SECTION II

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.)

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