North German Confederation

The first major step towards a Lesser German solution was the Zollverein, a customs union formed by the treaties of 1833, with Prussia being the primary driver behind the customs union.[8] Although it was formally inaugurated on 1 January 1834, its origins may be traced to a variety of custom unions among the German states, formed beginning from 1818. The Zollverein was not subordinate to the Austrian-led German Confederation (1815–1866) and Austria itself was excluded because of its highly protectionist trade policy, the unwillingness to split its customs territory into the separate Austrian, Hungarian and Galician-Lodomerian ones, as well as due to opposition of Prince von Metternich to the idea.[9] Nevertheless, the Zollverein managed to include by 1866 the majority of the German states.[10]

In 1849, the National Assembly in Frankfurt elected the Prussian king as the Emperor of a Lesser Germany (a Germany without Austria). The king refused and tried to unite Germany with the Erfurt Union of 1849–1850. When the union parliament met in early 1850 to discuss the constitution, the participating states were mainly only those in Northern and Central Germany. Austria and the southern German states Württemberg and Bavaria forced Prussia to give up its union plans in late 1850.[11]

In April and June 1866, Prussia proposed a Lesser Germany again. A corner stone of the proposal was the election of a German parliament based on universal male suffrage.[12] The proposal explicitly mentioned the Frankfurt election law of 1849. Otto von Bismarck, the minister-president of Prussia, wanted to gain sympathy within the national and liberal movement of the time. Austria and its allies refused the proposal. In summer 1866 Austria and Prussia fought with their respective allies in the Austro-Prussian War.

Prussia and Austria signed a Nikolsburg preliminary (26 July) and a final peace treaty of Prague (23 August). Austria accepted the Prussian demand for the German Confederation to be dissolved. Prussia was allowed to create instead a "closer federation" (einen engeren Bund) in Germany north of the river Main. Bismarck had already agreed on this limitation with the French emperor Napoleon III prior to the peace talks.[13]

On 18 August 1866, Prussia and a larger number of North and Central German states signed the North German Confederation Treaty establishing a Bündniß (alliance). The treaty created a military alliance for one year. It also affirmed that the states wanted to form a federal state based on the Prussian proposals of June 1866. They agreed to have a parliament elected to discuss a draft constitution. At the same time, the original East Prussian craddle of the Prussian statehood as well as the Prussian-held Polish- or Kashubian-speaking territories of Province of Posen and West Prussia were formally ′annexed into Germany. Saxony and Hesse-Darmstadt, former enemies in the war of 1866, had to agree their accession to the new federation in their respective peace treaties (Hesse-Darmstadt only joined with its northern province, Upper Hesse).[14] Later in 1866, other states joined the treaty. The liberals in the Prussian parliament favored a wholesale annexation of all North German territories by Prussia. In a similar way, Sardinia–Piedmont had created the Kingdom of Italy. But Bismarck chose a different approach. Prussia incorporated (in October 1866) only the former military opponents Hannover, Hesse-Kassel, Nassau, the free city of Frankfurt, and the Hesse-Homburg area of Hesse Darmstadt. These areas were combined into the two new Prussian provinces of Hannover and Hesse-Nassau. Schleswig and Holstein also became a Prussian province.[15]

Chart illustrating the constitution of the North German Confederation

Bismarck sought advice from conservative and democratic politicians and finally presented a draft constitution to the other state governments. At the same time, in late 1866, Prussia and the other states prepared the election of a North German parliament. This konstituierender Reichstag was elected in February 1867 based on state laws. The konstituierender Reichstag gathered from February to April. In close talks with Bismarck, it altered the draft constitution in some significant points. The konstituierender Reichstag was not a parliament but only an organ to discuss and accept the draft constitution. After that, the state parliaments (June 1867) ratified it so that on 1 July the constitution was enabled. In August, the first Reichstag of the new federal state was elected.

A major factor in determining the form the new federal government would take was the aftermath of the recently concluded American Civil War, which had seen the southern states forcibly re-incorporated into the United States of America and slavery abolished. While few Germans were particularly sympathetic toward the precise institution (i.e., slavery) which had precipitated civil war in America, the prevailing viewpoint outside the U.S. at this time was that the slaves had only been emancipated as a reprisal for Southern secession from the American Union. With this in mind, many Catholics especially in Southern Germany feared that Prussia might one day might attempt to engineer a similar sort of secession crisis within a united Germany and use it as a pretext to launch a violent repression against Catholicism throughout Germany. Thus, it was Bismarck's intention to make the new federal state look like a confederation in the tradition of the German Confederation and explains the name of the country and several provisions in the draft constitution — Bismarck needed to make the federal state more attractive (or at least less repulsive) to southern German states which might later join.[16]

First session of the konstituierender Reichstag on 24 February 1867. This organ was actually not a parliament as there was no federal state then. Its sole purpose was to discuss and accept the draft constitution. Later, in August, the North Germans elected the first Reichstag as established by the new constitution.

The North German Constitution of 16 April 1867 created a national parliament with universal suffrage (for men above the age of 25), the Reichstag. Another important organ was the Bundesrat, the 'federal council' of the representatives of the state governments. To adopt a law, a majority in the Reichstag and in the Bundesrat was necessary. This gave the allied governments, meaning the states (and, depending on the state, their princes), an important veto.

Executive power was vested in a chancellor, being the only responsible federal minister of the country. There was no formal cabinet, and in the time of the North German Confederation there were only two government departments anyway: the Bundeskanzleramt as the general office of the chancellor, and, since early 1870, the foreign office.

The chancellor was installed and dismissed by the Bundespräsidium. This office belonged automatically to the Prussian king (art. 11). The holder was de facto the head of state of the North German Confederation. (Bismarck wanted to avoid the title Präsident with its republican air.)

For all intents and purposes, the Confederation was dominated by Prussia. It had four-fifths of the confederation's territory and population – more than the other 21 members combined. The Prussian king was a kind of head of state. Chancellor Bismarck was also prime minister and foreign minister of Prussia. In that role he instructed the Prussian votes in the Bundesrat. Prussia had 17 of 43 votes in the Bundesrat despite being by far the largest state but could easily get a majority by making alliances with the smaller states.

In June 1867 a conference took place between Prussia and the south German states, who were not members of the North German Confederation. After pressure from Prussia, new Customs Union (Zollverein) treaties were signed the following month. Henceforth, the governing bodies of the Customs Union were the Bundesrat and Reichstag of the North German Confederation, augmented by representatives of the south German governments in the former and members from these states elected in the same way as the others in the latter. When augmented thus for customs matters, the institutions were known as the Federal Customs Council and the Customs Parliament (Zollparlament).[17] On 1 January 1868, the new institutions came into force. Bismarck hoped that the Zollverein might become the vehicle of German unification. But in the 1868 Zollparlament election the South Germans voted mainly for anti-Prussian parties.

On the other hand, the two Mecklenburg duchies and three Hanseatic cities were initially not members of the Customs Union. The Mecklenburgs and Lübeck joined soon after the North German Confederation was formed. Eventually, after heavy Prussian pressure, Hamburg acceded to the Customs Union in 1888. Bremen joined at the same time. Despite this, all these states fully participated in the federal institutions, even while outside the Customs Union and not directly affected by their decisions in that regard.

North German 7-kreuzer stamp, 1868. The postal services in the north German states were united into the Norddeutscher Postbezirk, the predecessor of the Reichspost.

One of the functions of the confederation was to handle mail and issue postage stamps.

In mid-1870, a diplomatic crisis concerning the Spanish throne led eventually to the Franco-Prussian War.[18] During the war, in November 1870, the south German states of Bavaria, Württemberg, and Baden (together with the parts of Hesse-Darmstadt that were left out of the Confederation) joined the North German Confederation. On this occasion, the country adopted a new constitution, and the name of the federal state was changed to Deutsches Reich (German Empire).

According to a minority among German experts, the North German Confederation and the southern states created a new federal state (the German Empire). Indeed, Bismarck allowed the south German states to save face and therefore used terminology suggesting a new creation. But Kotulla emphasizes that legally only accession of the southern states to the North German Confederation was possible; the legal basis for such an accession was art. 79 of the North German federal constitution.[19]

On 10 December 1870 the Reichstag of the North German Confederation had adopted a new constitution, still titled as one of the Deutscher Bund (German Confederation) in spite of establishing for the state a new name Deutsches Reich (German Realm or German Empire) and granting the title of German Emperor to the King of Prussia holding the Bundespräsidium of the Confederation; it entered into force on 1 January 1871, but lasted only four months.[20]

Following the victory in the war with France, the German princes and senior military commanders proclaimed Wilhelm "German Emperor" in the Hall of Mirrors at the Palace of Versailles.[21] This latter date was later customarily celebrated as the symbolic day of 'foundation of the German Empire' (Deutsche Reichsgründung), although it had no constitutional meaning.[22]

After a new Reichstag was elected on 3 March 1871, the transition from the Confederation to the Empire was completed when the permanent Constitution of the German Empire prevailing until the demise of the monarchy entered into force on 4 May 1871, while France recognised the empire on 10 May 1871 in the Treaty of Frankfurt.[23][24]

The three constitutions (1867, January 1871, and April 1871) were nearly identical. It took roughly a decade to develop the country into a fully grown federal state, with several governmental departments (a kind of ministries), responsible state secretaries (a kind of ministers, 1878), and an imperial court (Reichsgericht, 1879).