The German Constitution

II History and Critique of the Constitution of the German Empire

1. The Armed Forces

The propagation of this warlike talent proves in itself that these hosts of armed men are not idle. For centuries, no major war has been waged among the European powers in which German valour has not invariably won honour, if not laurels, and in which rivers of German blood have not been shed.

Despite its populousness, the warlike talents of its people, and the readiness of its rulers to shed their blood, and despite its wealth of resources — both living and inanimate — required for warfare, no land is more unprotected, more incapable of self-defence — let alone conquest. Neither its attempts to defend itself nor even its aspirations to do so are significant or creditable.

It is common knowledge that the armed forces [of the Empire] consist in the military units of the larger and smaller estates. As far as the latter are concerned, these armies, regiments [Heere], contingents, or whatever we choose to call them are usually soldiers who can perform only police functions or parade duties, not warriors who know nothing higher than the fame of the regiment and service to which they belong. The military spirit which lifts the heart of every warrior in a great regiment when he hears the words ‘our army’, this pride in his estate and service [which is] the soul of a fighting force, cannot prosper in the Town Watch of an Imperial City or the personal bodyguard of an abbot. The kind of respect which the uniform of a great regiment arouses for a hitherto unknown individual who wears it cannot be accorded to the uniform of an Imperial City. When the bravest soldier of a small Imperial estate declares ‘I have been in this service for twenty (or thirty) years’, his words evoke a quite different feeling and effect from what they would produce if they came from an officer of a great regiment, because the man’s own self-esteem and the respect which others have for him gross with the size of the whole to which he belongs; he shares in the fame which the latter has accumulated over the centuries.

The insignificance of these sundry little military units as a result of their small numbers is serious enough without being made even more so by ineptitude and other unfavourable circumstances. Very great disadvantages must ensue if the smaller estates recruit their soldiers, and often appoint their officers, only when war breaks out, and consequently send untrained men into the field; if one estate has to supply the drummers and another the drums, etc.; if the merging of contingents from numerous estates leads to incompatibility of weapons, drill, etc., and to unfamiliarity of the troops with their officers; if each estate is actually entitled to provision its forces itself, so that the greatest disorder prevails in the service and — not to mention the unnecessary expense — operations are hindered by superfluous civilians and camp followers. According to legal theory, a detachment of twenty men from different estates may, in fact be served by twenty of their own supply clerks, bakers, etc.. Since the Imperial Register is several centuries old, it no longer reflects the relative size and strength of the estates and consequently gives rise to discontent, complaints, and permanent deficits; it also includes territories whose geographical position can indeed no longer be identified. But these and a hundred other circumstances are so familiar that it is tiresome even to mention them.

Now if the insignificance of the military units of the smaller estates disappears when they come together and coalesce as an Imperial Army, the disadvantages described above, along with innumerable others, render this force less useful in war than any army in the rest of Europe, including even that of Turkey; besides, the very name ‘Imperial Army’ has had other associations of a particularly unfortunate kind. While the names of other armies, including foreign ones, awaken thoughts of valour and formidable strength, the name of the Imperial Army, if mentioned in German company. used rather to brighten every face, to provoke all kinds of witty reactions according to circumstances and the class [of those present], and every-one would dip into his fund of anecdotes on the subject to entertain the others. Those who consider the German nation serious and incapable of comedy have forgotten the farces of the Imperial wars, which were conducted with every possible appearance of gravity but were at bottom genuinely ridiculous.

While the organisation of the Imperial Army, with all its consequences, has not improved in the slightest, an awareness of the misfortune it has generated, and of Germany’s dishonour, has diminished the general predilection for jokes at its expense. It is only because some aspects of its organisation in the last war — for example, the commissariat — were run illegally and unconstitutionally that its troops were of any use at all.

What is even more of a disadvantage than all these specific features of the Imperial Army is that, in point of fact, no such army has ever been assembled; and this is the most tangible proof of Germany’s dissolution into independent states.

According to the theory of the basic laws [of the Empire], the Imperial Army might be a formidable force, but practice, that powerful principle of German constitutional law, tells a very different story. If only too often one sees a vast number of German soldiers in the field, one may assume that they are acting not as an Imperial Army to defend Germany, but rather to inflict internal injuries on it. What is known as the German constitution is not only incapable of preventing such wars, but in fact makes them right and lawful.

The German army is all the more inconsiderable [a force] when it is mobilised for the protection of Germany. For although the fivefold contingents of Brandenburg, Saxony, Hanover, Bavaria, and Hesse are fighting forces in their own right and together make up a formidable army in which the ineptitude of the smaller associated contingents disappears from view, they are dependent on something very different from the laws of Germany, and their contribution to its defence is just as unreliable and fortuitous as the contribution of any foreign power.

The Austrian contingent is an exception, for the Emperor, as monarch of other kingdoms, is obliged to raise its strength far beyond what his estate requires him to do, given the weakness and unreliability of the statutory army. He is consequently also obliged to let Germany enjoy the full range and exercise of his extraterritorial power. But in the case of the other large contingents, the Empire cannot count on their statutory strength, or even on their availability; and even if an estate has supplied its contingent, there is no guarantee that, in the midst of war and at moments of the greatest danger, it will not enter into separate treaties of neutrality or peace with the enemy of the Empire and abandon its beleaguered fellow estates to their own weakness and to the devastating superiority of the enemy.

Despite the fact that the right of the estates, under Imperial law, to form alliances with foreign powers and to choose between foreigners and Germany is limited by the clause ‘in so far as such alliances do not conflict with their duties to the Emperor and Empire’, this clause is in practice rendered ambiguous as a legal principle, or rather eliminated altogether. Not only the actions of the estates, but also their votes in the Imperial Diet, may ensure that they are prevented by their other commitments from participating in the formation of an Imperial contingent or paying contributions towards the war.

This withdrawal of support for the common defence on the part of the more important estates places others in a helpless position, and this in turn compels them to retreat not just from difficulty and danger, but also from their obligations to the whole. It would be wholly unnatural to demand that they should rely on and contribute to a protection which, as all the world knows, protects nothing at all, and which is legally and constitutionally withheld as a result of the right [of the estates] to form alliances. Under these circumstances, it becomes necessary for the weaker to put themselves under the protection of those powerful fellow estates which are on friendly terms with the enemy, thereby diminishing the overall mass of the collective might. In this way, the powerful estates in question profit not only by, a saving of effort, but also by obtaining advantages from the enemy in return for their inactivity. Finally, in weakening the overall mass by the contribution they receive from those whom they compel to accept their protection, they simultaneously derive benefit from the latter in exchange for the protection which they give them.

But even if several large contingents actually amalgamate, their joint effectiveness is prejudiced by the instability of their relationships and the fragility of their alliance. That free disposition of troops which is needed for the successful execution of a military plan is impossible with such bodies, and negotiations rather than orders are required before the plan not just of a campaign, but even of individual operations, can be implemented. Calculations will also inevitably be made as to whether the contingent of one particular

estate is being overused while others are spared, and whether the equality of rights is thereby infringed, Just as there used to be competition, under other political circumstances, for the most dangerous position, and discontent if a unit was not sent into action.

The jealousy of the different corps, which regard themselves as different nations, and the possibility of their withdrawal at the most critical moments — all such circumstances make it inevitable that an Imperial Army cannot generate an effect commensurate with its considerable numbers and military strength.

If the military weakness of Germany is neither a consequence of cowardice, nor of military inadequacy and unfamiliarity with those skills which, in modern times, are no less necessary than courage if victory is to be won, and if at every opportunity the Imperial contingents offer the strongest proofs of their courage and military sacrifice and show themselves worthy of their ancestors and of the ancient military fame of the Germans, then it is the disposition of the whole and its general dissolution which allow the efforts and sacrifices of individuals and corps to go to waste. This lays a curse on them which nullifies all the effects and consequences of their efforts, however great these may be, and puts them on the same level as a farmer who sows the sea or attempts to plough the rocks.

2. Finance

The German political authority is in the same position in financial matters as it is in respect of military power; and since the European states have now more or less abandoned the feudal system, finance has become an essential part of that power which must be under the direct control of the supreme political authority.

One extreme of financial organisation is that whereby all expenditure required for a public office, down to [that of] the most humble village magistrate or constable and below (or for some public necessity which is still confined to a single village), as well as all types of revenue, first flows upwards to the supreme political authority in the form of tax, and then back down again to the smallest branches of public activity in the form of state expenditure, through all the intermediate stages of laws, decrees, settlements of accounts, and public officials, no group of whom is in any sense an ultimate authority. The opposite extreme is Germany’s complete lack of a financial system.

Germany is not plagued by worries over major political issues and problems concerning what kind of taxes, national debt or public credit is fairest, most economical, or least likely to burden one estate more than another; nor is it troubled by other matters which in other states demand the application of the greatest talents, and in which any mistakes have the most terrible consequences. There is in Germany no superfluous interference by the state in any public spending; on the contrary, each village, town, municipal guild, etc. itself takes care of those financial matters which concern it alone, under the general supervision of the state, but not at its behest. Nor is there any financial institution attached to the political authority itself.

The ordinary finances of Germany are in fact confined solely to the cameral taxes [Kammersteuern] which are paid by the estates for the maintenance of the Supreme Court [Kammergericht]. They are accordingly very simple, and no Pitt is required to administer them.

The regular costs of the other supreme court of the Empire are in any case borne by the Emperor. A start has been made in recent times to setting up a fund for this purpose by auctioning fiefs on their reversion to the Empire.

Even with regard to that one financial institution just referred to, the [so-called] Kammerzieler, there are often complaints that payments are inadequate, and the reason why Brandenburg does not pay the increased amount which was approved several years ago throws an interesting light on the German constitution. Brandenburg withholds payment because it is doubtful whether a majority vote is binding on individual parties in such matters as general contributions to the needs of the state. If there is any doubt about this, the one factor which constitutes a state — namely unity with regard to the political authority — is missing.

Under the principles of the feudal system, the contingents are paid and supplied with all their needs by the estates themselves. As already mentioned, pressing needs led several estates to give up exercising this right during the last war, and to negotiate through the Emperor the convenient alternative of a private agreement to establish a joint commissariat. Similarly, smaller estates made no use of their right to send their own soldiers into the field on this occasion, and they came to an arrangement with the larger estates whereby, the latter took responsibility for recruiting the contingent which the smaller estates were supposed to provide. This may be the first hint of a change to a new situation in which the estates are no longer responsible for raising their own contingents and supplying their own needs, but instead make financial contributions to a common centre which then takes over these commitments and sees to it that they are met. This might mark the beginning of a transition from separate, and in a sense personal, services to a genuine state organisation of military, and financial affairs whereby the latter come under the control of the supreme head, by which means alone the concept of a state is realised. But even if this were so, it is plain that this whole situation has affected only minor estates, and that it was the fortuitous product of temporary circumstances.

As for the expenses which are supposed to be collected under the name of ‘Roman Months’ to pay for those aspects of a modern war which are not covered by the sending of troops, the same applies to them as to the sending of contingents. Estimates of these cash contributions to the German Empire for military operations have shown that roughly half of the agreed sums were actually received. In the last months of the war before the Congress of Rastatt was convened, published figures of the cash received showed totals of 300 and 400 guilders [per month]; and although in other states the balance of the supreme war chest is not made public at all especially if it is as small as this — the publication of these figures by the German Empire has had no further effect on the enemy’s operations against those of the Empire in war or peacetime.

The principles which prevail here, whereby the decisions of the majority have no binding force on the minority, and the latter, because of its other commitments, cannot assent to the imposition of Roman Months approved by the majority, are the same as those which apply — to the duties of the estates in relation to the military power.

Although there was in former times a kind of state authority in financial matters in the shape of Imperial customs, taxes paid by Imperial cities, and the like, those times were so far removed from the idea of a state and the concept of a universal [authority] that such receipts were regarded as the exclusive private property of the Emperor and could be sold by him. But what is wholly incomprehensible is that the estates could buy them or mortgage them, in the long run irredeemably, and that even the direct authority of the state could be bought or accepted as security. No clearer sign than this can be found of the barbarity of a people which constitutes a state.

It is nevertheless undeniable that the need to generate finances for Germany has been felt from time to time, and that proposals have been made to establish sources of capital for the Empire as a state. But since the estates could not contemplate setting up this financial authority by laws which required contributions to be made — for this would have produced something akin to a state institution — two things had to be combined: a permanent fund had to be set up for the state, but without imposing a burden on the estates or obligating them in any way. Since this requirement that the estates should neither be [financially] encumbered nor put under any obligation was the overriding consideration, the whole was more of a pious wish than a serious proposition; and with wishes of this kind, a true inner indifference towards the object wished for — or at least a firm determination not to let it cost one anything — tends to hide behind an attitude and demeanour of quite exceptional patriotism. Thus, if the Empire were currently planning to set up a financial institution, and if someone in a company of honest citizens expressed a wish, in the interests of the German Empire, that a mountain of gold might rise up in Germany, and that every ducat minted from it which, on first issue, was not spent on the Empire might at once turn to water, there is no doubt that such a well-wisher would be regarded as the greatest German patriot who ever lived. For the first reaction of those present would be to feel that this would not cost them anything, before it occurred to them that such a wish would not bring one penny into the Imperial treasury; and when this did occur to them, they would find that what had been said was no different from what, despite their own words, they themselves wished for.

Apart from all this, Imperial Diets in the past have not proposed to meet the need for such a fund by drawing on such ideal and purely imaginary sources as these. On the contrary, without any estate having to sacrifice anything of its own, they have suggested that expenditure on Imperial affairs should be paid for out of real and existent territories, just as the hunters [in the story] offered a real bear rather than an imaginary one in payment of their account.

Several hundred years ago, a law was passed specifying that all those territories which had fallen into the hands of other nations should form the basis for an Imperial fund — when, that is, the Empire should recover them; and in those wars in which the opportunity to recover them duly presented itself, the Empire has always managed to ensure that it lost even more, thereby increasing the Imperial fund further. Thus, even the loss of the left bank of the Rhine has its consolations: it may be a way of providing a financial endowment for the Empire.

One may be sure that, if a teacher of German constitutional law were reminded of this woeful lack of finances even now, he would defend the perfection of this very aspect of the German constitution in the manner just described. Even if thoughts of this kind, which were cogent enough in their own day, were still able to awaken any hopes which the German character, ever sanguine in such respects, might place in them in the present political situation of Europe and Germany, they are irrelevant when we consider whether Germany possesses that kind of power which is essential to a state in our times, namely a financial power in point of fact and at the time at which we are speaking.

In the past, when one estate incurred costs on behalf of the state in a war fought not against a foreign power but against a rebellious estate on which an Imperial ban had been imposed, there was a special way of meeting this general expenditure and compensating the estate in question. Thus, if the execution of bans and other decisions of the Imperial courts was actually put into operation which is not always the case — the costs were borne by the losing party, i.e. the party defeated not only in law but also in war. The Imperial army of execution in the Seven Years War received no compensation for its trouble. In past ages, this mode of exacting payment for the costs of execution sometimes provided a powerful incentive to execute a ban, since the party which did so retained the territories of the party on whom the ban was executed, with no need for any additional right or other more detailed consideration.

In this way, the Swiss gained possession of most of the old ancestral properties of the Habsburgs, and Bavaria of Donauworth, etc.

A mass of people which, in view of this dissolution of military power and lack of finances, has not managed to form political authority, is unable to defend its independence against external enemies. It must necessarily see its independence collapse, if not all at once then in gradual stages; it must be exposed in war to all kinds of plundering and devastation, and must inevitably bear the bulk of the cost for friend and foe alike; it must lose its provinces to foreign powers, and since its political authority over its individual members has been destroyed and it has lost its sovereignty over its vassals, it will contain only sovereign states. The mutual relations of these states, as such, will be governed by force and guile, the stronger will expand and the weaker will be devoured, and even the more prominent among them will still be impotent in face of a major power.

3. Territory of the Empire

The territories which the German Empire has lost over the passage of several centuries make up a long and melancholy list. Since the laws of the constitution in general and of the organisation of political authority have lost their validity and afford little or no scope for discussion, the constitutional lawyers must confine themselves to describing the outward appearances [Zeichen], now empty and meaningless, as symbols of the past, and the claims [embodied in them]. On the other hand, these claims evoke that comforting feeling with which an impoverished nobleman cherishes the last reminders of his departed ancestors — a consolation which has the advantage of safety and freedom from disturbance. These [ancestral] portraits cannot raise protests against the present owners of their estates any more than the constitutional claims of the German Empire have ever caused a minister to fear that the latter might contradict him; both the nobleman and the constitutional lawyer can safely abandon themselves to their innocent and harmless amusements.

If the constitutional lawyers still derive pleasure from expounding the Holy Roman (and German) Empire’s claims to Hungary, Poland, Prussia, Naples, etc., it should also be noted that such politically insignificant rights do not pertain to the German Empire as such, but rather to the ‘Roman Imperium’, the ‘Heart of Christendom’ and the ‘Lord of the World’, and that the ‘Roman Emperor’ and ‘King of the Germans’, as his title has it, were essentially distinct. The German Empire could have neither the interest, the will, nor latterly the power to assert what might be considered appropriate to the Emperor’s role as sovereign, and to uphold so unnatural a union of territories which are separated by their geographical position as well as by the individuality of their peoples — especially since it neither would nor could support even those territories which were integral parts of itself.

Even down to recent times, traces have survived of the [Empire’s] connection with the Kingdom of Lombardy; but it cannot be considered an essential part of the German Kingdom proper, especially since it was a kingdom in its own right and also because that recognition as estates of the German Empire which some of its own states had once enjoyed had long since lost its validity. As to those territories which were essential parts of the German Empire and which possessed and exercised the rights of estates within it, almost every Imperial war has ended with the loss of some of them.

This loss in fact assumes two distinct forms. For apart from the actual subjection of German lands to foreign rule and their complete severance from all Imperial rights and duties, it must also be regarded as a loss to the state that so many territories, while retaining all their previous legal and ostensible connections with the Emperor and Empire, at the same time acquired rulers who, though already members — or now becoming members — of the Empire, were also monarchs of independent states. Although this circumstance appears to entail no loss but rather to leave everything as it was, it has nevertheless undermined the basic supports which hold the state together, for it has made the territories in question independent of the state’s authority.

Without reverting to earlier times, we shall now confine ourselves to a brief review of the way in which, from the Peace of Westphalia onwards, Germany’s impotence and inevitable fate found expression in its relations with foreign powers. We can, of course, deal only with its loss of territories in the peace agreements, for the damage done by war is far greater than any account could encompass.

In the Peace of Westphalia the German Empire lost all connection not only with the United Netherlands but also with Switzerland, whose independence had long since been attained in practice, but was now formally recognised. This was a loss not of possessions but of claims, and although it was insignificant in itself, it was important for the German Empire, which has often shown that it values chimerical claims and wholly unreal rights more highly than actual possessions. — Thus, in addition, German), now formally ceded to France the bishoprics of Metz, Toul, and Verdun which it had already lost a century previously. But it was a genuine loss to the Empire when it ceded [to France] the Landgraviate of Alsace — or rather the Austrian part of it — and the Imperial Cm of Besançon to Spain.

While these territories gave up all their associations with Germany, a greater number retained their legal and theoretical dependence [on the Empire]; but since their rulers were also foreign monarchs, the basis was laid for their real separation in practice. Thus, Sweden acquired Western Pomerania and part of Eastern Pomerania, the archbishopric of Bremen, the bishopric of Verden, and the city of Wismar. The Margrave of Brandenburg (Duke and subsequently King of Prussia) gained the archbishopric of Magdeburg and the bishoprics of Halberstadt, Kammin, and Minden.

Even if the ruler of Brandenburg had not also been a sovereign prince, the effect of this reduction in the number of German estates and their fusion into a single mass would not have been very different, for it would still have created a powerful state which could henceforth resist the German Empire and refuse to submit to its authority, which it could not have done if it had been divided up among several states.

Apart from the reduction Just mentioned, several other individual estates such as Schwerin, Ratzeburg, etc. ceased to exist.

Equally destructive for the German state was the fact that under this peace treaty, the German Empire made foreign powers the guarantors of its constitution and internal relations — the same powers which, whether by force or invitation, had interfered in Germany’s affairs , laid waste to it from one end to the other, and more or less dictated the [conditions on peace. It thereby acknowledged its inability, to preserve its constitution and its existence as a state, and surrendered its internal affairs to foreign interests.

Other internal weaknesses [were] the granting of privileges to various countries in the matter of appeals, and also to some extent the permitting of a defendant to choose which Imperial court he wished to appear in (for by delaying his choice, the defendant could delay the legal process even further). More serious than all this was the confirmation of the right whereby not only in religious questions — including those relating entirely to the external and purely secular aspects of religion — but also in other matters concerning the Empire as a whole, a majority vote in the Imperial Diet could not be binding. A further weakness was that the German Empire could no longer redeem its rights of sovereignty which had been mortgaged to the Imperial cities — etc.

In the next peace treaty, namely that of Nijmegen, which was conducted without a delegation from the Empire (although the Empire ratified it, including its clause that no objection to it on the part of the Empire should be accepted), the Empire relinquished its sovereignty over the County of Burgundy; a few pieces of territories in the north of Germany changed their rulers; and in the south, the French rights of occupation in German fortresses were modified.

But apart from its losses in peace treaties, the German Empire exhibits some quite unique phenomena which have rarely arisen in other states: in the midst of peace — namely after the Treaty of Nijmegen had been concluded — ten Imperial cities in Alsace, along with other territories, were lost to France.

The Peace of Ryswick was concluded in the presence of an Imperial delegation, but the latter was excluded from the discussions with the foreign ambassadors; it received information only as the Imperial ambassador saw fit, and was duly asked to endorse the agreement. This peace treaty confirmed the French annexation of the territories referred to, while the Empire in turn gained the Imperial fortress of Kehl; but the treaty contained that celebrated clause concerning the religious situation in the conquered territories returned by France, that clause which gave the Protestant estates so much concern and helped to bring so much misfortune to the Palatinate.

In the negotiations over the Peace of Baden, no Imperial delegation took part, nor did the treaty itself bring any immediate change for the German Empire; Austria regained Breisach and Freiburg.

This is in fact the last peace which the German Empire concluded. Since a tabular survey of Imperial history from the Peace of Baden to the Seven Years War shows neither declarations of war nor peace treaties, one might well believe that Germany enjoyed the profoundest peace throughout this long period; but its soil was actually as much the scene of battles and devastation as ever.

The peace treaties which Sweden made with Hanover, Prussia, Denmark, and Russia after Charles XII’s death not only deprived it of that place among the European powers which its intrepid king had won for it; it also lost its power in Germany. But the power of the German state gained nothing in the process, for the territories which Sweden lost went to German princes, who assumed Sweden’s place as a formidable threat to German unity.

In the Peace of Vienna Germany lost nothing except its link with Lorraine, which was in any case tenuous; but this treaty was never ratified by the Empire.

In the war of the Austrian Succession, Germany was the theatre of prolonged devastation. Its greatest princes were involved in it, the armies of foreign monarchs fought each other on German soil, yet the German Empire was in the depths of peace. Prussia, the power which had taken Sweden’s place, expanded in the course of this war.

Much more disastrous still — especially for northern Germany was the Seven Years War. It is true that the German Empire was itself at war on this occasion (in order to execute an Imperial ban); but its friends did not even do it the honour of recognising that it was at war, or of making peace with it.

Finally, the Peace of LunévilIe has not only deprived Germany of numerous rights of sovereignty in Italy; it has also robbed it of the entire left bank of the Rhine. This in itself has reduced the number of princes in Germany, and has laid the basis for reducing the number of its estates much further still and for making the individual parts all the more formidable [a threat] to the whole and to the smaller estates.

If a country is at war, and half of it is either embroiled in civil conflict, or abandons the collective defence and sacrifices the other half to the enemy by remaining neutral, it must suffer serious damage in the war itself and be dismembered when peace returns. For the strength of a country consists neither in the number of its

inhabitants and troops, nor in its fertility, nor in its size, but solely in the way in which all of this can be used towards the great end of common defence through the rational union of its parts under a single political authority.

4. Jurisdiction

Germany does not in itself constitute a political authority in its military and financial affairs. It must therefore be regarded not as a state, but as a mass of independent states, the larger of which act independently even in foreign relations, whereas the smaller must follow some broader movement. The associations which are formed from time to time to pursue some specific end in the name of the German Empire are always partial, and they are set up as the allies themselves see fit, so that they lack all the benefits which the coalitions of other powers may enjoy. For even if such coalitions are short-lived, and even if in certain cases — as in wars — they do not function with the success and energy which they would have if the same power were completely under the control of a single government, they do sensibly adopt the means and measures most appropriate to the end of the coalition, and everything is subsequently directed towards that end. But the coalitions of the German estates are hampered by such formalities, restrictions, and endless considerations — which they have created for this purpose — that the whole functioning of the coalition is paralysed, and it is made impossible in advance to achieve the end which it has set itself.

The acts of the German Empire as such are never acts of the whole, but only of an association of greater or lesser scope. But the means of attaining what the members of this association propose are not chosen with this end in view; on the contrary, the first and sole concern is to adhere to those conditions which preserve the separateness of the members and ensure that they do not become associates.

Such associations are like a heap of round stones which combine to form a pyramid. But since they are completely round and must remain so without interlocking, as soon as the pyramid begins to approach the end for which it was constructed, they roll apart, or at least offer no resistance [to such movement]. Through an arrangement of this kind, these states lack not only the infinite advantage which any political association possesses, but also the advantage of independence, which would enable them to unite with others for specific common ends. For in this instance, they have tied themselves down in such a way that any union is rendered void, or is already worthless from the outset.

Now despite the fact that the German estates have annulled [aufgehoben] their union in this way and denied themselves the opportunity of uniting in a sensible manner for temporary or immediate ends as need or emergency requires, the demand is still present that Germany should be a state. The following contradiction is set up: relations between the estates are to be determined in such a way that no state either can or does exist, yet Germany is supposed to count without qualification [schlechthin] as a state and likewise wishes to be regarded as a single body. This spirit has for centuries plunged Germany into a series of inconsistencies between its will to render a state impossible and its will to be a state, and placed it unhappily between the estates’ resentment [Eifersucht] of any, kind of subjection to the whole and the impossibility of surviving without this subjection.

The solution to the problem of how it is possible for Germany not to be a state yet [at the same time] to be one is easily found. It lies in the fact that Germany is a state in [the realm of] thought but not in actuality, that formality and reality are separate, so that empty formality belongs to the state, whereas reality belongs to the non-existence of the state.

The system of the state in thought [des Gedankenstaates] is the organisation of a constitution which is powerless in all that is essential to a state. The obligations of each estate to the Emperor and the Empire, to the supreme government which consists in the head [of the Empire] in conjunction with the estates, are defined in the most precise manner in an endless number of solemn acts of constitutional law. These duties and rights make up a system of laws which specify precisely the constitutional relationship of each estate and the compulsory nature of its service, and the contribution of each individual estate to the common weal [das Allgemeine] is to be made only in accordance with these legal determinations. But the nature of this legal system [Gesetzlichkeit] lies in the fact that the constitutional relationship and its associated obligations are not defined by universal laws in the strict sense; on the contrary, the relationship of each estate to the whole is a particular matter — in the same way as In civil rights — which takes the form of a [private] property. This has an essential effect on the nature of the political authority.

An act which emanates from the political authority is a universal act, and by virtue of its true universality, it also bears the rule of its application within itself. What it refers to is universal and identical with itself. The act of the political authority imparts a free and universal determinacy, and its execution is at the same time its application. Since no distinctions can be made in what it applies to, its application must be defined in the act itself, and no refractory or disparate material offers resistance in its application.

If the political authority passes an act to the effect that every hundredth man of a specific age must enlist as a soldier, or that a certain percentage of wealth or a specific tax on every acre of land must be paid, the decree applies to something wholly universal, such as men of a specific age, or wealth, or land, and no distinction is made between some men and others, this or that wealth, and this or that land; the determination [of quantities] applied to a uniform area can be fixed entirely by the political authority. The hundredth man, five per cent, etc. are wholly universal determinations of this kind, and no special measures are needed in order to apply them to the uniform material; for no lines have already been drawn which would first have to be removed or to which those now determined would have to be accommodated, as with the straight line drawn on a tree-trunk to indicate where it is to be cut.

But if the area to which the law is to be applied is [already] determined in multifarious ways from the point of view of the law itself, then the law cannot contain within itself the complete rule of its own application. On the contrary, a distinct application [of the law] is needed for each particular part of the material, and between the law and its execution a distinct act of application intervenes, an act for which the judicial authority is responsible.

An Imperial law cannot therefore furnish a universal rule for [drawing] the requisite lines and divisions as if on a blank sheet, nor execute the actual arrangement [of these] in accordance with one and the same rule of this kind. On the contrary, the material to which an Imperial law applies confronts it with its own determinate characteristics already present, and before the law can be executed, one must first discover to what extent the particular line and shape which each part displays can be reconciled with those prescribed by the law, or how much binding force the universal law has for each part. If contradictions should arise, these questions must be answered by a judicial authority. In the course of such an enquiry, the following conclusions emerge: firstly, while the enquiry is certainly necessary, its organisation is such that it can discover very little; secondly, what it discovers in theory is not subsequently realised, but remains a discovery in thought [alone], and finally, the whole business of the enquiry is rendered well nigh impossible, because the particular determinacy which the material [already] has stands in the same relation to a universal law as a straight line does to the arc of a circle, so that there is already an incompatibility in advance between a law of the political authority and the determinacy of the universal material upon which this authority acts. In this way, the state in thought [der Gedankenstaat] and the system of constitutional law and laws enacted by the state are the straight line, while the area in which the state in thought is to be realised has the shape of a circular line; and everyone knows that the two lines are incommensurable. Nor is it the case that this circular figure renders itself incompatible with the straight line de facto; it does not assume the form of violence, illegality, and arbitrariness. On the contrary, the fact that it is this incommensurable line is likewise elevated to the form of right [Rechtsform]: it acts in accordance with right [rechtlich] despite its incompatibility with political right [Staatsrecht], and it acts legally despite its incompatibility with the laws of the state.

Thus, if the problem of how Germany can simultaneously be a state and not be a state is to be solved, it must, in so far as it is a state, exist only as a state in thought [Gedankenstaat], while its non-existence must possess the reality. Now if the state in thought is to have being for itself, the judicial authority which is to overcome [aufheben] the contradiction and apply to actuality what was merely thought, thereby realising it and making actuality correspond to it, must be so constituted that even its application remains merely a thought. Thus, those universal orders [Ordnungen] which might transform the country into a state would be paralysed in their transition to reality; and although this transition would itself be posited and decreed — for such arrangements have no meaning unless they are meant to be executed — the act of transition would also be turned into a work of thought [Gedankending].

This transition can be paralysed at any one of its stages. A universal ordinance is passed; it is to be put into execution, and in the event of resistance, legal procedures will be instituted. If the resistance offered is not referred to a court of law, the execution in itself remains unimplemented; but if it is referred to a court, a verdict may be delayed; and if a verdict is reached, it may not be complied with. But this judgement in the realm of thought [Gedankending von Beschluss] is supposed to be executed and a penalty imposed, so an order is given to enforce its execution. This order in turn is not executed, so a judgement must follow against those who failed to execute it, in order to compel them to do so. This in turn is not complied with, so a ruling must be given to the effect that punishment shall be carried out on those who fail to carry it out on anyone who fails to carry it out, etc. This is the and history of how one stage after another in the implementation of a law is turned into a work of thought [Gedankending].

Thus, if the judicial authority is to discover how universal obligations towards the Empire are to be rated in comparison with the particular rights of individuals, and if a contradiction between the two is actually referred to a court, it depends on the organisation of that court in its business of pronouncing judgement (irrespective of the subsequent execution of that judgement) whether it does not encounter difficulties in performing even this function and — since the judgement in itself is no more than a thought if it is not executed — whether the arrangement is not such that it does not even get as far as this thought, so that even the latter remains a mere work of thought [Gedankending].

Even with regard to the pronouncement of judgement, the very organisation of the judicial authority is such that the essential aspect with which we are here concerned — namely its function of upholding the universal ordinances of the state qua state against individuals — is subject to the greatest hindrances. In the judiciary of the Empire, the administration of civil justice and that of constitutional law are intermixed. Constitutional law and civil law are subject to the same courts. The Imperial courts are the supreme courts of appeal for civil actions and for constitutional rights. The scope of their judicial authority in the latter area is already limited, because the most important matters of this kind are the responsibility of the Imperial Diet and are in any case often resolved by courts of arbitration; but it Is also subject to endless difficulties even in pronouncing judgement, and is made to depend on a mass of fortuitous circumstances which become necessary conditions of its own ineffectiveness.

This combination of civil and constitutional processes generally has the effect of increasing the volume of business of the existing Imperial courts to such an extent that they are unable to cope with it. It is recognised by the Emperor, the Empire, and the Supreme Court that the Supreme Court is even less equal to the volume of its business than is the Aulic Council.

No evil seems easier to remedy, and nothing simpler to deal with than this. Even without the introduction of several separate courts, the number of judges in the existing courts could be increased. This would simultaneously expedite the conduct of business and allow a single court to be split up into several departments, thereby creating several courts to deal with different areas of business. But it is not possible in Germany to implement so simple a measure as this. It was indeed decided to do so, and the number of assessors in the Supreme Court was increased to fifty; but the German Empire was unable to find the money to pay these [extra] judges. In the course of time their number sank to twelve or even fewer, until it finally rose to twenty-five.

The official statistics show that the annual number of actions pending far exceeds the number of those on which decisions can be given, even if the presentation of a single case sometimes takes only several months (rather than years, as used to happen). It is consequently inevitable, and confirmed by statistical analysis, that many thousands of cases remain undecided, and recourse to petitions remains a necessary evil (even if the worst abuses are a thing of the past, and Jews no longer operate a trade in this item); for since it is impossible for judgements to be delivered on all pending actions, the parties are compelled to make every effort to ensure that their cases are favoured with a court decision.

A thousand other collisions over the nomination of assessors or the itio in partes have often immobilised the Supreme Court for several years; and even if the court did not deliberately delay its own proceedings (on the principle of making the great aware of its power), these factors alone impede the course of justice.

Many of these abuses are not encountered in the Aulic Council, whose members are appointed by the Emperor. For example, no case of itio in partes has arisen, despite the right to request it; and many forms [of the Council’s procedure] are directly conducive to justice [Recht] itself, instead of holding it up with pure formalities. It is therefore natural that, in recent times, people have increasingly looked to the Aulic Council for justice.

The need for judicial reform has always been too obvious to be overlooked. But the consequences of the last attempt by Joseph II to organise a visitation of the Supreme Court — a procedure sanctioned by Imperial law but out of use for two centuries — and the reasons why it was terminated before it completed its business, are in general no different from those which characterise the state of Imperial justice at large. In short, while the estates do associate for the administration of justice, they are unwilling, in this union, to give up anything of their mutually opposed existence, based as it is on separation and lack of solidarity; they form an association, but they lack the will for any common purpose.

In this way, jurisdiction in and for itself, quite apart from the execution of its judgements, is impeded. But everyone knows how matters stand with the execution of such decisions of the Imperial courts if they happen to involve constitutional law or important issues connected with it. The more important concerns of this type are not in any case the responsibility of the Imperial courts, but of the Imperial Diet. They are accordingly passed on directly from the legal sphere to the sphere of politics; for when the supreme political authority speaks, it is not applying the laws, but giving them.

Furthermore, matters of major significance (such as the ownership of territories etc.) have even been exempted from the formal procedures of the Imperial Diet. It is laid down by the Compact of Election and other basic laws that decisions on such matters should not be taken by the Imperial courts and the supreme judicial authority, but by amicable agreement between the contending estates; and if this cannot be done by amicable agreement, it must inevitably be settled by war.

The case of the Jülich-Berg succession was so far from being resolved by legal means that it gave rise to the Thirty Years War.

In the case of the Bavarian succession in more recent times, it was once again cannons and politics rather than the Imperial courts which spoke. Even in cases involving less powerful estates, it is not Imperial justice which pronounces the decisive verdict. It is well known that, in the disputes over the succession in the [ruling] houses of Saxony, 206 decisions were issued by the Aulic Council concerning the territories of the extinct lines of Coburg-Eisenberg and Coburg-Romhild, although the most important points were in fact settled by agreement. We have likewise experienced how, in the Liege dispute, the Supreme Court not only pronounced judgement, ordered its execution, and called on several estates to carry it out; in addition, these estates actually fulfilled their obligation. But no sooner had a start been made than the most powerful estate among the executors became dissatisfied with its role as a mere executor of the Supreme Court’s judgements, and set to work with good intentions of its own; and when the attempt to resolve the matter by, non-legal methods failed, it in turn gave up its role as executor.

In such a delicate situation [as this] where there is a misunderstanding between prince and subject, mediation may be desirable. If, however, after judicial pronouncements have been made, their execution is to be set aside in favour of a further mediation, the whole viewpoint at the stage of development which the case has now reached is shifted, and the essential principle of the constitution is likewise displaced by an influence which seems to offer a momentary benefit; or rather, it becomes apparent on such occasions that this principle has already been displaced long before.

It seems that a distinction must be made here. It is [all] too obvious that the mutual relations between the powerful estates are governed by politics. On the other hand, the lesser estates appear to owe their existence entirely to the constitutional union of the Empire. No Imperial city would consider itself capable of resisting the larger of its neighbouring fellow-estates — no more than a knight of the Empire imagines he can defend his direct dependence on the Emperor against a prince, either on his own or even in association with the rest of the body of knights. The matter speaks for itself, and it is superfluous to quote the fate of the Imperial knights in Franconia. Any attempt, like that of Franz von Sickingen, to conquer an Electoral principality — let alone a successful attempt of this kind — is no longer in the realm of possibility nowadays, just as associations of Imperial cities or abbots can no longer achieve what they could in the past.

Now if it is not the power of the individual estates — nor even their combined power — which preserves them, they appear to owe their existence as relatively independent states and direct subjects of the Empire to nothing other than the Imperial union itself and to the legal constitution established by the prohibition of private warfare [Landfrieden]. But the question still arises of what it is that preserves this so-called legal relationship, and hence the continued existence of the knights, abbeys, Imperial cities, counts, etc. Obviously, it is not their own power which preserves them, for they lack the power of a state; once again, it is politics which does so. If politics is not immediately recognised as the foundation on which the existence of the less powerful estates rests, this is only because reasoning stops at the Imperial union — which is an intermediate link — as the [supposed] foundation, and forgets what it is that supports this union itself.

States like Lucca, Genoa, etc. managed to survive for centuries without an Imperial union, until they experienced the fate of Pisa, Siena, Arezzo, Verona, Bologna, Vicenza, etc., etc. — in short, one could list the whole gazetteer of cities, principalities, counties, etc. of Italy. That apparently more powerful republic [of Venice] which had previously swallowed up so many independent cities was brought to an end by the arrival of an adjutant who merely conveyed an order from the general of a foreign power. Those states which, in the lottery of fate, scored the few winning numbers in the shape of a slightly longer [period of] independence while several hundred sovereign territories in Italy drew blanks, continued to exist only because of the jealous politics of the greater states around them; and although, in earlier centuries, they had been able to engage in conflict with their powerful neighbours, they had meanwhile — without any external loss — become quite disproportionately weak in comparison with them. But the jealousy of politics is also satisfied by an equal sharing of booty and by parity of expansion and contraction, and in the resultant combinations of interests, states like Venice, Poland, etc. were lost.

The change from the right of private warfare [Faustrecht] to politics should not be regarded as a transition from anarchy to constitutionalism. The true principle remains the same, and the change is purely superficial. In the days before the prohibition on private warfare [Landfrieden], the injured party or anyone bent on conquest simply struck out at his enemies. In politics, on the other hand, calculations are made before battle is joined, and major interests are not put at risk for the sake of minor gain; but if this gain seems assured, the opportunity is not missed.

Since the mass of German states does not constitute a power, the independence of its parts can be respected only so long as the advantage of other powers requires it and no higher interests or rights of indemnification etc. are involved. As far as interest is concerned, France, for example, when its armies had occupied half of Germany, abolished [aufgehoben] the independent states and direct Imperial dependencies in the Netherlands, and among those territories on the left bank of the Rhine which were subsequently ceded to France when peace was restored. It could equally well have abolished the constitutions of the territories on the right bank; and even if this destruction of the independence of so many principalities, counties, bishoprics, abbeys, Imperial cities, and baronies could not have endured, the territories in question would still have been plunged into far greater misfortune [than they were already in]. But politics — namely the need to take account of Prussia and fear of rendering peace more difficult prevented France from doing so. It was also deterred by the advantage of having a ready-made system for the collection of contributions, which — according to the official French press — were raised ‘in meagre amounts’ in these territories.

This transition from the state [Zustand] of overt power to that of calculated power was not, of course, accomplished all at once; on the contrary, it was made possible by a legal constitution. [Immediately] after the prohibition on private warfare, it was easier to regard Germany as a state than it is today. Under the feudal constitution, the political authority was split up into numerous parts, but because there were so many of them, no individual parts were powerful enough to oppose the whole. But, as if fate had simply not destined Germany for a condition such as this, it soon overcame its aversion to lawlessness and set aside the attempt to establish a firmer framework through the prohibition of private warfare. It did so by means of the deeper interest of religion, which divided the peoples for all time.

5. Religion

Amidst all the storms of the lawless state in the age of feuds, the whole still retained a certain cohesion, both in the relation of the estates towards one another and in their relation to the universal [interest]. Even if the fulfilment of obligations seemed to depend not only on the free will of the estates in general, but also on the will of individual estates, and even if the legal bond [Zusammenhang] seemed very weak, an inner bond of dispositions [Gemüter] nevertheless prevailed. When there was religious unity, and before the rise of the middle class [Bürgerstand] brought great variety into the whole, princes, counts, and lords could regard one another more readily and more correctly as a whole, and could accordingly act as a whole. There was no political authority [Staatsmacht] opposed to and independent of individuals as there is in modern states; the political authority and the power and free will of individuals were one and the same thing. But these individuals were more disposed to allow themselves and their power to coexist within a [single] state.

But when, with the rise of the Imperial cities, that civic consciousness [bürgerliche Sinn] which cares only for individual interests [ein Einzelnes] without self-sufficiency or regard for the whole began to gain power, this isolation of [individual] dispositions [Gemüter] really required a more universal and positive bond. And when, through the progress of culture [Bildung] and industry, Germany was now confronted with the difficult choice of either deciding to obey a universal [authority] or destroying the union altogether, the original German character, which insists on the free will of the individual and resists subservience to a universal, won the day and determined Germany’s fate in accordance with its old nature.

In the course of time, great numbers of states had taken shape and trade and commercial wealth became dominant. The intractability of the German character was not directly conducive to the development of independent states, and the old free strength of the nobility could not stand up to the rise of the masses; but above all, that civic spirit [Bürgergeist] which was gaining prestige and political significance needed some kind of inner and outer legitimation. The German character seized upon the innermost being [das Innerste] of man, upon religion and conscience, and firmly established the isolation [of individuals] on this basis; the separation of the external realm [des Ausseren] into states seemed merely a consequence of this.

The original, untamed character of the German nation determined the iron necessity of its fate. Within the sphere which this fate has assigned to them, politics, religion, privation [Not], virtue, coercion, reason, cunning, and all the powers that move the human race play out their momentous and seemingly chaotic game on the broad field of conflict that is open to them. Each behaves as an absolutely free and self-sufficient power, unaware of the fact that all of them are instruments in the hands of higher powers — primordial fate and all-conquering time — which laugh at their supposed freedom and self-sufficiency. Even the mighty force of privation has not subdued the German character and its destiny. The universal misery of the wars of religion, especially the Thirty Years War, has rather advanced and reinforced the development of its fate, and its results were a greater and more consolidated separation and isolation.

Religion, far from cutting itself off from the state by its own [internal] division, has in fact introduced this division into the state itself and made the greatest contribution to abolishing [aufzuheben] the state. It has become so interwoven with what is known as the constitution that it is a precondition of constitutional rights.

In the particular states of which Germany is composed, even civil rights are tied to religion. The [two] religions have an equal share in this intolerance, and neither is in a position to reproach the other. Despite the intolerance sanctioned by the laws of the Empire, the rulers of Austria and Brandenburg have rated religious freedom of conscience more highly than this legalised barbarity.

The disruption caused by the religious division was particularly acute in Germany because the political bond was looser here than in any other country. The dominant religion was necessarily all the more embittered at those who abandoned it, not only because the religious division destroyed the innermost bond between human beings, but also because this was in a sense almost the only bond [which united them], whereas in other states numerous other links still held firm. Community of religion is a deeper community, whereas the community of physical needs, property, and income is of a lower order, and the demand for separation is inherently more unnatural than the demand that an existing union should be preserved. Consequently, the Catholic Church showed itself more fanatical, because its demand was in general directed towards union and the most sacred aspect of this union. It was prepared at most to admit grace and tolerance, but not right — i.e. it was not prepared to consolidate the [religious] division as Protestantism insisted. The two parties finally agreed to exclude each other from civil rights, and to surround and reinforce this exclusion with all the pedantry of law [des Rechts].

The outward appearances are the same: civil rights are denied to Protestants in Catholic territories, and to Catholics in Protestant territories. But the basis seems to be different. The Catholics had been in the position of oppressors, and the Protestants of the oppressed. The Catholics had treated the Protestants as criminals, and denied them the free exercise of their religion in their midst; but where the Protestant Church was dominant, this basis was removed, along with the fear of oppression. The basis of Protestant intolerance could only be either the right of retaliation for the hatred and intolerance of the Catholics’ — which would have been too unchristian a motive — or distrust in the power and truth of their own faith, and fear that they might easily be seduced by the splendour of Catholic worship and the zeal of its adherents, etc.

In the last century, in particular, this perpetual fear that the Protestant faith might be outwitted and surreptitiously overrun, this belief — like that of the watchers on Zion — in their own impotence, this fear of the enemy’s cunning prevailed, and became an incentive to fortify the grace of God with untold precautions and legal bulwarks.

This legal position has been asserted with the greatest acrimony whenever it was presented by individuals of the opposite party as a matter of grace. Grace is indeed in one respect inferior to law [Recht], for law is determinate, and whatever is legal has lost its arbitrariness for both parties, whereas grace is purely arbitrary in legal terms. But this clinging to pure legality as such also obscured the higher significance of grace, so that for a long time neither party rose above the law or allowed grace to take precedence over law. What Frederick II did for the Catholics and Joseph [II1 did for the Protestants was grace in contravention of the rights laid down in the Treaties of Prague and Westphalia. It was indeed in keeping with the higher natural rights of freedom of conscience and the non-dependence of civil rights on faith; yet these higher rights are not only not acknowledged in the religious settlement and the Peace of Westphalia, but are actually excluded by them, and their exclusion was guaranteed with the utmost solemnity by, both Protestants and Catholics. From this point of view, these legal guarantees are nothing to boast about; on the contrary, the grace which they reject is infinitely superior.

Religion is an even more important basic determinant of the relationship between the individual parts of Germany and the whole; it has probably contributed most to the destruction of the political union and to legalising this destruction. The era of the religious schism lacked the competence to separate church and state and to preserve the latter despite the separation of the faiths; and the princes could find no better ally in their attempt to withdraw from the supremacy of the Empire than the conscience of their subjects.

The Imperial laws which have gradually developed in consequence have ensured that the religion of every territory and every. Imperial city is legally defined, whether as purely Catholic, purely Protestant, or as a parity of the two. But what would happen if a country were to infringe the Treaty of Westphalia to the extent of transferring from one form of purity to the other, or from parity to purity?

Equally fixed is the religion of the votes in the Imperial Diet, the Supreme Court, the Aulic Council, the individual offices and services, etc. The most important of those political matters which are determined by religion is the famous itio in partes, the right of one or other religious party not to submit to a majority vote. If this right were confined to religious matters, its justice and necessity would be self-evident. The separation [of the religions] would do no direct harm to the state, because it would affect only those issues which have basically nothing to do with the state. But by virtue of the itio in partes, the separation of the minority from the majority is legitimised in all political matters, even if they are unconnected with religion. On [questions of] war and peace, the mobilisation of an Imperial army, or taxation — in short, on all of those few issues which earlier times have left in being as shadows of a [former] whole the majority vote is not legally binding. Even without resorting to politics, a minority, if it forms a religious party, can obstruct the activity of the state.

It is going too far to draw a parallel, as some people do, between this right and that right of rebellion which is sanctified in some of the various constitutions drawn up over the last decade in France. For Germany must be regarded as a state which has already dissolved; and its parts, which do not submit to a majority [decision] of the whole, should be regarded as independent and self-subsistent states whose divergence, if no joint conclusion can be reached, does not invariably lead to the dissolution of all social bonds or to inevitable civil war.

But while religion has completely torn the state apart, it has also given a remarkable intimation of certain principles on which a state can be based. The religious schism divided people from one another in their innermost being, yet there was still supposed to be a bond between them. This bond must therefore be of an external nature, relating to external things such as warfare, etc. — like the bond which is the principle of modern states. The very fact that the most important parts of constitutional law were interwoven with the religious schism has also woven two religions into the state, thus making all political rights dependent on two (or actually three) religions. This is admittedly contrary to the principle of the state’s independence from the church, and to the possibility of there being a state despite the differences of religion; but the principle is in fact recognised, because different religions [really] are present and Germany [really] is supposed to be a state.

Another more important division which is also produced by religion is even more closely linked to the possibility of a state. Originally, votes in general debates and on decisions [of the Imperial bodies] depended entirely on the personal presence of the princes; they had votes only when they appeared in person, and the prince of different and [geographically] separate territories had only one vote. His person and his territory, his personality and his quality as representative of the territory, did not appear as distinct. The distinction arose as a result of the religious schism. On which side was a vote to he cast if the prince and his territory were of different religions, and if the Imperial constitution specified that a vote must be allocated to only one religious party?

As a political power, the prince ought not to have been on either of the two sides, but the times were not yet ripe for this. Besides, no one reflected on such matters initially. The ruler of Protestant Neuburg Palatine, who became a Catholic in the seventeenth century, was included among the Catholic voters both in the Imperial Diet and in the Imperial courts, whereas the vote of the Elector of Saxony, who changed his religion at the end of the same century, remained Protestant (as likewise happened when the rulers of Hesse and Württemberg subsequently changed their religion).

Even before all this, only those princes with a territory and subjects of their own were entitled to a seat and a vote in the Imperial Diet, so that a territory seemed inseparable from the concept of membership of the Diet. But this distinction between the personality of the prince and his representation of a territory — even in relation to the German state in general — became more conspicuous and easier to draw when this separation of prince and subjects had already been introduced in the provincial Diet [Landstande] of that prince’s own territory. The Palatinate, which had no provincial Diet, went over to the Catholic party without resistance, and the struggle of its citizens with their Catholic princes over religious grievances has continued until the most recent times. In Hesse and Würtemberg, on the other hand, the separation [of prince and subjects] had already been legalised by the provincial Diet. The religion of these territories was also defended in the context of their relations with the German Empire, and given precedence over the personality of the prince; the latter accordingly appeared in the Imperial Diet not as an individual, but as a representative.

The attention which was devoted to this distinction occasioned by religion has now been extended to other differences, and territories which have come under a single ruler have passed on their individual votes to him. In this case too, the individual as a unit, i.e. the individual personality, is no longer made into a principle, as occurred in the past when even the ruler of various principalities had only one vote, or when several princes among whom a single principality was divided each had a vote of his own. The principle now is the ruler in his capacity as a representative.

But just as the food which nourishes the healthy body further undermines a sick one, so too has this true and genuine principle that it is the territory which confers the power and the right to vote contributed all the more to the dissolution of the German Empire since it was applied to the situation in Germany.

6. The Power of the Estates

In the course of time, changes in customs, religion, and particularly in the relative wealth of the estates served to disrupt that internal cohesion which relies on character and general interests, so that external legal bonds became necessary to unite Germany into a state once its inhabitants ceased to be one people and became [no more than] a mass.

A theory of such unifying factors is furnished by part of German constitutional law. The old feudal constitution could evolve into that type of modern state on which all those European states which have not undergone a revolution in recent times are more or less modelled — provided that none of the individual vassals was, or could become, excessively powerful. Admittedly, even a mass of weaker vassals can become a power by organising themselves into a solid opposition to the state, as happened in Poland; and the aura which surrounded the [Holy] Roman Emperor could not of itself have given him sufficient power to resist it. But even if the minority in Germany is not bound by the decisions of the majority, this right, based as it is on the itio in partes, is nevertheless subject to certain limits. Besides, the activity of the whole cannot be paralysed by an individual veto, but only by a religious party; and even if an individual estate does not for its part consider itself in any way subject to the majority (as when Prussia, in refusing to pay the increased Kammerzieler, put forward the principle that it had not yet been established whether decisions of the majority were in any way binding in fiscal matters), and even if each estate makes peace or signs treaties of neutrality on its own account, all such rights and relationships are of later date. It was conceivable that, if the Emperor had possessed sufficient political power on the strength of his hereditary territories, and if the individual vassals had not been able to grow to an overwhelming size, Germany’s feudal constitution might have supported the state. It is not the principle of feudalism which has cut off the possibility of Germany becoming a state; on the contrary, the disproportionate expansion of individual estates has destroyed both the principle of feudalism itself and Germany’s continued existence as a state.

The power of these individual estates has not allowed the state to develop a power of its own in Germany, and their expansion has made this increasingly impossible. The German character, with its stubborn insistence on independence, has made a complete formality out of everything which might serve to establish a [central] political power and to unite society in a single state, and it has clung to this formality with equal stubbornness. This stubborn attachment to formality can only be interpreted as a resistance to the reality of [political] union, which is averted by the adoption of this formal character [Wesen], and this immutability of form is passed off as immutability of substance [der Sache].

just as the Roman Emperors, in putting an end to the anarchy of the Roman Republic and reconstituting the realm as a state, kept all the external forms of the Republic intact, so also in Germany though with the opposite end in view — all the symbols of the German political union were conscientiously preserved for centuries, even after the thing itself, the state, had disappeared and dissolved (not indeed into open anarchy, but into many separate states). The constitution in fact seems to have undergone no change at all during the thousand years which have elapsed since the time of Charlemagne, for at his coronation, the newly elected Emperor bears the crown, sceptre and orb of Charlemagne, and even wears his shoes, coat, and jewels. An Emperor of modern times is thus identified with Charlemagne as Emperor to such an extent that he even wears the latter’s own clothes. Even if the Margrave of Brandenburg now has an army Of 200,000 troops, his relationship to the German Empire does not seem to have changed since he had fewer than 2,000 regular soldiers in his pay, for the Brandenburg envoy still presents the Emperor with oats at his coronation, just as he did in the past.

This German superstition regarding purely external forms and ceremony, so ridiculous in the eyes of other nations, does not lack self-awareness. It is a manifestation of the original German character, which clings with unbridled tenacity to its headstrong independence. In the preservation of these forms, the German convinces himself that he can discern the preservation of his constitution. Manifestos and state papers tell exactly the same story.

Mention has already been made of the loss which Germany has suffered at the hands of foreign powers. But for Germany as a state, it must be reckoned as even more of a loss that foreign princes have become the owners of German Imperial territories, and hence also members of the German Empire. Every increase in the power of such a house further detracts from Germany’s constitution, which has remained in being only because the house of Austria (which may be described as the Imperial house) has been made strong enough — not by the German Empire, but by the power of its other territories — to offer some resistance to the principle of complete dissolution. Germany’s constitution does not even have a guarantee against several German territories combining under a single house, in a perfectly legal manner, through inheritance. On the contrary, since the power of the state itself is consistently treated in the legal form of private property, there can be no question of any resistance to a unification of this kind, which is usually, more important in politics than are private and family rights; Naples and Sicily were separated from Spain, and the right of this [Imperial] family to them was recognised in the same way as Tuscany, once it became separate, reverted to the Imperial house.

just as the old Roman Empire was destroyed by northern barbarians, so also did the principle which destroyed the Roman-German Empire come from the north. Denmark, Sweden, England, and above all Prussia are the foreign powers whose position as estates of the Empire simultaneously gave them a centre outside the German Empire and a constitutionally recognised influence in the Empire’s affairs.

In this respect, Denmark played only a temporary and short-lived role in the initial years of the Thirty Years War.

The Peace of Westphalia generally consolidated the principle of what was then called German freedom, namely the dissolution of the Empire into independent states. It reduced the number of such states, [and hence] the only possibility which still remained of the whole predominating over the parts; and by fusing independent states into larger ones, it increased the [degree of] separation. It also granted foreign powers the right to interfere in the internal affairs [of Germany], partly by — granting them territories within the Empire, and partly — by making them guarantors of the constitution.

It has at all times been regarded as [an act of] extreme malevolence if one party in a state which is torn by internal conflict calls on a foreign power for help; and — if there could be any question of punishment when a state is in the process of dissolution — it has even been considered the greatest of crimes. When a state is deeply wounded by civil wars, in the throes of this most terrible of all afflictions and despite the hatred (which surpasses all other hatreds) of such hostile elements, the principle that they ought nevertheless to form a single state still prevails; and even if this union is itself the product of tyranny, the most sacred of human aims — namely the need [Forderung] for union — still remains [valid]. But the parts, which calls on foreign powers to assist it renounces this principle; through its action, it has annulled [aufgehoben] the political union, even if its true and conscious intention is simply to find protection, through this foreign help, against an oppression which it is powerless to resist on its own.

In the Thirty Years War, after Denmark’s attempt to become Germany’s saving genius had failed, and when not just what is known as German constitutional law but all laws in general, without resistance or protest, fell silent before Ferdinand’s armies, the noble Gustavus Adolphus made his appearance, almost against the will of the German estates. His heroic death on the battlefield did not allow him to fulfil his role as saviour of Germany’s political and religious freedom. Gustavus declared in advance that this was his intention; he entered into the most specific treaties with the German princes on the general affairs of the nation, and placed himself at their head in a spirit of free and noble magnanimity; he defeated the armies of oppression , freeing the lands from this burden and from the even heavier burden of the loss of their religious rights; his camp was a church, and he and his army went into battle singing the most fervent hymns. Through his victories, he restored religion and the rights of which the German princes had been deprived. He did not return the reconquered hereditary lands of the Count Palatine; he kept other territories under his control and had other plans in his head which his death did not permit him to realise, and which the subsequent course of the war allowed his chancellor to fulfil only to the extent that, when peace was restored, the foreign power retained Western Pomerania and part of Eastern Pomerania, the archbishopric of Bremen, the bishopric of Verden and the city of Wismar. In theory, these territories remained dependent on the German Empire, but in practice, they were separated from it and its interest, so that, apart from its political influence as a power including its legal influence as a guarantor [of the constitution] Sweden gained a lasting influence, as of right, as a member of the Empire itself.

Human beings are foolish enough to allow their ideal visions of selfless champions of freedom in religion and politics, and the inner warmth of their enthusiasm, to distract them from the truth which resides in power, and so to believe that a work of human justice and dreams of the imagination are secure against the higher justice of nature and truth . But this justice makes use of necessity [not] to compel human beings to accept its authority, in defiance of all their convictions, theories, and inner fervour. This justice, whereby a foreign power which a weak state allows to participate in its internal affairs will also acquire possessions within it, duly expressed itself in the Peace of Westphalia in the case of the Duchy (subsequently the Kingdom) of Prussia: the Prussian Duke received the archbishopric of Magdeburg, and the bishoprics of Halberstadt, Kammin, and Minden. Even if the house of Brandenburg, like the [Swedish] house which now succeeded to the ducal title of Pomerania etc., had not simultaneously been an external foreign power, the reduction in the number of German estates and their amalgamation into a single (albeit domestic) power would still have had the effect of reducing the power of the [Empire in] general, because the previously smaller parts now constituted a power capable of resisting the power of the whole.

Through the peace treaties which it was compelled to make, after the death of Charles XII, with Hanover, Prussia, Denmark, and Russia, Sweden lost that place among the European powers which its valiant king had won for it in so meteoric a fashion, and it likewise lost its power in Germany. But the power of the German state gained nothing in the process, for another centre of resistance to it was already developing ever greater strength. The territories which Sweden lost to Germany neither came directly into the possession of the German Empire to serve as a fund for the Imperial exchequer, nor into that of their own princes, but of princes who were already fellow-members of the Empire and who now in turn became a formidable threat to the unity of the state.

During that profound peace which the German Empire claimed to enjoy while engaged In general warfare, Hanover, which now shared a single ruler with England, played a part which nevertheless remained without further consequence; it had no principle to assert which was directly linked with Germany’s interest. Neither political nor religious freedom had to be defended, and even in later years, Hanover never rose to that degree of influence in Germany which Sweden, and later Prussia, commanded. England’s constitution and all-too-remote interests did not allow it to amalgamate Hanover and hence its relations with Germany — with England’s political relations in the way that had been possible, because of his natural allegiance to his German connection, in the case of the first ruler of Brunswick who ascended the English throne. The divergence of interests between England and the Electorate of Brunswick became most obvious during the Seven Years War, when France was so gratified with its project of conquering America and India through Hanover but realised in the event how little damage the devastation of Hanover did to the English nation. Despite this divergence (and consequently despite the reduced influence of England in Germany), the English monarch remains a member of the German Empire.

In the same war, Germany did not lose Silesia; but that power whose size constitutes the greatest threat to the unity. of the German state became larger still by annexing it, and it retained its hold over it in the Seven Years War to which the conquest of Silesia subsequently gave rise. It is true that, in this war, the German Empire declared war on one of its members; but the latter did not do it the honour of recognising it. It may indeed happen that a state against which war is actually waged is not recognised [by, its adversary]; but the very fact that war is waged against it amounts to recognition, and the state in question is recognised in full when peace is concluded with it. But the enemy of the German Empire scarcely did it the honour of waging war on it, and its war was not recognised in a peace [treaty]; for no peace was concluded with the German Empire.

This war shared with earlier wars the character of being an internal war between German estates. One group of estates sent its troops to join the Imperial army of execution, in keeping with the decisions of the Imperial Diet; another group of estates abstracted completely from this relationship to the German Empire and allied themselves, as sovereign territories, with Prussia. No universal interest was any longer recognised. An old Protestant jealousy of Austria meant that religion became to some extent involved, and this was fostered by the Empress’s known Catholic zeal, which had exposed her otherwise maternal heart to intrigues in which Protestants were oppressed within her states, and by certain other circumstances such as the Pope’s consecration of the Austrian supreme commander’s sword, etc. But the element of animosity which came from this quarter was present on both sides only as a public attitude [Geist]; the war itself was not concerned with more general interests of this kind, but only with the private interests of the warring powers.

Since that time, Prussian power has expanded in Poland. The number of German estates has again been reduced by three, namely Bavaria, Anspach, and Bayreuth. In this respect, the results of the war with France have not yet reached their full development.

Thus, it was partly religion and the progress of culture [Bildung], partly the fact that the Germans were united not so much by the power of an external political bond as by that of their inner character, and partly the absence of any political principle to limit the supremacy of the individual estates, which dissolved the German state by leaving it bereft of political power. The old forms have remained, but the times have changed, and with them manners, religion, wealth, the position of all political and civil estates, and the whole condition of the world and of Germany. The old forms do not express this actual condition; the two are separate, mutually contradictory, and reciprocally devoid of truth.

Germany arose out of the same condition as nearly all other European states and at the same time as they did. France, Spain, England, Denmark and Sweden, Holland, and Hungary each grew into a single state and have continued as such, whereas Poland has ceased to exist. Italy has broken up, and Germany is disintegrating into a mass of independent states.

Most of the above states were founded by Germanic peoples, and their constitutions have developed out of the spirit of these peoples. Among the Germanic peoples, reliance was originally placed on the arm of every free man, and his will was involved in the nation’s deeds. The election of princes, war and peace, and all collective enterprises were decided by the people. Anyone who wished to do so took part in debates in person, whoever did not so wish abstained of his own free will and relied on his common interest with the others.

As manners and way of life changed, each individual became more preoccupied with his own needs and private affairs; the overwhelming majority of free men — the middle class [Bürgerstand] proper — had to look exclusively to its own needs and livelihood; the states became larger, the external circumstances became more complex, and those who had to concern themselves exclusively with the latter became a class [Stand] of their own; the mass of things required by free men and by the nobility, by those who had to maintain themselves in their position [Stand] either by industry or by service to the state, grew larger. Thus, national affairs became increasingly remote from each individual, and responsibility for them therefore became more and more concentrated in a single centre consisting of the monarch and the Estates — i.e. one part of the nation made up of the nobility and clergy on the one hand, who spoke for themselves and in person, and of the third estate on the other, which represented the rest of the people. The monarch looks after national affairs, especially in so far as they concern external relations with other states; he is the centre of political power, and everything which requires legal enforcement emanates from him. The legal power is accordingly in his hands; the Estates have a share in legislation, and they furnish the means which sustain g his power.

This system of representation is the system of all modern European states. It did not exist in the forests of Germania, but it did emerge from them; it marks an epoch in world history. The continuum [Zusammenhang] of world culture [Bildung] has led the human race from oriental despotism to a republic which ruled the world and then, through the decay of this republic, to the present mean between the two extremes; and the Germans are the people from whom this universal shape [Gestalt] of the world spirit was born.

This system did not exist in the forests of Germania, for each nation must first have gone through its own phases of culture [Kultur] independently before it intervenes in the universal world continuum; and the principle which elevates it to universal dominion does not arise until its own distinct principle is applied to the rest of the unstable world system [Weltwesen]. Thus, the freedom of the Germanic peoples necessarily became a feudal system when they overran the rest of the world with their conquests.

Among themselves, in their relations with one another and with the whole, the fief-holders remained what they were before, namely free people; but they acquired subjects, and in doing so, they also entered into a relationship of duty towards the individual whom, without any such relationship, they had freely followed or placed at their head. These contradictory attributes of the free man and the vassal can be reconciled inasmuch as the fiefs were not fiefs of the prince in person, but of the Empire. The individual’s connection with the whole people now takes on the form of duty, and his possession of a fief and authority is not dependent on the arbitrary, will of the prince, but is legal and proper to himself and hence hereditary. If, in despotisms, the title of a hospodar can have a kind of inherited status, even this has an arbitrary character. or if a hereditary authority of this kind is associated with a distinct and relatively independent state like Tunis, etc., this state is liable to pay tribute and, unlike fief-holders, it has no share in collective deliberations. In such deliberations, the vassal’s personal and representative capacities are combined; as a representative, he acts on behalf of his territory; he is its man, and he stands at the head of its interest with which he is personally identified. Besides, the vassal’s own followers, apart from being subjects, have in many states also become citizens; or the individual free men who have not become barons have united into citizens’ assemblies [Bürgerschaften], and this middle class [Bürgerstand] has acquired a further representation of its own.

In Germany, that portion of the middle class which has representation in its own right within the universal state does not also have the status of a subject, and those who are subjects are not separately, represented within it; but they are represented through their princes, and they again have representation in relation to their princes within the frontiers of the particular state which they constitute.

Along with its territorial sovereignty, the upper and lower nobility in England lost some of its function of representing a section of the people; but this does not mean that its significance within the state has become entirely personal. The peer with a seat and a vote in the national parliament is, by virtue of primogeniture, the representative of his great family; but the Chancellor of the Exchequer, the younger son of the Earl of Chatham, is simply Mr Pitt. Unless he is the eldest son, a nobleman must surmount the same hurdles as all commoners face at the start of their careers, and the path to the highest honours through talent, character, and education is no less open to the commoner than to the son of a duke. Similarly, in the Austrian monarchy, it is part of social convention to address every well-dressed man as Herr von; the way to the highest military and political offices is open to everyone, and whoever attains them is elevated to the nobility, and treated as its equal (except in those circumstances which, as in England, entail a [right of parliamentary] representation).

[The causes of] France’s misfortune must be sought entirely, in the complete degeneration of the feudal system and the consequent loss of its true character. When the Estates General ceased to meet, the higher and lower nobility no longer appeared in that character in which its main strength within the political organisation consists, namely its representative function. Conversely, its personal character was developed to an extreme and provocative extent.

From youth upwards, the nobility is exempted by wealth from the sordidness of business and the rigours of deprivation. This, and its inherited carefree attitude, untroubled by affairs, have enabled it to maintain a free state of mind, so that it is more capable of that warlike courage which sacrifices all possessions, all cherished property and habits, in favour of limitation and adaptation to the whole existing order. It is likewise better equipped to deal with state business in a more liberal manner, and is more capable, in such contexts, of a certain freedom which is less dependent on rules and which — according to circumstances, situation and need — can show a greater self-confidence and impart greater freedom and vitality to the mechanical aspects of administration. Thus, if the nobility is at a personal advantage in all states, it must also be freer, and therefore open to possible competition, because its qualities are personal. For the organisation of our states, which is artificial, labour-intensive, and exceptionally demanding in terms of effort, in any case requires the assiduous application and laboriously acquired skills and knowledge of the middle class. Given the previous rise of this class [dieses Standes] and its increased importance in recent times, the way must remain open to the knowledge and skills through which it transcends its [original] character.

This process whereby the difference [between nobility and commoners] is diminished by nature and by most modern states — in Prussia, for example, to some extent in civil affairs, but in England, Austria, and other states in military aspects too — has been taken to an extreme in France. There, judicial positions and a military career are open to h them [i.e. members of the middle class], and the purely personal has been made into a principle.

Representation is so intimately bound up with the essence of the feudal constitution in its further development, in conjunction with the rise of a middle class, that it may be classed as the silliest of illusions to regard it as an invention of very recent times. All modern states exist through representation, and only its degeneration, i.e. the loss of its true nature, has destroyed France’s constitution (though not France as a state). It came [originally] from Ger many, but it is a higher law that any people from which the world receives a new and universal impulse Must itself finally perish before all the others, while its principle — though not the people itself survives.

7. The Independence of the Estates

Germany, has not developed for itself the principle which it gave to the world, nor managed to sustain itself by it. It has not organised itself by this principle; on the contrary, it has disorganised itself, in that it did not develop the feudal constitution into a political power, but sought at all costs to remain true to its original character whereby the individual is independent of the universal, i.e. the state. It has disintegrated into a mass of states whose mode of subsistence is fixed by solemn mutual treaties and guaranteed by major powers. But this mode of subsistence is not based on their own power and strength; it is dependent on the politics of the major powers.

What true guarantee remains for the existence of these individual states?

Since they lack a true political power, this guarantee can be based only on the venerability of those rights in and for themselves rights which, over a period of centuries, have been elevated by a multitude of solemn peace treaties to the point where they cannot possibly be infringed. Indeed, it is common practice to treat the mode of political subsistence of the individual states as a moral power, and to impress its sanctity on people’s minds [Gemüter] so that it becomes something as fixed and inviolable as the universal manners or religion of a people.

But we have often seen the most violent attacks on religion and manners themselves, backed by orders and authority, even in the most recent times in France; and even if such highly dangerous experiments usually lead to the downfall of their instigators — or at least produce only a very, ambiguous effect — even religion and manners are exposed to the influences of changing times and to imperceptible change.

But apart from this, manners and religion are of a quite different order from constitutional rights. When we say that nothing can be more sacred than right, then as far as private right is concerned, even grace is superior, because it can relinquish its rights. The right of the state is also superior, for if the state is to survive, it cannot allow private right to prevail in its full force;” for even the taxes which it must impose are a suspension [Aufheben] of the right of property. And if political rights were to have the force of private rights, they would involve a kind of internal contradiction; for they would imply that those who had firm and reciprocal political rights of this kind stood in a legal relationship under a higher instance which exercised power and authority. But if this were the case, the reciprocal rights in question would no longer be political rights, but private rights or rights of property.

The German Empire is supposed to furnish the basis for a relationship of this kind. But on the one hand, it is already a contradiction in and for itself if not only property, but relationships which directly involve the state, are to have the form of private rights; and on the other hand, since no political power exists any longer in Germany, political rights can no longer be treated as private rights and no longer have the same security and stability as the latter, but fall into the category of political rights in general.

We already know what venerability these political rights have in and for themselves. Every peace treaty — and peace treaties are the true contracts on which the reciprocal political rights of the powers are based — contains the central article that friendship shall prevail between the contracting powers. Apart from this article, it contains a definition of their other relations, especially those which previously gave rise to conflict. Although the central article expresses in general terms the need to preserve a good understanding, it is clear in itself that this is not to be taken in an absolute [unbedingt] sense.

The Turkish Empire seems to conduct its relations with foreign powers almost in the spirit [Sinn] of being generally at peace with them until it is itself attacked, and the politics of the rest of Europe have only rarely succeeded in embroiling it in a political war. Otherwise, the relations between states are so many-sided, and each individual strand of these relations as defined in a peace treaty has in turn so many aspects, that however precisely they are defined, infinite other aspects remain over which conflict is still possible. No power attacks a stipulated right directly and openly. Rather, differences arise over some undefined aspect and then destroy the peace altogether; through the effects of war, they subsequently undermine the foundations of the other defined rights as well.

This suspension [Aufhebung] of mutual political rights occurs only as a result of war. The treaties and the relations defined in them might well remain in being; they are not directly infringed or attacked outright with open force, for treaties are not to be trifled with. But if a conflict arises over other points and circumstances which have not been clearly resolved, everything else which had previously been settled by treaty collapses.

Wars, Whether they are described as wars of aggression or as wars of defence (and the parties can never agree over such designations) could be called unjust only if the terms of the [previous] peace treaty stipulated an unconditional peace between the parties; and even if we do use such expressions as ‘perpetual peace’ and ‘eternal friendship between the powers’, they should be understood as subject to the essential qualification ‘until one party attacks or acts in a hostile way [towards the other]’. For no state can be obliged to let itself be attacked or treated in a hostile manner without defending itself, and at the same time to keep the peace.

But the potential modes of hostility are so infinite that the human understanding cannot possibly define them [all], and the more definitions there are, i.e. the more rights are established, the more easily a contradiction can arise between such rights. If one party pursues a right conceded to him as far as the concession allows, he will come into conflict with some other right enjoyed by the other party. One need only look at the reciprocal manifestos and political documents which, in the event of a disagreement between two states, contain accusations concerning the other power’s behaviour and justifications of the accuser’s own!

Each party bases its own behaviour on rights and accuses the other of infringing a right. The right of state A has been infringed by state B in respect of right a which state A enjoys, but state B maintains that it asserted its own right b and that this cannot be interpreted as an infringement of the right of A. The public takes sides, each party claims it has right on its side, and both parties are right; for it is precisely the rights themselves which come into contradiction with each other.

It is the philanthropists and moralists who decry politics as an attempt and artifice to pursue one’s own advantage at the expense of right, as a system and work of injustice . And the carping, indifferent public — i.e. that uninterested, unpatriotic mass whose ideal of virtue is the peace of the alehouse — accuses politics of questionable faith and lack of justice and stability; and if they do at least take an interest in it, they are for that very reason distrustful of the legal form [Rechtsform] which the interests of their state assume. If these interests coincide with their own, they will duly defend the legal form; but their own interests rather than the legal form are their true inner motive.

If the philanthropic friends of right and morality did have an interest, they might realise that interests, and hence also rights themselves, can come into collision, and that it is foolish to set up a dichotomy between right and the interest of the state (or, to use a morally more repugnant expression, the advantage [Nutzen] of the state).

Right is the advantage of a particular state, specified and acknowledged by treaties; and since, in treaties in general, the different interests of states are specified, despite the fact that these interests, as rights, are infinitely complex, these interests — and hence also the rights themselves — must come into contradiction with each other. It depends entirely on circumstances, on the combinations of power — i.e. on the judgement of politics — whether an endangered interest or right will be defended with all the force a power can muster, in which case the other party can also, of course, adduce a right of its own, since it has itself exactly the opposite interest which collides with the first, and hence also a right. Thus, war or some other means must now decide — not which of the rights asserted by the two parties is the genuine right (for both parties have a genuine right), but which right should give way to the other. War or some other means must decide the issue, precisely because both contradictory rights are equally true; hence a third factor — i.e. war — must make them unequal so that they can be reconciled, and this occurs when one gives way to the other.

The venerability and moral power of rights may last and hold firm, but how could these qualities possibly preserve the rights themselves? Because of the indeterminacy of rights, conflict may arise, and because of their determinacy, contradictions between them must arise, and in the resultant dispute, right must assert itself through its power.

It makes no sense that what are called ‘the rights of the German estates’ should subsist as a moral power by virtue of their inherent venerability, although — given the contradiction mentioned above no power is or can be available to uphold them throughout their whole multifarious range. The result would be a situation in which true anarchy — not just passive but active anarchy — prevailed, like the genuine ancient right of private warfare [Faustrecht] which, in the constant disputes over such confused ownership, gave temporary possession to the stronger arm and sustained it therein until the arm of its adversary grew stronger.

This situation was remedied, however, by the prohibition on private warfare [Landfriede]. This prohibition inaugurated a state of peace among the smaller estates, which is sustained by their impotence in relation to the larger ones. As for the more powerful estates, it has already been noted that the ownership of the Jüllch-Cleve inheritance gave rise to the Thirty Years War, and the issue was no more resolved by courts of law than were others such as the Bavarian succession. But apart from this, the number of contentious issues which have led to wars would appear very small in comparison with the infinity of contentious issues which must have arisen from the infinite complexity of rights, and which have been settled peacefully — or rather, left in abeyance. It is well known that the German nobility is embroiled in countless and interminable lawsuits, and that proceedings instituted one or more centuries ago are still pending; in addition, an infinite number of claims — that is, rights which have not been fulfilled — lie buried in the archives of every prince, count, Imperial city, and nobleman. If all these rights were suddenly given a voice, what a confused and endless clamour would result!

Claims are undecided rights. Remission is imposed on them not by judicial decision — for they have not been decided — but by fear of the law [des Rechts] (for a claim is always preferable to a right denied, a possible lawsuit preferable to a lost one), and by fear of those with greater power who, if an open feud takes place in their neighbourhood, must, on the basis of the more general legality [Rechtsgrund] of modern times, take sides in order to secure their territory and its frontiers; and in this case, those with less power, whether this intervention [of their more powerful neighbours] was directed against them or designed to benefit them, would gain no advantage. Consequently, feuds have come to an end, the prohibition on private warfare [Landfriede] has restored peace — i.e. it has silenced the contradiction of rights, but not resolved it — and the party which happens to be in current possession continues to enjoy the legally disputed object (beati possidentes!) even if no legal title to it has been established. Thus, what preserves a certain measure of peace in Germany is not a condition — like that of a state — in which possession is determined by right. On the contrary, given the astonishing differences in the power of the estates, their guarantee is fear and politics, not the venerability of the actual rights on which they depend, nor any inner power which these might possess.

Given this lack of political power [Staatsmacht] in Germany and it is a necessary lack, as has been shown, because the object of such a power, namely the permanent preservation of rights, would be impossible to attain — it is conceivable that the mass of isolated estates, since they are still in the old situation of collaborating towards a universal end when and in so far as the individual estates wish to do so, might revert to their old behaviour. That is, even if they are not already members of a lasting and established union, they might freely come together in times of danger or emergency and thereby constitute a state and a political power [Staatsmacht] out of their separate powers in order to meet the current need, both in their internal affairs ( 1 if their rights were attacked) and in their external relations (if they were attacked collectively or through one of their particular members).

One specific instance of this kind was [prompted by] the attacks on the Protestant religion in former times, in which the [common] objective did not arise out of the ambition [of the princes] — which was quite indifferent to their subjects — but from the innermost interests of the common people. No other objective could have united the princes and their peoples so unanimously, so freely and with such enthusiasm, to the extent that their other rivalries were forgotten. All other objectives have less impact on the peoples themselves, for other disputed interests may spring to mind again and assert themselves alongside them.

We know, however, what an ignominious end befell the Smalkaldic League. The whole League was full of vain and petty aspirations, and was so immersed in smug complacency with regard to itself and its noble work — even before it had done anything — that it disintegrated at the first assaults. Yet even here, some members of the League behaved courageously and actually ventured into battle, whereas the Protestant Union of the following century advertised its own complete inanity in advance by the inanities in which it indulged when it first arose, and this quality was fully revealed as soon as it had work to do.

The so-called League of Princes opposed to Joseph II, whose behaviour appeared dangerous to many estates, may be regarded as the only other example of an internal association of this kind. The idea of this League made a splendid impression, as much because of the prince who led it as of the prince against whom it was directed, and also because popular opinion was much engaged by numerous writers on both sides, some of whom were talented. The public voice seemed to have some kind of significance here; if Frederick II was surrounded by the glory of his deeds, these deeds belonged to the past, and their result — Silesia in Prussian hands, state control and religious and civil laws in the Prussian territories was already present; and if nothing more could be expected for the rest of Germany from this direction (and indeed nothing further emerged from it), all the more interest was aroused by the hope that an all-embracing new German century was about to dawn. But there is nothing further to remark concerning the League of German Princes except that it caught the attention of public opinion and aroused many hopes and anxieties. Since it neither acted nor expressed itself, nothing further can be said of its essential character. Brandenburg’s independence of the German Empire was established long before, and the possibility that this would have increased or diminished if the League of Princes had been put into operation is something on which there is nothing to be said.

As for free alliances against external powers, these took the place of Imperial wars in the proper sense whenever Germany was not torn by, internal conflict but defended itself against an external enemy (Müller, P. 70; alliance with William of Orange against Louis XIV; League of Augsburg, 1686). What the princes and estates did was rather the free will of individual circles of associates than the legal and universally binding resolution of a body politic. Brandenburg still appears in association with the Empire, but not on account of its obligations towards the latter; it acts independently, and its chief end is the Prussian crown.

The wars of this century were internal wars.

In the course of the last war against France, at the moment when danger threatened for Germany, rather more of a common will for the defence of Germany did seem to be developing. Nearly all the German states took part in it, but one cannot identify any single moment at which all of them collaborated simultaneously. On the contrary, the most powerful of them distanced themselves from it for most of the time.

In the Peace of Westphalia, the old independence of the parts of Germany was consolidated — albeit in completely changed circumstances — and Germany was thereby prevented from becoming a modern state with a political power [Staatsmacht]. Subsequent experience has taught us that the spirit of the age which followed has changed completely, for each individual part has acted for the whole only of its own free will and by agreement; even in the direst emergencies in which interests of the most pressing concern to all parts are involved, no common and united action is to be expected.

In the Peace of Westphalia, Germany’s statelessness became organised. Writers like Hippolytus a Lapide have expressed the inner character and tendency of the nation in precise [bestimmt] terms. In the Peace of Westphalia, Germany gave up the task of establishing itself as a secure political power [Staatsmacht] and abandoned itself to the good will of its members.

One may, if one wishes, regard this confidence with which the common weal of Germany was entrusted to the free will of its parts as an effect of that spirit of integrity of which the German nation is so proud. It sounds admirable if, on the one hand, the power of the state [Staatsmacht] is dissolved and placed in the hands of the individual estates [der Einzelnen], while on the other hand, there is a demand — and with it an expectation — that these individuals will co-operate freely. The German estates which concluded the Peace of Westphalia would have considered themselves offended by lack of trust if anyone had mentioned to them the possibility that, after this division [of powers], they might disregard the best interests of the whole, and that each [estate] could and would act for its own interest, even if this interest did not coincide with the general interest but ran counter to it. The general context, the obligations of the individuals towards the whole, and the best interests of the latter were most solemnly acknowledged and secured, and at every disagreement on such matters — even if it erupted into the most terrible wars — each of the two parties justified itself legally by detailed manifestos and [legal] deductions.

By these means, the matter is transferred from the sphere of will and particular [eigenen] interest to the sphere of insight, and, given a general will to act in the best interests of the whole, it would be up to the understanding to discover the mode of action most conducive to the general good; and if this were determined by the majority, the minority would necessarily have to follow suit. But this is not the case, nor can it be so, not only because no political power [Staatsmacht] is present, but also because the individual [estate] has the right to form alliances, make peace, etc. according to its own insight with regard to the general good. If, in the event of disunity and war, someone — of necessity a private individual, for a minister cannot adopt this course — were honestly to believe that the reason for the war was simply a lack of general insight into whether something was in keeping with the good of Germany, and cherished the hope of creating unanimity by acting upon this conviction, the only effect he would produce would be to make himself ridiculous through his good nature. He should try instead to promote the insight that a mode of action which ought to be general is also in keeping with the particular interest of every individual.

It is a widely acknowledged and familiar principle that this particular interest is the main consideration. It cannot be held to contradict rights, duties, or morality; on the contrary, each individual estate, as a particular state, must not sacrifice itself to a universal from which it can expect no help, whereas the prince of a specific territory or the magistrate of an Imperial city is invested with the sacred duty of caring for his land and his subjects.

8. The Formation of National States

It was the Peace of Westphalia which secured this independent status for the parts [of Germany]. On their own, they would not have been capable of attaining it; on the contrary, their alliance had disintegrated, and both in politics and religion, they themselves and their territories were in the despotic hands of Ferdinand, with no possibility of resistance.

Gustavus Adolphus’s campaign might itself be placed in exactly the same class as the campaigns of his successor Charles XII — not with regard to his own person, for he died at the height of his fortune, but with regard to his nation. In both cases, the Swedish power would have failed completely in Germany if Richelieu’s politics, continued in the same direction by Mazarin, had not adopted and sustained its cause.

Richelieu was accorded the rare good fortune of being considered its greatest benefactor both by the state of whose greatness he laid the true foundation and by that at whose expense this was done.

Both France as a state and Germany as a state had within them the same two principles of dissolution. In the one, Richelieu destroyed these principles completely and thereby raised it to be one of the most powerful states; but in the other, he gave these principles free rein and thereby annulled [aufhob] its continued existence as a state. In both countries he brought the principle on which they were inherently grounded to complete maturity; the principle of monarchy in France, and in Germany the principle of forming a mass of distinct states. Both principles still had to struggle against their opposites; but Richelieu succeeded in guiding both countries to their fixed and mutually opposed systems.

The two principles which prevented France from becoming a single state in the form of a monarchy were the great nobles and the Huguenots; both engaged in wars with the kings.

The great nobles, who included members of the royal family, intrigued with armies against the minister [of the crown]. It is true that the sovereignty of the monarch had long been treated as sacrosanct and elevated above all claims, and the great nobles did not lead armies into the field to claim sovereignty for themselves, but to become the foremost subjects of the monarchs — as ministers, provincial governors, etc. Richelieu’s achievement in subjecting them to the political authority in its immediate forms of expression, i.e. to the ministry, has at first glance the appearance of ambition. Those who had been his enemies seem to have fallen victim to his ambition; in their rebellions and conspiracies, they protested their innocence and their dutiful dedication to their sovereign — no doubt with complete veracity — and regarded their armed opposition to the minister in person as neither a civil nor a political crime. But they were defeated not by Richelieu as a person, but by his genius, which linked his person to the necessary principle of the unity of the state and made political offices dependent on the state. And this is what constitutes political genius, i.e. the identification of the individual with a principle; given this association, the individual must necessarily triumph. In terms of ministerial achievement, Richelieu’s success in conferring unity on the executive power of the state is infinitely superior to the achievement of adding a further province to a country, or of rescuing it in some other way from adversity.

The other principle which threatened the dissolution of the state was the Huguenots, whom Richelieu suppressed as a political party; his measures against them should by no means be regarded as a suppression of freedom of conscience. They had their own armies, fortified cities, alliances with foreign powers, etc. and accordingly constituted a kind of sovereign state. In contrast to them, the great nobles had formed the League, which had brought the French state to the edge of the abyss. Both opposing parties were an armed fanaticism beyond the reach of the political authority. In destroying the Huguenot state, Richelieu simultaneously destroyed the rights of the League, and he then disposed of its lawless [rechtlosen] and unprincipled legacy, the insubordination of the great nobles. But while he eradicated the Huguenot state, he left the Huguenots their freedom of conscience, their churches, worship, and civil and political rights, on an equal footing with the Catholics. Through his consistent statesmanship, he discovered and practised that toleration which was implemented more than a century, later as the product of a more cultivated humanity and as the most splendid achievement of philosophy and more refined manners; and it was not ignorance or fanaticism on the part of the French when, in the [Thirty Years] War and in the Peace of Westphalia, they gave no thought to the separation of church and state in Germany, made religion the basis of a distinction between political and civil rights, and applied in Germany a principle which they abolished [aufhoben] in their own country.

Thus France, as well as England, Spain, and the other European countries, succeeded in pacifying and uniting those elements which fermented within them and threatened to destroy the state; and through the freedom of the feudal system which Germany [Germania] taught them, they managed to create a centre which is freely determined by laws and in which all powers are concentrated (Irrespective of whether it assumes a truly monarchic form or that of a modern republic, which nevertheless also comes under the principle of limited monarchy, i.e. a monarchy based on laws). From this epoch in which the [European] countries developed into states, we can date the period of the power and wealth of the state and of the free and lawful welfare of individuals.

Conversely, the fate of Italy has run the same course as that of Germany, except that Italy, since it had already attained a greater degree of culture, brought its fate sooner to that level of development which Germany is now approaching in full.

The Roman-German Emperors long claimed over Italy a supremacy which, as in Germany, usually had only so much force

or indeed any force at all — if it was backed up by the personal power of the Emperor. The Emperors’ urge to keep both countries under their rule destroyed their power in both.

In Italy, every point of the country acquired sovereignty. It ceased to be one state and became a host of independent states monarchies, aristocracies, democracies, just as chance dictated; and the degeneration of these constitutions into tyranny, oligarchy, and ochlocracy even made its appearance for a time. The condition of Italy cannot be called anarchy, for the mass of opposing parties were organised states. Despite the lack of a proper association of states, a large proportion of them always united in joint resistance to the head of the Empire, while the rest united to make common cause with him. The parties of Guelphs and Ghibellines, which at one time extended to Germany as well as Italy, reappeared in the eighteenth century in Germany as the Austrian and Prussian parties (with modifications derived from the changed circumstances).

It was not long after the individual parts of Italy had dissolved the former state and risen to independence that they aroused a desire for conquest on the part of larger powers and became the theatre of wars between foreign powers. The small states, which measured themselves against a power over a thousand times greater than their own, met the inevitable fate of their own downfall, and et at this fate is accompanied by an awareness of the necessity and guilt which pygmies bring upon themselves when they square up to giants and are trampled underfoot. Even the larger Italian states, which had grown by devouring a mass of smaller states, continued to vegetate, without strength or true independence, as counters in the schemes of foreign powers. They survived a little longer by their skill and astuteness in abasing themselves at the right moment, and in avoiding total subjection by constantly accepting semi-subjection, although they did not escape the former in the long run.

What became of the mass of independent states — Pisa, Siena, Arezzo, Ferrara, Milan, and those hundreds of states which included every city among them? Or of the families of the many sovereign dukes, margraves, etc., the princely houses of Bentivoglia, Sforza, Gonzaga, Pico, Urbino, etc., and the innumerable minor noblemen? The independent states were swallowed up by larger ones, and these in turn by larger ones still, and so on. One of the greatest, namely Venice, was finished off in our own times by a letter from a French general, delivered by an adjutant. The most illustrious princely houses no longer have sovereignty, nor even political or representative significance. The noblest families have become courtiers.

In that unfortunate period when Italy hastened towards its ruin and was the battlefield in those wars which foreign princes fought over its territories, it both furnished the resources for the wars and was itself the prize of victory. It entrusted its own defence to assassination, poison, and treason, or to hordes of foreign rabble whom their paymasters always found costly and destructive, and often formidable and dangerous; and some of whose leaders rose to the rank of princes. Germans, Spaniards, French, and Swiss plundered the country, and foreign cabinets decided the fate of the nation. Deeply conscious of this state of universal misery, hatred, upheaval, and blindness, an Italian statesman,” with cool deliberation, grasped the necessary idea of saving Italy by uniting it into a single state. With rigorous logic, he mapped out the way forward which both the country’s salvation and the corruption and blind folly of the age made necessary, and appealed in the following words to his prince to assume the exalted role of saviour of Italy and to earn the fame of bringing its misfortune to an end:

I have maintained that the Israelites had to be enslaved in Egypt before the ability of Moses could be displayed, the Persians had to be oppressed by the Medes before Cyrus’s greatness of spirit could be revealed, and the Athenians in disarray before the magnificent qualities of Theseus could be demonstrated.” Likewise, in order for the valour and worth of an Italian spirit to be recognised, Italy had to be reduced to the desperate straits in which it now finds itself.. more enslaved than the Hebrews, more oppressed than the Persians, more scattered than the Athenians, without an acknowledged leader, and without order or stability, beaten, despoiled, lacerated, overrun, in short, utterly devastated. And although recently a spark was revealed in one man that might have led one to think that he was ordained by God to achieve her redemption, yet it was seen that he was struck down by misfortune at the highest point of his career. Thus, remaining almost lifeless, Italy is waiting for someone to heal her wounds, and put an end to the ravaging of Lombardy, to the extortions in the Kingdom of Naples and Tuscany, and to cure the sores that have been festering for so long [...] This is a very righteous cause: ‘iustum enim est bellum quibus necessarium, et pia arma ubi nulla nisi in armis spes est’ [...] Everything points to your future greatness. But you must play your part, for God does not want to do everything, in order not to deprive us of our freedom and the glory that belongs to us [...] have no doubt at all that he would be received with great affection in all those regions that have been inundated by the foreign invasions, as well as with a great thirst for revenge, with resolute fidelity, with devotion and with tears of gratitude. What gate would be closed to him? What people would fail to obey him? What envious hostility would work against him? What Italian would deny him homage?

It is evident that a man who speaks with such true gravity was neither base-hearted nor frivolous-minded. As for the first of these qualities, the very name of Machiavelli carries with it the guarantee of disapproval in public opinion, in which Machiavellian principles and obnoxious principles are synonymous. The idea that a state should be constituted by a people has for so long been obscured by the senseless clamour for so-called ‘liberty’ that the entire misery which Germany suffered in the Seven Years War and in the recent war with France, along with all the advances of reason and the experience of the French obsession with liberty, has perhaps not been enough to establish as an article of faith among peoples or as a principle of political science the truth that freedom is possible only when a people is legally united within a state.

Even Machiavelli’s basic aim of raising Italy to statehood is misconstrued by those who are short-sighted enough to regard his work as no more than a foundation for tyranny or a golden mirror for an ambitious oppressor. But even if his aim is acknowledged, it is alleged that his means are abhorrent, and this gives morality ample scope to trot out its platitudes that the end does not justify the means, etc. But there can be no question here of any choice of means: gangrenous limbs cannot be cured by lavender-water, and a situation in which poison and assassination have become common weapons permits no half-measures. Life which is close to decay can be reorganised only by the most drastic means.

It is quite senseless to treat the exposition of an idea directly derived from observation of the Italian predicament as a compendium of moral and political principles applicable indiscriminately to all situations — i.e. to none at all. One must study the history of the centuries before Machiavelli and of Italy during his times, and then read The Prince in the light of these impressions, and it will appear not only as justified, but as a distinguished and truthful conception produced by a genuinely political mind of the highest and noblest sentiments.

It may not be superfluous to say something on a matter which is commonly overlooked, namely the other genuinely idealistic demands which Machiavelli makes of an excellent prince, and which have probably never been fulfilled by any prince since his times (not even by the one who refuted him). But what are described as the abhorrent means advocated by Machiavelli must be viewed from a different angle. Italy was supposed to become a state, and this was recognised as a principle even at a time when the Emperor was still regarded as the supreme feudal lord. Machiavelli starts from this general premise; this is his demand and the principle which he opposes to the misery of his country. From this point of view, his procedure in The Prince appears in a very different light. What would indeed be abhorrent if done by one private individual to another, or by one state to another (or to a private individual), is now [seen to be] a just punishment. The promotion of anarchy is the ultimate — or perhaps the only — crime against the state; for all crimes which the state has to deal with tend in this direction. Those who attack the state itself directly, not indirectly like other criminals, are the worst offenders, and the state has no higher duty than to preserve itself and to destroy the power of such offenders in the surest way it can. The state’s performance of this supreme duty is no longer a means, but a punishment; and if punishment is itself a means, then every punishment of every criminal would have to be classed as abhorrent, and every state would be in the position of using abhorrent means, such as death and lengthy imprisonment, for its own preservation.

Cato the Younger of Rome enjoys the privilege of being invoked by every libertarian agitator. He was the greatest supporter of the plan to make Pompey the sole ruler, not out of friendship for Pompey but because he considered anarchy to be the greater evil; and he killed himself not because what the Romans then still called freedom (i.e. anarchy) had disappeared — for the party of Pompey, of which Cato was a member, was merely a different party from that of Caesar — but because of his stubborn character which would not submit to his despised and hated enemy. His death was a party matter.

The man whom Machiavelli had hoped to see as the saviour of Italy was by all accounts the Duke of Valentinois, a prince who, with the help of his uncle and through his bravery and all kinds of deception, had constructed a state out of the principalities of the Dukes of Ursino, Colonna, Urbino, etc. and the domains of the Roman barons. Even if we discount all the deeds which mere rumours and the hatred of their enemies have imputed to him and his uncle, their memory as human beings is blemished in the eyes of posterity (if posterity should presume to pass such moral judgements); and the Duke and his uncle have perished, though their work remains. It was they who obtained a state for the papal throne, a state whose existence Julius II knew very well how to exploit and to render formidable, and which is still extant today.

Machiavelli ascribes the fall of Cesare Borgia not just to political mistakes, but also to the accident which consigned him to his sickbed at that most critical moment when Alexander died. But we should rather see in his fall a higher necessity which did not allow him to enjoy the fruits of his deeds or to make them the foundation of an increased power; for nature, as his vices indicate, seems to have destined him rather for ephemeral glory and a purely instrumental role in the founding of a state, and a large part of the power to which he rose was based not on any internal or even external natural right, but was grafted on to the alien branch of his uncle’s spiritual dignity.

Machiavelli’s work remains a major testimony to his age, and to his own belief that the fate of a people which rapidly approaches political destruction can be averted by a genius. In view of the misunderstanding and hatred which The Prince has encountered, it is a noteworthy feature of this work’s peculiar fate that, as if by instinct, a future monarch” whose entire life and deeds were the clearest expression of the German state’s dissolution into independent states made this same Machiavelli the subject of an academic exercise.” He opposed him with moral lessons whose hollowness he himself demonstrated both through his own behaviour and quite explicitly in his literary works; for example, in the preface to his history of the first Silesian War, he declares that treaties between states cease to be binding when they no longer serve a state’s best interests.

But apart from this, the more astute public, which could not fall to notice the genius of Machiavelli’s works yet was too morally inclined to approve of his principles, nevertheless wished, in a well-meaning way, to rescue him [from his detractors]. It accordingly resolved the contradiction honourably and subtly enough by maintaining that Machiavelli was not serious in what he said, and that his entire work was a subtle and ironic persiflage. One can only compliment this irony-seeking public on its ingenuity.

Machiavelli’s voice has died away without effect.

9. The Politics of the Two Great German Powers

Germany shares the fate which Italy once experienced: it has been the theatre of civil wars for many centuries. But it has also been a theatre for the wars of foreign powers; it has been plundered, robbed, vilified, and despised by friends, and it has usually lost territory when peace was restored. It suffered this fate much later than Italy. Sweden was actually the first foreign power to gnaw significantly at its entrails and to help to demolish the previous unstable system of [political] association. From that time onwards, foreign powers decided Germany’s lot. Even before then, it had ceased to inspire any fear abroad. Thenceforth, it ceased to settle its own internal affairs independently and to decide its own course, it has handed over its destiny to others.

But Germany’s fate differs essentially from that of Italy in that the states into which Italy had split up were long able, in view of the world situation in general, to assert themselves even against much greater powers, and their disproportion in size had not yet rendered their power equally disproportionate. On the contrary, just as Greece was capable not only of resisting the Persians but also of conquering them, so was a city like Milan able in former times to defy the power of Frederick” and to hold out against it; and later still, Venice stood firm against the League of Cambrai. But the possibility of small states resisting large ones has now completely vanished; and the sovereignty of the German states developed mainly at a time when this possibility no longer existed.

Consequently, the German states have not exchanged association for complete separation, but have entered at once into associations of a different kind. The mass [of Germany] has not split up into numerous pieces and then remained fragmented for a time, instead, new centres have formed within the mass, and the parts which broke away from the whole gathered round them to form new masses.

Religion and independent statehood were at one time the interests and focal points round which the German estates rallied, and which together shaped their political system. But those focal points have now vanished. Religion has not only been preserved; the spirit of the times has placed it beyond all danger. Similarly, the estates have now acquired their independence. But alongside the Austrian power, whose claims as a universal monarchy used to give rise to anxiety, the Prussian monarchy has developed. Strong enough in itself, it held its own in the Seven Years War against the power not only of the Austrian monarchy, but of several others too, and since then it has expanded even further in Poland and Franconia.

By virtue of this power, Prussia has ceased to share in the common interest in preserving independence, and it cannot consequently be regarded any longer as the natural centre for those estates which wish to preserve theirs. It may wish to ally itself with other estates; in this respect, it does not depend on the support of the German princes, but can look after itself on its own. Its partnership with the German estates is therefore an unequal one, for it has less need of this partnership than they do, and the benefits [which flow from it] must also be unequal. Prussia itself may [now] give cause for anxiety.

In the last war, four political systems could be discerned in Germany: firstly the Austrian one, secondly, the Imperial one, [thirdly,] the neutral one, and fourthly, the Prussian one.

Austria has had no immediate support, except perhaps from a few lesser princes such as the Bishop of Brixen, who lives in the midst of the Austrian states. As the Imperial house, Austria demands the support and collective co-operation of the German estates, and all the less powerful estates which can preserve some degree of independence only if a German Empire continues to exist — especially those in the south of Germany — have maintained their allegiance to the Imperial system; these include above all the ecclesiastical estates and the Imperial cities.

The third system is chiefly that of Bavaria, Baden, and Saxony, which — without any political association with Austria, Prussia, or the Empire — have acted in accordance with their own particular interest as regards war or peace or neutrality.

The fourth system includes those estates of northern Germany which, through the mediation of Prussia, concluded a treaty of neutrality with France and placed themselves under the protection of Prussia, which undertook to guarantee the peace of northern Germany.

After Prussia had concluded peace with France, several northern states associated themselves with this peace treaty, and, terrified by France’s military success in the campaign of 1794, more than half of Germany Joined in this neutrality. When the French advanced as far as Bavaria in 1796, the city of Nuremberg wished not only to associate itself with this neutrality, but to turn itself into a town wholly under Prussian jurisdiction. Nuremberg was occupied by Prussian troops after Prussia, on the strength of old claims, had declared itself owner of part of its territory a few years earlier and duly taken it over; it likewise abolished [aufhob] the direct dependence on the Empire of many Imperial knights in Franconia. For these reasons, neither Nuremberg nor the knights could obtain any help from the German Empire.

The estates of northern Germany did not undertake to guarantee their neutrality themselves by means of the regional associations usually employed [for this purpose], and Prussia is not one of the [ordinary] members of this confederation, but its head and guarantor; the estates contribute to the costs of the Demarcation Commission. But there is no standing federal council in permanent session; instead, it has assembled only at certain times to discuss and determine the regulation and continued use of these measures and the contributions towards their cost.

But the true political position of the estates came fully to light at the end of 1800 when the estates in question, which were not assembled, formed the intention of holding a new assembly. Prussia refused to permit this assembly and debate on the ground that, as the guarantor of Peace in the north, it was its responsibility to judge which measures were necessary for this purpose.

When the northern coalition against England’s claims concerning neutral shipping seemed to be moving towards war with England, one of the principal members of the league whose neutrality was guaranteed, namely Hanover, was occupied, along with other Imperial cities, by Prussia. It had to disband its own troops and assume responsibility for the maintenance of the Prussian corps. The peace was ratified by the estates of the German Empire, but Prussia promptly had its own independent ratification of the peace announced officially in Paris.

The whole history of the war, the split between the north and south of Germany, the separate conventions of neutrality and peace which the north concluded while the south languished in the most relentless misery and hence found itself totally abandoned by the north, make it clear not only that Germany is split up into independent states, but also that their interests are completely separate; and while the political bond is as loose as it was in the Middle Ages, no free unification can now be expected. When Germany was deprived of the territories on the left bank of the Rhine, and when half of it was overrun and plundered by the enemy, the most powerful of all interests” offered no help, either voluntarily or within the terms of its association with the Empire. The other estates had broken off all collaboration, and by having its neutrality guaranteed by a foreign prince, one group of them thereby also surrendered its right to collaborate or to join in future collaboration with the estates at large, and even its ability to discuss such matters with the other estates.

When war broke out once again, Sweden did in fact publicly offer to send its contingent. But it was reported that Prussia had refused to allow it transit through the line of neutrality. Not only in this war, Brandenburg accordingly divorced its interest entirely from that of the German Empire and led other estates to do likewise. It then put them in a position in which it could compel them, legally and by its power as their guarantor, to remain divorced from the Empire. It also deprived the Franconian knights of their direct dependence on the Empire and the Imperial city of Nuremberg of part of its territory, and accepted the complete surrender of the magistrates’ powers to the occupying forces in that city’s hour of need. It subsequently occupied and disarmed Hanover, with which it was allied for the peace and security of northern Germany, and imposed on it a requisition to maintain the occupying troops. All these circumstances have made clear what had long been the case,

namely that Prussia should not be regarded as a German Imperial principality on the same footing as the other estates, nor as an estate capable of accepting the same conditions as other estates within an association, but as a powerful sovereign state in its own right.

Generally speaking, the last [war] has brought more truth into international relations. In so far as the relationship between states is one of power, illusions on this score have vanished, and this relationship has been brought to light and endorsed everywhere; the weaker states have been made to recognise that they cannot claim equal status with the stronger ones. Even if a republic such as Geneva behaved like a sovereign state and prided itself on being the first, euxeto, to send an ambassador to the French Republic and to recognise it formally, its relationship with France quickly assumed a different character as soon as it was taken seriously; on the other hand, Bonaparte presented a few cannons to the Republic of San Marino, because in this case, there was no connection which could become a serious issue, but simply an occasion for high-sounding words concerning respect for republics.

The Republic of Geneva has vanished, whereas the independence, peace, and — so to speak — the neutrality of the Batavian, Helvetian, Cisalpine, and Ligurian Republics are guaranteed by strong garrisons.

Such are the relations which link more powerful states with weaker ones according to their true differences in strength.

The relations between Austria and Germany date back to ancient times, and they would necessarily take a very different course if Austria gave up the Imperial crown and, purely as a major sovereign power, subsequently entered into treaties involving mutual protection and guarantees (especially if there were a risk that hard times lay ahead). In this respect, Austria is at a serious disadvantage in comparison with Prussia, for although Austria has old relationships, Brandenburg does not need to enter into any specific relationships in peacetime, while in wartime, it can impose conditions on the hard-pressed and weak who turn to it for help. Since everything is subject to calculation nowadays, these conditions can be made ten per cent less [stringent] than those which are feared from the enemy; or, since the enemy is altogether such an indefinite quantity that everything is to be feared from him, any definite condition whatsoever will seem less [stringent] than the indefinite conditions to be feared from that quarter. In this case, at least the extent of one’s loss is known, and this is in itself a major consolation.

It used to be popularly supposed in the Rhineland that, if one part of a state lay within the line of demarcation and the other lay outside it and was liable to pay public and private contributions to the French, and if the provincial assemblies of both parts were supposed to act together for the joint settlement of their liabilities, the part which was under French rule refused to accept parity and equal shares because it expected to lose in the process. This popular opinion may be without foundation; but it does at least give us a general indication of the people’s judgement.

[Thus, Brandenburg enjoys the advantage of] either having the more powerful states as its friends or, since it has no other alliances or protective relationships, of treating them as enemies. It can even suspend [aufheben] a treaty of guarantee immediately, because this is merely a specific and individual matter, like any other political treaty, and it is in the nature of political treaties that its suspension does not constitute perfidy — as this war in particular has taught us, when so many treaties have been suspended, renewed, and suspended once again. Austria’s links with the estates, on the other hand, do [not] seem to be in the same class as ordinary political treaties; on the contrary, whenever it has entered into an ordinary relationship with an Imperial estate, as Prussia can, all the estates feel thereby attacked. With Prussia this seems natural, just as it does with France, etc.

Through its power and its display of the latter in the cases referred to above, Prussia has ceased to be on the same level as the other estates. The latter can find a pure interest in their political independence only among themselves, and in this respect a joint association, a true federation of estates, is conceivable. But it is also no more than conceivable, for some of the estates are themselves so disparate in terms of power that they are not capable of any true and equal association.

An abbey, Imperial city, or such nobility as is directly dependent on the Empire may have less fear of falling victim to the Austrian monarchy’s expansionist ambitions than to those of a lesser power. Although the Prussian power is a major monarchy, it is closer to the level of less powerful estates with regard to this capacity for arousing anxiety among small estates and for exploiting minor advantages. For its political art, like that of France, is entirely calculating, and since its military power was [always] disproportionate to its size, it was compelled to seek the sum of small advantages — just as the French Republic consistently acted in accordance with general principles, used all its power to follow these down to the smallest details, and subordinated all particular rights and relationships to the principles in question. One might also say that Prussia’s recent policy has not been based on the royal principle of majesty, but on that of the middle class [Bürgerlichkeit]; its relation to the power of Austria, for example, is like that of a [middle-class] citizen who has laboriously accumulated his assets penny by penny to a free nobleman with inherited wealth whose property is based on his land and remains the same, even if he allows his servants or neighbours latitude in minor matters. His wealth is not a sum — which would be diminished by individual withdrawals — but a permanent and invariable asset.

The lesser estates, whose anxieties over their independence must be greatest, can only rely on associating themselves with a power whose politics and magnanimity give it the will and capacity to guarantee their survival. We have accordingly seen how the ecclesiastical princes, abbots, and Imperial cities have always associated themselves with the Emperor and observed their obligations towards him and the German Empire with the greatest loyalty.

Even if the more powerful Imperial estates wished to form an alliance amongst themselves and devised a method for preventing such a coalition from sharing the fate of all coalitions, and even if the combined strength of their troops formed a power capable of resisting a single great power, they would never be in the position of having to worry about one power only, for this one power would necessarily fear the intervention of other powers against it; but against a consortium of several powers, a coalition would be ineffectual, both because of its inferior military power and because of the scattered geographical position of its members. This position has been shaped along similar lines to that of the territory of great empires. In military respects, it is inherently extremely weak, and since the coalition would be a new development, the states taking part in it would also not be rich enough to surround themselves with rings of fortresses.

The politics of this coalition would have to tie it to this or that greater power according to circumstances, and its fate would be the common fate of a weaker ally or a weak enemy.

The fate of the German estates lies directly between the politics of two great powers. These two powers are now equal inasmuch as their relationship with Germany is primarily a political one — more so in the case of Prussia than in that of Austria, because the latter carries with it the Imperial crown and has consequently been hampered since ancient times by the pressure of an infinite number of rights.

The remaining interests in which the powers formerly differed have now balanced out. It was through this difference of interests that Prussia became great, by allying itself with — or placing itself at the head of — those interests which were opposed to the house of Austria. But time itself has both overcome [aufgehoben] the division of interest between Austria and a large part of Germany, and separated Prussia’s interest from that of the German estates.

One major interest in whose defence Prussia took a leading part was religion.

The German estates themselves (especially Saxony and Hesse in earlier times) and foreign powers (Sweden and France) had formerly defended this interest against the Emperor, and Prussia at that time played no part at all — or, as Brandenburg, only a subordinate part. In the Seven Years War, this interest was still apparent, not so much on the part of the opposing powers as in popular opinion, and it did not fail to have an effect. A kind of distrust still remained, and even if the Protestants did not find themselves attacked as such, they still feared this possibility. They still attributed to the house of Austria the will [to mount such an attack] if it were in a position to do so; as well as the utmost bigotry and the influence of a new and indulgent Pope, of the Jesuits, and of priests in general; and they saw in Prussia the guarantor and — if the worst came to the worst — the saviour of their freedom of faith and conscience.

The politics of the Jesuits, petty and fanatical in its aims, has long ceased to be the politics of the courts. Especially’ since Joseph II’s time, the Protestants have had no need for anxiety on this score. Joseph II’s policy was not just the sudden inspiration of a single monarch, which can die away — again on his demise; on the contrary.,

these principles have not only been preserved by his successors, but have also been absorbed as a whole into the fixed body of culture [Bildung] and political principles in general.

The predicament of the Protestants in the Palatinate, as the one remaining relic which ran counter to the principles of our age, was subsequently an object of special interest to the Protestant party among the princes of the Empire; but even this has now been rectified. The spirit of the times, the mode of operation of governments, now fixed and based on principles, has dramatically reduced the importance of the corpus evangelicorum, and hence also of its supreme head.

The obsession of the Catholic estates with ensuring the supremacy of the Catholic religion has now disappeared, and with it the nefarious means which were formerly employed to induce princes of the German Empire to convert to Catholicism, thereby arousing such an astonishing degree of fear and anxiety among Protestants. The Catholic side no longer places any value on such means, for even on its own account, the state has managed to separate itself from the church, and experience has also shown that such means have produced more ill effects in the shape of mistrust and increased obstinacy than any actual benefit. It was not long before the person of the prince was separated from his country in the context of religion. Even if the prince became a Catholic, the relationship of his country to the Imperial Diet remained Protestant. Indeed, if the prince converted to Catholicism, he lost power within his Protestant country, not only through the mistrust which his conversion generated, but also because he was deprived, by his undertakings [Reversa lien] to respect his subjects’ rights, etc., of the influence which a Protestant prince has over the ecclesiastical affairs of his country. He is thereby placed in the position of a Catholic prince of a Catholic country, in which the church is completely independent of the secular power with regard to its property, appointments to offices, and other arrangements, whereas the Protestant prince of a Protestant country is both head of the church and bishop. Furthermore, princely houses which were formerly Catholic have reverted [to Protestantism] in recent times.

Such means [as described above] are no longer employed on the Catholic side: the Jesuit order has been abolished, tolerance has been introduced even in the Catholic countries, and the Protestants have been granted civil rights, despite the ungenerous provisions of the Peace of Westphalia. Consequently, the long lists which constitutional lawyers used to draw up of Protestant princes who went over to Catholicism, the detailed accounts of Jesuit villainy, and the descriptions of the oppression and tribulations of Protestants in Catholic countries have become objects of history devoted to things of the past, rather than nightmares for the present.

With powerful foreign support, the Protestants have long been free from the fear of seeing their faith suppressed by force, while they have never in any case thirsted greatly for the martyr’s crown. And the fact that systematic proselytising is no longer practised by any court has also freed them to some extent from their previous mortal fear that they might be cunningly deprived of their faith and surreptitiously robbed of their conscience. The passage of time has in itself given them greater confidence and certainty that they are in possession of the truth. It is a long time since we last heard reports of the Imperial Diet regarding a Catholic confessor as a power to be reckoned with, and presenting demands to the Emperor on this score.

Although freelance writers in Berlin have sought to reawaken this mortal terror among Protestants by making a fearful clamour about suspected Jesuits, this kind of thing is no longer a matter for cabinets or debates in the Imperial Diet. On the contrary, it looks like plain stupidity, or else the outburst of an extremely blinkered attitude or a disagreement between different branches of Freemasonry.

Another concern was to rescue what used to be called ‘German freedom’ from what was described as ‘universal monarchy’ or subsequently even ‘the oriental system’.

Since the attention of the whole of Europe has been focused for the last ten years on a people’s tremendous struggle for freedom, and all Europe has been in general agitation as a result, it is inevitable that concepts of freedom have undergone a change and been refined beyond their earlier emptiness and indeterminacy. German freedom used to mean simply the independence of the estates from the Emperor. The alternatives were either slavery and despotism, or the abolition of the political union; no third possibility was known in earlier times.

The Spanish and Austrian monarchies have not been combined since the time of Charles V, and the two have been in the hands of quite different families for the last century. Austria has lost large provinces, France and England have risen to the same level of power, and Prussia and Russia have developed; Austria has long ceased to be a monarchy without equal in Europe. A system of the balance of power in Europe has taken shape, i.e. a system whereby, in the event of war, all European powers will usually have an interest at stake and each of them (either on its own or simply in proportion to the advantages it has gained) will be prevented from reaping the fruits of even the most fortunate war. Even in their own right, wars have changed so greatly in character that the conquest of a few islands or of a province costs many years of effort and enormous sums of money, etc.

The idea of a universal monarchy has always been an empty word. The fact that it was never implemented when the plan for it was first laid shows that it is impossible to do so, and that it is therefore an empty thought; but in any case, there can no longer be any question of it in more recent times.

Nevertheless, Austria remains predominant in Germany, i.e. more powerful than any single German estate and more powerful than many of them combined. But Prussia has now likewise attained this status. As a danger to the German estates, Austria and Prussia are on the same level. What used to be called German freedom should be on its guard against them both.

10. Freedom of Citizens and Estates

As for those two principles whose adoption made it possible for a state to attain great influence in Germany — the threat to Protestantism and the fear of a universal monarchy — the former no longer exists; and as for the second — the quest for expansion at the cost of the German estates — Austria and Prussia are at least on a par, if Austria does not in fact still have certain advantages.

It is evident, however, that ten years of struggle and the misery of a large portion of Europe have taught us enough — at least in terms of concepts — to make us more impervious to the blind clamour for freedom. In this bloody game, that cloud of freedom which nations sought to embrace, only to plunge into an abyss of misery, has evaporated, and certain figures [bestimmte Gestalten] and concepts have found their way into public opinion. The clamour for freedom will have no effect; anarchy has been distinguished from freedom, and the realisation that a firm government is necessary for freedom has made a deep impression; but an equally deep impression has been made by the realisation that the people must take part in the making of laws and in the most important affairs of the state. In the organisation of a body which represents it, the people has a guarantee that the government will act in accordance with the laws, and [it can observe in this body] the participation of the general will in the most important matters of general concern. This body has to give the monarch its approval for a proportion of national taxation, especially for extraordinary taxes; and just as in former times the most essential issue, namely personal service, depended on free agreement, the same is true now of money, which comprehends all other factors.

Without such a representative body, freedom is no longer conceivable. All other indeterminate notions and all the empty clamour for freedom disappear when freedom is so defined. This is not something which individuals come to know as a scientific concept through learning or as the result of arbitrary study. This definition is rather a principle which underlies public opinion, and which has become part of sound common sense. Most German states have representation of this kind, and the provincial assemblies of Austria, Bohemia, and Hungary have freely made extraordinary payments to their monarchs for the war with France.

It is more natural for the interest of this German freedom to seek protection from a state which is itself based on this system of freedom. The interests which used to be dominant in Germany have to some extent disappeared. Prussia can consequently no longer associate itself with them, and public opinion can no longer regard any war involving Prussia as a war for German freedom. The true, lasting interest [of the German estates], which has become particularly acute in our time, can find no protection from Prussia. The Prussian provincial assemblies have lost their significance under the pressure of royal power. A new and artificial system of taxation has been introduced in the Prussian territories, and it has also been enforced in the recently acquired territories which used to have privileges and taxes governed by ancient rights and traditions.

The German subjects of Prussia cannot expect help either from the Emperor or from the Imperial courts of justice against this burden of taxes in the Prussian states and against the suppression of their privileges.

Apart from the less powerful estates like the Imperial cities etc., the provincial assemblies of the German territories have a natural interest in looking to the Emperor’s court and expecting to find support there for what the world now understands as German freedom — not least because the Emperor’s hereditary domains are themselves a state which is based on representation and in which the people has rights, and especially because of the legal help which the Aulic Council can offer.

This kind of freedom has, of course, had to suffer increasingly the more the other kind of German freedom has grown, and the more the power of the state over its individual members has diminished.

In the Peace of Westphalia, the sovereignty — or at least the supremacy — of the Emperor over Imperial cities, a sovereignty which belonged to the Emperors but was mortgaged in the course of time to the cities (i.e. to their magistrates) was declared to be irredeemable. The mayor (or whatever his title was in other cities) appointed by the Emperor must always have commanded a certain respect among the magistrates. They were under a kind of supervision, under the eye of a person who was independent of them and who necessarily carried weight by virtue of his connection with the head of the Empire. After the Imperial cities became completely assured of one kind of freedom when the Peace of Westphalia declared that the political power which had been mortgaged to them was irredeemable, the other kind of freedom suffered all the more. It is well known under how great a burden of taxes, judicial neglect, and debt so many Imperial cities sank, and in general, what inner corruption they experienced. The citizenry had no control over the administration and use of public offices, nor any say in the imposition of taxes; taxation and its expenditure and appointments to public offices have come entirely under the arbitrary control of the magistrates. Some [Imperial cities] have succeeded, with the Emperor’s help, in liberating themselves completely from this ‘German freedom’ of the magistrates; as a result of this system, others were plunged, before the last war, into the greatest embarrassment and financial confusion which the war in no small measure exacerbated.

As for the states ruled by princes, the cameral taxes [Kammerzieler] and costs of military contingents, embassies to the Imperial Diet, etc. have been transferred, since the Peace of Westphalia, to the provincial assemblies.

In the year 1670 — twenty-two years after German freedom was achieved through the Peace of Westphalia — the Council of Princes conveyed to the Emperor a memorandum of the Imperial Diet in which the previous mode of contributing to state expenditure by contractual agreement was abolished and the princes were to be left to judge what they considered necessary for the requirements of their country. This extension of their power, whereby the princes of that time would have abolished the entire principle on which modern states are based (with who knows what consequences for their successors) — this extension of (if one may so call it) German freedom was prevented by the Emperor Leopold. He did not ratify the memorandum of the Diet, although it would have entitled him to abolish the territorial rights of his own German lands, Bohemia and Austria. Or if the link, which was still to some extent present, between the Empire and the Burgundian sphere had been re-affirmed, he would also have been entitled by the [recommendation of the] Diet to abolish the rights of the Burgundian estates, which had degenerated into an aristocratic despotism, and to implement those measures over which Joseph II came to grief more than a century later.

As far as the interest of this [kind of] German freedom is concerned, the Emperor’s relationship with Germany appears in a different light, very different from that of Prussia. Through the power of time, the great interest of the people returned to its source — but as a need which has not as yet found satisfaction in an appropriate political organisation.

The principle of the original German state, which spread from Germany throughout the whole of Europe, was the principle of monarchy, a political power under a supreme head for the conduct of business of universal concern, in which the people were involved through their representatives. The form of this [monarchic principle] has even survived in what is known as the Imperial Diet; but the substance [die Sache] has vanished.

In Europe’s protracted oscillation between barbarism and civilisation [Kultur], the German state has not fully accomplished its transition to the latter, but has succumbed to the convulsions which accompany it; its members have broken away to complete independence, and the state has dissolved. The Germans have not managed to find the mean between oppression and despotism [on the one hand] — i.e. what they described as universal monarchy — and complete dissolution [on the other].

In its negative sense, the ‘struggle for German freedom’ signified the endeavour to oppose universal monarchy; in positive terms, it became the attainment of complete independence by each member. In this enterprise, the countries stood by their princes and were at one with them, but they inevitably found that German freedom was not attained when their princes gained their sovereignty — quite the reverse.

But at the same time, the tendency of the provincial assemblies is primarily to favour their own country; they have lost all connection with the whole. In former times, the princes often convened a Provincial Diet before they attended the Imperial Diet, and held joint consultations with their country. That contradiction whereby the provincial assemblies are most strongly opposed to Imperial wars and to contributions towards their cost, yet at the same time owe their existence to the Empire — this division within Germany has taken root universally within the popular mind [Volksgeist]. Bavaria, Hesse, etc. regard each other as foreigners; the provincial assemblies, which are in immediate contact with the people, express this division most clearly and regard everything which the prince does through his own connections as alien and as no concern of theirs; they simply, wish to remain separate, just as the Swiss wish to remain neutral. But the whole constellation of circumstances goes against such separation. There is no longer any neutrality for a weak state close to — let alone in between — powerful states if the latter are at war; or it can remain neutral in the sense of allowing itself to be plundered and abused by both.

However much our insight may tell us that the interest of the provinces and their assemblies is bound up with the continued existence of a political power in Germany, in the provinces

themselves this interest has in practice [fürs Handeln] become alien to Germany. Alien to Germany — but who has any concern for that country now, and where might any German patriotism come from? The individual provinces and their assemblies enjoy and recognise whatever passive benefit they may gain from Germany, but they do nothing in return; for it is fundamental to human nature to be interested only in something which we can actively support, with which we can co-operate and share decisions, with which our will can identify itself. The provinces need to find some mode of joint action towards a universal end.

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