince does not have to obey the will of the estates, but also that he is not so positioned as not to have to ask anything according to the will of the estates. Such safeguarding institutions are therefore possible in a variety of ways, where the introduction of a constitution is concerned. In terms of existing constitutional state law, by contrast, the estates have the right to renew approval of taxes in each fiscal period and, to the degree that necessary taxes are not involved, to refuse them, and this right does not contradict the monarchical principle. It must be accepted with hesitancy, however, that the estates do not approve the outlays but do approve the taxes upon verification [Nachweisung] of the necessity of the outlays. Thus they may refuse the required sum of taxes should verification be lacking, and could also designate the budget [Etat] to be debited, e.g., the agriculture budget, religious affairs budget [Kultusetat], in that the need for such an expenditure has not been shown to them. Even so, they cannot designate the specific outlay of the particular budget [des Etats] which is to be omitted, e.g., this or that building on the agriculture budget, the costs of a seminary on the religious affairs budget. Rather, the government has the choice of which of the non-legally necessary outlays it will allow to lapse when the budget is restricted. This is the juridical consequence of the historical right to approve taxes of the German territorial estates in application to the new institution of the budget (fiscal administration [Etatwirthschaft]) which came in place of individual objects of application. The distinction between budget and specific object designates the transition from the ancient state law to the modern one, it is the most significant both for the approval of taxes and for the assessment of application (compliance with items). It needs to be considered more in this sweeping effect than hitherto has occurred. In any case, in terms of the monarchical principle the estates do not have to approve the budget but only to approve the taxes on the basis of the budget or to approve, for instance, the amendments to a budget set in the traditional manner.
It also answers to the monarchical principle that the budget be set for a longer period, as arranged in the German constitutions, instead of yearly, as in England. In general, the intervals of the assembly of the estates essentially go together with the specific principle. If the popular representative assembly is sovereign, the actual lawgiver as in 1791, then it must be permanent; if the king is sovereign, but the assembly is the preponderant power in the state, determining the details of administration, as in England, than it cannot be permanent but must be convened within the shortest interval. If the king truly rules, and if the assembly, as its concept states, is only the territorial representation, only jointly determining the laws etc., then it requires convocations only between longer intervals. On the other hand, when it has no official significance but only the protection of estates’ special privileges at the side of the princely patrimonial power, then its convocation is not periodic, legal, but dependent upon the caprice and need of the prince.
§. 114. Ministerial Accountability and the Monarchical Principle
Finally, the monarchical principle requires above all and exists above all in this, that the prince have the right and power to govern independently [selbst zu regieren].
This rules out accountability of a minister in the manner and extent as it exists in England. Ministerial accountability in the German constitutional states therefore is of an entirely different character. Jurisdiction is not entrusted to the estates but, regarding their joint impeachment [gemeinsame Anklage], it is transferred to a court of law external to them (the supreme territorial court or their own state court), punishments are not capital, and impeachments are restricted to violation, in fact often intentional violation, of the constitution. Furthermore, with the current individual proceedings for a ministerial impeachment in Germany the principle has been settled that the minister remains in office rather than relinquishing it merely upon impeachment by the estates (prior to verdict), as long as he retains the confidence of the prince. All of this is not merely an incomparably more restricted power on the part of the estates over the minister but an institution of an entirely different principle. Here ministerial accountability merely serves the goal of constitutionality, not, as in England, the goal of parliamentary government. This means that it exists to ensure that every measure be in accordance with the constitution, not to ensure that every measure be in accordance with the will of the estates, that it receive the posterior approval of the estates. The minister is liable for inefficient administration, for damages he does to the country, only not, as in that case, to the estates, but to the prince. Therefore no minister can refuse a royal order on the ground that he bears responsibility to the estates unless the order runs contrary to the constitution.
Accordingly, the German constitutions impart to the estates, in addition to impeachment, usually the right of appeal [Recht der Beschwerde]. Such has no application in the English system. Where the entire government is subject to the accountability of the estates and its judgement, what meaning would such an appeal to the king have? If Parliament is dissatisfied with something, it can itself obtain redress and retribution without opposition; it does not need the king for this. By contrast, if the impeachment is restricted to mere constitutional violations, even intentional ones, then a broad sphere is left in which the help of the prince can be invited. The appeal presupposes the prince to be a higher, more powerful, freely acting party. Where it no longer finds application, that is a sign that the monarchical principle has ceased. That in this restriction as well ministerial impeachment runs contrary to the monarchical principle cannot be maintained. No co-sovereignty is entailed in it, the prince is not positively compelled to do anything, even the (negative) impediment from repeating the measure which incited the impeachment is only indirect. By it the estates do not necessarily become overmighty, for the ministers, apart from violations of the constitution, always have more grounds to keep to the prince than to the estates. On the other hand, even in this form one cannot pass off ministerial impeachment as everywhere essential in the development of the estates system, and above all not from the first moment. In general the point is to inaugurate the influence of the estates and to put the legal order under its control, but regarding the most extreme protection of the constitution, one naturally sees to that when it has been demonstrated that such is needed.
This protection in the final analysis resides in the power of sentiment, for what happens when the prince refuses, contrary to the constitution, to allow his ministers to be tried? Similarly, many gradations are possible here; the right of the estates simply to petition the prince to bring ministers to trial is an age-old one, it was exercised by the old French estates general, it is perhaps the origin and the earliest form of the English bill of attainder, since no competence for actual impeachment yet existed; in this manner, then, conditions can be set, and set in many ways, among which only the petition of impeachment has to be followed up on. Additionally, the protection sought in ministerial impeachment can in many cases be vouchsafed in another manner; regarding financial conflicts, through court decision or [bez.] arbitration; (6) regarding undertakings against the constitution, through court decision or mediation by the German Confederation. The extreme means of asserting the estates’ rights is the most difficult point, it is the knife-edge upon which the constitution stands and upon which it cannot maintain itself without falling to one side or the other. If this means is sufficient with entire certainty, then in the case of its abuse it is necessarily so powerful and therefore absolutely threatening that the princely power can be broken by it; if such a means is not given at all, then the danger is that the estates’ rights are illusory. A detailed development [Durchbildung] of the various manners for the various forms of violation could lead to an approximate solution to the problem. In case of doubt, however, in terms of the monarchical principle, in particular in a large kingdom, the decisive consideration must be the maintenance of the royal regard, and precisely the more so if the estates likewise with less sufficient legal competencies still always have a security of incalculable strength in their moral effect, while the prince finds his power merely in law and right. Did not, for example, the Prussian provincial estates, which in terms of law only had an advisory voice, not have a much more effective veto than the king of England, to whom a hindering voice is granted by law?
In the same way that ministerial impeachment in terms of the monarchical principle cannot extend farther than violation of the constitution, the countersignature does not extend farther than to regulations and decrees, thus not to royal declarations. These, oral or written, public or private, cannot be subject to any restriction. He who would and should rule must be able to express the sentiment by which he rules and which he has with every individual measure. (7)
The right of princes to govern independently, which entails legal restrictions of ministerial accountability and countersignature, is expressed no less in relation to mores and maxims of statesmanship.
According to the parliamentary principle it is taboo in proceedings to name the king and therefore to attribute an act to him; therefore it must vice versa be taboo according to the monarchical principle to characterize acts of government as issuing merely from the ministers instead of the king, where this does not lie particularly in the nature of the case. This does not rule out bold opposition to government acts. In earlier European assemblies of the realm and in the German territories, the prince was certainly as highly honored as the king of England is today; nevertheless there was no fiction either that the prince could do no wrong or that everything was done by his ministers, and yet reproach and rejection of propositions, appeals against measures and the spirit of the government without any restriction was not any less allowable and common. Even the personal actions of the prince could be disputed without infringing his regard, when the estates did not stand over the government as an authority but rather as subjects seeking redress. The prohibition against naming the prince, which has also made its way into German assembly procedural regulations [Kammergeschäftsordnungen], is an atrophy of the monarchical principle. In terms of appearance it serves to secure his elevation, but in fact it serves to eliminate it. Hereby I only controvert the absolute exclusion of the royal name. As a rule, it is most convenient that “the government” be named, prince and minister together, for this answers to the reality, and where it has to do with violation of law and with fault, naturally the minister alone. But it must also be possible regarding measures which are not disputed in terms of legality to declare a royal will which then can only be treated as royal. Certainly it is of the utmost benefit that majesty overarches the actions of the government, that initially everything manifest itself as issuing from the ministers or on the advice of the ministers, that thereby spite only fall upon their heads and that redress yet be sought from the impartial royal decision. Yet it is part of this that the monarch himself have the possibility to decide even when in reality he initially does not do so, that the final decision actually issue from him personally. This is not now the case in England and shall be ruled out by the taboo on the royal name. In any case, there the hatred comes on the head of the minister, but redress is not sought from the king, who does not act, but rather Parliament itself obtains redress.
Likewise in terms of the monarchical principle it cannot be allowable that the estates vote no confidence in the minister; likewise not, that the minister resigns his office when he gets outvoted in the chamber. Even with an estates impeachment, as mentioned, a German minister has no obligation of honor to resign prior to the court’s decision.
Here is the decisive point of the modern estates system and the German constitutional future. The question is whether the prince will rule or the chamber majorities? It can easily turn out that the English custom, according to which the minister resigns after a so-called defeat, is only a necessary consequence of all developed constitutions of the estates of the realm; for if the estates have the capacity to hinder laws, then it is a simple matter for no laws to be passed when the majority of the estates opposes the minister, by which the minister no longer can rule. But this only holds true under the supposition that the estates apart from this right of hindrance against new laws possess yet other means to afford the government embarrassments, in particular regarding finances. If the estates refuse taxes, the secret fund and the like, then of course governing cannot continue, and the king must take the ministers that the estates want. By contrast, if the state budget is secure in its course to that point, independent of the caprice of the estates, then the mere rejection of the minister’s legislative proposals cannot force his retirement. For governance can continue in terms of the existing, without new laws, and the question then is whether the nation has a greater interest in the new law than in the government, and accordingly the chamber opposition is forced to give in. Yet precisely because of this it will not occur to the estates to use the rejection of laws as a means to removal of the minister. In every constitution of the states of the realm, the prince must take consideration of the estates. He is not to rule with ministers who form the most extreme opposition to the popular sentiment, in fact to the spirit of the constitution; but he is not to be determined in the choice of his minister by this or that political party and even less by this or that shade thereof, by this or that coterie, and above all by this or that individual; in fact, through his regard the principles of the minority can be upheld and only moderations of those of the majority allowed; he is not to have to put the government in its hands. The estates will have to oppose the unshakeable resistance of its better insight to the paroxisms of the times and through all contestations to bring an independent plan to fulfillment only if in the end it truly satisfies the deeper interests. With all true constitutions of the estates of the realm, the prince is required to take consideration of the estates, but they are no less required to do so of the prince; these are two subjects of independent, albeit diverse power. In terms of the parliamentary principle, the prince ceases to be such.
The figure [Erscheinung] of the English constitution, whereby the minister and the government system are determined by the majority of the lower house rather than by the king, accordingly is not the naturally necessary consequence of the estates-oriented right of consent to laws and the budget, but only the naturally necessary consequence of the estates-oriented dictatorship over the state budget, over the persons of the ministers, and similar determinations; therefore it does not form part of the constitution of the estates of the realm, nor the constitutional constitution [konstitutionellen Verfassung] in general, but only the specific institutions of the parliamentary principle.
§. 115. True Constitutional Monarchy
Summarizing all of this once again, the monarchical principle is based on the prince only having the drafting of laws (initiative), the estates only approval and petition, that he alone possesses the administration, that administrative regulations are not valid as laws and thereby subject to the approval of the estates, and administrative decrees (private bills) even less so, that he possesses with certainty both his own princely income and the means of the state budget independent of estates-oriented caprice, only requiring the estates for optional outlays or for increases or [bez.] amendments within the received traditional system of the state budget, finally, that all these rights are truly exercised and not apparent, and to this end the countersignature and responsibility of the minister or other means of estates’ protection extend no farther than compliance with the constitution. These institutions are, as is everywhere exhibited, very well reconcilable with the development of the estates system in the new state-oriented (constitutional) character; they require neither a weakened assembly of the realm nor one established in terms of the private-legal type. In consequence of this, the estates are by no means restricted to asserting isolated competencies; rather, the great, powerful significance remains to them of protection of the collective public legal condition, they are the guardians and guarantors for the maintenance of observance of the laws, for order and lawful expenditure in the state budget, and they exercise a moral power of suggestion and further development. While according to the English principle they themselves determine the collective ship of state, here they are restricted only to maintain and [bez.] co-determine the legal fundamentals by which the ship of state proceeds. This and only this is their slighter position.
By contrast, the question presses as to whether these institutions are also suitable actually to maintain the monarchical power. Would not this combined power of popular council and popular movement in short order become master over these bulwarks of monarchy, especially in a time in which public opinion is absolutely more in favor of the opposition than the authority? Does not the first step here lead, as if on a slippery slope, from the peak downward unstoppably to the depths? Historical experience provides nothing to go by here. The failed enterprise of the Restoration to unite the constitutional constitution and the monarchical principle is no proof against the possibility, in that the Restoration infringed everything we are discussing here and put the most contradictory institutions alongside each other: exclusion of estates-oriented initiative and unconditional refusal to approve taxes, enormous property qualification and mere numerical system of representation, recklessness in the election of ministers and unrestricted freedom of the press, political emancipation without freedom of worship. However, the German constitutional states are as little proof against the possibility of such a union, while here the monarchical power gained a support from the non-constitutional great powers of Germany. The danger that regardless of all those securities the monarchical power will be overpowered by the estates of the realm, cannot be denied. A constitution of the estates of the realm by which the mastering of the monarchy is made impossible simply does not exist. As it is now, a security for the monarchy under all conditions, thus regardless of what kind of government, is scarcely possible any longer; even the unrestricted monarchy can succumb, through wrong moves by the government, to the same power which one fears in the estates.
Security is therefore to be found not merely in the constitution but likewise in the manner of governing. If this is not strong, energetic, resting on firm albeit moderate principles, so in the same degree will the power in fact accrue to the estates, it will become parliamentary, in contradiction to the constitution, in particular when this is first newly introduced and thus lacks the secure basis of prescriptive usage. It follows the natural law of the strong over the weak. The constitution cannot achieve more than that the monarchy of its own accord, in an orderly course, not be mastered – as of necessity is grounded in the institutions in the western German states. It can only achieve that it not require a special ploy (neutralizing the institutions) to keep itself strong, that it applies only to maintain its position, not first to win a position from the estates in a lucky case. This cannot be emphasized strongly enough, it is the central issue, when treating of the final decision. Without being prepared, without a closed system of administration secure in ends as well as means, a government cannot confront a newly called assembly of estates of the realm if it does not wish to gamble on its existence. We maintain that one need not fear the sea when one confronts it with a well-masted ship rather than with a small boat (which is what the English and French constitutions are for the monarchy). But we do not maintain that with a good ship it will go on land as at sea, or that the only thing needed is a properly constructed ship and not also proper piloting.
Hereby the fundamental thought of the existing German constitutional monarchy is outlined. It is a constitution of the estates of the realm in state-oriented (public) character under the monarchical principle.
Where the German constitutions antecedently contain something deviating from this, they should not be dumped for that reason. The steadfastness of existing law should not be affected by any reasoning or political conviction. But in cases where positive determinations are lacking, this principle should be applied in German constitutions, and where a new introduction or future development is concerned, there it is the guideline. Hereby it is self-evident and has already been suggested throughout that the monarchical principle not merely can be realized in various forms but that it also in greater or lesser degree can determine the constitution. The sphere of laws and thus of estates’ approval can be more or less expanded, as can the estates’ right of approval and share in decisions for the state budget; the specification of the budget can be conducted in more or less detail; the accountability of the minister can be more or less severe, more or less dependent upon the will of the prince. When the estates have real rights, then beyond them their right of petition and their consultative vote (debate [Diskussion]) can be restricted. The forms of conducting business can elevate or diminish the impression left by estates’ debates, etc.
§. 116. Power of Counsel versus Power of Approval by the Estates
A yet stronger security for the monarchical principle is now found in the estates being restricted to mere advisory capacity rather than approval. Especially for Prussia, the constitution intended – unceasingly – by Friedrich Wilhelm III was none other than: in formation [Bildung] and efficacy, estates of the modern type, but with a mere advisory voice. Already in the edict of October 27th, 1810, at the time of the greatest tribulation of the war, nothing else was promised than “to give the nation a suitably established representation both in the provinces and for the whole, the counsel of which we will gladly make use of, and through which we will continually give to our faithful subjects the conviction, in accordance with our conviction as father of the country, that the condition of the state and the finances is improving.” Just as certain was the tone of the famed and decisive decree of May 22nd, 1815: “§. 4. The efficacy of the territorial representation extends to counsel regarding all objects of legislation which concern the personal and property rights of the citizens inclusive of taxation.”
Likewise all letters patent connected with acquired territory [Besitzergreifungspatenten] as well as all of Hardenberg’s declarations without exception speak of nothing but counseling estates, and Prussia’s draft to the Vienna conference to establish the German Confederation essentially corresponded to this. It is therefore everywhere only counsel which is intended for the estates of the realm. This notwithstanding, a soundly ordered constitution [Verfassung] and “charter,” a constitution [Konstitution], is intended which accordingly sets the government under public civil principles, and the estates are ensured an ongoing and full insight into the state budget and a counsel for all laws regarding the civil legal condition, not merely those concerning the jura singulorum.
It is therefore nowadays the opinion of many, and those most highly esteemed, that in Prussia in the case of a convocation of the estates of the realm, only counsel should come to them, and the contrary would threaten the continuing existence of the monarchy. It would appear that counseling estates leave power unreduced in the hands of the king with no hindrance caused to the energy and agreement in all legislative and administrative measures. Beyond this they have the advantage of making possible a freer valuation of the views they make known, instead of, for strictness of form, the lack of a few votes leading to the abandonment of a bill that perhaps was defended more plausibly and in a more lively fashion than was attacked. We do not deny the weight of this viewpoint, and given the assumption that mere counseling estates truly provide such a greater degree of security for the monarchy, we even agree with it. That this is a yet more decisive consideration than that of elevating the efficacy of the estates is the viewpoint from which we also begin. But we must cast doubt on that presupposition. If the government is in secure possession of financial means and in secure possession of (even if constitutionally restricted) police power, as we require, if it is not dependent upon the estates for the necessary taxes, not dependent on “laws” against political associations and the like, then the estates’ right of approval cannot really threaten the monarchy; only the moral effectiveness of the estates’ petition, and popular agitation, would form a threat, and this is no less the case with counseling estates than with approving estates.
On the other hand, we have grave misgivings regarding counseling estates for every large monarchy (and therefore Prussia as well), and in fact – entirely apart from the fact that to us approval seems to be the natural position for the estates – precisely in the interest of monarchy:
1) The institution of counseling estates is an instigation to continuous constitutional struggle. The granting of counsel contains no recognition of entitlement, the estates have no awareness that they accomplish something, are useful for something, and therefore have an aspiration to expand their rights, and yet counsel gives them a factual power in the moral efficacy of the expression of the estates’ opinion, which supports that aspiration. It may therefore everywhere be better advised to entrust the estates with certain rights than give them a position in which they attempt themselves to win rights. They in that case could come away with more booty than they would originally have been satisfied with. In fact, in itself and immediately the estates’ counsel, precisely through the contradiction between legal insignificance and factual importance, is often a greater restriction than is approval. So for example with the refusal of consent one may repeat the proposal in the following assembly, one may dissolve the house; all of this would make no sense with an estates’ vote which one did not have to follow, and yet one often cannot disregard it.
2) The institution of counseling estates puts the government in moral embarrassment. By that institution it often finds itself in the predicament [in der üblen Wahl] of either embittering the country by not taking the estates’ vote into consideration, or giving a sign of weakness by doing so. So in particular, with laws which in terms of their nature are proposed with the announcement of a principled, even ethical necessity, the government facing approving estates can by virtue of legal necessity allow the law to fall with honor, while when facing counseling estates, in the case of the law’s displeasing them it can neither follow through without losing popularity nor give up without losing regard.
3) The institution of counseling estates leads to continual tumult in the country. To wit, in that they have no legal power to hinder displeasing laws and demands, they by the necessity of the matter are relegated to hinder them by exerting moral power. If they have power of approval, the estates know that their mere “no!”, be it ever so quiet, is sufficient; if they only have counsel, they can promise nothing through their mere “no!”, but merely from the energy of this “no” they must show the government how strongly they are violated by the proposition, they must call upon the sentiment of the people for assistance, day in and day out they must puff with moral effects, in fact they must continually maintain the storm they engender, for if it is stilled, then the government’s view threatens to become fulfilled. (8) So for example in Bavaria in 1837 a law to introduce corporal punishment was taken up by the estates with great displeasure and therefore immediately rejected, but the matter was thereby dismissed without consequence; in the Prussian Rhine province regarding a similar law, the entire population was brought into uproar and kept there.
Admittedly, the estates must everywhere, at least in terms of the monarchical principle, in the final analysis be relegated to moral power, but that moral power is to vouch for recognized rights, not to take their place.
4) With good but unpopular laws, counseling estates have a greater temptation to reject, since their no does not bind the government and therefore their responsibility seems lesser. Vice versa, when they reject bad but popular laws, it is no inference of disfavor for the government, in that it can enact the law despite this action. They therefore do not, as do approving estates, see their restriction accompanied by a strengthening of the government.
5) Finally, in terms of their essence counseling estates are not natural. The king demands good counsel from his officials, his ministers, his council of state, or from notables. A territorial representation is only possible on the soil of recognition that the country has certain rights, in particular a right to the existing legal condition, of which it cannot be divested without its consent. A periodic delegation from the entire country and periodic convocation of larger estates of the realm merely for the goal of moral demonstrations is therefore factually an imbalance between the strength of guarantee and the insignificance of its object, between effort and result. In the end, however, the disadvantage is on the side of the government, in that with actual greater restriction it has the impression of unrestrictedness. It is as when someone gives a gift which costs much and returns little. The solution to the problem can in no instance be sought in the counseling estates. For everything which with us makes the territorial representation problematic – the lack of a historically generated representation rooted in the consciousness of the nation, the oppositional position of the officials as delegates against the government, and the attempt of the government to obtain the corruption of them and the other members of the house – all of this is found just as well with counseling estates, when they are not entirely lacking in significance, in which case they appropriately are better off being entirely missing.
Of course one gets beyond all of this when a government, as many wish from it, has so much energy that it in everything only follows its own insight and pays no further regard to the voice of the estates than when it itself is convinced by them. We certainly wish the government steadiness and energy, but such a lack of consideration, even when power is given to that end, is not the significance of the estates, not even the merely counseling; through it as well, public opinion in itself and as such will maintain some influence over against the government. Opinions and wishes can if need be also be experienced in other ways, in any case without such an ordered institution, and it would hardly be wise to call for the will of the nation to be made manifest by means of a regulated institution even though one does not wish to be bound by it as such.
In this regard, then, there are only two forms of institution which beyond doubt are in themselves in agreement and enduring. One is the purely monarchical, by which all final decisions lie simply with the prince; for it, no approval is appropriate for the estates, yet just as little is regular necessary convocation and inquiry. How should the monarch, who recognizes no legal resistance to his legislative power, develop and sanction a power over against himself which opposes him even apart from law yet with a factually often invincible resistance! The other institution is the estates-oriented or constitutional, by which the estates are recognized as supplementary element of the government, and for that their right of approval is essential. By contrast, for estates of regular necessary convocation and inquiry but with mere counsel, it is, at least in a larger independent monarchy, doubtful whether it can be a possible institution, i.e., one which can exist over the long term, whether this institution must not rather pass into either the impotence or the supremacy of the estates.
Such an institution cannot be compared with the rather widespread position the estates had in former times. This was a chiaroscuro of counsel and approval (not the decisiveness of the former) requiring no regular necessary convocation and maintaining itself in harmless and juridically indeterminate times. Such a regularly ordered assembly with mere counsel (although not actually in existence) had been possible as long namely as the absolute power of the monarch was the ruling opinion and moral power in the people. At that time all estates-oriented discussion automatically was directed as it were to the prince, to convince him and to move him (as with the English House of Commons, discussion is always directed to the Speaker); today on the contrary it is everywhere directed to the people in order to gain public opinion. This is a fact, and in addition the full-blown development of activity of the estates of the realm apart from the right of the estates of the realm under the general absolute decision of the prince is scarcely capable of implementation.
We therefore seek the protection of the monarchy not the diminished weight of estates activity but in its position. We seek it in the proper interleaving of government power and estates’ entitlement, that the government alone determine the course of the whole, the estates only join in deciding certain questions, the former acting entirely freely on the basis of the existing legal order, the latter having the right to maintain the existing legal order; that the paths of governmental movement (public welfare regulation, determination of the state budget, etc.) and the paths of the movement of subjects (property, freedom against penal power, taxes, maintenance of the constitution) be separated, the former reserved to the government, the latter conceded to the estates. (9)
§. 117. The Monarchical Principle as Cornerstone of Estates-Oriented Polity
The monarchical principle as here depicted – we repeat – is the foundation of German state law and German state wisdom.
That the English constitution is an example for the European future, cannot be denied; but it is that only in the aspect of its state-oriented character, not in its supremacy of Parliament. The latter is a consequence not merely of special historical events but also special ongoing conditions: two revolutions, repeated accessions to the throne of foreign dynasties without any root in the country, the consolidation and power of both political parties, the dissipation of crown demesnes. It therefore belongs to the innermost individuality of the English constitution, and for that reason is lawful, excellent, beneficent for England, but beyond any comparison and imitation for other states. And even for England it is not certain whether with the continuing diminution in the significance of the upper house and the advancement of the lower classes the time will yet come in which the requirement of a strong monarchy will be generally perceived.
It cannot be maintained that this parliamentary supremacy in itself is the higher constitutional condition, as little as it is the lesser, just as between monarchy and the republic no general decision of preference can be made. The question between the monarchical and the parliamentary principle at bottom is only the repetition in a narrower sphere of the question between monarchy and the republic. In every age various forms of government have been extant for the various states, with this or that people the monarchical, the aristocratic, or the democratic element being predominant; each could in its fashion and for its conditions be excellent, and this manifoldness and individuality ought and should also be valid for the future: nothing general and uniform can be pursued here. Therefore within the sphere of the constitution of the estates of the realm, the preponderance of the parliament over the king, thus the republican element over the monarchical, cannot be the general task; that can only be the establishment of that which should stand over all those elements: inner necessity and lawfulness in the institution of the state. Only here and no further is there a general measure of the constitution in our time. The spirit and will of the nation cannot rule, it not being a personality; therefore one will always be ruled either by kings, or by ministers, or by a powerful or energetic party, and there is no general verdict as to whether this or that is the better. The spirit and will of the nation can however support the lawful order of the state and form the basis for the government, and this can be achieved just as well under the monarchical principle as under the parliamentary. If not inner lawfulness and necessity but rather the greatest possible expansion of estates’ power and suppression of the monarchy were a great good [ein Gut] and a general task, then the English would have to do away with their constitution and take on the North American one. When the parliamentary principle is considered not as an English peculiarity but as a general constitutional goal, in the manner that the state-oriented character of the English constitution is truly such a general goal, it leads inevitably to the constitution of North America; and that the latter is more fruitful, satisfactory, and excellent than the English or ours, no impartial person would maintain.
This then must be made clear: if one wishes for the parliamentary principle there where it does not already exist historically, then one wishes for nothing other than the republic, with or without monarchical appearance. In fact the reverse, the monarchical principle is certainly by no means the absolute better, higher, but it is the normal, i.e., the proper and appropriate one as a rule and under normal relations. Just as according to the testimony of all ages monarchy is the normal constitution of the state, and the republic is only an individual vocation of certain states, so is within the constitution of the estates of the realm the relation between the monarchical and the parliamentary principle. In case of doubt, the strength of the central power in the state is the first, the indispensable, the more excellent, over against the strength of the periphery, and that the latter develop to the point appropriate to it through the steady growth of its activity rather than all at once is the healthy manner of progress. It is therefore a deception that the interest of the people is most asserted the greater the rights of the estates of the realm. On the contrary, a certain measure of estates’ rights such that the government retains its independence and elevation does the most to ensure that; for when the government is robbed of this position, it is put in the necessity of corrupting the estates, one is then free of the power of the prince but falls into the power of the leading men of state, who in order to maintain a ministry bestow the means and offices of the country on delegates, and streets, bridges, and the like on electoral districts. One is ruled by parties rather than the impartial power of the prince.
Just as no general requirement exists for the parliamentary principle, so is there likewise no general aptitude for it. The English certainly do not possess for this simply special political gifts: the sense of independence, common activity, and at the same time of existing (not merely self-made) laws and acquired rights – gifts, which certainly every people, when treating simply of themselves, would rightly or wrongly attribute to themselves in the same degree; but they also possess the habituation to and exercise of rule which they acquired gradually over the centuries, and what is much more, which build a dam against their own infringement, and which apparently no people can give to itself. To this is added another decisive circumstance. In England it is the two political parties which both through great linkages (connexions) of leading families and through their organization as a party possess factual power, to which the legal power of the king must be subordinated. In truth it is not so much the power of Parliament than the power of the two federations in the country which displaces it. Precisely this factually extant element, which weakens the monarchy, also provides a guarantee of order which instead allows monarchy to be missed. These alliances, namely, are themselves a power of unity and order in the manner of higher regard, to which individuals and coteries with their viewpoints and ambition have to subordinate themselves; if some authority and power exists other than the king and with the same energy, then one can less miss it.
Such a situation can however neither be found nor produced elsewhere. When therefore elsewhere the unifying point of the crown gives way, then the nation, which was only unified in opposition, splits up into a plethora of parties and connections which reciprocally frustrate each other in their enterprises. Thus one constantly sees in France the phenomenon by which a large majority is found in order to cause a ministry to fall, but then without royal influence there is none to maintain another ministry; that the minister who suffers a defeat in the house nevertheless must remain in office since every possible ministry following it will find even less support. There is therefore nothing more unnatural than the requirement of the French opposition that the king not govern (gouverner) but follow England’s example and allow the house majorities to govern. In England it is an existing power that wrested the scepter from the king; in France one demands that it be abandoned so that perhaps a power, no trace of which has yet been seen, will take it up. If it had not been France’s fortune to have as king a head of state who was the most capable of governing in all Europe, then one would have seen to where parliamentary government would lead. This king had the enormous task not merely of having to govern despite resistance, but also of having to maintain the appearance of not governing.
In Germany in particular, the monarchical principle is legally grounded, for the prince always abided in this right and the recent expansions of the estates system were not wrung from him but freely conceded. It is however also the most beneficial for Germany. For apart from the confusion which always and everywhere threatens from its diminution, is to be added in Germany that with the entirely chance fragmentation and conglomeration of territories into states entirely lacking in tribal and historical community, the center of gravity of the constitution and the spirit of governing must have its seat in the prince and not in the estates assembly, if otherwise unity and coherence is to be preserved, and energy outward. In Germany there are furthermore other guarantees beyond the influence of the estates which one ought not count as lesser than that, and which can only continue to exist with the maintenance of the monarchical principle. To this above all belongs the intelligent, honorable, and irremovable German civil service. The irremovability of officials has been declared by esteemed and upright liberal politicians to be irreconcilable with a constitutional constitution [konstitutioneller Verfassung]. But one must make a distinction: it is irreconcilable with the estates-oriented constitution in terms of the parliamentary principle but not the estates-oriented constitution in terms of the monarchical principle, i.e., it is irreconcilable with ministers which Parliament can ruin whenever it wishes, and who for the positive value of their administration are subjected to the judgement of Parliament in all measures; but it is in significant degree reconcilable with ministers only subject to the prince for the administration and answerable to the estates only regarding observance of the constitution.
The prevailing oppositional course of the times is now however, in Germany as everywhere, consciously or unconsciously precisely turned against the monarchical principle. It is filled with images that, as in England, the entire administration, even the position outward, is determined by the nation, i.e., the house majorities and in any case the press, and by the axiom that this is the only reasonable condition; to this is attributable the dissatisfaction with all concessions, in that they cannot possibly go that far, as well as the transfer of English parliamentary customs and maxims to German constitutions in the estates assemblies, as if their validity was self-evident. A leading aristocratic parliament as in England is of course not what is wanted; one combines two things which hitherto have never existed in combination, a leading democratically composed estates assembly, as does not exist in England, and the parliamentary principle, which exists only in England and nowhere else, and this is the ideal. Beyond this, in England in terms of its medieval character the relation between king, ministers, and Parliament is without precise legal stipulation, factually unstable, floating, while on the Continent it is formulated in modern mathematical precision. An English king of personal energy could in an emergency maintain a ministry against the majority, while here this from the start is given to be an apodictic violation of “constitutional state law.” Conceived in this manner, there remains no other function to princes than mere vote-counting, to draw a conclusion in accordance therewith as to which system is to be asserted and which leader is immediately to enter into the ministry, a function which properly could be handled without a king by the director of the house, perhaps even its clerk. From this side, what one expects of the king is therefore, clearly stated, nothing other than the abdication of the crown. Beneath all appearance that he has the veto, that he holds onto the choice of ministers, that he can only rule more forcefully with a parliament, there is no other result in the matter than this. As long however as the world stands, no prince, no aristocratic body, no popular assembly ever commits political suicide without the necessity of taking a step which not only restricts but abolishes its power. The peoples have no right to demand such a revolution of the existing constitution, the princes have no right to allow it. They must not allow the power entrusted them by God to slip from their hand in favor of an unknown and untested power which is first to arise only in the future. In fact they above all are not the less responsible to the people itself for maintaining the most secure guarantee of its welfare and its rights, which is the monarchy, than they are to grant it a secure public legal condition and a broad sphere of its own co-operation and public activity.
This widely-held manner of thinking and political course is therefore precisely one of the serious problems which stand in the way of the invigoration of estates-oriented institutions.
On the other side, one appeals to the conscientiousness of the princes and the duty of trust in order to reject estates’ rights and state-legal guarantees. This argumentation holds no weight. With the same right one might oppose this by appealing to the faithfulness of the people and the unreasonable demand of confidence in the same in order to reject the guarantees of the monarchical principle. The confidence both of princes in the people and of the people in princes is ever indispensable for the public prosperity; and with bad will or misunderstanding, or with distrust, all mechanical protection is in vain. This does not however rule out that the position of both parts in their essential features be safeguarded by a legally unswerving order. Confidence is more uninhibited when one in his entire situation [in seiner ganzen Lage] is not dependent upon others, and it is no unfair demand that that which comes to someone not be dependent upon the goodwill of another but upon one’s own right and own power.
A much more significant argumentation against state-legal guarantees than the appeal to the personal conscientiousness of the prince is the appeal to the traditional manner of governing. Custom and practice are everywhere better and firmer than written law. Thus when in a royal lineage it is a tested tradition to govern not according to caprice but according to principles of state and to recognize a restriction in the laws and the regulated course of administration, which more even than the will of the people is the true principle of governing, then the jump from such an existing guarantee of civil order and freedom to have a go with a new generically different one seems an ungrounded hazardous undertaking. But something other than this jump is the development and confirmation of an element which hitherto had not been practiced so much, together with the maintenance of existing guarantees and therefore precisely in accordance with the measure of its durability.
With this political confession of faith we therefore again tread on the soil of impartiality and serious willingness for political freedom, on which the German sovereigns found themselves in the wake of the war of liberation upon consulting regarding the future constitution of the confederation. It was then the enlightened viewpoint to guarantee a secure legal condition of subjects through a territorial estates’ constitution, and that not in terms of the old restriction to privileged estates but in the manner “that all classes of citizen might participate therein.” On the contrary, both with the establishment of Article 13 of the Confederation Charter and the negotiations preceding it, a removal of the monarchical principle was not in anyone’s mind. The rights which were to be assured to the estates as a minimum were those which in accordance with the drafts proposed to that end were of the form that they do not diminish what can yet be allowed according to the monarchical principle. The Austro-Prussian drafts allow the estates only counsel, and approval only for new taxes, while the memorandum from the Hanoverian envoys of October 21st, 1814 and that of the 29 smaller sovereignties dated November 16th, beyond that allowed approval of laws and appeals to princes in the case of malversation by servants of state.
It was therefore no contradiction with its original viewpoint that the German princes since 1819, given that events abroad and sentiments at home seemed threatening, moved forward to maintain the monarchical principle as their most urgent task. They wished first to support the rights of subjects against the territorial despotism of the Rhine Confederation and afterward to support the firmness of the monarchy against that unpurified movement, and this is entirely consistent. The contradiction, or at least a noteworthy divergence from the originally pursued course, lies in the fact that with the newly added task the older receded, that, although the previous intentions were not legally withdrawn, still from that point the energy of implementation merely went into hindering the popular movement, not in establishing a public legal condition, that now simply a maximum of estates’ rights was established, whereas the establishment of a minimum of estates’ rights, which was the original intention, was not done, thus also every institution to which the sovereign gave the name territorial estates was judged to be in accordance with Article 13. An impartial judgement would nevertheless not leave out of consideration the condition of political development [Bildung] at the time. The “constitutional state law” drawn up by a confederation assembly envoy can be considered the general creed [Symbolum] of this. According to it, it holds as an accepted fact that the successor to the throne has to be brought up not by his royal father but constitutionally by a commission of the popular assembly. Where would one have ended up if under the rule of this doctrine Austria and Prussia had introduced “constitutions”? May the point in time arrive that energy toward both sides is possible, that a clear and full consciousness develops and thereby a guarantee everywhere to defend the one bravely without overstepping the other! May the popular-rule party and the royal party be subsumed into a higher view of the state as the ethical intellectual kingdom, in which the ethical authority elevated over the people, which is the king, and the people itself as ethical community, take up their necessary and firmly delimited position.
1. This exposition of the monarchical principle first appeared in 1845 with a preface as a special pamphlet, and was then included as a chapter in the second edition of the Doctrine of State (the first edition already contained the ideas, but only scattered and less forcefully expressed). Therefore to understand it, one must take into account the condition of all the states at that time. It is supplemented by my later exposition, The Revolution and Constitutional Monarchy [Die Revolution und die konstitut. Monarchie] (Autumn 1848); by my speech of October 16th, 1849; and by the introduction to my collected speeches (see now also Stahl, Parties in State and Church, 1868).
2. The setting aside [Ausscheidung] of perpetual (unquestionable) taxes in such a great amount has its ground not in consideration of the crown but in consideration of the holders of public debt, likewise the restriction which the House of Commons sets on its own request for taxes and outlays lies in consideration of the taxpayers.
5. Presentation of details as record and basis for estimates, and presentation of the same as legally inalterable items, are of course two different things. Only the latter, not the former, is to be ruled out.
6. The decisions of 1834 reject that the estates in the constitutional states consider unlawfully disbursed sums as existing in cash and to be credited against the tax claim (which is only a complement), as if that was not more loyal and old-territorial-estates-oriented than the impeachment of the minister of finance. This is the simple consequence: when account must be rendered to the estates, they have the right to deny acceptance [Anerkennung] to non-budgetary outlays, to view them as if account had not been rendered of them. What comes afterward comes of itself or remains hanging. What the estates, in particular of Bavaria, to which it applies, thus wanted, is nothing other than not to be directed by the officials (council of state) in the course of appeal but, when it concerns their own purse, only to allow its own judgement to be valid (or that of a court of law). One asks thereby, what would happen if the sum has been spent? Court decision or arbitration would establish whether, according to the object concerned, it would be charged against the Civil List or, in other cases, whether it would be saved from the specific items, either those the estates move or those the government proposes.
7. A German sovereign found himself induced to make the announcement that the dissolution of the chamber was not, as the opposition supposed, the abetting of his minister but his own will. This announcement was disputed by the opposition because it appeared without a countersignature. In the specific case, this conflict reminds one of the Biblical saying: “we piped for you” etc.; for when the opposition prodded to hear the prince’s own sentiment, how can it vituperate when he also makes it known to them? Yet in general and everywhere, such a declaration, which itself is not a decree, in terms of German state law requires no countersignature and involves no ministerial accountability. The minister he defended appealed to the fact that in Germany matters are different than in England, for the “sovereignty of princes” was still valid here, to which he received the reply, whether the king of England was not sovereign? He should much rather have objected that in Germany the monarchical principle is valid constitutionally; for then the true ground would have been disclosed.
8. One might retort that this and the previously mentioned evil hold true just as well for approving estates regarding the petition. But not granting a petition is not the same as repression, in the way that introducing a new law against public sentiment is; particular strength therefore goes with the government in the latter case, extremely little in the former case; and with the usual average make-up of the government the estates can hope to ward off the introduction of a law by agitation, but not to effect the granting of a petition. A similar relation again occurs simply with regard to the appeal regarding violated rights.
9. In the second edition, there followed here a statement, “that in the case of a constitution of the estates of the realm, Prussia had to maintain the monarchical principle in an incomparably higher measure than the smaller German states, for the unity of its provinces and for its position outward;” “no equality [Gleichstellung] with the current German constitutions ought to be claimed for Prussia;” and it was proposed, “instead of excluding all estates’ competencies of consent and approval” that such be granted, but with the proviso “that the king remain the supreme judge over conflicts regarding the application of the constitution,” thus that the “ever doubtful boundaries” be determined by him. The detailed depiction and justification given there, however, holds no interest now. The text under nos. 4 and 5 on page 353 above was added to the third edition.