THE PRESIDENT OF THE REICH
The parliamentary system assumes, by the side of the Parliament elected
by the people, a titular chief of state with executive power who,
himself not responsible politically but assisted by ministers who are
responsible, co-operates with Parliament in the different functions of
the state. Basing itself, therefore, on the principle of parliamentary
government, the German Constitution places at the head of the Reich a
President whose situation corresponds generally to that of all the chiefs
of state in parliamentary countries. The Constitution also attempts to
create within the general framework of the parliamentary system, a new
type of chief of state. It is important therefore to examine precisely
the principal characteristics of these provisions.
1.--THE NEED FOR A STRONG PRESIDENT
The dominant idea, which guided the constituent assembly when they
drew up the provisions relative to the President, was this: the German
parliamentary republic requires that its President shall be powerful.
There must be a President. The Independents did not want one. “The
President will either take his position strictly within the limits of
the functions which are his according to the parliamentary principle,”
said their spokesman, Haase, “in which case it will be his ministers who
will exercise his powers. He will thus play a purely ornamental rôle,
therefore useless and one for which the German Republic cannot afford
to pay. Or he will exceed his legal powers, and the Cabinet will be
compelled to develop in the direction of a régime of personal autocracy.
It is enough, for the purpose of government of the country, that there
should operate a Ministry in harmony with the popular representation.”[39]
These ideas had no chance to prevail. In committee Preuss fought them
energetically. The President, he held, could be replaced in two ways;
either by a directorate elected by the people or by one elected by
Parliament. The directorate would itself name its ministers. A Cabinet
thus composed would be doomed to inertia and incapable of making any
decision would “cry for a Bonaparte.” The Ministers who should be
responsible to the Parliament would be practically deprived of authority,
and the Parliament, with control only over the Ministers, would itself
be weakened. The following system could also be considered: Parliament
could directly elect a college whose members would themselves administer
the various ministerial departments; that is to say, instead of being
appointed by the President, Ministers would be elected by Parliament.
This is the Swiss system. But such a Cabinet, admissible in a small
country, could not exist in Germany, for the distribution of portfolios
depends not according to merely logical premises but according to the
relative strength among the different parties of the Reichstag. There
could be no unity of direction in a Ministry thus composed. Above all
what was needed was a personage who should be in the Constitution a
firm centre. The more committees there are, and the more elections, the
greater also becomes the need of having a fixed point to which may be
attached the various strands in the network of the Constitution. There
must therefore be a President.
This President must be powerful. A powerful chief of state is necessary
above all in Germany, where people like to be governed. This is
particularly necessary in such a revolutionary period as the Reich is
traversing. There must be a President who will be a worthy representative
of the nation and who will adequately personify, with all the authority
needed, a state as considerable as the Reich. The President must be
powerful in order also to act as a balance to the Parliament, which
without it might become omnipotent.
This is why, first of all, the President of the Reich must not resemble
the President of the French Republic. The fact that in France the
President is elected by the National Assembly engenders a constitutional
situation full of inconveniences. The President there is only a purely
representative figure, Parliament having acquired absolute omnipotence
which is directly contrary to true democracy. The parliamentarism which
Germany wants is a parliamentarism whose mechanism is controlled by the
people; and not a parliamentarism in which the President is reduced to
complete inactivity and has no other care than to remain on the best
possible terms with the Chambers. The members of the Constituent Assembly
in supporting this condemnation--unanimous in Germany--of the French
system quoted Professor Redslob, according to whom parliamentarism in
France is completely adulterated.[40]
But neither must the President of the Reich resemble the President of the
United States. True, there were many in Germany at the end of 1918 and
at the beginning of 1919 who wished for a chief of state a man who could
act and represent the Reich with the independence and the authority of a
Wilson. But this wish does not seem to have prevailed. The Constituent
Assembly, in any event, wanted to inaugurate in Germany a parliamentary
régime; whereas in America, the House of Representatives has only
legislative power and the executive power rests wholly in the hands of
the President. The Assembly resolved to give the Reichstag the right
to co-operate in executive action and to exercise a control over the
administration. In addition the President in America himself nominates
his Cabinet without concern as to whether or not his Secretaries have
the confidence of the Chamber, to whom they are not responsible. He is
invested with a dangerous omnipotence, incompatible with parliamentary
régime. The American system therefore, like the French system, must be
rejected.
None of the forms of existing republican governments were entirely
suitable for the German Republic; there would have to be created for
its use a new type of chief of state. There would have to be created
for the first time true parliamentarism, different from the imperfect
parliamentarism such as exists in France. French parliamentarism consists
of the omnipotence of Parliament which for four years acts free of all
control on the part of the people. After each election democracy in
France plays no part. In the true parliamentarism, however, Parliament
is not omnipotent; but is subject to a control exercised by a democratic
authority and this authority must be, in Germany, a President.
The problem is therefore to institute in a Republic what now exists only
in parliamentary monarchies, that is, a chief of state sufficiently
powerful to act as a balance to the Parliament and to control the latter
in the name of the people without, however, giving him such a power as,
in abusing it, would enable him to dominate or annihilate the rights of
the Parliament and to establish an anti-democratic rule. Let us see how
the German Constitution has solved this problem.
2.--THE ELECTION OF THE PRESIDENT AND THE LENGTH OF HIS TERM.
To give the President of the Reich the authority and the independence
which it deemed necessary, the National Assembly insured him a very
strong personal position.
To this end the Constitution declares first of all that he shall be
elected by the whole German people (Article 41); that is, the plebiscite.
The President is elected by the same electors as Parliament itself.
Thus, President and Reichstag issue from the same source, the pure
popular will. Thus, there is the certitude that if one of these two
organs rejects the direction desired by the people or deviates from the
direction desired by the people, the other organ will immediately be able
to apply the necessary corrective. The President can be the sought-for
counter-balance to the authority of the Reichstag, for he is truly the
man entrusted by the people, delegated by them to rule with the Reichstag.
This system is not without danger. We have seen it in Germany itself when
in March, 1920, the rumour spread that Marshal Hindenburg would be a
candidate for the presidency of the Reich, a candidacy expressly approved
by the former Emperor, one which seemed to open the way for a monarchical
restoration. The Social Democrats thereupon declared that the election
of the President by the whole people was an institution republican
only in appearance; that it was in reality much more monarchical than
republican; that the President elected by the people could arrogate to
himself a power which would weigh heavily on the functioning of the
governmental machinery; that to institute the election of a President by
the people would subject his person to disputes and attacks which would
leave his dignity seriously compromised. They, the Social Democrats,
foresaw the possibility of supporting again a proposition which they had
already made during the discussion on the Constitution, but which they
had withdrawn, according to which the President would have to be elected
by the Reichstag. The Democrats, alarmed by the prospect of a conflict
that could arise between the Reichstag and a President elected by the
people, seemed ready to support such a proposition. The Centre abstained
from a decision on this matter. But nothing could be done without the
Centre, for since this was a matter of constitutional amendment a
majority of two-thirds of the National Assembly was indispensable, and it
could not be obtained without the Centre. The _coup d’état_ of Kapp and
Lüttwitz had meanwhile the effect on these discussions now well known.
The Democrats concluded from it that thereafter all attempts to establish
a military candidacy would be doomed to failure and that the people would
never either nominate or support a dictator; and that therefore there was
no longer any need to change the Constitution on this point.
Every German is eligible provided he is thirty-five years old. The
proposal in committee as well as the text of the Constitution at the
second reading declared for an absolute ineligibility of members of
families who had ever ruled a state in the German Empire. This provision
was done away with on the third reading by a majority consisting of the
German Nationalists, the People’s Party and the Centre. The motive
expressed by the representatives of these parties was that this measure
would constitute a law of exception of the most shameful kind, contrary
to the principles of the Constitution, that it was a confession of
weakness and an avowal of the lack of solidity in the benefits afforded
by the victories of the Revolution.
But how shall the President be elected? After long discussion the
National Assembly decided that the election of the President should
not be regulated by the Constitution but that the matter should be
left to an ordinary law. The Assembly was not able to decide either
for the proposition of the Cabinet or for that of the Committee on
the Constitution. The proposal of the Cabinet provided for a general
election. If in the first canvass no candidate received the majority
of the votes cast, a second one would have to take place in which only
the two candidates who had received the largest number of votes in the
first canvass could run. Of these two candidates the one who obtained the
majority would be elected.
This proposal aroused serious opposition in the Constitutional Committee.
It was held that, given a multiplicity of political parties, it was
probable that in the first canvass a great number of candidates would
present themselves and consequently at the second ballot neither of
the two surviving candidates would rally to his support any important
fraction of the whole people. On the other hand, it would be difficult
before the first vote to effect any union among neighbouring parties on
a common candidacy, because up to that moment the various groups would
not know what possibilities there were for the election of their own
candidates. In any event the position of the President would be weakened,
for a great number of those voting for him would not do so primarily out
of sympathy with him, but in order to keep out some other person still
less in their confidence. All the criticisms that were made at another
time against the balloting under the former electoral law would be
applicable here with added force, since it was a matter of the election
of the personality who must be vested with the highest dignity in the
Reich.
Having condemned this method of election, the committee adopted the
proposal that seemed to them most opposed to this: that candidate should
be elected who received on the first ballot the largest number of
votes (a relative majority). If this system did away with some of the
inconveniences of balloting, there nevertheless could be urged against it
and with greater force the same objection as filed against the preceding
proposition, viz., that, given the division of political parties as it
was, a man could be called to the head of the nation who would have
behind him a relatively small fraction of the German population.
According to a third proposition, the second balloting could be avoided
in the following fashion. The elector would be permitted to indicate on
the first ballot a second person to whom he would give his vote should
his first candidate not obtain the necessary number of votes. This
proposition had as its point of view the idea that neighbouring groups
or parties could in this way and in advance effect electoral compromises
in the event that none of their candidates alone should survive the
first ballot. In this way there would be the advantage that a second
ballot would be unnecessary. But this system was not without danger,
for first of all it lacked simplicity, and again there was nothing to
show that the electors would thereby abide by the agreements concluded
by their parties. A well disciplined party, in which the electors held
to the agreements made by the chiefs of their party would risk being
put at a disadvantage by this system in relation to a party in which
there was no discipline whatever. There was the danger in accepting this
proposition that the elections would bring about a result that would not
truly express the real wish of the people, but which would depend on the
tactics and the more or less effective discipline of the parties.
None of these propositions having been accepted only one procedure
remained possible. This was to have two ballots, but not to limit the
second ballot to two candidates and to declare elected the candidate
who has received the largest number of votes. Thus, no group is obliged
to deprive itself of a candidate who might be able to win. But when the
different candidates have measured their strength on the first ballot,
the parties could then freely come to agreement based on precise results.
Nor would it be indispensable that this agreement should be based purely
and simply on the proportion of votes obtained on the first ballot.
Parties could agree on a candidate who on the first ballot had not been
presented. It could be hoped that the political situation, being to some
degree cleared by the first vote, there would be a considerable decrease
in the number of candidates, with the result that the President elected
would receive the majority of all the votes; or at least that he would
obtain a number of votes much larger than if he were considered elected
on the first ballot by a merely relative majority. The vote which a
candidate would thus obtain would be given him by the free choice of the
population; he would be much more the man trusted by the people than he
would be if a majority of the electors had voted for him constrained by a
balloting procedure. But the doing away with the second ballot could not
be accomplished without at the same time losing the clearness with which
the popular will should express itself.
Such is the system which was finally adopted as law on the election of
the President, on March 4, 1920. According to the terms of Article 4
of this law, “The one who has obtained more than half of all the valid
votes is elected. If no one obtains this majority a second ballot must
be proceeded to, after which the candidate obtaining a plurality of the
valid votes shall be considered elected. In case candidates obtain an
equal number of votes election shall be decided by lot.”[41]
* * * * *
The President is elected for seven years and is eligible for re-election.
The choice for so long a term and the possibility of re-election
corresponded closely to the prevailing idea according to which the
President should constitute a fixed and permanent point in the
constitutional mechanism. “Granting,” said Preuss, “that the institutions
set up by our Constitution should be as profoundly as possible stamped
with democratic character, it is best, for the solidity of the whole
edifice, that there should be in some part of it a durable and firm
framework.” The Social Democrats observed that the longer the term of
the President’s powers the more difficult it would be to effect a change
in the person, and consequently the greater was the danger of seeing a
life President installed. They proposed to fix five years as the term for
which the President could remain in power and to make re-election more
than once impossible. But this proposal was rejected.
* * * * *
Having fixed the term of the presidential power the Constitution had
to provide for the situation in which a President ceased to function
before the normal expiration of his powers or found himself prevented
from exercising them. It was not desired, as in the United States,
to institute a Vice-President who, as permanent representative and
possible successor of the President, would have the status, in the words
of Preuss, of a “republican crown-prince.” The provisions which were
thereupon adopted are much more supple.
In case the President ceases his functions before their normal
expiration, that is to say, in case of death, resignation, or
impeachment, a new election is immediately held.
In case he is prevented from filling his duties, there must be made a
distinction according to whether this inability seems apparently of
short or long duration. In the first case, that is, in case of slight
illness or because of a short voyage abroad, or during the first days
of a disability which seems likely to be prolonged, or in the interval
between the death of a President and the election of his successor,
the place of the President is filled by the Chancellor. In the second
case, that is, in case of serious illness or insanity, or when a motion
has been passed by the Reichstag to impeach the President, or there is
inaugurated a penal prosecution of the President before the National
Judicial Court, the Constitution decides that an ordinary law shall
determine expressly by whom his place shall be filled. This law may
according to circumstances either install a temporary Vice-President, or
confer temporarily the functions of the President on the Chancellor until
the President is able to resume office, or finishes his term.
3.--THE POWERS OF THE PRESIDENT.
The powers vested in the President of the Reich by the Constitution
are in general analogous to those possessed by every chief of state in
a parliamentary country. Just as the Reichstag exercises in addition
to its purely legislative powers a control over the Cabinet and its
administration, just so, if the principles of the parliamentary system
are to be applied, the President must be invested, in addition to his
strictly executive authority, with powers that permit him to co-operate
in legislative work and to exercise a control over the Reichstag itself.
It is precisely this, in effect, that the Constitution provides for. The
President of the Reich has executive powers. He nominates ministers, he
represents the Reich in foreign relations, he appoints all the civil
and military servants, he is supreme chief of the forces of the Reich
by land and sea, he exercises the right of pardon and he may make
regulations.[42] He has also powers of a legislative character. He alone
has authority to promulgate and publish enacted laws. He exercises a kind
of right of veto over these laws; and he may, according to circumstances,
in the complicated conditions we have already examined, either retard the
entrance of these laws into operation, or submit them to the people by
means of a referendum. Finally, he exercises a certain control over the
Reichstag. He may order the President of the Reichstag to convoke that
Assembly earlier than the normal date of its meeting. He nominates the
judicial members of the electoral commission for disputed elections to
the Reichstag. He may dissolve the Reichstag, etc.
It goes without saying that in none of these cases can the President
take action without securing the support and the countersignature of a
Minister. That is the essential condition of a parliamentary régime.
But to strengthen the action of a President and to give his position a
place of real pre-eminence, which is desired for him, the Constitution
entrusts him with a certain number of powers, which we must note
particularly, for they are perhaps peculiar to the German Presidency, and
give it a special character.
The President exercises an extremely powerful control over the
legislative work of the Reichstag. When a law has been enacted he may,
before promulgating it, submit it to a referendum. He may, when the
Reichstag and the Reichsrat have declared urgent a law which they have
enacted, promulgate it immediately even if a third of the Reichstag has
demanded that its promulgation be deferred (Article 72). The aim of
such a demand for postponement is to give the opponents of the law the
chance to prepare a referendum and to proceed to it. The fact that the
President has the right not to act on such a postponement and to give the
law immediate operative power by promulgating it, offers him the chance
to prevent such a referendum. It is also in his right when there is no
agreement between the Reichstag and the Reichsrat on the text of a bill,
either to decide that the law is not in effect and shall not enter into
operation, or to decide for a referendum. He is free, finally, when a law
has been passed in the Reichstag by a two-thirds majority against the
protest of the Reichsrat, either to promulgate this law, or, if he does
not wish to take the responsibility of that, to submit to a referendum
the question on which the Reichstag and the Reichsrat disagree.
The President commands all the armed forces of the Reich. He is from this
point of view the direct successor of the Emperor. He has, therefore, the
power called _Reichsexecution_; that is to say, that when a state does
not carry out the obligations imposed upon it by the Constitution or by
a law of the Reich, he has the right to compel it to do so with the aid
of armed force. But, above all, he has the right to _declare a state of
siege_.
This is a peculiar point in the German Constitution. Whereas in France,
the state of siege cannot be declared except by a law, in Germany it is
sufficient to declare it by means of a simple order of the President.
Article 48 gives him the right, when security and public order are
seriously affected or menaced, to take necessary measures for the
re-establishment of security and public order and at need to use,
therefore, armed force to that end. But in order that he may be able to
resort to these exceptional measures, tranquillity and public safety
must be seriously affected or menaced. But he alone has the power to
decide if and when this condition is fulfilled. In the same way he alone
decides what measures are necessary for the re-establishment of order.
He may particularly--the Constitution expressly gives him this right
but only in a general way--suspend individual liberties. As to details
in this matter the Constitution provided for the passing of an ordinary
law which should prescribe particulars more completely; but this law has
not yet been enacted. It is agreed to recognize that until such a law
has been passed the _authority of the President in this respect remains
unlimited_. He may therefore not only order all measures which seem to
him necessary for this or that emergency, but he may also by an ordinance
prescribe general and permanent measures. He may institute penalties or
increase those provided by the penal code. He may also establish special
tribunals. It is in effect a dictatorship.
This extraordinary power which has been given him, the President uses to
a very large extent. Germany, it is true, is traversing a particularly
troubled period and it is probable that this is responsible for the
great number of ordinances issued by the President creating states of
siege. There are regions that are almost constantly in a state of siege,
particularly the Ruhr. In 1920 Berlin remained in a state of siege from
January 13th to May 28th.
The modes of applying these high executive powers are extremely variable
and, according to circumstances, the measures prescribed constitute a
menace more or less grave to the rights of the individual. In serious
situations all the authority goes to the Minister of War, who may
exercise them himself or transmit them to his subordinates, and who
is assisted in civil administration by a Commissioner of the Cabinet.
Penalties are enacted; arson, the illegal use of explosives, flooding,
damage done to railways, and resistance to legal officers in the
course of a riot are punishable by death. Extraordinary court-martials
are created and invested with broad authority. The military powers
may even institute court-martials appointed by the commanders of the
troops charged with suppressing the disorders and presided over by an
officer of these troops.[43] In less serious situations the authority
in the territory involved is given over to a commissioner of the civil
government, nominated by the Minister of the Interior. The liberty of
individuals is suspended, but certain guarantees are retained. Prison
sentences and fines are instituted. Between these two extreme types of
state of siege there is a whole gamut of provisions more or less severe;
and almost daily new ordinances appear establishing the state of siege in
this region, sharpening it in another, relaxing here and abolishing it
there. There are territories declared in a state of siege in which this
abnormal situation is not manifested by a single practical restriction;
it is there only a measure of precaution on the part of the government.
But there are others where repressions of a terribly brutal nature take
place.
The only limit that the Constitution has provided to this omnipotence of
the executive power consists in the obligation it places on the President
to acquaint the Reichstag with all the measures he has taken by virtue
of Article 48; and in the right that is given by the Constitution to the
Reichstag to demand that he withdraw these measures. It is because of
such a demand that the Cabinet was compelled on May 28, 1920, to abolish
the then state of siege throughout the whole Reich, except in the Ruhr,
to permit the elections of June 6 to be held under normal conditions.
* * * * *
The parties of the Right, for whom the authority given the President
seems never strong enough, wanted to give him still another power, the
right to prescribe a referendum or to dissolve the Reichstag without a
countersignature of a Minister. The President, they held, would never
be able to secure the countersignature of a Minister to a dissolution
of the Reichstag, or to appeal to the people against the Reichstag,
because ministers depend for their official lives on the confidence
the Reichstag reposes in them. It will be necessary in such a case,
therefore, for the President to form a new ministry to countersign his
ordinance. But if the electors of the nation decide against a President,
he will have to call back to office the former Ministry. Of what use is
this roundabout method?
But Preuss vigorously defended the necessity of the countersignature,
dictated by principles of a republican democracy and of parliamentarism.
He began by reviewing the hypothesis of a referendum. In such a
situation, he said, one of two possibilities occurs. Either the President
and the Minister are in agreement to prescribe a referendum; in which
case would the Minister refuse his countersignature? That would be
contrary to the normal relations which must exist between the President
and his Ministry; especially, too, as a referendum is subject to certain
conditions imposed by the Constitution, and these conditions have to
be observed and some one must take the responsibility in case they
are violated. Or in the other case, the more important, the Ministry
are against the referendum; they are determined not to permit such a
politically important act to be committed against their best judgment. In
such a situation the Ministry will immediately resign and the President,
not being able to remain without a Ministry, would have to form a new
one. Whether or not, therefore, the countersignature of a Minister
to such decrees is required, the situation culminates in a change of
Ministry. But it is more natural that if the President wants to bring
about an act against the political convictions of his Ministry, he will
seek a Cabinet that will accept the responsibility for this act.
The situation is quite analogous in reference to the dissolution of a
Reichstag. If the President dissolves the Reichstag and wants to prevail
over its majority he can no longer retain the Ministry supported by this
majority. Dissolution results from the fact that the President seeks, by
a new election, to change the majority to a minority and the minority to
a majority. He must therefore ask himself this question. What political
combination can I use? Such a calculation must be faced if it is not
permitted the President to prescribe a dissolution of the Reichstag
except with the countersignature of a Minister. The President is not
absolutely subject to the majority; he may attempt, in appealing to the
people, to make another majority of the minority, but in that case he
must take into this minority statesmen who will accept the responsibility
for such an attempt.
The President may, therefore, order the referendum and dissolve the
Reichstag; but these two decisions, like all the others, must be
countersigned by a Minister.
* * * * *
In addition to the powers we have just examined, all of which are
expressly provided by the Constitution, there are others which the
President possesses because they logically follow from even the practice
of a parliamentary régime. Certainly he has the right to demand reports
from Ministers and any information from them on the course of affairs. He
has the right also to be present at sessions of the Cabinet; and while
it is true that he has not the right to vote there, he may come there
whenever he pleases and take the chair.[44]
4.--THE RESPONSIBILITY OF THE PRESIDENT.
Responsibility engenders authority and there is no authority without
responsibility. Whatever powers a Constitution may give its chief of
state, they will rest a dead letter if he cannot personally assume
the responsibility for the exercise of these powers. The President of
the United States, who is thus held responsible, really governs. In
a parliamentary régime the chief of state is not responsible; thence
comes its weakness. But the German Constitution desires at once a
parliamentary régime and a strong presidency. It must therefore seek a
ground for the combination of the two.
(1) _Politically_ the President of the Reich is in theory not
responsible. That is to say, that he cannot be overthrown by vote of
lack of confidence on the part of the Reichstag. All his acts must
be countersigned by a Minister, and it is the latter who takes the
responsibility for them and who alone suffers the consequences.
There is, however, a limit to this political irresponsibility of the
President. If the conflict between the President and the Reichstag is
really irreconcilable he may submit the conflict to the people, who
decide. It is recalled to this effect that, according to Article 42, the
Reichstag by a decision taken by a majority of two-thirds may demand of
the people a vote on the impeachment of the President. If the people
approve, the President ceases his functions; therein operates a kind of
political responsibility of the President.
(2) The President of the Reich is criminally responsible. Two hypotheses
must be considered:
(_a_) The President may have committed some crime for which the ordinary
penal law prescribes punishment. Can he be prosecuted before ordinary
tribunals as an ordinary individual? This question was vigorously debated
before the Committee on the Constitution. It was not desired that the
President should be absolved from all criminal responsibility. But, on
the other hand, it was equally undesirable that he should be placed in
the same status as ordinary citizens, because this would give him a
position less favorable than that which the Constitution grants members
of the Reichstag. It was decided finally that, like the latter, he cannot
be criminally prosecuted during the term of his powers, except with the
authorization of the Reichstag.
(_b_) Or the President may be guilty of a violation of the Constitution
or a law of the Reich. In this case Article 59 provides that he may
be prosecuted by the Reichstag in the Supreme Judicial Court. The
proposal to bring an impeachment must be signed by at least one hundred
members and supported by a two-thirds majority. But it must be specified
here that this is a matter of legal procedure and that therefore this
prosecution can be based only on the violation of a definite provision
of the Constitution or of a law. In the case of a simple political
divergence of opinion between the Reichstag and the President, only the
political responsibility for the matter can be called into the question,
and the one way open to the Reichstag is that of an impeachment approved
by the people.
What penalty can the Supreme Judicial Court pronounce against the
President in case of a verdict of guilty? The Constituent Assembly at
first adopted a provision according to which the Court could simply
declare the President removed, or to declare him incapable of exercising
any public function whatever. Finally, however, it was decided to leave
this question to the law organizing the Court of Justice.
But the situation may arise in which an act committed by the President
constitutes both an infraction of the penal law as well as a violation of
the Constitution. Which shall pass first upon this, the ordinary tribunal
or the Supreme Judicial Court? After long hesitation, the Constituent
Assembly decided to leave this question also to the future law dealing
with the Supreme Judicial Court.
(3) The President is finally _civilly_ responsible for any acts of damage
he may commit. Although he is not really a civil servant, in the actual
sense of the word, he is on this point subject to the same regulations
as the civil servants of the Reich. (The law on the responsibilities of
civil servants, March 22, 1910.)