Wenn der Kaiser die Ausfertigung ertheilt, so wird damit in formell unanfechtbarer und rechtswirksamer Weise constatirt, dass das Gesetz verfassungsmässig zu Stande gekommen ist. [Page 549 ff.]

1.

I have cited this passage in full because it seems to me to contain the most important proposition of the entire work. If I comprehend it correctly, the principle here enunciated by Dr. Laband is that the Emperor, under the prerogative conferred upon him in article 17 of the constitution 1- that of putting the bills passed by the Federal Council and Imperial Diet into the form of commands, has the power to examine the contents of the bill and to determine therefrom whether it is a simple project of law or an amendment of the constitution, and to refuse to confer the force of law upon any bill which shall not have been passed by the majority prescribed by the constitution in accordance with its character. Dr. Laband says that the Emperor not only has the power to do this, but is constitutionally bound to do it. On the other hand, he is constitutionally bound to give a bill the force of law when he is convinced that it has been passed in the manner prescribed for such bills by the constitution. Finally, it is asserted that the constitutionality of the Emperor's act cannot be called in question by any other power, magistrate or person in state or empire.

I think this is good political science, but questionable jurisprudence. From the standpoint of political science, we should be obliged to pronounce the German constitution faulty and incomplete, if it did not provide some organ for determining whether a proposed bill bore the character of a law simply or that of a constitutional amendment; and I do not see how this great power could be intrusted to safer hands than those of the Emperor. In view of the relation of the Emperor to the German people and nation, to the princes of the several German states and to the state of Prussia, it cannot well be doubted that Dr. Laband's conclusion, that this great responsibility will be better fulfilled by the Emperor than by any other organ of the constitution, is correct. But the derivation of this great power

1 The portion of art. 17 which confers this power reads: "Dem Kaiser steht die Ausfertigung und Verkündigung der Reichsgesetze zu."

from the prerogative of furnishing the bills passed by the legislature of the empire with the formula of command, is, to say the least, an extraordinary bit of interpretation. This prerogative is usually regarded as a ministerial power and the exercise of it as a purely formal act. The executive usually goes no farther in his examination of a bill passed by the legislature, preliminary to its proclamation as law, than the attestation of the proper officers of the legislative body to the fact of the passage. It is certainly then a little startling to find the claim advanced that the guardianship of the constitution is contained in this power.

It seems to me that the German constitution really makes no provision to meet this question. The framers of this constitution were men who had had little experience in such work, and they naturally left many important points uncovered. It is the problem and the duty of the interpreter to make as much use of the principle of reasonable implication as possible in the building up of the body of public law upon the basis of the constitution; but when so great a jurist and publicist as Dr. Laband presents two different and apparently contradictory 1 interpretations of the constitution, then surely it is time to acknowledge that the constitution is incomplete upon this point and seck for its amendment. It would be interesting to know if this question has ever come to issue between the Emperor and the legislature, and if the legislature has acquiesced in the view that the Emperor has the power to pass upon the constitutionality of its

1

1 I say apparently contradictory, because it is conceivable that a simple majority of the Federal Council might decide, in first instance, that a bill involves no change of the constitution, and the Emperor might decide, in second instance, that the bill does involve such change and therefore requires more than a simple majority of voices; and Dr. Laband may mean to construe the constitution in precisely this manner, so that the decision of the Council is of no effect if the Emperor takes an opposite view and refuses to promulgate the new law. But again Dr. Laband may mean that the decision of the Federal Council, if the question is directly brought to vote, prejudices the Emperor's decision, and that the Emperor is to investigate the question only in case the Federal Council has omitted to declare its view. He has certainly failed to make clear the relation existing in his mind between the Council's right to interpret the constitution and the right of the Emperor to do the same thing. On page 260, where this power is attributed to a simple majority of the Federal Council, von Rönne is cited (in a foot-note) as holding the same view. But von Rönne holds that the decision of the Council (and Diet) is final.

acts under his prerogative to clothe them with the formula of command. It would also be most highly interesting to know if the supreme judicial power of the empire has taken any position upon the subject. Dr. Laband does not inform us as to either of these points, and we conclude therefore that the problem has not yet received a practical solution.

The questions of sovereignty and of the relation of the states to the empire once behind him, Dr. Laband has a fairer field for his strict juristic methods. His definitions are admirable. His analyses are careful and exhaustive. His conclusions are satisfactory. He has certainly done a great work in the development of the science of public law in general and of the public law of Germany in particular. His task has been one of great difficulty and of great responsibility of great difficulty on account of the extreme complexity of the relations in the German system, and of great responsibility because of the authority attributed in the German practice to the scientific commentators upon the constitution and the laws. The publicists and jurists not only of Germany but of the world owe him a great scientific debt, and should give generous expression to their sense of obligation.

JOHN W. BURGESS.

STATE STATUTE AND COMMON LAW.1

IV.

'HEN, in the United States, we distinguish statutory

WHEN,

from common law, we habitually think only of the different sources from which two bodies of law proceed. The antithesis, in our minds, is between judge-made law and that enacted by legislatures. But (if we leave the federal statutes out of the question) there is another and very important difference. Our state statutes are local law, while the common law, as its name implies, is a national system. This, the political point of view, has been strangely ignored in all recent discussions concerning the advisability and the effect of state codifications.

That this point of view has been neglected is due to a lack of agreement upon the principal premise. It is not uniformly recognized that our common law is a national system. Even in the Supreme Court of the United States it has been said, obiter, that there is no national law except the constitution, the treaties and the laws of the United States.2 Now it is quite true that there is no other supreme national law; no other law, that is, which overrides the statutes of the single states. But the law which regularly prevails in the absence of other law, national or local, may properly be called national law, and it is in this sense only that the term is applied to the common law. It is our subsidiary national law.

It has also been said, again in the Supreme Court of the United States, that the common law obtains only so far as it has been "adopted by the several states, each for itself." 3 This is not quite true. Under the constitution and laws of the

1 A previous paper, discussing the same topics from a different point of view, was published in the POLITICAL SCIENCE QUARTERLY, vol. ii. no. 1, p. 105.

2 Wheaton vs. Peters, 8 Peters 591, 657 ff.

8 Wheaton vs. Peters; Smith vs. Alabama, 124 U.S. 465, 478.

United States lies, as the recognized basis of interpretation, the law which our forefathers brought from England;1 and in every domain of jurisdiction assigned to the federal judiciary, this law in fact prevails in the absence of opposing statutory law, national or local. In the single states, on the other hand, it is true that the common law obtains only so far as it has been adopted; but the adoption was not dependent upon any legislative act. The English common law lay at the basis of our colonial civilization, and the acts by which the majority of our commonwealths recognized or "adopted" it were simply declaratory. It would no more have ceased to prevail in the absence of such acts than would the English language. Except where its rules are absolutely inapplicable, and except in those parts of the country where it is not a national heritage where the colonists and all their institutions were French or Spanish, the English common law, in the absence of opposing statutes, is the law of the land.

The recognition of this fact, that our common law is a national system, is further impeded by the method in which it has been developed since the establishment of our independence, and by the legal theories under which this development has proceeded. Its interpretation—which of course means its development has been largely entrusted, under our constitutional system, to the state courts; and it has been difficult for the layman, and still more difficult for the lawyer, to conceive that a law interpreted by the judiciaries of nearly forty independent states, could remain for more than a century really national. And even in the federal courts, the natural organs for the development of national law, the fact that the law applied is national has been cloaked from the outset under a contrary theory. Barring the cases where the United States courts apply supreme national law, - that is, the constitution, treaties and laws of the United States, their jurisdiction rests upon the following provision of the constitution :

The judicial power shall extend . . . to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and

1 Smith vs. Alabama, loc. cit.