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Title: The Governments of Europe
Author: Ogg, Frederic Austin, 1878-1951
Language: English
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THE GOVERNMENTS OF EUROPE
The MacMillan Company
New York - Boston - Chicago
Dallas - San Francisco
MacMillan & Co., Limited
London - Bombay - Calcutta
Melbourne
The MacMillan Co. of Canada, Ltd.
Toronto
THE GOVERNMENTS OF EUROPE
by
FREDERIC AUSTIN OGG, Ph. D.
Professor of Political Science
in the University of Wisconsin
Author of
"Social Progress in Contemporary Europe"
New York
The MacMillan Company
1918
All rights reserved
Copyright, 1913.
by the MacMillan Company
Set up and electrotyped. Published February, 1913.
Reprinted July, December, 1913; June, 1914; August, 1915;
July, 1916; September, 1917.
TO MY FATHER
PREFACE (p. vii)
It is a matter of common observation that during the opening years of
the twentieth century there has been, in many portions of the
civilized world, a substantial quickening of interest in the
principles and problems of human government. The United States is
happily among those countries in which the phenomenon can be observed,
and we have witnessed in recent times not only the organization of
societies and the establishment of journals designed to foster
research within the field, but also a notable multiplication and
strengthening of courses in political science open to students in our
colleges and universities, as well as the development of clubs,
forums, extension courses, and other facilities for the increasing of
political information and the stimulation of political thinking on the
part of the people at large. It is the object of this book to promote
the intelligent study of government by supplying working descriptions
of the governmental systems of the various countries of western and
central Europe as they have taken form and as they operate at the
present day. Conceived and prepared primarily as a text for use in
college courses, it is hoped none the less that the volume may prove
of service to persons everywhere whose interest in the subject leads
them to seek the sort of information which is here presented.
The content of the book has been determined, in the main, by three
considerations. In the first place, it has been deemed desirable to
afford a wide opportunity for the _comparative_ study of political
institutions, especially by reason of the familiar fact that the
governmental system of a minor country may, and frequently does,
exhibit elements of novelty and of importance not inferior to those to
be observed in the political organization of a greater state. Hence
there are included descriptions of the governments of the minor as
well as of the major nations of western and central Europe; and the
original purpose to attempt some treatment of the governments of the
eastern nations has been abandoned, somewhat reluctantly, only because
of the demands of space, and because it was felt that this portion of
the projected work would perhaps meet no very serious need in the
usual college courses. In the second place, it is believed that the
intelligent study of present-day governments must involve at all (p. viii)
stages the taking into careful account of the historical origins and
growth of these governments. Hence a considerable amount of space has
been devoted to sketches of constitutional history, which, however,
are in all instances so arranged that they may readily be omitted if
their omission is deemed desirable. In the case of countries whose
political system underwent a general reconstitution during the
Revolutionary and Napoleonic era it has been thought not feasible to
allude, even briefly, to historical developments prior to the later
eighteenth century. In the third place, it has been considered
desirable to include in the book some treatment of political parties
and of the institutions of local administration.
Within a field so expansive it has been possible to undertake but an
introduction to a majority of the subjects touched upon. In the
foot-notes will be found references to books, documents, and
periodical materials of widely varying types, and it is hoped that
some of these may serve to guide student and reader to more intensive
information.
The preparation of the book has been facilitated by the encouragement
and the expert advice accorded me by a number of teachers of
government in colleges and universities in various portions of the
country. And I have had at all times the patient and discriminating
assistance of my wife. For neither the plan nor the details of the
work, however, can responsibility be attached to anyone save myself. I
can only hope that amidst the multitude of facts, some elusive and
many subject to constant change, which I have attempted here to set
down, not many seriously vitiating errors may have escaped detection.
Frederic Austin OGG.
Cambridge, Massachusetts,
January 10, 1913.
TABLE OF CONTENTS (p. ix)
PART I.--GREAT BRITAIN
I. THE FOUNDATIONS OF THE CONSTITUTION
1. The Importance of Historical Background 1
2. Anglo-Saxon Beginnings 2
3. The Norman-Plantagenet Period 6
4. The Rise of Parliament 11
5. Administrative and Judicial Development 16
6. The Tudor Monarchy 18
7. Parliament under the Tudors 21
8. The Stuarts: Crown and Parliament 26
9. The Later Stuarts: the Revolution of 1688-1689 31
II. THE CONSTITUTION SINCE THE SEVENTEENTH CENTURY
1. Crown and Parliament after 1789 34
2. Rise of the Cabinet and of Political Parties 37
3. The Scottish and Irish Unions 39
4. The Nature and Sources of the Constitution 41
5. The Flexibility of the Constitution 44
III. THE CROWN AND THE MINISTRY
1. The Crown: Legal Status and Privileges 48
2. The Powers of the Crown 52
3. The Importance and Strength of the Monarchy 58
4. Privy Council, Ministry, and Cabinet 60
5. The Executive Departments 61
6. The Cabinet: Composition and Character 64
7. The Cabinet in Action 70
IV. PARLIAMENT: THE HOUSE OF COMMONS
1. The House of Commons prior to 1832 77
2. Parliamentary Reform, 1832-1885 80
3. The Franchise and the Electoral Questions of To-day 86
4. Electoral Procedure and Regulations 92
V. PARLIAMENT: THE HOUSE OF LORDS (p. x)
1. Composition 97
2. The Reform of the Lords: the Question prior to 1909 101
3. The Question of the Lords, 1909-1911 106
4. The Parliament Act of 1911 and After 112
VI. PARLIAMENT, ORGANIZATION, FUNCTIONS, PROCEDURE
1. The Assembling of the Chambers 117
2. Organization of the House of Commons 120
3. Organization of the House of Lords 125
4. Privileges of the Houses and of Members 126
5. The Functions of Parliament 128
6. General Aspects of Parliamentary Procedure 132
7. The Conduct of Business in the two Houses 138
VII. POLITICAL PARTIES
1. Parliamentarism and the Party System 143
2. Parties in the Later Eighteenth and Earlier Nineteenth
Centuries 145
3. The Second Era of Whig [Liberal] Ascendancy, 1830-1874 147
4. The Second Era of Conservative Ascendancy, 1874-1905 150
5. The Liberal Revival 155
6. The Rule of the Liberals, 1906-1912 158
7. The Parties of To-day 162
VIII. JUSTICE AND LOCAL GOVERNMENT
1. English Law 167
2. The Inferior Courts 170
3. The Higher Courts 173
4. Local Government to the Municipal Corporations Act,
1835 176
5. Local Government Reform, 1835-1912 179
6. Local and Central Government 181
7. Local Government To-day: Rural 183
8. Local Government To-day: Urban 186
PART II.--GERMANY
IX. THE EMPIRE AND ITS CONSTITUTION
1. Political Development Prior to 1848 193
2. The Creation of the Empire 198
3. The Constitution: Nature of the Empire 202
4. The Empire and the States 205
X. THE IMPERIAL GOVERNMENT: EMPEROR, CHANCELLOR, AND BUNDESRATH
1. The Emperor 210
2. The Chancellor 213
3. The Bundesrath 217
XI. THE IMPERIAL GOVERNMENT: REICHSTAG, PARTIES, JUDICIARY (p. xi)
1. Composition of the Reichstag--Electoral System 223
2. Organization and Powers of the Reichstag. 226
3. The Rise of Political Parties 229
4. Party Politics after 1878 233
5. Parties since 1907 236
6. Law and Justice 241
XII. THE CONSTITUTION OF PRUSSIA--THE CROWN AND THE MINISTRY
1. The German States and their Governments 245
2. The Rise of Constitutionalism in Prussia 246
3. The Crown and the Ministry 253
XIII. THE PRUSSIAN LANDTAG--LOCAL GOVERNMENT
1. Composition of the Landtag 257
2. The Movement for Electoral Reform 260
3. Organization and Functions of the Landtag 263
4. Local Government: Origins and Principles 265
5. Local Government: Areas and Organs 268
XIV. THE MINOR GERMAN STATES--ALSACE-LORRAINE
1. The More Important Monarchies 275
2. The Lesser Monarchies and the City Republics 279
3. Alsace-Lorraine 282
PART III.--FRANCE
XV. CONSTITUTIONS SINCE 1789
1. A Century of Political Instability 289
2. The Revolutionary and Napoleonic Era 290
3. From the Restoration to the Revolution of 1848 295
4. The Second Republic and the Second Empire 297
5. The Establishment of the Third Republic 301
6. The Constitution of To-day 304
XVI. THE PRESIDENT, THE MINISTRY, AND PARLIAMENT
1. The President 308
2. The Ministry 311
3. Parliament: Senate and Chamber of Deputies 315
4. The Problem of Electoral Reform 319
XVII. PARLIAMENTARY PROCEDURE--POLITICAL PARTIES
1. Organization and Workings of the Chambers 325
2. Political Parties since 1871 329
XVIII. JUSTICE AND LOCAL GOVERNMENT
1. French Law 335
2. The Courts 337
3. Local Government: Development since 1789 341
4. Local Government To-day 346
PART IV.--ITALY (p. xii)
XIX. CONSTITUTIONAL DEVELOPMENT IN THE NINETEENTH CENTURY
1. The Era of Napoleon 353
2. The Restoration and the Revolution of 1848 358
3. The Achievement of Unification 362
4. The Constitution 365
XX. THE ITALIAN GOVERNMENT SYSTEM
1. The Crown and the Ministry 368
2. Parliament: the Senate 372
3. The Chamber of Deputies--Parliamentary Procedure 375
4. The Judiciary 381
5. Local Government 383
XXI. STATE AND CHURCH--POLITICAL PARTIES
1. Quirinal and Vatican 387
2. Parties and Ministries, 1861-1896 391
3. The Era of Composite Ministries, 1896-1912 395
4. Phases of Party Politics 398
PART V.--SWITZERLAND
XXII. THE CONSTITUTIONAL SYSTEM--THE CANTONS
1. The Confederation and Its Constitutions 405
2. The Nation and the States 411
3. Cantonal Legislation: the Referendum and the Initiative 416
4. The Cantonal Executive and Judiciary 421
XXIII. THE FEDERAL GOVERNMENT
1. The Executive 423
2. Legislation: the Federal Assembly 426
3. Legislation: the Referendum and the Initiative 430
4. Political Parties 434
5. The Judiciary 437
PART VI.--AUSTRIA-HUNGARY
XXIV. AUSTRIA-HUNGARY PRIOR TO THE AUSGLEICH
1. Austrian Political Development to 1815 442
2. Hungarian Political Development to 1815 445
3. The Era of Metternich 450
4. The Revolution of 1848 453
5. The Revival of Constitutionalism: the Ausgleich 456
XXV. THE GOVERNMENT AND PARTIES OF AUSTRIA
1. The Constitution 460
2. The Crown and the Ministry 463
3. The Reichsrath--the Electoral System 465
4. Political Parties 474
5. The Judiciary and Local Government 483
XXVI. THE GOVERNMENT AND PARTIES OF HUNGARY (p. xiii)
1. The Constitution 489
2. The Crown and the Ministry 491
3. Parliament--the Electoral System 492
4. Political Parties 500
5. The Judiciary and Local Government 505
XXVII. AUSTRIA-HUNGARY: THE JOINT GOVERNMENT
1. The Common Organs of Government 510
2. The Territories of Bosnia and Herzegovina 514
PART VII.--THE LOW COUNTRIES
XXVIII. THE GOVERNMENT OF HOLLAND
1. A Century of Political Development 517
2. The Crown and the Ministry 523
3. The States-General and Political Parties 525
4. The Judiciary and Local Government 531
XXIX. THE GOVERNMENT OF BELGIUM
1. The Constitution--the Crown and the Ministry 534
2. The Houses of Parliament--the Electoral System 538
3. Parties and Electoral Reform since 1894--Parliamentary
Procedure 542
4. The Judiciary and Local Government 549
PART VIII.--SCANDINAVIA
XXX. THE GOVERNMENT OF DENMARK
1. Development Prior to 1814 553
2. The Rise of Constitutionalism, 1814-1866 556
3. The Crown and the Ministry 559
4. The Rigsdag--Political Parties 562
5. The Judiciary and Local Government 568
XXXI. THE SWEDISH-NORWEGIAN UNION AND THE GOVERNMENT OF NORWAY
1. Political Development to 1814 570
2. The Swedish-Norwegian Union, 1814-1905 573
3. The Norwegian Constitution--Crown and Ministry 578
4. The Storthing--Political Parties 581
5. The Judiciary and Local Government 587
XXXII. THE GOVERNMENT OF SWEDEN
1. The Constitution--the Crown and the Ministry 589
2. The Riksdag--the Electoral System 591
3. The Riksdag in Operation--Political Parties 597
4. The Judiciary and Local Government 600
PART IX.--THE IBERIAN STATES (p. xiv)
XXXIII. THE GOVERNMENT OF SPAIN
1. The Beginnings of Constitutionalism 603
2. Political and Constitutional Development, 1833-1876 606
3. The Present Constitution 611
4. The Crown and the Ministry 613
5. The Cortes 616
6. Political Parties 620
7. The Judiciary and Local Government 626
XXXIV. THE GOVERNMENT OF PORTUGAL
1. A Century of Political Development 629
2. The Government of the Kingdom 634
3. The Revolution of 1910 639
4. The Constitution of 1911 643
GOVERNMENTS OF EUROPE (p. 001)
PART I.--GREAT BRITAIN
CHAPTER I
THE FOUNDATIONS OF THE CONSTITUTION
I. THE IMPORTANCE OF HISTORICAL BACKGROUND
*1. Political Pre-eminence of Great Britain.*--George III. is reported
to have pronounced the English constitution the most perfect of human
formations. One need hardly concur unreservedly in this dictum to be
impressed with the propriety of beginning a survey of the governmental
systems of modern Europe with an examination of the political
principles, rules, and practices of contemporary Britain. The history
of no other European nation, in the first place, exhibits a
development of institutions so prolonged, so continuous, and so
orderly. The governmental forms and agencies of no other state have
been studied with larger interest or imitated with clearer effect. The
public policy of no other organized body of men has been more
influential in shaping the progress, social and economic as well as
political, of the civilized world. For the American student,
furthermore, the approach to the institutions of the European
continent is likely to be rendered easier and more inviting if made by
way of a body of institutions which lies at the root of much that is
both American and continental. There are, it is true, not a few
respects in which the governmental system of the United States to-day
bears closer resemblance to that of France, Germany, Switzerland, or
even Italy than to that of Great Britain. The relation, however,
between the British and the American is one, in the main, of
historical continuity, while that between the French or German and the
American is one which arises largely from mere imitation or from
accidental resemblance.
*2. The Continuity of Institutional History.*--No government can be
studied adequately apart from the historical development which has (p. 002)
made it what it is; and this ordinarily means the tracing of origins
and of changes which stretch through a prolonged period of time. Men
have sometimes imagined that they were creating a governmental system
_de novo_, and it occasionally happens, as in France in 1791 and in
Portugal in 1911, that a régime is instituted which has little
apparent connection with the past. History demonstrates, however, in
the first place, that such a régime is apt to perpetuate more of the
old than is at the time supposed and, in the second place, that unless
it is connected vitally with the old, the chances of its achieving
stability or permanence are inconsiderable. In Germany, for example,
if the institutions of the Empire were essentially new in 1871, the
governmental systems of the several federated states, and of the towns
and local districts, exhibited numerous elements which in origin were
mediæval. In France, if central institutions, and even the political
arrangements of the department and of the arrondissement, do not
antedate the Revolution, the commune, in which the everyday political
activity of the average citizen runs its course, stands essentially as
it was in the age of Louis XIV.
If the element of continuity is thus important in the political system
of Germany, France, or Switzerland, in that of England it is
fundamental. It is not too much to say that the most striking aspect
of English constitutional history is the continual preservation, in
the teeth of inevitable changes, of a preponderating proportion of
institutions that reach far into the past. "The great difficulty which
presses on the student of the English constitution, regarded as a set
of legal rules," observes a learned commentator, "is that he can never
dissociate himself from history. There is hardly a rule which has not
a long past, or which can be understood without some consideration of
the circumstances under which it first came into being."[1] It is the
purpose of the present volume to describe European governments as they
to-day exist and operate. It will be necessary in all cases, however,
to accord some consideration to the origins and growth of the
political organs and practices which may be described. In respect to
Great Britain this can mean nothing less than a survey, brief as may
be, of a thousand years of history.
[Footnote 1: W. R. Anson, The Law and Custom of the
Constitution (3d ed., Oxford, 1897), I., 13.]
II. ANGLO-SAXON BEGINNINGS
The earliest form of the English constitution was that which existed
during the centuries prior to the Norman Conquest. Political
organization among the Germanic invaders of Britain was of the (p. 003)
most rudimentary sort, but the circumstances of the conquest and
settlement of the island were such as to stimulate a considerable
elaboration of governmental machinery and powers. From the point of
view of subsequent institutional history the most important features
of the Anglo-Saxon governmental system were kingship, the witenagemot,
and the units of local administration--shire, hundred, borough, and
township.[2]
[Footnote 2: See G. B. Adams, The Origin of the
English Constitution (New Haven, 1912), Chap. 1.
That the essentials of the English constitution of
modern times, in respect to forms and machinery,
are products of the feudalization of England which
resulted from the Norman Conquest, and not
survivals of Anglo-Saxon governmental arrangements,
is the well-sustained thesis of this able study.
That many important elements, however, were
contributed by Anglo-Saxon statecraft is beyond
dispute.]
*3. Kingship.*--The origins of Anglo-Saxon kingship are shrouded in
obscurity, but it is certain that the king of later days was
originally nothing more than the chieftain of a victorious war-band.
During the course of the occupation of the conquered island many
chieftains attained the dignity of kingship, but with the progress of
political consolidation one after another of the royal lines was
blotted out, old tribal kingdoms became mere administrative districts
of larger kingdoms, and, eventually, in the ninth century, the whole
of the occupied portions of the country were brought under the control
of a single sovereign. Saxon kingship was elective, patriarchal, and,
in respect to power, limited. Kings were elected by the important men
sitting in council, and while the dignity was hereditary in a family
supposedly descended from the gods, an immediate heir was not unlikely
to be passed over in favor of a relative who was remoter but abler.[3]
In both pagan and Christian times the royal office was invested with a
pronouncedly sacred character. As early as 690 Ine was king "by God's
grace." But the actual authority of the king was such as arose
principally from the dignity of his office and from the personal
influence of the individual monarch.[4] The king was primarily a
war-leader. He was a law-giver, but his "dooms" were likely to be
framed only in consultation with the wise men, and they pertained to
little else than the preservation of the peace. He was supreme (p. 004)
judge, and all crimes and breaches of the peace came to be looked upon
as offenses against him; but he held no court and he had in practice
little to do with the administration of justice. Over local affairs he
had no direct control whatever.
[Footnote 3: Thus, in 871, the minor children of
Ethelred I. were passed over in favor of Alfred,
younger brother of the late king.]
[Footnote 4: The Anglo-Saxon king was "not the
supreme law-giver of Roman ideas, nor the fountain
of justice, nor the irresponsible leader, nor the
sole and supreme politician, nor the one primary
landowner; but the head of the race, the chosen
representative of its identity, the successful
leader of its enterprises, the guardian of its
peace, the president of its assemblies; created by
it, and, although empowered with a higher sanction
in crowning and anointing, answerable to his
people." W. Stubbs, Select Charters Illustrative of
English Constitutional History (8th ed., Oxford,
1895), 12.]
*4. The Witenagemot.*--Associated with the king in the conduct of
public business was the council of wise men, or witenagemot. The
composition of this body, being determined in the main by the will of
the individual monarch, varied widely from time to time. The persons
most likely to be summoned were the members of the royal family, the
greater ecclesiastics, the king's gesiths or thegns, the ealdormen who
administered the shires, other leading officers of state and of the
household, and the principal men who held land directly of the king.
There were included no popularly elected representatives. As a rule,
the witan was called together three or four times a year. Acting with
the king, it made laws, imposed taxes, concluded treaties, appointed
ealdormen and bishops, and occasionally heard cases not disposed of in
the courts of the shire and hundred. It was the witan, furthermore,
that elected the king; and since it could depose him, he was obliged
to recognize a certain responsibility to it. "It has been a marked and
important feature in our constitutional history," it is pointed out by
Anson, "that the king has never, in theory, acted in matters of state
without the counsel and consent of a body of advisers."[5]
[Footnote 5: Law and Custom of the Constitution,
II., Pt. 1., 7. Cf. W. Stubbs, Constitutional
History of England, I., 127.]
*5. Township, Borough, and Hundred.*--By reason of their persistence,
and their comparative changelessness from earliest times to the later
nineteenth century, the utmost importance attaches to Anglo-Saxon
arrangements respecting local government and administration. The
smallest governmental unit was the township, comprising normally a
village surrounded by arable lands, meadows, and woodland. The
town-moot was a primary assembly of the freemen of the village, by
which, under the presidency of a reeve, the affairs of the township
were administered. A variation of the township was the burgh, or
borough, whose population was apt to be larger and whose political
independence was greater; but its arrangements for government
approximated closely those of the ordinary township. A group of
townships comprised a hundred. At the head of the hundred was a
hundred-man, ordinarily elected, but not infrequently appointed by a
great landowner or prelate to whom the lands of the hundred belonged.
Assisting him was a council of twelve or more freemen. In the (p. 005)
hundred-moot was introduced the principle of representation, for to
the meetings of that body came regularly the reeve, the parish priest,
and four "best men" from each of the townships and boroughs comprised
within the hundred. The hundred-moot met as often as once a month, and
it had as its principal function the adjudication of disputes and the
decision of cases, civil, criminal, and ecclesiastical.
*6. The Shire.*--Above the hundred was the shire. Originally, as a
rule, the shires were regions occupied by small but independent
tribes; eventually they became administrative districts of the united
kingdom. At the head of the shire was an ealdorman, appointed by the
king and witan, generally from the prominent men of the shire.
Subordinate to him at first, but in time overshadowing him, was the
shire-reeve, or sheriff, who was essentially a representative of the
crown, sent to assume charge of the royal lands in the shire, to
collect the king's revenue, and to receive the king's share of the
fines imposed in the courts. Each shire had its moot, and by reason of
the fact that the shires and bishoprics were usually coterminous, the
bishop sat with the ealdorman as joint president of this assemblage.
In theory, at least, the shire-moot was a gathering of the freemen of
the shire. It met, as a rule, twice a year, and to it were entitled to
come all freemen, in person or by representation. It was within the
competence of those who did not desire to attend to send as spokesmen
their reeves or stewards; so that the body was likely to assume the
character of a mixed primary and representative assembly. The
shire-moot decided disputes pertaining to the ownership of land, tried
suits for which a hearing could not be obtained in the court of the
hundred, and exercised an incidental ecclesiastical jurisdiction.[6]
[Footnote 6: The classic description of Anglo-Saxon
political institutions is W. Stubbs, Constitutional
History of England in its Origin and Development, 3
vols. (6th ed., Oxford, 1897), especially I.,
74-182; but recent scholarship has supplemented and
modified at many points the facts and views therein
set forth. A useful account (though likewise
subject to correction) is H. Taylor, The Origins
and Growth of the English Constitution, 2 vols.
(new ed., Boston, 1900), I., Bk. 1., Chaps. 3-5;
and a repository of information is J. Ramsay, The
Foundations of England, 2 vols. (London, 1898). A
valuable sketch is A. B. White, The Making of the
English Constitution, 449-1485 (New York, 1908),
16-62. A brilliant book is E. A. Freeman, The
Growth of the English Constitution (4th ed.,
London, 1884); but by reason of Professor Freeman's
over-emphasis of the perpetuation of Anglo-Saxon
institutions in later times this work is to be used
with caution. Political and institutional history
is well set forth in T. Hodgkin, History of England
to the Norman Conquest (London, 1906), and C. W. C.
Oman, England before the Norman Conquest (London,
1910). A useful manual is H. M. Chadwick, Studies
on Anglo-Saxon Institutions (Cambridge, 1905); and
an admirable bibliography is C. Gross, The Sources
and Literature of English History (London, 1900).]
III. THE NORMAN-PLANTAGENET PERIOD (p. 006)
At the coming of William the Conqueror, in 1066, two fundamental
principles may be said to have been firmly fixed in the English
political system. The first was that of thoroughgoing local
self-government. The second was that of the obligation of the king, in
all matters of first-rate importance, such as the laying of taxes and
the making of laws, to seek the counsel and consent of some portion of
his subjects. In the period which was inaugurated by the Conquest
neither of these principles was entirely subverted, yet the Norman era
stands out distinctly as one in which the powers of government were
gathered in the hands of the king and of his immediate agents in a
measure unknown at any earlier time. Building in so far as was
possible upon foundations already laid, William was able so to
manoeuver the consequences of the Conquest as to throw the advantages
all but wholly upon the side of the crown. Feudalism, land-tenure,
military service, taxation, the church--to all was imparted, by force
or by craft, such a bent that the will of the sovereign acquired the
practical effect of law, and monarchy in England, traditionally weak,
was brought to the verge of sheer absolutism.
*7. Extension of Centralized Control.*--In respect to the actual
mechanism of government the principal achievement of the
Norman-Plantagenet period was the overhauling and consolidation of the
agencies of administration. Despite the fact that local institutions
of Saxon origin were largely respected, so that they have continued to
this day the most substantial Anglo-Saxon contribution to English
polity, there was a notable linking-up of these hitherto largely
disassociated institutions with the institutions of the central
government. This was accomplished in part by the dissolution of the
earldoms by which the monarchy had been menaced in later Saxon days,
and in part by a tremendous increase of the power and importance of
the sheriffs. It was accomplished still more largely, however, by the
organization of two great departments of government--those of justice
and finance--presided over by dignitaries of the royal household and
manned by permanent staffs of expert officials. The department of
justice comprised the Curia; that of finance, the Exchequer. At the
head of the one was the Chancellor; at the head of the other, the
Treasurer. The principal officials within the two comprised a single
body of men, sitting now as _justitiarii_, or justices, and now as
_barones_ of the Exchequer. The profits and costs of asserting and
administering justice and the incomings and outgoings of the Exchequer
were but different aspects of the same fundamental concerns of (p. 007)
state.[7] The justices of the Curia who held court on circuit
throughout the realm and the sheriffs who came up twice a year to
render to the barons of the Exchequer an account of the sums due from
the shires served as the real and tangible agencies through which the
central and local governments were knit together. As will appear, it
was from the Norman Curia that, in the course of time, there sprang
immediately those diversified departments of administration whose
heads comprise the actual executive of the British nation to-day.
[Footnote 7: Anson, Law and Custom of the
Constitution, II., Pt. I., II.]
*8. King and Great Council.*--Untrammelled by constitutional
restrictions, the Conqueror and his earlier successors recognized such
limitations only upon the royal authority as were imposed by powerful
and turbulent subjects. Associated with the king, however, was from
the first a body known as the _Commune Concilium_, the Common, or
Great, Council. "Thrice a year," the Saxon Chronicle tells us, "King
William wore his crown every year he was in England; at Easter he wore
it at Winchester; at Pentecost, at Westminster; and at Christmas, at
Gloucester; and at these times all the men of England were with
him--archbishops, bishops and abbots, earls, thegns and knights." By
the phrase "all the men of England" is to be understood only the great
ecclesiastics, the principal officers of state, and the king's
tenants-in-chief--in truth, only such of the more important of these
as were summoned individually to the sovereign's presence. At least in
theory, however, the Norman kings were accustomed to consult this
gathering of magnates, very much as their predecessors had been
accustomed to consult the witenagemot, upon all important questions of
legislation, finance, and public policy. It may, indeed, be said that
it is the development of this Council that comprises the central
subject of English constitutional history; for, "out of it, directly
or indirectly, by one process or another, have been evolved
Parliament, the Cabinet, and the courts of law."[8]
[Footnote 8: W. Wilson, The State (rev. ed.,
Boston, 1903), 369.]
*9. The Plantagenet Monarchy.*--During the century and a half following
the death of the Conqueror the vigor of the monarchy varied
enormously, but not until the days of King John can there be said to
have been any loss of power or independence which amounted to more
than a passing circumstance. In a charter granted at the beginning of
his reign, in 1100, Henry I. confirmed the liberties of his subjects
and promised to respect the laws of Edward the Confessor; but the new
sovereign did not propose, and no one imagined that he intended to
propose, to relax any of the essential and legitimate power which had
been transmitted to him by his father and brother. The reign of (p. 008)
Stephen (1135-1154) was an epoch of anarchy happily unparalleled in
the history of the nation. During the course of it the royal authority
sank to its lowest ebb since the days of the Danish incursions. But
the able and wonderfully energetic Henry II. (1154-1189) recovered all
that had been lost and added not a little of his own account. "Henry
II.," it has been said, "found a nation wearied out with the miseries
of anarchy, and the nation found in Henry II. a king with a passion
for administration."[9] With the fundamental purpose of reducing all
of his subjects to equality before an identical system of law, the
great Plantagenet sovereign waged determined warfare upon both the
rebellious nobility and the independent clergy. He was not entirely
successful, especially in his conflict with the clergy; but he
effectually prevented a reversion of the nation to feudal chaos, and
he invested the king's law with a sanction which it had known hardly
even in the days of the Conqueror. The reign of Henry II. has been
declared, indeed, to "initiate the rule of law."[10] By reviving and
placing upon a permanent basis the provincial visitations of the royal
justices, for both judicial and fiscal purposes, and by extending in
the local administration of justice and finance the principle of the
jury, Henry contributed fundamentally to the development of the
English Common Law, the jury, and the modern hierarchy of courts. By
appointing as sheriffs lawyers or soldiers, rather than great barons,
he fostered the influence of the central government in local affairs.
By commuting military service for a money payment (_scutage_), and by
a revival of the ancient militia system (the _fyrd_), he brought the
control of the armed forces of the nation effectually under royal
control. By the frequent summons of the Great Council and the
systematic reference to it of business of moment he contributed to the
importance of an institution through whose amplification a century
later Parliament was destined to be brought into existence.
[Footnote 9: Anson, Law and Custom of the
Constitution, II., Pt. I., 13.]
[Footnote 10: Stubbs, Select Charters, 21.]
*10. The Great Charter, 1215.*--The period of Richard I. (1189-1199)
was, in constitutional matters, a continuation of that of Henry II.
Richard was absent from the kingdom throughout almost the whole of the
reign, but under the guidance of officials trained by Henry the
machinery of government operated substantially as before. Under John
(1199-1216) came a breakdown, occasioned principally by the sovereign's
persistence in evading certain limitations upon the royal authority
which already had assumed the character of established rules of the
constitution. One of these forbade that the king should impose fresh
taxation except with the advice and consent of the Great Council. (p. 009)
Another enjoined that a man should not be fined or otherwise despoiled
of his property except in virtue of judicial sentence. These and other
principles John habitually disregarded, with the consequence that in
time he found himself without a party and driven to the alternative of
deposition or acceptance of the guarantee of liberties which the
barons, the Church, and the people were united in demanding of him.
The upshot was the promulgation, June 15, 1215, of Magna Carta.
No instrument in the annals of any nation exceeds in importance the
Great Charter. The whole of English constitutional history, once
remarked Bishop Stubbs, is but one long commentary upon it. The
significance of the Charter arises not simply from the fact that it
was wrested from an unwilling sovereign by concerted action of the
various orders of society (action such as in France and other
continental countries never, in mediæval times, became possible), but
principally from the remarkable summary which it embodies of the
fundamental principles of English government in so far as those
principles had ripened by the thirteenth century. The Charter
contained little or nothing that was new. Its authors, the barons,
sought merely to gather up within a reasonably brief document those
principles and customs which the better kings of England had been wont
to observe, but which in the evil days of Richard and John had been
persistently evaded. There was no thought of a new form of government,
or of a new code of laws, but rather of the redress of present and
practical grievances. Not a new constitution, but good government in
conformity with the old one, was the essential object. Naturally
enough, therefore, the instrument was based, in most of its important
provisions, upon the charter granted by Henry I. in 1100, even as that
instrument was based, in the main, upon the righteous laws of Edward
the Confessor. After like manner, the Charter of 1215 became, in its
turn, the foundation to which reassertions of constitutional liberty
in subsequent times were apt to return; and, under greater or lesser
pressure, the Charter itself was "confirmed" by numerous sovereigns
who proved themselves none too much disposed to observe its
principles.
In effect the Charter was a treaty between the king and his dissatisfied
subjects. It was essentially a feudal document, and the majority of
its provisions relate primarily to the privileges and rights of the
barons. None the less, it contains clauses that affected all classes
of society, and it is especially noteworthy that the barons and clergy
pledged themselves in it to extend to their dependents the same
customs and liberties which they were themselves demanding of the
crown. Taking the Charter as a whole, it guaranteed the freedom of
the Church, defined afresh and in precise terms surviving feudal (p. 010)
incidents and customs, placed safeguards about the liberties of the
boroughs, pledged security of property and of trade, and stipulated
important regulations respecting government and law, notably that
whenever the king should propose the assessment of scutages or of
unusual aids he should take the advice of the General Council,
composed of the tenants-in-chief summoned individually in the case of
the greater ones and through the sheriffs in the case of those of
lesser importance. Certain general clauses, e.g., that pledging that
justice should neither be bought nor sold, and that prescribing that a
freeman might not be imprisoned, outlawed, or dispossessed of his
property save by the judgment of his peers or by the law of the land,
meant in effect considerably less than they sometimes have been
interpreted to mean.[11] Yet even they served to emphasize the
fundamental principle upon which the political and legal structure was
intended to be grounded, that, namely, of impartial and unvarying
justice.[12]
[Footnote 11: The term "peers," as here employed,
means only equals in rank. The clause cited does
not imply trial by jury. It comprises a guarantee
simply that the barons should not be judged by
persons whose feudal rank was inferior to their
own. Jury trial was increasingly common in the
thirteenth century, but it was not guaranteed in
the Great Charter.]
[Footnote 12: Good accounts of the institutional
aspects of the Norman-Angevin period are Stubbs,
Constitutional History, I., 315-682, II., 1-164;
Taylor, Origin and Growth of the English
Constitution, I., Bk. 2, Chaps. 2-3; Adams, The
Origin of the English Constitution, Chaps. 1-4; and
White, Making of the English Constitution, 73-119.
Two excellent little books are Stubbs, Early
Plantagenets (London, 1876) and Mrs. J. R. Green,
Henry II. (London, 1892). General accounts will be
found in T. F. Tout, History of England from the
Accession of Henry III. to the Death of Edward
III., 1216-1377 (London, 1905), and H. W. C. Davis,
England under the Normans and the Angevins (London,
1904). A monumental treatise, though one which
requires a considerable amount of correction, is E.
A. Freeman, History of the Norman Conquest, 6 vols.
(Oxford, 1867-69), and a useful sketch is Freeman,
Short History of the Norman Conquest (3d ed.,
Oxford, 1901). Among extended and more technical
works may be mentioned: F. Pollock and F. W.
Maitland, History of English Law, 2 vols. (2d ed.,
Cambridge, 1898), which, as a study of legal
history and doctrines, supersedes all earlier
works; F. W. Maitland, Domesday Book and Beyond
(Cambridge, 1897); J. H. Round, Feudal England
(London, 1895); K. Norgate, England under the
Angevin Kings, 2 vols. (London, 1887); ibid., John
Lackland (London, 1902), and J. H. Ramsay, The
Angevin Empire (London, 1903). The text of the
Great Charter is printed in Stubbs, Select
Charters, 296-306. English versions may be found in
G. B. Adams and H. M. Stephens, Select Documents of
English Constitutional History (New York, 1906),
42-52; S. Amos, Primer of the English Constitution
and Government (London, 1895), 189-201; and
University of Pennsylvania Translations and
Reprints (translation by E. P. Cheyney), I., No. 6.
The principal special work on the subject is W. S.
McKechnie, Magna Carta; a Commentary on the Great
Charter of King John (Glasgow, 1905). An
illuminating commentary is contained in Adams,
Origin of the English Constitution, 207-313.]
IV. THE RISE OF PARLIAMENT (p. 011)
*11. Beginnings of the Representative Principle.*--The thirteenth
century was clearly one of the most important periods in the growth of
the English constitution. It was marked not merely by the contest
which culminated in the grant of the Great Charter but also by the
beginnings, in its essentials, of Parliament. The formative epoch in
the history of Parliament may be said to have been, more precisely,
the second half of the reign of Henry III. (1216-1272), together with
the reign of the legislator-king Edward I. (1272-1307). The creation
of Parliament as we know it came about through the signal enlargement
of the Norman-Plantagenet Great Council by the introduction of
representative elements, followed by the splitting of the
heterogeneous mass of members definitely into two co-ordinate
chambers. The representative principle was in England no new thing in
the thirteenth century. As has appeared, there were important
manifestations of it in the local governmental system of Anglo-Saxon
times. As brought to bear in the development of Parliament, however,
the principle is generally understood to have sprung from the
twelfth-century practice of electing assessors to fix the value of
real and personal property for purposes of taxation, and of jurors to
present criminal matters before the king's justices. Thus, Henry II.'s
Saladin Tithe of 1188--the first national imposition upon incomes and
movable property--was assessed, at least in part, by juries of
neighbors elected by, and in a sense representative of, the taxpayers
of the various parishes. By the opening of the thirteenth century the
idea was fast taking hold upon the minds of Englishmen, not only that
the taxpayer ought to have a voice in the levying of taxes, but that
between representation and taxation there was a certain natural and
inevitable connection. In the Great Charter, as has been stated, it
was stipulated that in the assessment of scutages and of all save the
three commonly recognized feudal aids the king should seek the advice
of the General Council. The General Council of the earlier thirteenth
century was not regularly a representative body, but it was not beyond
the range of possibility to impart to it a representative character,
and in point of fact that is precisely what was done. To facilitate
the process of taxation it was found expedient by the central
authorities to carry over into the domain of national affairs that
principle of popular representation which already was doing approved
service within the sphere of local justice and finance, and from this
adaptation arose, step by step, the conversion of the old gathering of
feudal magnates into a national parliamentary assembly.
*12. Early Parliaments.*--The means by which the transformation (p. 012)
was accomplished consisted in the first instance, as has been said, in
the introduction into the Council of new and representative elements.
The earliest step in this direction was taken in 1213, when King John,
harassed by fiscal and political difficulties, addressed to the
sheriffs a series of writs commanding that four discreet knights from
every county be sent to participate in a deliberative council to be
held at Oxford. The practice took root slowly. In 1254 Henry III., in
sore need of money for the prosecution of his wars in Gascony,
required of the sheriffs that two knights be sent from each county to
confer with the barons and clergy relative to the subsidies which
should be accorded the crown. The desired vote of supplies was refused
and the long-brewing contest between the king and the barons broke in
civil war. But during the struggle that ensued the foundations of
Parliament were still more securely laid. Following the king's defeat
at Lewes, in 1264, Simon de Montfort, leader of the barons, convened a
parliament composed of not only barons and clergy but also four
knights from each shire, and at London during the following year, he
caused again to be assembled, in addition to five earls, eighteen
barons, and a large body of clergy, two knights from each of the
several shires and two burgesses from each of twenty-one towns known
to be friendly to the barons' cause. These proceedings were
essentially revolutionary and unauthorized. Even the gathering of
1265, as Stubbs remarks, presented the appearance largely of a party
convention, and there is no evidence that its author intended such a
body to be regularly or frequently summoned, or even summoned a second
time at all. None the less, now for the first time representatives of
the towns were brought into political co-operation with the barons,
clergy, and knights; and the circumstance was filled with promise.
During the ensuing thirty years there were several "parliaments,"
although the extent to which knights and burgesses participated in
them is uncertain. The period was one of experimentation. In 1273 four
knights from each shire and four citizens from each town joined the
magnates in taking the oath of fealty to the new and absent sovereign,
Edward I. The First Statute of Westminster, in 1275, declares itself
to have been adopted with the assent of the "commonalty of the realm."
In 1283 a parliament was held which almost precisely duplicated that
of 1265. In 1290, and again in 1294, there was one, in which, however,
representation of the towns was omitted.
The gathering which served to fix the type for all time to come was
Edward I.'s so-called Model Parliament of 1295. To this parliament the
king summoned severally the two archbishops, all of the bishops, the
greater abbots, and the more important earls and barons; while (p. 013)
every sheriff was enjoined to see that two knights were chosen from
each shire, two citizens from each city, and two burgesses from each
borough. Each bishop was authorized, furthermore, to bring with him
his prior or the dean of the cathedral chapter, the archdeacons of his
diocese, one proctor or agent for his cathedral chapter, and two of
his diocesan clergy. In the parliament as actually convened there were
2 archbishops, 18 bishops with their lesser clergy, 66 abbots, 3 heads
of religious orders, 9 earls, 41 barons, 63 knights of the shire, and
172 representatives of the cities and boroughs--an aggregate of
approximately 400 persons. There were thus present in the assemblage,
in person or by deputy, all of the constituent orders of English
society, and the irregular device of Simon de Montfort was vested at
last with the character of legality. After Edward I. Parliament may be
said to have been an established institution of the realm. Its
meetings long continued intermittent and infrequent, and its powers
from time to time varied enormously, but the place which it filled in
the economy of the nation grew ever more important.
*13. Establishment of the Bicameral System.*--Like its counterpart in
France, the Estates-General, the English Parliament comprised the
three great estates or orders--nobility, clergy, and commons--of
which, aside from the peasantry, mediæval society in all western
European countries was composed. In the working out of its internal
structure, however, two chambers resulted, rather than, as in France,
three. Originally the three estates sat separately. Their primary
business was the voting of supplies and, the principle being that a
tax ought to be conceded by those who would be called upon to pay it,
the natural course was for the lords to grant their scutages and aids,
the commoners their tenths and fifteenths, and the clergy their
subsidies, apart. Indeed there is reason to believe that at times even
the knights and the burgesses deliberated separately. Gradually,
however, there appeared certain affiliations of interest which
operated to modify the original practice. In the first place, the
lesser clergy, inconvenienced by attendance and preferring to vote
their contributions in the special ecclesiastical assemblages known as
the convocations of Canterbury and York, contrived to throw off
entirely their obligation of membership. The greater clergy and the
greater barons, in the next place, developed sufficiently large
interests in common to be amalgamated with ease in one body.
Similarly, the lesser barons found their interests essentially
identical with those of the country freeholders, represented by the
knights of the shire, and with those of the burgesses. The upshot was a
gradual alignment of the aggregate membership in two great groups, (p. 014)
the one of which became historically the House of Lords, the other the
House of Commons. At the beginning of the reign of Edward III.
(1327-1377) the three estates still sat separately, but before the
close of this period the bicameral arrangement seems definitely to
have been established. There is no evidence that at any stage of their
history the three groups ever sat as a single body. It need hardly be
emphasized that the entire course of English history since the
fourteenth century has been affected profoundly by the fact that the
national assembly took the form of two houses rather than of one, as
did the Scotch, of three as did the French, or of four as did the
Swedish. But for the withdrawal of the lesser clergy, the number might
very possibly have been three.
*14. Powers of Finance and Legislation.*--Structurally, the English
Parliament is a creation of the Middle Ages; politically, it is a
product of modern times, and, in no small measure, of the past hundred
years. Before the close of the Middle Ages, however, it had acquired a
sum total of authority which at least gave promise of its development
into a great co-ordinate, if not a preponderating, power in the state.
In the first place, it had forced the establishment of the twin
principles of public finance (1) that the right to levy taxes of every
sort lay within its hands and (2) that the crown might impose no
direct tax without its assent, nor any indirect tax save such as might
be justified under the customs recognized in Magna Carta. When Edward
I. confirmed the Charter, in 1297, he agreed that no tallages or aids
should thereafter be taken without the assent of the archbishops,
bishops, earls, barons, knights, burgesses, and other freemen of the
land. A statute of 1340 reiterated the principle still more
specifically. In 1395 appeared the formula employed to this day in the
making of parliamentary grants, "by the Commons with the advice and
assent of the Lords Spiritual and Temporal." And in 1407 Henry IV.
extended the royal approval to the principle that money grants should
be initiated in the Commons, assented to by the Lords, and only
thereafter reported to the king. For the ancient theory of taxation by
estates was substituted, slowly but inevitably, the modern doctrine of
the fiscal pre-eminence of the Commons.
The second point at which Parliament made decisive advance before the
close of the mediæval period was in respect to powers of ordinary
legislation. Originally, Parliament was not conceived of as, in the
strict sense, a law-making body at all. The magnates who composed the
General Council had exercised the right to advise the crown in
legislative matters, and their successors in Parliament continued to
do the same, but the commoners who in the thirteenth century were (p. 015)
brought in were present, in theory, for fiscal rather than legislative
purposes. The distinction, however, was difficult to maintain, and
with the continued growth of the parliamentary body the legislative
character was recognized eventually to be inherent in the whole of it.
At the opening of the fourteenth century laws were made, technically,
_by_ the king with the _assent_ of the magnates at the _request_ of
the commoners. The knights and burgesses were recognized as
petitioners for laws, rather than as legislators. They could ask for
the enactment of a statute, or for a clearer definition of law, but it
was for the king and his councillors to determine finally whether
legislation was required and what form it should assume. Even when a
law which was requested was promised it not infrequently happened that
the intent of the Commons was thwarted, for the text of the measure
was not drawn up, normally, until after the parliament was dissolved,
both form and content were determined arbitrarily by the crown and
council, and between petition and statute there might be, and often
was, gross discrepancy.
*15. Development of the Legislative Process.*--By a memorable statute of
1322, in the reign of Edward II., it was stipulated that "the matters
which are to be established for the estate of our lord the king and of
his heirs, and for the estate of the realm and of the people, shall be
treated, accorded, and established in parliaments, by our lord the king,
and by the assent of the prelates, earls, and barons, and the
commonalty of the realm; according as it hath been before accustomed."[13]
This declaration is understood to have established, not only the
essentially legislative character of Parliament, but the legislative
parity of the commoners with the magnates. It remained, however, to
substitute for the right of petition the right of legislating by bill.
Throughout the fourteenth century Parliament, and especially the
Commons, pressed for an explicit recognition of the principle that the
statute in its final form should be identical with the petition upon
which it was based. In 1414 Henry V. granted that "from henceforth
nothing be enacted to the petitions of his commons that be contrary to
their asking, whereby they should be bound without their assent."[14]
The promise tended in practice to be evaded, and late in the reign of
Henry VI. there was brought about an alteration of procedure in
accordance with which measures were henceforth to be introduced in
either house, in the form of drafted bills. The legislative process
was now essentially reversed. The right of initiative was secured to
the Commons, concurrently with the Lords; the crown was restricted to
a right of veto or assent. The change in procedure was reflected (p. 016)
in a change of formula. Statutes began to be made "by the King's most
excellent majesty by and with the advice and consent of the Lords
spiritual and temporal, and Commons in this present Parliament assembled,
and by the authority of the same." And these words comprise the
formula with which every act of Parliament to-day begins. Technically,
the laws were, and are still, made by the crown; practically
Parliament, once merely a petitioning and advising body, had become a
full-fledged legislative assemblage.
[Footnote 13: Adams and Stephens, Select Documents,
97.]
[Footnote 14: Ibid., 182.]
Throughout the later fourteenth and earlier fifteenth centuries the
growth of Parliament in self-assertiveness was remarkable. Twice
during the fourteenth century, in 1327 and in 1399, it exercised the
fundamental prerogative of deposing the sovereign and of bestowing the
crown upon a successor.[15] And before the close of the Lancastrian
era it had assumed advanced ground in demanding the right of
appropriating (as well as of voting) subsidies, the accounting by the
public authorities for moneys expended, the removal of objectionable
ministers, and the annual assembling of the two houses. During the
civil wars of the second half of the fifteenth century parliamentary
aggressiveness and influence materially declined, and at the opening
of the Tudor period, in 1485, the body was in by no means the
favorable position it had occupied fifty years earlier. As will
appear, its eclipse continued largely through the epoch of the Tudors.
Yet its broader aspects had been permanently fixed and its
perpetuation in the constitutional system positively assured.[16]
[Footnote 15: Strictly, upon the first of these
occasions the sovereign, Edward II., was driven by
threat of deposition to abdicate.]
[Footnote 16: On the rise of Parliament see Stubbs,
Constitutional History of England, II., Chaps. 15,
17; Taylor, Origins and Growth of the English
Constitution, I., 428-616; G. B. Smith, History of
the English Parliament, 2 vols. (London, 1892), I.,
Bks. 2-4; White, Making of the English
Constitution, 298-401; D. J. Medley, Students'
Manual of English Constitutional History (2d ed.,
Oxford, 1898), 127-150; Tout, History of England
from the Accession of Henry III. to the Death of
Edward III., Chaps. 5, 6, 10. Valuable biographical
treatises are G. W. Prothero, Life of Simon de
Montfort (London, 1877); E. Jenks, Edward
Plantagenet [Edward I.] the English Justinian (New
York, 1902); and T. F. Tout, Edward the First
(London, 1906).]
V. ADMINISTRATIVE AND JUDICIAL DEVELOPMENT
*16. The Permanent Council.*--One line, thus, along which were laid the
foundations of the English governmental system of to-day comprised the
transformation of the Norman Great Council into the semi-aristocratic,
semi-democratic assemblage known as Parliament. A parallel line (p. 017)
was the development from the Great Council of a body designated after
the thirteenth century as the Permanent, after the fifteenth as the
Privy, Council, and likewise of the four principal courts of law. By a
very gradual process those members of the original Council who were
attached in some immediate manner to the court or to the administrative
system acquired a status which was different from that of their
colleagues. The Great Council met irregularly and infrequently. So
likewise did Parliament. But the services of the court and the
business of government must go on continuously, and for the care of
these things there grew up a body which at first comprised essentially
a standing commission, an inner circle, of the Council, but which in
time acquired a virtually independent position and was designated, for
purposes of distinction, as the Permanent Council. The composition of
this body varied from time to time. Certain functionaries were
included regularly, while the remaining members owed their places to
special summons of the crown. Its powers were enormous, being at the
same time administrative, judicial, and financial, and the mass of
business to which it was required to give attention was increasingly
great.
*17. The Courts of Law.*--Three things resulted. In the first place, the
Permanent Council acquired, in practice, complete detachment from the
older and larger body. In the second place, to facilitate the
accomplishment of its work there were introduced into it trained
lawyers, expert financiers, and men of other sorts of special
aptitudes--men, often, who in rank were but commoners. Finally, there
split off from the body a succession of committees, to each of which
was assigned a particular branch of administrative or judicial
business. In this manner arose the four great courts of law: (1) the
Court of Exchequer, to which was consigned jurisdiction over all
fiscal causes in which the crown was directly concerned; (2) the Court
of Common Pleas, with jurisdiction over civil cases between subject
and subject; (3) the Court of King's Bench, presided over nominally by
the king himself and taking cognizance of a variety of cases for which
other provision was not made; and (4) the Court of Chancery, which,
under the presidency of the Chancellor, heard and decided cases
involving the principles of equity. The differentiation of these
tribunals, beginning in the early twelfth century, was completed by
the middle of the fourteenth. Technically, all were co-ordinate
courts, from which appeal lay to the King in Council; and of the
judicial prerogative which the Council as a whole thus retained there
are still, as will be pointed out, certain survivals. By the time
of Henry VI. (1422-1461) the enlargement of membership and the
specialization of functions of the Permanent Council had (p. 018)
progressed so far that the Council had ceased entirely to be a working
unit. In the end what happened was that, precisely as the Permanent
Council had been derived by selection from the original Great Council,
so from the overgrown Permanent Council was constituted, in the
fifteenth century, a smaller and more compact administrative body to
which was assigned the designation of "Privy Council."[17]
[Footnote 17: Stubbs, Constitutional History, II.,
Chap. 13; White, Making of the English
Constitution, 123-251; Adams, Origin of the English
Constitution, 136-143; W. S. Holdsworth, History of
English Law, 3 vols. (London, 1903-1909), I.,
1-169.]
VI. THE TUDOR MONARCHY
*18. Popular Absolutism.*--The salient fact of the Tudor period of
English history (1485-1603) is the vigor and dominance of the
monarchy. From the Wars of the Roses the nation emerged in need, above
all other things, of discipline and repose. It was the part of the
Tudors to enforce relentlessly the one and to foster systematically
the other. The period was one in which aristocratic turbulence was
repressed, extraordinary tribunals were erected to bring to justice
powerful offenders, vagrancy was punished, labor was found for the
unemployed, trade was stimulated, the navy was organized on a
permanent basis, the diffusion of wealth and of education was
encouraged, the growth of a strong middle class was promoted--in
short, one in which out of chaos was brought order and out of weakness
strength. These things were the work of a government which was
strongly paternal, even sheerly despotic, and, for a time at least,
the evolution of parliamentary machinery was utterly arrested. But it
should be observed that the question in sixteenth-century England was
not between strong monarchy on the one hand and parliamentary
government on the other. The alternatives were, rather, strong
monarchy and baronial anarchy. This the nation clearly perceived, and,
of the two, it much preferred the former.
"The Tudor monarchy," says an English scholar, "unlike most other
despotisms, did not depend on gold or force, on the possession of vast
estates, unlimited taxation, or a standing army. It rested on the
willing support of the nation at large, a support due to the
deeply-rooted conviction that a strong executive was necessary to the
national unity, and that, in the face of the dangers which threatened
the country both at home and abroad, the sovereign must be allowed a
free hand. It was this conviction, instinctively felt rather than
definitely realized, which enabled Henry VIII. not only to crush open
rebellion but to punish the slightest signs of opposition to his (p. 019)
will, to regulate the consciences of his subjects, and to extend the
legal conception of treason to limits hitherto unknown. It was this
which rendered it possible for the ministers of Edward VI. to impose a
Protestant régime upon a Romanist majority, and allowed Mary to enter
upon a hateful marriage and to drag the country into a disastrous war.
It was this, finally, which enabled Elizabeth to choose her own line
in domestic and foreign policy, to defer for thirty years the war with
Spain, and to resist, almost single-handed, the pressure for further
ecclesiastical change. The Tudor monarchy was essentially a national
monarchy. It was popular with the multitude, and it was actively
supported by the influential classes, the nobility, the gentry, the
lawyers, the merchants, who sat as members of Parliament at
Westminster, mustered the forces of the shire as Lords-Lieutenant, or
bore the burden of local government as borough magistrates and
justices of the peace."[18]
[Footnote 18: G. W. Prothero, Select Statutes and
other Constitutional Documents Illustrative of the
Reigns of Elizabeth and James I, (Oxford, 1898),
xvii--xviii.]
*19. The Privy Council.*--The times of the Tudors and of the early
Stuarts have been designated with aptness the period of "government by
council." Parliament continued to exercise a certain control over
legislation and taxation, but it was in and through the Privy Council,
together with certain subordinate councils, that the absolute
monarchy, in the main, performed its work. The Privy Council--or
simply "the Council"--comprised ordinarily about seventeen or eighteen
persons, although under Henry VIII. its membership at one time
approached forty. The councillors were almost invariably members of
one or the other of the two houses of Parliament, an arrangement by
which was facilitated the control of the proceedings of that body by
the Government, but which did not yet involve any recognized
responsibility of the executive to the legislative branch. After Queen
Mary the councillors were, with few exceptions, laymen. Technically,
the function of the Council was only advisory, but in practice even
those sovereigns, as Henry VIII. and Elizabeth, who were most vigilant
and industrious, were obliged to allow to the councillors large
discretion in the conduct of public business, and under the early
Stuarts the Council very nearly ruled the realm. Representing at all
times the sovereign, who was supposed invariably to be present at its
deliberations, the Council supervised the work of administration,
regulated trade, granted licenses, controlled the press, kept an eye
on the law courts, ferreted out plots, took measures to suppress
rebellion, controlled the movements of the fleet, assisted in the
management of ecclesiastical affairs, and, in short, considered (p. 020)
and took action upon substantially all concerns of state. By virtue of
its right to issue orders or ordinances it possessed a power that was
semi-legislative; through its regulation of trade, its management of
loans and benevolences, and its determination of military obligations,
it participated actively in the control of taxation; and, under the
presidency of the crown, it possessed the functions of a supreme
tribunal, whose jurisdiction, in part original and in part appellate,
was widespread and peculiarly despotic.[19]
[Footnote 19: Prothero, Statutes and Constitutional
Documents, cii. See A. V. Dicey, The Privy Council
(London, 1887); E. Percy, The Privy Council under
the Tudors (Oxford, 1907).]
*20. Other Councils: The Star Chamber.*--In 1487 there was created a
special tribunal, consisting at the outset of seven great officials
and members of the Council, including two judges, to take special
cognizance of cases involving breaches of the law by offenders who
were too powerful to be reached under the operation of the ordinary
courts. This was the tribunal subsequently known, from its
meeting-place, as the Court of Star Chamber. In effect it was from the
beginning a committee of the Privy Council, empowered to exercise a
jurisdiction which in truth had long been exercised extra-legally by
the Council as a whole. The relation of the two institutions inclined
in practice to become ever closer, and by the middle of the sixteenth
century the Star Chamber had been enlarged to include all of the
members of the Council, together with the two chief justices; and
since the Star Chamber possessed a statutory sanction which the
Council lacked, the judicial business of the older body was despatched
regularly by its members sitting under the guise of the newer one. The
tendency of the Tudor régime toward the conciliar type of government
is manifested further by the creation of numerous subsidiary councils
and courts whose history cannot be recounted here. Most of these were
brought into existence during the reign of Henry VIII. Those of
principal importance were (1) the Council of the North, set up in
1539; (2) the Council of Wales, confirmed by statute of 1542; (3) the
Court of Castle Chamber, reproducing in Ireland the principal features
of the English Star Chamber; (4) the Courts of Augmentation, First
Fruits and Annates, and Wards; and (5) the Elizabethan Court of High
Commission.[20]
[Footnote 20: A. T. Carter, Outlines of English
Legal History (London, 1899), Chap. 12; A. Todd,
Parliamentary Government in England, ed. by S.
Walpole, 2 vols. (London, 1892), I., Chap. 2;
Dicey, The Privy Council, 94-115.]
VII. PARLIAMENT UNDER THE TUDORS (p. 021)
*21. Control by the Crown.*--By the Tudors generally, and especially
Henry VIII. and Elizabeth, Parliament was regarded as a tool to be
used by the crown, rather than as in any sense an independent,
co-ordinate power in the state. When innovations were to be
introduced, such as those carried through by Henry VIII., it was Tudor
policy to clothe them with the vestments of parliamentarism, to the
end that they might be given the appearance and the sanction of
popular measures; and when subsidies were to be obtained, it was
recognized to be expedient to impart to them, in similar manner, the
semblance of voluntary gifts on the part of the nation. It was no part
of Tudor intent, however, that Parliament should be permitted to
initiate measures, or even to exercise any actual discretion in the
adoption, amendment, or rejection of proposals submitted by the
Government. There were several means by which the crown contrived to
impede the rise of Parliament above the subordinate position which
that body occupied at the accession of Henry VII. One was the practice
of convening Parliament irregularly and infrequently and of bringing
its sessions to an early close. Another, employed especially during
Thomas Cromwell's ministry under Henry VIII. and during the reign of
Elizabeth, was that of tampering with the freedom of borough and
county elections. A third was the habit, also notorious under Henry
VIII. and Elizabeth, of dictating and directing in all that was
essential in the proceedings of the chambers. Henry VIII. bullied his
parliaments systematically; Elizabeth, by cajolery, flattery, deceit,
and other arts of which she was mistress, attained through less
boisterous methods the same general end. Measures were thrust upon the
chambers accompanied by peremptory demand for their enactment;
objectionable projects originated by private members were stifled; and
the fundamental parliamentary privileges of free speech, freedom from
arrest, and access to the sovereign were arbitrarily suspended or
otherwise flagrantly violated.
*22. The Independence of the Crown.*--Finally must be mentioned certain
devices by which the crown was enabled to evade limitations
theoretically imposed by Parliament's recognized authority. One of
these was the issuing of proclamations. In the sixteenth century it
was generally maintained that the sovereign, acting alone or with the
advice of the Council, could issue proclamations controlling the
liberty of the subject, so long as such edicts did not violate statute
or common law. As a corollary, it was maintained also that the crown
could dispense with the action of law in individual cases and at (p. 022)
times of crisis. The range covered by these prerogatives was broad and
undefined, and in the hands of an aggressive monarch they constituted
a serious invasion of the powers of legislation nominally vested in
Parliament. It is true that the act of 1539 imparting to royal
proclamations the force of law was repealed in 1547; but proclamations
continued, especially under Elizabeth and James I., not only to be
numerous, but to be enforced relentlessly by penalties inflicted
through the Star Chamber. The most important power of Parliament in
the sixteenth century was still that of voting supplies. But in
respect to finance, as in respect to legislation, the crown possessed
effective means of evading parliamentary control. In the first place,
the sovereign possessed large revenues, arising from crown lands,
feudal rights, profits of jurisdiction, and ecclesiastical payments,
with which Parliament had nothing whatever to do. In the second place,
the great indirect taxes--customs duties and tonnage and
poundage--were, in the sixteenth century, voted at the accession of a
sovereign for the whole of the reign. It was only in respect to
extraordinary taxes--"subsidies" and "tenths and fifteenths"--that
Parliament was in a position effectually to make or mar the fiscal
fortunes of the Government; except that, of course, it was always open
to Parliament to criticise the financial expedients of the crown, such
as the sale of monopolies, the levy of "impositions," and the
collection of benevolences, and to influence, if it could, the policy
pursued in relation to these matters.
*23. The House of Lords in 1485.*--Despite the numerous strictures that
have been mentioned, Parliament in the Tudor period by no means stood
still. The enormous power and independence exhibited by the chambers,
especially the Commons, in the seventeenth century was the product of
substantial, if more or less hidden, growth during the previous one
hundred and fifty years. The composition of the two houses at the
accession of Henry VII. was not clearly defined. The House of Lords
was but a small body. It comprised simply those lords, temporal and
spiritual, who were entitled to receive from the king, when a
parliament was to be held, a special writ, i.e., an individual
summons. The number of these was indeterminate. The right of the
archbishops, the bishops, and the abbots to be summoned was immemorial
and indisputable, although the abbots in practice evaded their
obligation of attendance, save in cases in which it could be shown
that as military tenants of the crown they were obligated to perform
parliamentary duty. Among the lay nobility the selection of
individuals for summons seems originally to have been dependent upon
the royal pleasure. Eventually, however, the principle became (p. 023)
fixed that a man once summoned must be summoned whenever occasion
should arise, and that, furthermore, his eldest son after him must be
summoned in similar manner. What was at the outset an obligation
became in time a privilege and a distinction, and by the day when it
did so the rule had become legally established that the king could not
withhold a writ of summons from the heir of a person who had been once
summoned and had obeyed the summons by taking his seat. During the
fourteenth century the aggregate membership of the chamber fluctuated
in the neighborhood of 150. By reason of the withdrawal of some of the
abbots and the decline of the baronage, in the fifteenth century the
body was yet smaller. The number of temporal lords summoned to the
first parliament of Henry VII. was but 29.
*24. The House of Commons in 1485.*--The House of Commons at the
beginning of the Tudor period was a body of some 300 members. It
contained 74 knights of the shire, representing all but three of the
forty English counties, together with a fluctuating number of
representatives of cities and boroughs. In the Model Parliament of
1295 the number of urban districts represented was 166, but as time
went on the number declined, in part because of the discrimination
exercised from time to time in the selection of boroughs to be
represented, and in part by reason of the fact that in times when
representation did not appear to yield tangible results the borough
taxpayers begrudged the two shillings per day paid their
representatives, in some instances sufficiently to be induced to
abandon altogether the sending of members. By the time of Edward IV.
(1399-1413) the number of represented towns had fallen to 111. At the
beginning of the fifteenth century county members were elected by the
body of freeholders present at the county court, but by statute of
1429 the electoral privilege was restricted to freeholders resident in
the county and holding land of the yearly rental value of forty
shillings, equivalent, perhaps, to some £30 to £40 in present values.
This rule, adopted originally with the express purpose of
disfranchising "the very great and outrageous number of people either
of small substance or of no value" who had been claiming an electoral
equality with the "worthy knights and squires," continued in operation
without amendment until 1832. The electoral systems prevailing in the
boroughs exhibited at all times the widest variation, and never prior
to 1832 was there serious attempt to establish uniformity of practice.
In some places (the so-called "scot and lot" boroughs) the suffrage
was exercised by all rate-payers; in others, by the holders of particular
tenements ("burgage" franchise); in others (the "potwalloper" (p. 024)
boroughs) by all citizens who had hearths of their own; in many, by
the municipal corporation, or by the members of a guild, or even by
neighboring landholders. Borough electoral arrangements ran the full
gamut from thoroughgoing democracy to the narrowest kind of oligarchy.
*25. Development under the Tudors: Composition.*--During the Tudor
period the composition of the two chambers underwent important change.
In the Lords the principal modification was the substitution of
temporal for spiritual preponderance. This was brought about in two
ways. The first was the increase numerically of the hereditary peers
from thirty-six at the beginning of the reign of Henry VIII. to about
eighty at the accession of James I. The second was the dropping out of
twenty-eight abbots, incident to the closing of the monasteries by
Henry VIII. and only partially compensated by the creation at the time
of six new bishoprics. In 1509 the number of lords spiritual was
forty-eight; in 1603, it was but twenty-six. The House of Commons
under the Tudors was virtually doubled in size. The final
incorporation of Wales in 1535 meant the adding of twenty-five
members. In 1536 and 1543 the counties of Monmouth and Chester were
admitted to representation. There followed the enfranchisement of a
number of boroughs, and by the end of the reign of Henry VIII. the
representation of counties had been increased from 74 to 90, and that
of the boroughs had been brought up to 252, giving the House an
aggregate membership of 342. During the reign of Edward VI. twenty new
constituencies were created, and during that of Mary twenty-one. But
the most notable increase was that which took place in the reign of
Elizabeth, the net result of which was the bringing in of 62 new
borough representatives, in some cases from boroughs which now
acquired for the first time the right of representation, in others
from boroughs which once had possessed the right but through disuse
had been construed to have forfeited it. The total increase of the
Commons in numerical strength during the Tudor period was 166. There
can be little question that in a few instances parliamentary
representation was extended with the specific purpose of influencing
the political complexion of the popular chamber. But, on the whole,
the reason for the notable increase, especially of borough members, is
to be found in the growing prosperity of the country and in the
reliance which the Tudors were accustomed to place upon the commercial
and industrial classes of the population.
*26. Other Developments.*--A second point at which Parliament in the
Tudor era underwent modification was in respect to permanence and
sittings. Prior to Henry VIII. the life of a parliament was confined,
as a rule, to a single session, and sessions were brief. But (p. 025)
parliaments now ceased to be meetings to be broken up as soon as some
specific piece of business should have been completed, and many were
brought together in several succeeding sessions. Henry VIII.'s
Reformation Parliament lasted seven years. During the forty-five years
of Elizabeth there were ten parliaments and thirteen sessions. One of
these parliaments lasted eleven years, although it met but three
times. It is true that the parliaments of Elizabeth were in session,
in the aggregate, somewhat less than three years, an average for the
reign of but little more than three weeks a year. But the point is
that, slowly but effectually, Parliament as an institution was
acquiring a recognized position in the political system of the nation.
In 1589 Thomas Smith, a court secretary, published a book entitled
"The Commonwealth of England and the Manner of Government Thereof," in
which was laid down the fundamental proposition that "the most high
and absolute power of the realm of England consisteth in the
parliament"; and there is no record that the proclamation of this
doctrine, even by a court official, elicited serious protest or
difference of opinion. It was in the Tudor period, further, that both
houses instituted the keeping of journals and that the appointment of
committees and numerous other aspects of modern parliamentary
procedure had their beginnings.
Finally, the Elizabethan portion of the period was an epoch during
which there took place a very real growth in independence of sentiment
and an equally notable advance in consciousness of power on the part
of the popular chamber. Even before the death of Elizabeth there were
ill-repressed manifestations of the feeling that the Tudor monarchy
had done its work and that the time for a larger amount of
parliamentary control had arrived. Nothing was clearer in 1603 than
the fact that the sovereign who should expect to get on agreeably with
his Commons must be both liberal and tactful. That the Stuarts
possessed the first of these qualities in only a very limited measure
and the second one not at all is a fact upon which turns an entire
chapter of English constitutional history.[21]
[Footnote 21: Excellent works of a general nature
on the Tudor period are H. A. L. Fisher, History of
England from the Accession of Henry VII. to the
Death of Henry VIII. (London, 1906); A. F. Pollard,
History of England from the Accession of Edward VI.
to the Death of Elizabeth (London, 1910); and A. D.
Innis, England under the Tudors (London, 1905). For
institutional history see Taylor, English
Constitution, II., Bk. 4. More specialized
treatment will be found in Smith, History of the
English Parliament, I., Bk. 5; Dicey, The Privy
Council, 76-130; and Taswell-Langmead, English
Constitutional History, Chaps. 10, 12. An excellent
survey of English public law at the death of Henry
VII. is contained in F. W. Maitland, Constitutional
History of England (Cambridge, 1911), 165-236.
Books of large value on the period include W.
Busch, England under the Tudors, trans. by A. M.
Todd (London, 1895), the only volume of which
published covers the reign of Henry VII.; A. F.
Pollard, Henry VIII. (London, 1902 and 1905), and
England under the Protector Somerset (London,
1900); and M. Creighton, Queen Elizabeth (new ed.,
London, 1899).]
VIII. THE STUARTS: CROWN AND PARLIAMENT (p. 026)
*27. Absolutism Becomes Impracticable.*--Throughout the larger portion
of the seventeenth century the principal interest in English politics
centers in the contest which was waged between the nation represented
in Parliament and the sovereigns of the Stuart dynasty. The question,
as one writer has put it, was "at first whether government should be
by the king or by the king in parliament, afterwards whether the king
should govern or whether parliament should govern."[22] The Stuart
sovereigns brought with them to the English throne no political
principles that were new. When James I., in a speech before Parliament
March 21, 1610, declared that monarchy "is the supremest thing upon
earth," and that, "as to dispute what God may do is blasphemy, ... so
is it sedition in subjects to dispute what a King may do in the height
of his power,"[23] he was but giving expression to a conception of the
royal prerogative which had been lodged in the mind of every Tudor,
but which no Tudor had been so tactless as publicly to avow. The first
two Stuarts confidently expected to maintain the same measure of
absolutism which their Tudor predecessors had maintained--nothing
more, nothing less. There were, however, several reasons why, for
them, this was an impossibility. The first arose from their own
temperament. The bluntness, the lack of perception of the public will,
and the disposition perpetually to insist upon the minutest
definitions of prerogative, which so pre-eminently characterized the
members of the Stuart house must have operated to alienate
seventeenth-century Englishmen under even the most favorable of
circumstances. A second consideration is the fact, of which the nation
was fully cognizant, that under the changed conditions that had arisen
there was no longer the need of strong monarchy that once there had
been. Law and order had long since been secured; all danger of a
feudal reaction had been effectually removed; foreign invasion was no
more to be feared. Strong monarchy had served an invaluable purpose,
but that purpose had been fulfilled.
[Footnote 22: C. Ilbert, Parliament, its History,
Constitution, and Practice (London and New York,
1911), 28-29.]
[Footnote 23: Prothero, Statutes and Constitutional
Documents, 293-294.]
*28. The Rights of the Commons Asserted.*--Finally there was the (p. 027)
fact of the enormous growth of Parliament as an organ of the public
will. The rapidity of that development in the days of Elizabeth is,
and was at the time, much obscured by the disposition of the nation to
permit the Queen to live out her days without being seriously crossed
in her purposes. But the magnitude of it becomes apparent enough after
1603. In a remarkable document known as the Apology of the Commons,
under date of June 20, 1604, the popular chamber stated respectfully
but frankly to the new sovereign what it considered to be its rights
and, through it, the rights of the nation. "What cause we your poor
Commons have," runs the address, "to watch over our privileges, is
manifest in itself to all men. The prerogatives of princes may easily,
and do daily, grow; the privileges of the subject are for the most
part at an everlasting stand. They may be by good providence and care
preserved, but being once lost are not recovered but with much
disquiet. The rights and liberties of the Commons of England
consisteth chiefly in these three things: first, that the shires,
cities, and boroughs of England, by representation to be present, have
free choice of such persons as they shall put in trust to represent
them; secondly, that the persons chosen, during the time of the
parliament, as also of their access and recess, be free from
restraint, arrest, and imprisonment: thirdly, that in parliament they
may speak freely their consciences without check and controlment,
doing the same with due reverence to the sovereign court of
parliament, that is, to your Majesty and both the Houses, who all in
this case make but one politic body, whereof your Highness is the
head."[24] The shrewdness of the political philosophy with which this
passage opens is matched only by the terseness with which the
fundamental rights of the Commons as a body are enumerated. To the
enumeration should be added, historically, an item contained in a
petition of the Commons, May 23, 1610, which reads as follows: "We
hold it an ancient, general, and undoubted right of Parliament to
debate freely all matters which do properly concern the subject and
his right or state; which freedom of debate being once foreclosed, the
essence of the liberty of Parliament is withal dissolved."[25] The
occasion for this last-mentioned assertion of right arose from the
king's habitual assumption that there were various important matters
of state, e.g., the laying of impositions and the conduct of foreign
relations, which Parliament possessed no right so much as to discuss.
[Footnote 24: Petyt, Jus Parliamentarium (London,
1739), 227-243. Portions of this document are
printed in Prothero, Statutes and Constitutional
Documents, 286-293.]
[Footnote 25: Commons' Journals, I., 431; Prothero,
Statutes, 297.]
*29. The Parliaments of James I. and Charles I.*--The tyranny of (p. 028)
James I. and Charles I. assumed the form, principally, of the issue of
proclamations without the warrant of statute and the exaction of taxes
without the assent of Parliament. Parliament, during the period
1603-1640, was convened but seldom, and it was repeatedly prorogued or
dissolved to terminate its inquiries, thwart its protests, or subvert
its projected measures. Under the disadvantage of recurrent
interruption the Commons contrived, however, to carry on a contest
with the crown which was essentially continuous. During the reign of
James I. (1603-1625) there were four parliaments. The first, extending
from 1604 to 1611, was called in session six times. It sorely
displeased the king by remonstrating against his measures, and
especially by the persistency with which it withheld subsidies pending
a redress of grievances. The second, summoned in 1614, vainly
reiterated the complaints of its predecessor and was dissolved without
having enacted a single measure. The third, in 1621, revived the power
of impeachment (dormant since the days of Henry VII.), reasserted the
right of the chambers to debate foreign relations, and avenged by a
fresh protestation of liberties the arrest of one of its members. The
fourth, in 1624, abolished monopolies and renewed the attack upon
proclamations. The first parliament of Charles I., convoked in 1625,
criticised the policy of the new sovereign and was dissolved. The
second, in 1626, was dissolved to prevent the impeachment of the
king's favorite minister, the Duke of Buckingham. The third, in
1628-1629, drew up the memorable Petition of Right, to which the king
gave reluctant assent, and in which arbitrary imprisonment, the
billeting of soldiers, the establishment of martial law in time of
peace, and the imposition of gifts, loans, benevolences, or taxes
without the consent of Parliament were specifically prohibited.[26]
The fourth of Charles's parliaments, the so-called Short Parliament of
1640, followed a period of eleven years of personal government and
showed no disposition to surrender the rights that had been asserted.
The fifth--the Long Parliament, convoked also in 1640--imprisoned and
executed the king's principal advisers, abolished the Star Chamber and
the several other special courts and councils of Tudor origin,
pronounced illegal the levy of ship-money and of tonnage and poundage
without parliamentary assent, made provision for the assembling of a
parliament within three years of the dissolution of the present one,
and forced the king into a position where he was obliged to yield or
to resort to war.
[Footnote 26: The text of the Petition of Right is
printed in Stubbs, Select Charters, 515-517; Adams
and Stephens, Select Documents, 339-342.]
*30. The Commonwealth and the Protectorate.*--Between the (p. 029)
political theory maintained by the Stuart kings and that maintained by
the parliamentary majority it was found impossible to arrive at a
compromise. The Civil War was waged, in the last analysis, to
determine which of the two theories should prevail. It should be
emphasized that the parliamentarians entered upon the contest with no
intent to establish a government by Parliament alone, in form or in
fact. It is sufficiently clear from the Grand Remonstrance of 1641[27]
that what they contemplated was merely the imposing of constitutional
restrictions upon the crown, together with the introduction of certain
specific changes in the political and ecclesiastical order, e.g., the
abolition of episcopacy. The culmination of the struggle, however, in
the defeat and execution of the king threw open the doors for every
sort of constitutional innovation, and between 1649 and 1660 the
nation was called upon to pass through an era of political
experimentation happily unparalleled in its history. May 19, 1649,
kingship and the House of Lords having been abolished as equally
"useless and dangerous,"[28] Parliament, to complete the work of
transformation, proclaimed a commonwealth, or republic; and on the
great seal was inscribed the legend, "In the first year of freedom by
God's blessing restored." During the continuance of the Commonwealth
(1649-1654) various plans were brought forward for the creation of a
parliament elected by manhood suffrage, but with the essential
principle involved neither the Rump nor the people at large possessed
substantial sympathy. In 1654 there was put in operation a
constitution--the earliest among written constitutions in modern
Europe--known as the Instrument of Government.[29] The system therein
provided, which was intended to be extended to the three countries of
England, Scotland, and Ireland, comprised as the executive power a
life Protector, to be assisted by a council of thirteen to twenty-one
members, and as the legislative organ a unicameral parliament of 460
members elected triennially by all citizens possessing property to the
value of £300.[30] Cromwell accepted the office of Protector, and the
ensuing six years comprise the period known commonly as the (p. 030)
Protectorate.
[Footnote 27: S. R. Gardiner, Constitutional
Documents of the Puritan Revolution (Oxford, 1899),
202-232.]
[Footnote 28: Gardiner, Documents of the Puritan
Revolution, 384-388; Adams and Stephens, Select
Documents, 397-400.]
[Footnote 29: Gardiner, Documents of the Puritan
Revolution, 405-417; Adams and Stephens, Select
Documents, 407-416.]
[Footnote 30: On the history of this unicameral
parliament see J. A. R. Marriott, Second Chambers,
an Inductive Study in Political Science (Oxford,
1910), Chap. 3; A. Esmein, Les constitutions du
protectorat de Cromwell, in _Revue du Droit
Public_, Sept.-Oct. and Nov.-Dec., 1899.]
The government provided for by the Instrument was but indifferently
successful. Between Cromwell and his parliaments relations were much
of the time notoriously strained, and especially was there controversy
as to whether the powers of Parliament should be construed to extend
to the revision of the constitution. In 1657 the Protector was asked
to assume the title of king. This he refused to do, but he did accept
a new constitution, the Humble Petition and Advice, in which a step
was taken toward a return to the governmental system swept away in
1649.[31] This step comprised, principally, the re-establishment of a
parliament of two chambers--a House of Commons and, for lack of
agreement upon a better designation, "the Other House." Republicanism,
however, failed to strike root. Shrewder men, including Cromwell, had
recognized all the while that the English people were really royalist
at heart, and it is not too much to say that from the outset the
restoration of monarchy was inevitable. Even before the death of
Cromwell, in 1658, the trend was distinctly in that direction, and
after the hand of the great Protector had been removed from the helm
such a consummation was a question but of time and means. May 25,
1660, Charles II., having engaged to grant a general amnesty and to
accept such measures of settlement respecting religion as Parliament
should determine upon, landed at Dover and was received with all but
universal acclamation.[32]
[Footnote 31: Gardiner, Documents of the Puritan
Revolution, 447-459.]
[Footnote 32: The best of the general treatises
covering the period 1603-1660 are F. C. Montague,
The History of England from the Accession of James
I. to the Restoration (London, 1907), and G. M.
Trevelyan, England Under the Stuarts (London,
1904). The monumental works within the field are
those of S. R. Gardiner, i.e., History of England,
1603-1642, 10 vols. (new ed., London, 1893-1895);
History of the Great Civil War, 4 vols. (London,
1894); and History of the Commonwealth and
Protectorate, 4 vols. (London, 1894-1901). Mr.
Gardiner's work is being continued by C. H. Firth,
who has published The Last Years of the
Protectorate, 1656-1658, 2 vols. (London, 1909).
The development of institutions is described in
Taswell-Langmead, English Constitutional History,
Chaps. 13-14; Smith, History of the English
Parliament, I., Bks. 6-7; Pike, History of the
House of Lords, _passim_; J. N. Figgis, The Theory
of the Divine Right of Kings (Cambridge, 1896); and
G. P. Gooch, History of English Democratic Ideas in
the Seventeenth Century (Cambridge, 1898). An
excellent analysis of the system of government
which the Stuarts inherited from the Tudors is
contained in the introduction of Prothero, Statutes
and Constitutional Documents. Of the numerous
biographies of Cromwell the best is C. H. Firth,
Oliver Cromwell (New York, 1904). A valuable survey
of governmental affairs at the death of James I. is
Maitland, Constitutional History Of England,
237-280.]
IX. THE LATER STUARTS: THE REVOLUTION OF 1688-1689 (p. 031)
*31. Charles II. and James II.*--Throughout the period 1660-1689 there
was enacted a final grand experiment to determine whether a Stuart
could, or would, govern constitutionally. The constitution in
accordance with which Charles II. and James II. were expected to
govern was that which had been built up during preceding centuries,
amended by the important reforms effected by the Long Parliament in
1641. The settlement of 1660 was a restoration no less of Parliament
than of the monarchy, in respect both to structure and to functions.
The two chambers were re-established upon their earlier foundations,
and in them was vested the power to enact all legislation and to
sanction all taxation. The spirit, if not the letter, of the agreement
in accordance with which the Stuart house was restored forbade the
further imposition of taxes by the arbitrary decree of the crown and
all exercise of the legislative power by the crown singly, whether
positively through proclamation or negatively through dispensation. It
required that henceforth the nature and amount of public expenditures
should, upon inquiry, be made known to the two houses, and that
ministers might regularly be held to account for their acts and those
of the sovereign. The easy-going Charles II. (1660-1685) contrived
most of the time to keep fairly within the bounds that were prescribed
for him. He disliked the religious measures of his first parliament,
but he recognized that a fresh election might be expected to result in
the choice of a House of Commons still less to his taste, and,
accordingly, the Cavalier Parliament was kept in existence throughout
the entire period 1661-1679. The parliamentary history of the closing
years of the reign centered about the question of the exclusion of the
king's Catholic brother, James, from the throne, and was given special
interest by the conflict of groups foreshadowing political parties;
but Charles maintained unfailingly an attitude which, at the least,
did not endanger his own tenure of the throne.
James II. (1685-1688) was a man of essentially different temper. He
was a Stuart of the Stuarts, irrevocably attached to the doctrine of
divine right and sufficiently tactless to take no pains to disguise
the fact. He was able, industrious, and honest, but obstinate and
intolerant. He began by promising to preserve "the government as by
law established." But the ease with which the Monmouth uprising of
1685 was suppressed deluded him into thinking that through the
exemption of the Catholics from the operation of existing laws he
might in time realize his ambition to re-establish Roman Catholicism
in England. He proceeded, therefore, to issue decrees dispensing (p. 032)
with statutes which Parliament had enacted, to establish an
ecclesiastical commission in violation of parliamentary law of 1641,
and, in 1687, to promulgate a declaration of indulgence extending to
all Catholics and Non-Conformists a freedom in religious matters which
was clearly denied by the laws of the country.[33] By this arbitrary
resumption of ancient prerogative the theory underlying the
Restoration was subverted utterly.
[Footnote 33: Gee and Hardy, Documents Illustrative
of English Church History, 641-644; Adams and
Stephens, Select Documents, 451-454.]
*32. The Revolution: the Bill of Rights.*--Foreseeing no relief from
absolutist practices, and impelled especially by the birth, in 1688,
of a male heir to the king, a group of leading men representing the
various political groups extended to the stadtholder of Holland,
William, Prince of Orange, an invitation to repair to England to
uphold and protect the constitutional liberties of the realm. The
result was the bloodless revolution of 1688. November 5, William
landed at Torquay and advanced toward London. James, finding himself
without a party, offered vain concessions and afterwards fled to the
court of his ally, Louis XIV. of France. By a provisional body of
lords, former commoners, and officials William was requested to act as
temporary "governor" until the people should have chosen a national
"convention."[34] This convention assembled January 22, 1689, resolved
that James, by reason of his flight, should be construed to have
abdicated, and established on the throne as joint sovereigns William
and Mary, with the understanding that the actual government of the
realm should devolve upon the king.
[Footnote 34: Not properly a parliament, because
not summoned by a king.]
The Revolution of 1688-1689 was signalized by the putting into written
form of no inconsiderable portion of the English constitution as it
then existed. February 19, 1698, the new sovereigns formally accepted
a Declaration of Right, drawn up by the convention, and by act of
Parliament, December 16 following, this instrument, under the name of
the Bill of Rights, was made a part of the law of the land. In it were
denied specifically a long list of prerogatives to which the last
Stuart had laid claim--those, in particular, of dispensing with the
laws, establishing ecclesiastical commissions, levying imposts without
parliamentary assent, and maintaining a standing army under the
exclusive control of the crown. In it also were guaranteed certain
fundamental rights which during the controversies of the seventeenth
century had been brought repeatedly in question, including those of
petition, freedom of elections, and freedom of speech on the part (p. 033)
of members of Parliament.[35] The necessity of frequent meetings
of Parliament was affirmed, and a succession clause was inserted by
which Roman Catholics and persons who should marry Roman Catholics,
were excluded from the throne. In the Bill of Rights were thus summed
up the essential results of the Revolution, and, more remotely, of the
entire seventeenth-century parliamentary movement. With its enactment
the doctrine of divine right disappeared forever from the domain of
practical English politics. The entire circumstance of William III.'s
accession determined the royal tenure to be, as it thereafter
remained, not by inherent or vested right, but conditioned upon the
national will.[36]
[Footnote 35: In this connection should be recalled
the Habeas Corpus Act of May 26, 1679, by whose
terms the right of an individual, upon arrest, to
have his case investigated without delay was
effectually guaranteed. Stubbs, Select Charters,
517-521; Adams and Stephens, Select Documents,
440-448.]
[Footnote 36: In respect to ecclesiastical affairs
the Bill of Rights was supplemented by the
Toleration Act of May 24, 1689, in which was
provided "some ease to scrupulous consciences in
the exercise of religion," i.e., a larger measure
of liberty for Protestant non-conformists. The text
of the Bill of Rights is in Stubbs, Select
Charters, 523-528; Gee and Hardy, Documents
Illustrative of English Church History, 645-654;
and Adams and Stephens, Select Documents, 462-469;
that of the Toleration Act, in Gee and Hardy,
654-664; and, in abridged form, in Adams and
Stephens, 459-462. General accounts of the period
1660-1689 are contained in R. Lodge, History of
England from the Restoration to the Death of
William III. (London, 1910), Chaps. 1-15, and in
Trevelyan, England Under the Stuarts, Chaps. 11-13.
O. Airy. Charles II., is an excellent book. The
development of Parliament in the period is
described in Smith, History of the English
Parliament, I., Bk. 8, II., Bk. 9.]
CHAPTER II (p. 034)
THE CONSTITUTION SINCE THE SEVENTEENTH CENTURY
I. CROWN AND PARLIAMENT AFTER 1789
*33. Elements of Stability and Change.*--Structurally, the English
governmental system was by the close of the seventeenth century
substantially complete. The limited monarchy, the ministry, the two
houses of parliament, the courts of law, and the local administrative
agencies were by that time constituted very much as they are to-day.
The fundamental principles, furthermore, upon which English government
is operated were securely established. Laws could be enacted only by
"the king in parliament"; taxes could be levied only in the same
manner; the liberty of the individual was safeguarded by a score of
specific and oft-renewed guarantees. In point of fact, however, the
English constitution of 1689 was very far from being the English
constitution of 1912. The overturn by which the last Stuart was driven
from the throne not only marked the culmination of the revolution
commenced in 1640; it comprised the beginning of a more extended
revolution, peaceful but thoroughgoing, by which the governmental
system of the realm was amplified, carried in new directions, and
successively readapted to fresh and changing conditions. At no time
from William III. to George V. was there a deliberate overhauling of
the governmental system as a whole. Save in occasional parliamentary
enactments and judicial decisions, the constitutional changes which
were wrought were rarely given documentary expression. Yet it is
hardly too much to say that of the principles and practices which
to-day make up the working constitution of the United Kingdom almost
all were originated or reshaped during the eighteenth and nineteenth
centuries. In describing, in succeeding chapters, the principal
aspects of this governmental system it will be necessary frequently to
allude to these more recent constitutional developments, and it would
but involve repetition to undertake an account of them at this point.
An enumeration and a brief characterization of a few of the more
important will serve for the moment to impress the importance
constitutionally of the period under consideration.
*34. The Decreased Authority of the Crown.*--First may be (p. 035)
mentioned the gradual eclipse of the crown and the establishment of
complete and unquestioned ascendancy on the part of Parliament. In
consequence of the Revolution of 1688-1689 the sovereign was shorn
definitely of a number of important prerogatives. William III.,
however, was no figure-head, and the crown was far from having been
reduced to impotence. Understanding perfectly the conditions upon
which he had been received in England, William none the less did not
attempt to conceal his innate love of power. He claimed prerogatives
which his Whig supporters were loath to acknowledge and he exercised
habitually in person, and with telling effect, the functions of
sovereign, premier, foreign minister, and military autocrat.[37] His
successor, Anne, though apathetic, was hardly less attached to the
interests of strong monarchy. It was only with the accession of the
Hanoverian dynasty, in 1714, that the bulk of those powers of
government which hitherto the crown had retained slipped inevitably
into the grasp of the ministers and of Parliament. George I.
(1714-1727) and George II. (1727-1760) were not the nonentities they
have been painted, but, being alien alike to English speech, customs,
and political institutions, they were in a position to defend but
indifferently the prerogatives which they had inherited. Under George
III. (1760-1820) there was a distinct recrudescence of the monarchical
idea. The king, if obstinate and below the average intellectually, was
honest, courageous, and ambitious. He gloried in the name of
Englishman, and, above all, he was determined to recover for the crown
some measure of the prestige and authority which his predecessors had
lost. The increasingly oligarchical character of Parliament in the
period and the disintegration of the ruling Whig party created a
condition not unfavorable for the realization of the royal programme,
and through at least a score of years the influence which the
sovereign exerted personally upon government and politics exceeded
anything that had been known since the days of William III. In 1780
the House of Commons gave expression to its apprehension by adopting a
series of resolutions, the first of which asserted unequivocally that
"the influence of the crown has increased, is increasing, and ought to
be diminished."
[Footnote 37: On the constitution as it was at the
death of William III., see Maitland, Constitutional
History of England, 281-329.]
After the retirement of Lord North, in 1782, however, the influence of
the sovereign declined perceptibly, and during the later portion of
the reign, clouded by the king's insanity, all that had been gained
for royalty was again lost. Under the Regency (1810-1820) and during
the reign of the reactionary and scandal-smirched George IV. (p. 036)
(1820-1830) the popularity, if not the power, of the crown reached its
nadir. In the days of the genial William IV. (1830-1837) popularity
was regained, but not power. The long reign of the virtuous Victoria
(1837-1901) served completely to rehabilitate the monarchy in the
respect and affections of the British people, a consummation whose
stability more recent sovereigns have done nothing to impair. As will
be pointed out in another place, the influence which the sovereign may
wield, and during the past three-quarters of a century has wielded, in
the actual conduct of public affairs is far from inconsiderable. But,
as will also be emphasized, that influence is but the shadow of the
authority which the crown once--even as late as the opening of the
eighteenth century--possessed. It is largely personal rather than
legal; it is asserted within the domain of foreign relations rather
more than within that of domestic affairs; and as against the adverse
will of the nation expressed through Parliament it is, in effect,
powerless.[38]
[Footnote 38: On the monarchical revival under
George III., see D. A. Winstanley, Personal and
Party Government; a Chapter in the Political
History of the Early Years of the Reign of George
III., 1760-1766 (Cambridge, 1910). For an excellent
appraisal of the status of the crown throughout the
period 1760-1860 see T. E. May, The Constitutional
History of England since the Accession of George
III., edited and continued by F. Holland, 3 vols.
(London, 1912), I., Chaps. 1-2.]
*35. Ascendancy of the House of Commons.*--A second transformation
wrought in the working constitution since 1689 is the shifting of the
center of gravity in Parliament from the House of Lords to the House
of Commons, together with a notable democratizing of the
representative chamber. In the days of William and Anne the House of
Lords was distinctly more dignified and influential than the House of
Commons. During the period covered by the ministry of Walpole
(1721-1742), however, the Commons rose rapidly to the position of the
preponderating legislative branch. One contributing cause was the
Septennial Act of 1716, whereby the life of a parliament was extended
from three years to seven, thus increasing the continuity and
desirability of membership in the Commons. Another was the growing
importance of the power of the purse as wielded by the Commons. A
third was the fact that Walpole, throughout his prolonged ministry,
sat steadily as a member of the lower chamber and made it the scene of
his remarkable activities. The establishment of the supremacy of the
Commons as then constructed did not, however, mean the triumph of
popular government. It was but a step toward that end. The House of
Commons in the eighteenth century was composed of members elected (p. 037)
in the counties and boroughs upon a severely restricted franchise or
appointed outright by closed corporations or by individual magnates,
and it remained for Parliament during the nineteenth century, by a
series of memorable statutes, to extend the franchise successively to
groups of people hitherto politically powerless, to reapportion
parliamentary seats so that political influence might be distributed
with some fairness among the voters, and to regulate the conditions
under which campaigns should be carried on, elections conducted, and
other operations of popular government undertaken. Of principal
importance among the enactments by which these things were
accomplished are the Reform Act of 1832, the Representation of the
People Act of 1867, the Ballot Act of 1872, the Corrupt and Illegal
Practices Act of 1883, the Representation of the People Act of 1884,
and the Redistribution of Seats Act of 1885. The nature of these
measures will be explained subsequently.[39]
[Footnote 39: See pp. 80-86.]
II. RISE OF THE CABINET AND OF POLITICAL PARTIES
*36. Cabinet Origins.*--In the third place, the period under review is
important by reason of the development within it of the most
remarkable feature of the English constitutional system to-day,
namely, the cabinet. The creation of the cabinet was a gradual
process, and both the process and the product are utterly unknown to
the letter of English law. It is customary to regard as the immediate
antecedent of the cabinet the so-called "cabal" of Charles II., i.e.,
the irregular group of persons whom that sovereign selected from the
Privy Council and took advice from informally in lieu of the Council
itself. In point of fact, by reason principally of the growing
unwieldiness of the Privy Council, the practice of deferring for
advice to a specially constituted committee, or inner circle, of the
body far antedated Charles II. By some it has been traced to a period
as remote as the reign of Henry III., and it is known that not only
the thing itself, but also the name "cabinet council," existed under
Charles I. The essential justification of the creation of the cabinet
was stated by Charles II. in 1679 in the declaration that "the great
number of the Council has made it unfit for the secrecy and despatch
that are necessary in many great affairs." The growing authority of
the select circle of advisors was the object of repeated attacks, and
the name "cabinet" (arising from the king's habit of receiving the
members in a small private room, or cabinet, in the royal palace) was
applied at first as a term of reproach. The device met, however, a
genuine need, and by 1689 its perpetuation was assured. The larger (p. 038)
Privy Council was continued in existence, and it exists to-day; but
its powers became long ago merely nominal.[40]
[Footnote 40: H. W. V. Temperley, The Inner and
Outer Cabinet and the Privy Council, 1679-1683, in
_English Historical Review_, Oct., 1912.]
*37. Principles of Cabinet Government Established.*--Under William III.
the cabinet took on rapidly the character which it bears to-day.
Failing in the attempt to govern with a cabinet including both Whigs
and Tories, William, in 1693-1696, gathered about himself a body of
advisers composed exclusively of Whigs, and the principle speedily
became established for all time that a cabinet group must be made up
of men who in respect to all important matters of state are in
substantial agreement. Before the close of the eighteenth century
there had been fixed definitely the conception of the cabinet as a
body necessarily consisting (a) of members of Parliament (b) of the
same political views (c) chosen from the party possessing a majority
in the House of Commons (d) prosecuting a concerted policy (e) under a
common responsibility to be signified by collective resignation in the
event of parliamentary censure, and (f) acknowledging a common
subordination to one chief minister.[41] During the eighteenth-century
era of royal weakness the cabinet acquired a measure of independence
by which it was enabled to become, for all practical purposes, the
ruling authority of the realm; and, under the limitation of strict
accountability to the House of Commons, it fulfills substantially that
function to-day. Its members, as will appear, are at the same time the
heads of the principal executive departments, the leaders in the
legislative chambers, and the authors of very nearly the whole of
governmental policy and conduct.[42]
[Footnote 41: H. D. Traill, Central Government
(London, 1881), 24-25.]
[Footnote 42: On the rise of the cabinet see, in
addition to the general histories, M. T. Blauvelt,
The Development of Cabinet Government in England
(New York, 1902), Chaps. 1-8; E. Jenks,
Parliamentary England; the Evolution of the Cabinet
System (New York, 1903); and H. B. Learned,
Historical Significance of the Term "Cabinet" in
England and the United States, in _American
Political Science Review_, August, 1909.]
*38. Beginnings of Political Parties.*--A fourth phase of governmental
development within the period under survey is the rise of political
parties and the fixing of the broader aspects of the present party
system. In no nation to-day does party play a rôle of larger
importance than in Great Britain. Unknown to the written portions of
the constitution, and all but unknown to the ordinary law, party
management and party operations are, none the less, of constant and
fundamental importance in the actual conduct of government. The
origins of political parties in England fall clearly within the
seventeenth century. It was the judgment of Macaulay that the (p. 039)
earliest of groups to which the designation of political parties can
be applied were the Cavalier and Roundhead elements as aligned after
the adoption of the Grand Remonstrance by the Long Parliament in 1641.
The first groups, however, which may be thought of as essentially
analogous to the political parties of the present day, possessing
continuity, fixity of principles, and some degree of compactness of
organization, were the Whigs and Tories of the era of Charles II.
Dividing in the first instance upon the issue of the exclusion of
James, these two elements, with the passage of time, assumed
well-defined and fundamentally irreconcilable positions upon the
essential public questions of the day. Broadly, the Whigs stood for
toleration in religion and for parliamentary supremacy in government;
the Tories for Anglicanism and the prerogative. And long after the
Stuart monarchy was a thing of the past these two great parties kept
up their struggles upon these and other issues. After an unsuccessful
attempt to govern with the co-operation of both parties William III.,
as has been pointed out, fell back definitely upon the support of the
Whigs. At the accession of Queen Anne, in 1702, however, the Whigs
were turned out of office and the Tories (who already had had a taste
of power in 1698-1701) were put in control. They retained office
during the larger portion of Queen Anne's reign, but at the accession
of George I. they were compelled to give place to their rivals, and
the period 1714-1761 was one of unbroken Whig ascendancy. This was, of
course, the period of the development of the cabinet system, and
between the rise of that system and the growth of government by party
there was an intimate and inevitable connection. By the close of the
eighteenth century the rule had become inflexible that the cabinet
should be composed of men who were in sympathy with the party at the
time dominant in the House of Commons, and that the returning by the
nation to the representative chamber of a majority adverse to the
ruling ministry should be followed by the retirement of the
ministry.[43]
[Footnote 43: For references on the history of
English political parties see pp. 144, 160, 166.]
III. THE SCOTTISH AND IRISH UNIONS
*39. The Union with Scotland, 1707.*--Finally may be mentioned the
important changes in the governmental structure which arose from the
Act of Union with Scotland, in 1707, and the Act of Union with
Ireland, in 1801. Except during a brief portion of the period of the
Protectorate, the legal relation of England and Wales, on the one
side, and the kingdom of Scotland, on the other, was from 1603 to (p. 040)
1707 that simply of a personal union through the crown. Scotland had
her own parliament, her own established church, her own laws, her own
courts, her own army, and her own system of finance. By the Act of
1707 a union was established of a far more substantial sort. The two
countries were erected into a single kingdom, known henceforth as
Great Britain. The Scottish parliament was abolished and representation
was accorded the Scottish nobility and people in the British
parliament at Westminster. The quota of commoners was fixed at
forty-five (thirty to be chosen by the counties and fifteen by the
boroughs) and that of peers (to be elected by the entire body of
Scottish peers at the beginning of each parliament) at sixteen. All
laws respecting trade, excises, and customs were required to be
uniform throughout the two countries, but the local laws of Scotland
upon other subjects were continued in operation, subject to revision
by the common parliament. The Scottish judicial system remained
unchanged;[44] likewise the status of the established Presbyterian
Church.[45]
[Footnote 44: Save that appeals might be carried
from the Scottish Court of Session to the House of
Lords.]
[Footnote 45: J. Mackinnon, The Union of England
and Scotland (London, 1896). This scholarly volume
covers principally the period 1695-1745.]
*40. The Union with Ireland, 1801.*--The history of Ireland, in most of
its phases, is that of a conquered territory, and until late in the
eighteenth century the constitutional status of the country
approximated, most of the time, that of a crown colony. During the
Middle Ages the Common Law and the institutions of England were
introduced in the settled portions of the island (the Pale), and a
parliament of the English type began to be developed; but Poynings's
Law of 1494, by requiring the assent of the English king and council
for the convening of an Irish parliament, by enjoining that all bills
considered by the Irish parliament must first have been considered by
the English parliament, and by declaring all existing statutes of the
English parliament to be binding upon Ireland, effectually stifled,
until its repeal in 1782, Irish parliamentary development. From the
middle of the seventeenth century Catholics were debarred from
membership, and, from the early eighteenth, from voting at
parliamentary elections. The repeal of Poynings's Law in 1782 and the
removal of the Catholic disqualification ten years later bettered the
situation, yet at the close of the eighteenth century Irish
governmental arrangements were still very unsatisfactory. Parliament
was independent in the making of laws, but not in the control of
administration; and it was in no true sense a national and representative
body. The policy urged by Pitt, namely, the establishment of a (p. 041)
legislative union on the plan of that which already existed between
England and Scotland, gradually impressed itself upon the members of
Parliament as more feasible than any other.
An Act of Union creating the "United Kingdom of Great Britain and
Ireland" was adopted by the Irish parliament in February, 1800, and by
the British parliament five months later, and, January 1, 1801, it was
put in operation. Under the terms of this measure the Irish parliament
was abolished, and it was arranged that Ireland should be represented
in the common parliament[46] by four spiritual lords and twenty-eight
temporal peers, chosen by the Irish peerage for life, and by one
hundred members (sixty-four sitting for counties, thirty-five for
boroughs, and one for the University of Dublin) of the House of
Commons. The Anglican Church of Ireland was amalgamated with the
established Church of England, though, subsequently in 1869, it was
disestablished and disendowed. The union with Ireland was in the
nature of a contract, and while in a number of respects the conditions
which were involved in it have been altered within the past hundred
years, its fundamentals stand to-day unchanged. It is these
fundamentals, especially the assimilation of Ireland with Great
Britain for legislative purposes, which are the object of relentless
attack on the part of the Home Rule and other nationalistic and
reforming elements.[47]
[Footnote 46: Styled "the Parliament of the United
Kingdom of Great Britain and Ireland."]
[Footnote 47: An abridgment of the text of the Act
of Union with Scotland is printed in Adams and
Stephens, Select Documents, 479-483; of that of the
Act of Union with Ireland, ibid., 497-506. The full
text of the former will be found in Robertson,
Select Statutes, Cases, and Documents, 92-105; that
of the latter, ibid., 157-164. On Ireland before
the Union see May and Holland, Constitutional
History of England, II., Chap. 16.]
IV. THE NATURE AND SOURCES OF THE CONSTITUTION
*41. The Elusiveness of the Constitution.*--The description of the
British governmental system which is hereafter to be undertaken will
be clarified by a word of comment at this point upon the character
which the English constitution of to-day has assumed, upon the form in
which it exists, and upon the sources from which it has been drawn.
The term "constitution," as is familiarly understood, may be employed
to denote a written instrument of fundamental law which has been
framed by a constituent assembly, drafted by an ordinary legislative
body, or promulgated upon the sole authority of a dictator or monarch;
or, with equal propriety, it may be used to designate a body of (p. 042)
customs, laws, and precedents, but partially, or even not at all,
committed to writing, in accordance with which the machinery of a
given governmental system is operated. The constitution of the United
Kingdom of Great Britain and Ireland is of this second type. The
student who desires to bring together the principles and to tabulate
the working details of the British constitutional order will find no
single document, nor any collection of documents, in which these
things are wholly, or even largely, set down. For the accomplishment
of such a task it would be necessary to review intensively a thousand
years and more of history, to lay hold of a statute here and of a
judicial decision there, to take constant cognizance of the rise and
crystallization of political usages, and to probe to their inmost
recesses the mechanisms of administration, law-making, taxation,
elections, and judicial procedure as they have been, and as they are
actually operated before the spectator's eyes. Foremost among its
compeers in antiquity, in comprehensiveness, and in originality, the
British constitution is at once the least tangible and the most widely
influential among European bodies of fundamental law.
*42. Constituent Elements: the Law.*--The elements of which this
constitution is to-day composed have been classified in various ways.
For present purposes they may be gathered in five principal
categories. In the first place, there are treaties and other
international agreements, which in Great Britain as in the United
States are invested with the character of supreme law of the land. In
the second place, there is a group of solemn engagements which have
been entered into at times of national crisis between parties
representing opposed, or contracting, political forces. Of such
character are the Great Charter, the Petition of Right, and the Bill
of Rights. A third and larger category comprises parliamentary
statutes which add to or modify governmental powers or procedure.
Statutes of this type include clearly the Habeas Corpus Act of 1679,
the Act of Settlement of 1701, the Septennial Act of 1716, Fox's Libel
Act of 1792, the Reform Acts of 1832, 1867, and 1884, the Municipal
Corporations Act of 1835, the Parliamentary and Municipal Elections
Act of 1872, the Local Government Acts of 1888 and 1894, and the
Parliament Act of 1911. In the fourth place there is the Common Law, a
vast body of legal precept and usage which through the centuries has
acquired fundamental and immutable character. The first three elements
mentioned, i.e., treaties, solemn political engagements, and
statutes, exist solely, or almost so, in written form. The rules of
the Common Law, however, have not been reduced to writing, save in so
far as they are contained in reports, legal opinions, and, more
particularly, authoritative decisions of the courts, such as those (p. 043)
on the rights of jurymen, on the prerogative of the crown, on the
privileges of the houses of Parliament and of their members, and on
the rights and duties of the police.
*43. Constituent Elements: the Conventions.*--Finally, there are those
portions of the constitution which have been denominated with aptness
by Mr. Dicey "the conventions."[48] The "law" of the constitution,
comprising the four categories of elements which have been enumerated,
is at all points, whether written or unwritten, enforceable by the
courts; the conventions, although they may and not seldom do relate to
matters of vital importance, are not so enforceable. The conventions
consist of understandings, practices, and habits by which are
regulated a large proportion of the actual operations of the
governmental authorities. They may have acquired expression in written
form, but they do not appear in the statute-books or in any instrument
which can be made the basis of action in a court of law. For example,
it is a convention of the constitution which forbids the king to veto
a measure passed by the houses of Parliament. If the sovereign were in
these days actually to veto a bill, the political consequences might
be serious, but there could be no question of the sheer legality of
the deed. It is by virtue of a convention, not a law, of the
constitution, that ministers resign office when they have ceased to
command the confidence of the House of Commons; that a bill must be
read three times before being finally voted upon in the House of
Commons; that Parliament is convened annually and that it consists of
two houses. The cabinet, and all that the cabinet, as such, stands
for, rests entirely upon convention. To these things, and many others,
the student who is concerned exclusively with the constitutional law
of the British nation may give little or no attention. But by one who
is seeking to understand the constitutional system as it is and as it
operates attention must be fixed upon the conventions quite as
steadily as upon the positive rules of law. If the conventions are not
to be regarded as technically parts of the constitution, they are at
least not infrequently as binding in practice as are these rules; and
they may be even more determinative of the operations of the public
powers.[49] The English constitution is indeed, as Mr. Bryce has
described it, "a mass of precedents carried in men's minds or recorded
in writing, dicta of lawyers or statesmen, customs, usages, (p. 044)
understandings and beliefs, a number of statutes mixed up with customs
and all covered over with a parasitic growth of legal decisions and
political habits."[50] At no time has an attempt been made to collect
and to reduce to writing this stupendous mass of scattered material,
and no such attempt is likely ever to be made. "The English," as
remarks the French critic Boutmy, "have left the different parts of
their constitution where the waves of history have deposited them;
they have not attempted to bring them together, to classify or
complete them, or to make of it a consistent or coherent whole."[51]
[Footnote 48: Introduction to the Study of the Law
of the Constitution (7th ed., London, 1908),
22-29.]
[Footnote 49: Convention occupies a large place in
most political systems, even in countries which are
governed under elaborate written constitutions.
Their importance in the government of the United
States is familiar (see Bryce, American
Commonwealth, 3d ed., I., Chaps. 34-35). On the
influence of conventions in France see H. Chardon,
L'Administration de la France; les fonctionnaires
(Paris, 1908), 79-105.]
[Footnote 50: J. Bryce, Flexible and Rigid
Constitutions, in Studies in History and
Jurisprudence (London and New York, 1901), No. 3.]
[Footnote 51: E. Boutmy, Studies in Constitutional
Law: France--England--United States, trans. by E.
M. Dicey (London, 1891), 6.]
V. THE FLEXIBILITY OF THE CONSTITUTION
*44. Aspects of Continuity and of Change.*--In pursuance of what has
been said two observations, representing opposite aspects of the same
truth, are pertinent. The first is that in respect to the principles
and many of the practices of the English constitution it is
pre-eminently true that, to employ a familiar phrase of Bishop Stubbs,
the roots of the present lie deep in the past.[52] The second is that
the English constitution is a living organism, so constantly
undergoing modification that any description of it which may be
attempted is likely to be subject to correction almost before it can
be completed. At no time, as Mr. Freeman wrote, "has the tie between
the present and the past been rent asunder; at no moment have
Englishmen sat down to put together a wholly new constitution in
obedience to some dazzling theory."[53] On the contrary, each step in
the growth of the constitutional system has been the natural
consequence of some earlier step. Great changes, it is true, have been
wrought. To mention but the most obvious illustration, autocratic
kingship has been replaced by a parliamentary government based upon a
thoroughgoing political democracy. None the less, transitions have
been regularly so gradual, deference to tradition so habitual, and the
disposition to cling to ancient names and forms, even when the spirit
had changed, so deep-seated, that the constitutional history of
England presents elements of continuity which cannot be paralleled in
any other country of Europe.
[Footnote 52: Constitutional History of England,
I., prefatory note.]
[Footnote 53: Growth of the English Constitution,
19.]
The letter of a written constitution may survive through many decades
unchanged, as has that of the Italian _Statuto_ of 1848, and as did
that of the American constitution between 1804 and 1865. No (p. 045)
constitutional system, however, long stands still, and least of all
one of the English variety, in which there exists but little of even
the formal rigidity arising from written texts. Having no fixed and
orderly shape assigned it originally by some supreme authority, the
constitution of the United Kingdom has retained throughout its history
a notably large measure of flexibility. It is by no means to-day what
it was fifty years ago; fifty years hence it will be by no means what
it is to-day. In times past changes have been accompanied by violence,
or, at least, by extraordinary manifestations of the national will.
Nowadays they are introduced through the ordinary and peaceful
processes of legislation, of judicial interpretation, and of
administrative practice. Sometimes, as in the instance of the recent
overhauling of the status of the House of Lords, they are accompanied
by heated controversy and widespread public agitation. Not
infrequently, however, they represent inevitable and unopposed
amplifications of existing law or practice and are taken note of
scarcely at all by the nation at large.
*45. The Constituent Powers of Parliament.*--The principal means by
which changes are wrought in the English constitution to-day is that
of parliamentary enactment. It is to be observed that in Great Britain
there is not, nor has there ever been, any attempt to draw a line of
distinction between powers that are constituent and powers that are
legislative. All are vested alike in Parliament, and in respect to the
processes of enactment, repeal, and revision there is no difference
whatsoever between a measure affecting the fundamental principles of
the governmental system and a statute pertaining to the commonest
subject of ordinary law. "Our Parliament," observes Mr. Anson, "can
make laws protecting wild birds or shell-fish, and with the same
procedure could break the connection of Church and State, or give
political power to two millions of citizens, and redistribute it among
new constituencies."[54] The keystone of the law of the constitution
is, indeed, the unqualified omnipotence which Parliament possesses in
the spheres both of constitution-making and of ordinary legislation.
In Parliament is embodied the supreme will of the nation; and although
from time to time that will may declare itself in widely varying and
even inconsistent ways, at any given moment its pronouncements are
conclusive.
[Footnote 54: Law and Custom of the Constitution,
4th ed., I., 358.]
*46. What are "Constitutional" Laws?*--From this unrestricted
competence of Parliament arise two highly important facts. One of them
is that the distinction between "constitutional" laws, on the one
hand, and ordinary statutes, on the other, is neither so obvious nor
so essential as under most governmental systems. The concept, (p. 046)
even, of constitutional law has developed but slowly among the
English, and the phrase is as yet seldom employed in legal discussion.
In the United States constitutional amendments or addenda, in so far
at least as they assume written form, emanate from sources and by
processes different from those that obtain in the enactment of
ordinary statutes. In most continental nations the constituent process
is at least somewhat different from that employed in the enactment of
simple laws. And these specially devised processes are designed to
emphasize the essential differentiation of the product from the
handiwork of the ordinary legislative bodies. In Great Britain,
however, there is, as has appeared, no difference of process, and the
distinction between the law of the constitution and ordinary statute
law is not infrequently all but impossible to trace. If it is to be
traced at all, it must be derived from the circumstances of enactment.
Some measures, e.g., the Habeas Corpus Act, the Act of Settlement, and
the Parliament Act of 1911, relate obviously to the most fundamental
and enduring aspects of state. Others just as clearly have to do with
ephemeral and purely legislative concerns. Precisely where the line
should be drawn between the two no man can say. It is, in the opinion
of Mr. Bryce, because of this obstacle primarily that no attempt has
been made to reduce the English constitution to the form of a single
fundamental enactment.[55]
[Footnote 55: Studies in History and Jurisprudence,
I., No. 3.]
*47. All Parts of the Constitution subject to Amendment.*--In the second
place, no portion whatsoever of the constitution is immune from
amendment or abrogation at the hand of Parliament. So forcefully was
the French observer De Tocqueville impressed with this fact that he
went so far as to assert that there really is no such thing as an
English constitution at all.[56] De Tocqueville wrote, however, from
the point of view of one who conceives of a constitution as of
necessity an "instrument of special sanctity, distinct in character
from all other laws, and alterable only by a peculiar process,
differing to a greater or less extent from the ordinary forms of
legislation";[57] and this conception is recognized universally
nowadays to be altogether inadequate. There is, in every proper sense,
an English constitution. No small portion of it, indeed, is in written
form. And it is worth observing that in practice there is tending to
be established in England in our own day some measure of that (p. 047)
distinction between constituent and legislative functions which
obtains in other countries. There is no disposition to strip from
Parliament its constituent powers; but the feeling is gaining ground
that when fundamental and far-reaching innovations are contemplated
action ought not to be taken until after there shall have been an
appeal to the nation through the medium of a general election at which
the desirability of the proposed changes shall be submitted as a clear
issue. The principle, broadly stated, is that Parliament ought to
exercise in any important matter its constituent powers only under the
sanction of direct popular mandate. It was essentially in deference to
this principle that the elections of December, 1910, turning squarely
upon the issue of the reform of the House of Lords, were ordered.
Thus, while in numerous continental countries the distinction between
constituent and legislative functions is being nowadays somewhat
relaxed, in Great Britain there is distinctly a tendency to establish
in a measure a differentiation in this matter which long has been in
practice non-existent.
[Footnote 56: "In England the Parliament has an
acknowledged right to modify the constitution; as,
therefore, the constitution may undergo perpetual
changes, it does not in reality exist (_elle
n'existe point_); the Parliament is at once a
legislative and a constituent assembly." OEuvres
Complètes; I., 166-167.]
[Footnote 57: Lowell, Government of England, I.,
2.]
In effect, every measure of Parliament, of whatsoever nature and under
whatsoever circumstances enacted, is "constitutional," in the sense
that it is legally valid and enforceable. When an Englishman asserts
of a measure that it is unconstitutional he means only that it is
inconsistent with a previous enactment, an established usage, the
principles of international law, or the commonly accepted standards of
morality. Such a measure, if passed in due form by Parliament, becomes
an integral part of the law of the land, and as such will be enforced
by the courts. There is no means by which it may be rendered of no
effect, save repeal by the same or a succeeding parliament. In
England, as in European countries generally, the judicial tribunals
are endowed with no power to pass upon the constitutional validity of
legislative acts. Every such act is _ipso facto_ valid, whether it
relates to the most trivial subject of ordinary legislation or to the
organic arrangements of the state; and no person or body, aside from
Parliament itself, possesses a right to override it or to set it
aside.[58]
[Footnote 58: For brief discussions of the general
nature of the English constitution see A. L.
Lowell, Government of England, 2 vols. (New York,
1909), I., 1-15; T. F. Moran, Theory and Practice
of the English Government (new ed., New York,
1908), Chap. 1; J. A. R. Marriott, English
Political Institutions (Oxford, 1910), Chaps. 1, 2;
J. Macy, The English Constitution (New York, 1897),
Chaps. 1, 9; and S. Low, The Governance of England
(London, 1904), Chap. 1. A suggestive
characterization is in the Introduction of W.
Bagehot, The English Constitution (new ed., Boston,
1873). A more extended and very incisive analysis
is Dicey, Introduction to the Study of the Law of
the Constitution, especially the Introduction and
Chaps. 1-3, 13, 14-15.]
CHAPTER III (p. 048)
THE CROWN AND THE MINISTRY
I. THE CROWN: LEGAL STATUS AND PRIVILEGES
*48. Contrasts of Theory and Fact.*--The government of the United
Kingdom is in ultimate theory an absolute monarchy, in form a limited,
constitutional monarchy, and in fact a thoroughgoing democracy.[59] At
its head stands the sovereign, who is at the same time the supreme
executive, a co-ordinate legislative authority (and, in theory, much
more than that), the fountain of justice and of honor, the "supreme
governor" of the Church, the commander-in-chief of the army and navy,
the conservator of the peace, and the _parens patriae_ and _ex
officio_ guardian of the helpless and the needy. In law, all land is
held, directly or indirectly, of him. Parliament exists only by his
will. Those who sit in it are summoned by his writ, and the privilege
of voting for a member of the lower chamber is only a franchise, not a
right independent of his grant. Technically, the sovereign never dies;
there is only a demise of the crown, i.e., a transfer of regal
authority from one person to another, and the state is never without a
recognized head.
[Footnote 59: From this essential incongruity of
theory, form, and fact arises the special
difficulty which must attend any attempt to
describe with accuracy and completeness the British
constitutional system. In the study of every
government the divergences of theory and fact must
be borne constantly in mind, but nowhere are these
divergences so numerous, so far-reaching, or so
fundamental as in the government of the United
Kingdom.]
The assertions that have been made represent with substantial accuracy
the ultimate theory of the status of the crown in the governmental
system. In respect to the form and fact of that system as it actually
operates, however, it would hardly be possible to make assertions that
would convey a more erroneous impression. The breadth of the
discrepancy that here subsists between theory and fact will be made
apparent as examination proceeds of the organization and workings of
the executive, the legislative, and the judicial departments of the
government of the realm. It is necessary first of all, however, to
give attention to certain of the more external aspects of the position
which the monarch occupies.
*49. Title to the Throne: the Act of Settlement, 1701.*--Since (p. 049)
the Revolution of 1688 title to the English throne has been based
solely upon the will of the nation as expressed in parliamentary
enactment. The statute under which the succession is regulated is the
Act of Settlement, passed by the Tory parliament of 1701, by which it
was provided that, in default of heirs of William III. and Anne, the
crown and all prerogatives thereto appertaining should "be, remain,
and continue to the most Excellent Princess Sophia, and the heirs of
her body, being Protestants."[60] Sophia, a granddaughter of James I.,
was the widow of the Elector of Hanover, and although in 1701 she was
not first in the natural order of succession she was first among the
surviving heirs who were Protestants. It was by virtue of the act
mentioned that, upon the death of Anne in 1714, the throne devolved
upon the son of the German Electress (George I.). The present
sovereign, George V., is the eighth of the Hanoverian dynasty.
Although it would be entirely within the competence of Parliament to
repeal the Act of Settlement and to vest the crown in a member of some
house other than the Hanoverian, there is, of course, no occasion for
such an act, and the throne may be expected to continue to pass from
one member of the present royal family to another in strict accordance
with the principles of heredity and primogeniture. The rules of
descent are essentially identical with those governing the inheritance
of real property at common law.[61] Regularly, the sovereign's eldest
son, the Prince of Wales,[62] inherits. If he be not alive, the
inheritance passes to his issue, male or female. If there be none, the
succession devolves upon the sovereign's second son, or upon his
issue; and in default thereof, upon the eldest son who survives, or
his issue. If the vacancy be not supplied by or through, a son,
daughters and their issue inherit after a similar order. No Catholic
may inherit, nor anyone marrying a Catholic; and by the Act of 1701 it
was stipulated that every person who should attain the throne "shall join
in communion with the Church of England as by law established." (p. 050)
If after accession the sovereign should avow himself a Catholic, or
should marry a Catholic, his subjects would be absolved from their
allegiance. It is required, furthermore, that the sovereign shall take
at his coronation an oath wherein the tenets of Catholicism are
abjured. Until 1910 the phraseology of this oath, formulated as it was
in a period when ecclesiastical animosities were still fervid,[63] was
such as to be offensive not only to Catholics but to temperate-minded
men of all faiths. By act of parliament passed in anticipation of the
coronation of George V., the language employed in the oath was made
very much less objectionable. The sovereign is required now merely to
declare "that he is a faithful Protestant and that he will, according
to the true intent of the enactments which secure the Protestant
succession to the throne of the Realm, uphold and maintain the said
enactments to the best of his power according to law."
[Footnote 60: The text of the Act of Settlement is
printed in Stubbs, Select Charters, 528-531; Adams
and Stephens, Select Documents, 475-479; and Gee
and Hardy, Documents Illustrative of English Church
History, 664-670, As safeguards against dangers
which might conceivably arise from the accession of
a foreign-born sovereign the Act stipulated (1)
that no person who should thereafter come into
possession of the crown should go outside the
dominions of England, Scotland, or Ireland, without
consent of Parliament, and (2) that in the event
that the crown should devolve upon any person not a
native of England the nation should not be obliged
to engage in any war for the defense of any
dominions or territories not belonging to the crown
of England, without consent of Parliament.]
[Footnote 61: Lowell, Government of England, I.,
17.]
[Footnote 62: This title was created by Edward I.
in 1301. Its possession has never involved the
exercise of any measure of political power.]
[Footnote 63: The words to be employed were
prescribed originally in the Act for Establishing
the Coronation Oath, passed in the first year of
William and Mary. For the text see Robertson,
Select Statutes, Cases, and Documents, 65-68. An
historical sketch of some value is A. Bailey, The
Succession to the English Crown (London, 1879).]
*50. Regencies.*--The age of majority of the sovereign is eighteen. The
constitutions of most monarchical states contain more or less
elaborate stipulations respecting the establishment of a regency in
the event of the sovereign's minority or incapacitation. In Great
Britain, on the contrary, the practice has been to make provision for
each such contingency when it should arise. A regency can be created
and a regent designated only by act of Parliament. Parliamentary
enactments, however, become operative only upon receiving the assent
of the crown, and it has sometimes happened that the sovereign for
whom a regent was required to be appointed was incapable of performing
any governmental act. In such a case, there has been resort usually to
some legal fiction by which the appearance, at least, of regularity
has been preserved. A regency act regularly defines the limits of the
regent's powers and establishes specific safeguards in respect to the
interests of both the sovereign and the nation.[64]
[Footnote 64: For the text of the Regency Act of
1811, passed by reason of the incapacitation of
George III., see Robertson, Statutes, Cases and
Documents, 171-182. For an excellent survey of the
general subject see May and Holland, Constitutional
History of England, I., Chap. 3.]
*51. Royal Privileges: the Civil List.*--The sovereign is capable of
owning land and other property, and of disposing of it precisely as
may any private citizen. The vast accumulations of property, however,
which at one time comprised the principal source of revenue of the
crown, have become the possession of the state, and as such are
administered entirely under the direction of Parliament. In lieu (p. 051)
of the income derived formerly from land and other independent sources
the sovereign has been accorded for the support of the royal household
a fixed annual subsidy--voted under the designation of the Civil
List--the amount of which is determined afresh at the beginning of
each reign. The Civil List was instituted by an act of 1689 in which
Parliament settled upon the king for the meeting of personal expenses,
the payment of civil officers, and other charges, a stipulated sum,
thus separating for the first time the private expenditures of the
crown from the public outlays of the nation.[65] The sum given William
III. was £700,000. George III., in return for a fixed Civil List,
surrendered his interest in the hereditary revenues of the crown, and
William IV. went further and, in return for a Civil List of £510,000 a
year, surrendered not only the hereditary revenues but also a large
group of miscellaneous and casual sources of income.[66] At the
accession of Queen Victoria the Civil List was fixed at £385,000. The
amount was comparatively small, but opportunity was taken at the time
finally to transfer to Parliament the making of provision for all
charges properly incident to the maintenance of the state. In addition
to various annuities payable to the children of the royal family, the
Civil List of Edward VII., established by Act of July 2, 1901,
amounted to £470,000, of which £110,000 was appropriated to the privy
purse of the king and queen, £125,000 to salaries and retiring
allowances of the royal household, and £193,000 to household expenses.
At the accession of George V., in 1910, the Civil List was continued
in the sum of £470,000.[67]
[Footnote 65: Under Charles II. Parliament began to
appropriate portions of the revenue for specific
purposes, and after 1688 this became the general
practice. Throughout a century the proceeds of
particular taxes were appropriated for particular
ends. But in 1787 Pitt simplified the procedure
involved by creating a single Consolidated Fund
into which all revenues were turned and from which
all expenditures were met.]
[Footnote 66: Accuracy requires mention of the fact
that, by exception, the crown still enjoys the
revenues of the Duchy of Lancaster and the Duchy of
Cornwall, the latter being part of the appanage of
the Prince of Wales.]
[Footnote 67: On the history of the Civil List see
May and Holland, Constitutional History of England,
I., 152-175.]
The sovereign enjoys unrestricted immunity from political
responsibility and from personal distraint. The theory of the law has
long been that the king can do no wrong, which means that for his
public acts the sovereign's ministers must bear complete responsibility
and for his private conduct he may not be called to account in any
court of law or by any legal process. He cannot be arrested, his goods
cannot be distrained, and as long as a palace remains a royal
residence no sort of judicial proceeding can be executed in it. (p. 052)
Strictly, the revenues are the king's, whence it arises that the king
is himself exempt from taxation, though lands purchased by the privy
purse are taxed. And there are numerous minor privileges, such as the
use of special liveries and a right to the royal salute, to which the
sovereign, as such, is regularly entitled.
II. THE POWERS OF THE CROWN
*52. Sources: the Prerogative.*--Vested in the crown is, in the last
analysis, an enormous measure of authority. The sum total of powers,
whether or not actually exercised by the sovereign immediately, is of
two-fold origin. There are powers, in the first place, which have been
defined, or conferred outright, by parliamentary enactment. Others
there are, however--more numerous and more important--which rest upon
the simple basis of custom or the Common Law. Those powers which
belong to the statutory group are, as a rule, specific and easily
ascertainable. But those which comprise the ancient customary rights
of the crown, i.e., the prerogative, are not always possible of exact
delimitation. The prerogative is defined by Dicey as "the residue of
discretionary or arbitrary authority which at any time is legally left
in the hands of the crown."[68] The elements of it are to be
ascertained, not from statutes but from precedents, and the sources of
it, as enumerated by Anson, are (1) the residue of the executive power
which the king in the early stages of English history possessed in all
of the branches of government; (2) survivals of the power once
accruing to the king as the feudal chief of the country; and (3)
attributes with which the crown has been invested by legal theory, e.g.,
the attribute of perpetuity popularly expressed in the aphorism
"the king never dies," and that of perfection of judgment, similarly
expressed in the saying "the king can do no wrong."[69] The most
considerable element in the prerogative is that which Anson first
mentions, i.e., the power which the king has carried over, in the
teeth of the popularization of the governmental system, from days when
the royal authority was not hedged about as since the seventeenth
century it has been. It is further to be observed that no
inconsiderable portion of the royal powers as they exist to-day
represent original prerogative worked over and delimited by
parliamentary enactment, so that in many instances it becomes
difficult to determine whether a given power exists by virtue of a
statute, by which it is to be regarded as absolutely defined, or (p. 053)
by virtue of an anterior prerogative which may be capable of being
stretched or interpreted more or less arbitrarily. Nominally, the
sovereign still holds by divine right. At the head of every public
writ to-day stand the words "George V., by the Grace of God of Great
Britain and Ireland King." But no principle of the working
constitution is more clearly established than that in accordance with
which the prerogatives of the crown may be defined, restricted, or
extended by the supreme legislative power. Among prerogatives once
claimed and exercised, but long since rendered obsolete by prohibitive
legislation may be mentioned those of imposing taxes without
parliamentary consent, suspending or dispensing with laws, erecting
tribunals not proceeding according to the ordinary course of justice,
declaring forfeit the property of convicted traitors,[70] purveyance,
pre-emption, and the alienation of crown lands at pleasure.
[Footnote 68: Law of the Constitution (7th ed.),
420.]
[Footnote 69: Law and Custom of the Constitution,
II., Pt. I., 3-5.]
[Footnote 70: Abolished by the Felony Act of 1870.]
*53. Powers, Theoretical and Actual.*--It is not, however, the origin of
the royal power, but rather the manner of its exercise, that fixes the
essential character of monarchy in Great Britain to-day. The student
of this phase of the subject is confronted at the outset with a
paradox which has found convenient expression in the aphorism that the
king reigns but does not govern. The meaning of the aphorism is that,
while the sovereign is possessed of all of the inherent dignity of
royalty, it is left to him actually to exercise in but a very
restricted measure the powers which are involved in the business of
government. Technically, all laws are made by the crown in parliament;
all judicial decisions are rendered by the crown through the courts;
all laws are executed and all administrative acts are performed by the
crown. But in point of fact laws are enacted by Parliament
independently; verdicts are brought in by tribunals whose immunity
from royal domination is thoroughly assured; and the executive
functions of the state are exercised all but exclusively by the
ministers and their subordinates. One who would understand what
English monarchy really is must take account continually both of what
the king does and may do theoretically and of what he does and may do
in actual practice. The matter is complicated further by the fact that
powers once possessed have been lost, that others which have never
been formally relinquished have so long lain unused that the question
may fairly be debated whether they still exist, and that there never
has been, nor is likely ever to be, an attempt to enumerate
categorically or to define comprehensively the range of powers, either
theoretical or actual.
*54. Executive Powers.*--Disregarding for the moment the means of their
actual exercise, the powers of the crown to-day may be said to (p. 054)
fall into two principal groups. The first comprises those which are
essentially executive in character; the second, those which are shared
with the two houses of Parliament, being, therefore chiefly legislative.
The first group is distinctly the more important. It includes: (1) the
appointment, directly or indirectly, of all national public officers,
except some of the officials of the parliamentary chambers and a few
unimportant hereditary dignitaries; (2) the removal, upon occasion, of
all appointed officers except judges, members of the Council of India,
and the Comptroller and Auditor General; (3) the execution of all laws
and the supervision of the executive machinery of the state throughout
all its branches; (4) the expenditure of public money in accordance
with appropriations voted by Parliament; (5) the pardoning of
offenders against the criminal law, with some exceptions, either
before or after conviction;[71] (6) the granting, in so far as not
prohibited by statute, of charters of incorporation; (7) the creating
of all peers and the conferring of all titles and honors; (8) the
coining of all money; (9) the summoning of Convocation and, by reason
of the headship of the Established Church, the virtual appointment of
the archbishops, bishops, and most of the deans and canons; (10) the
supreme command of the army and navy, involving the raising and
control of the armed forces of the nation, subject to such conditions
only as Parliament may impose; (11) the representing of the nation in
all of its dealings with foreign powers, including the appointment of
all diplomatic and consular agents and the negotiation and conclusion
of peace; and (12) the exercise, largely under statutory authority
conferred within the past half-century, of supervision or control in
respect to local government, education, public health, pauperism,
housing, and a wide variety of other social and industrial interests.
[Footnote 71: This power, in practice, is seldom
exercised. The Act of Settlement prescribed that
"no pardon shall be pleadable to an impeachment by
the Commons in parliament."]
*55. The Composition of the Executive.*--The executive branch of the
government, through whose agency these powers are exercised, consists
of the sovereign, the ministry, and the entire hierarchy of
administrative officials reaching downwards from the heads of
departments and the under-secretaries at London through the several
grades of clerks to the least important revenue and postal employees.
There are various points of view from which the chief of the executive
may be conceived of as the sovereign, the prime minister, the ministry
collectively, or the king and ministry conjointly. So far as executive
functions go, the sovereign, in law, is very nearly as supreme as (p. 055)
in the days of personal and absolute monarchy. The ministers are but
his advisers, the local administrative authorities his agents. The
government is conducted wholly in his name. In practice, however,
supreme executive acts of the kinds that have been mentioned are
performed by the ministers; or, if performed by the crown immediately,
will not be undertaken without the ministers' knowledge and assent.
The ministers, and not the sovereign, may be held to account by
parliament for every executive act performed, and it is but logical
that they should control the time and tenor of such acts. It falls
very generally to the prime minister to speak for and otherwise
represent the ministerial group. On the whole, however, it accords
best with both law and fact to consider the executive under the
working constitution as consisting of the crown as represented and
advised by the ministry.
*56. The Crown and Legislation.*--The second general group of powers
lodged in the crown comprises those which relate to legislation.
Technically, all legislative authority is vested in "the king in
parliament," by which is meant the king acting in collaboration with
the two houses. Parliament transacts business only during the pleasure
of the crown. The crown summons and prorogues the houses, and it is
empowered at any time to dissolve the House of Commons. No
parliamentary act, furthermore, is valid without the crown's assent.
It is on the legislative, rather than the executive side, none the
less, that the crown has lost most heavily in actual authority. There
was a time when the crown possessed inherent law-making power and
through the agency of proclamations and ordinances contributed
independently to the body of enforceable law. To-day the sovereign may
exercise no such power, save alone in the crown colonies. It is true
that ordinances with the force of law are still issued, and that their
number and importance tend steadily to be increased. But in all cases
these ordinances have been, and must be, authorized specifically by
statute. As "statutory orders" they emanate from a delegated authority
purely and bear no relation to the ancient ordinance by prerogative.
The king may not even, by virtue of any inherent power, promulgate
ordinances in completion of parliamentary statutes--the sort of thing
which the French president, the Italian king, and virtually every
continental ruler may do with full propriety. Of his own authority,
furthermore, the sovereign may not alter by one jot or tittle the law
of the land. There was a time when the crown claimed and exercised the
right to suspend, or to dispense with, laws which had been duly enacted
and put in operation. But this practice was forbidden definitely (p. 056)
in the Bill of Rights, and no sovereign since the last Stuart has
sought to revive the prerogative. Still another aspect of the ancient
participation by the king in the legislative function was the
influencing of the composition of the House of Commons through the
right to confer upon boroughs the privilege of electing members. This
right, never expressly withdrawn, is regarded now as having been
forfeited by disuse. Finally, the power to withhold assent from a
measure passed in Parliament has not been exercised since the days of
Queen Anne,[72] and while legally it still exists, it is conceded for
all practical purposes to have been extinguished.
[Footnote 72: In 1707, when the Queen refused her
assent to a bill for settling the militia in
Scotland.]
*57. Principles Governing the Actual Exercise of Powers.*--After full
allowances have been made, the powers of the British crown to-day
comprise a sum total of striking magnitude. "All told," says Lowell,
"the executive authority of the crown is, in the eye of the law, very
wide, far wider than that of the chief magistrate in many countries,
and well-nigh as extensive as that now possessed by the monarch in any
government not an absolute despotism; and although the crown has no
inherent legislative power except in conjunction with Parliament, it
has been given by statute very large powers of subordinate
legislation.... Since the accession of the House of Hanover the new
powers conferred upon the crown by statute have probably more than
made up for the loss to the prerogative of powers which have either
been restricted by the same process or become obsolete by disuse. By
far the greater part of the prerogative, as it existed at that time,
has remained legally vested in the crown, and can be exercised
to-day."[73]
[Footnote 73: Government of England, I., 23, 26.]
The next fundamental thing to be observed is that the extended powers
here referred to are exercised, not by the king in person, but by
ministers with whose choosing the sovereign has but little to do and
over whose acts he has only an incidental and extra-legal control.
Underlying the entire constitutional order are two principles whose
operation would seem to reduce the sovereign to a sheer nonentity. The
first is that the crown shall perform no important governmental act
whatsoever save through the agency of the ministers. The second is
that these ministers shall be responsible absolutely to Parliament for
every public act which they perform. From these principles arises the
fiction that "the king can do no wrong," which means legally that the
sovereign cannot be adjudged guilty of wrongdoing (and that therefore
no proceedings may be instituted against him), and politically that
the ministers are responsible, singly in small affairs and (p. 057)
conjointly in more weighty ones, for everything that is done in the
crown's name. "In a constitutional point of view," writes an English
authority, "so universal is the operation of this rule that there is
not a moment in the king's life, from his accession to his demise,
during which there is not some one responsible to Parliament for his
public conduct; and there can be no exercise of the crown's authority
for which it must not find some minister willing to make himself
responsible."[74] In continental countries the responsibility of
ministers is established very commonly by specific and written
constitutional provision. In Great Britain it exists by virtue simply
of a group of unwritten principles, or conventions, of the
constitution; but it is there none the less real. In the conduct of
public affairs the ministry must conform to the will of the majority
in the House of Commons; otherwise the wheels of government would be
blocked. And from this it follows that the crown is obliged to accept,
with such grace as may be, the measures which the ministry, working
with the parliamentary majority, formulates and for which it stands
ready to shoulder responsibility. It is open to the king, of course,
to dissuade the ministers from a given course of action. But if they
cannot be turned back, and if they have the support of a parliamentary
majority, there is nothing that the sovereign can do save acquiesce.
[Footnote 74: Todd, Parliamentary Government in
England, I., 81.]
*58. Appointment of Ministers.*--In the naming of a new premier,
following the retirement of a ministry, the king is legally
unhampered; but here again in practice he is bound to designate the
recognized leader of the dominant party, and so to pursue a course in
which there is left no room for the exercise of discretion. Only when
there is no clearly recognized leader, or when circumstances compel
the formation of a coalition ministry, is there a real opportunity for
the sovereign to choose a premier from a number of more or less
available men.[75] In the appointment of the remaining ministers, and
of all persons whose offices are regarded as political, the crown
yields uniformly to the judgment of the premier. The King's Speech, on
the opening of Parliament, is written by the ministers; all public
communications of the crown pass through their hands; peers are
created and honors bestowed in accord with their advice; measures are
framed and executive acts are undertaken by them, sometimes without
the sovereign's knowledge and occasionally even contrary to his
wishes.
[Footnote 75: This sort of situation presented
itself several times during the reign of Queen
Victoria, but in general it is exceptional.]
III. THE IMPORTANCE AND STRENGTH OF THE MONARCH (p. 058)
*59. The Real Authority and Service of the Crown.*--It would be an
error, however, to conclude that kingship in England is unimportant,
or even that the power wielded in person by the crown is negligible.
On the contrary, the uses served by the crown are indisputable and the
influence exerted upon the course of public affairs may be decisive.
The sovereign, in the words of Bagehot, has three rights--the right to
be consulted, the right to encourage, and the right to warn. "A king
of great sense and sagacity," it is added, "would want no others."[76]
Despite the fact that during upwards of two hundred years the
sovereign has not attended the meetings of the cabinet, and so is
deprived of the opportunity of wielding influence directly upon the
deliberations of the ministers as a body, the king keeps in close
touch with the premier, and cabinet councils at which important lines
of policy are to be formulated are preceded not infrequently by a
conference in which the subject in hand is threshed out more or less
completely by king and chief minister. Merely because the ancient
relation has been reversed, so that now it is the king who advises and
the ministry that arrives at decisions, it does not follow that the
advisory function is an unimportant thing. Queen Victoria many times
wielded influence of a decisive nature upon the public measures of her
reign, especially in respect to the conduct of foreign relations. The
extent of such influence cannot be made a matter of record, because
the ministers are in effect bound not to publish the fact that a
decision upon a matter of state has been taken at the sovereign's
instance. It is familiarly known, however--to cite a recent
illustration--that Edward VII. approved and encouraged the Haldane
army reforms, that he sought to dissuade the House of Lords from the
rejection of the Lloyd-George budget of 1909, and that he discouraged
the raising, in any form, of the issue of the reconstitution of the
upper chamber. In other words while, as a constitutional monarch
content to remain in the background of political controversy, the late
king not only had opinions but did not hesitate to make them known;
and in the shaping and execution of the Liberal programme his advice
was at times a factor of importance.[77]
[Footnote 76: The English Constitution (rev. ed.),
143.]
[Footnote 77: The most satisfactory estimate of the
political and governmental activities of Edward
VII. is contained in Mr. Sidney Lee's memoir of the
king, printed in the Dictionary of National
Biography, Second Supplement (London and New York,
1912), I., 546-610.]
*60. Why Monarchy Survives.*--Monarchy in Great Britain is a solid (p. 059)
and, so far as can be foreseen, a lasting reality. Throughout the
tempestuous years 1909-1911, when the nation was aroused as it had not
been in generations upon the issue of constitutional reform, and when
every sort of project was being warmly advocated and as warmly
opposed, without exception every suggested programme took for granted
the perpetuation of the monarchy as an integral part of the
governmental system. In the general bombardment to which the
hereditary House of Lords was subjected hereditary kingship wholly
escaped. The reasons are numerous and complex. They arise in part,
though by no means so largely as is sometimes imagined, from the fact
that monarchy in England is a venerable institution and the innate
conservatism of the Englishman, while permitting him from time to time
to regulate and modify it, restrains him from doing anything so
revolutionary as to abolish it. That upon certain conspicuous
occasions, as in the Cromwellian period, and again in 1688, kingship
has owed its very life to the conservative instinct of the English
people is well enough known to every student of history. But to-day,
as ever, the institution rests upon a basis very much more substantial
than a mere national predilection. Monarchy remains impregnably
entrenched because the crown, in addition to comprising an accustomed
feature of the governmental economy, fulfills specific ends which are
recognized universally to be eminently worth while, if not
indispensable. As a social, moral, and ceremonial agency, and as a
visible symbol of the unity of the nation; king and court occupy an
immeasurable place in the life and thought of the people; and even
within the domain of government, to employ the figure of Lowell, if
the crown is no longer the motive power of the ship of state, it is
the spar on which the sail is bent, and as such it is not only a
useful but an essential part of the vessel.[78] The entire
governmental order of Great Britain hinges upon the parliamentary
system, and nowhere has that system been reduced to satisfactory
operation without the presence of some central, but essentially
detached, figure, whether a king or, as in France, a president with
the attributes of kingship. It is fundamentally because the English
people have discerned that kingship is not necessarily incompatible
with popular government that the monarchy has persisted. If royalty
had been felt to stand inevitably in the path of democratic progress,
it is inconceivable that all the forces of tradition could have pulled
it through the past seventy-five or eighty years. As it is, while half
a century ago there was in the country a small republican group which
was fond of urging that the monarchy was but a source of needless (p. 060)
expense, to-day there is hardly a vestige, in any grade of society, of
anti-monarchical sentiment.[79]
[Footnote 78: Government of England, I., 49.]
[Footnote 79: The best brief discussions of the
position of the crown in the governmental system
are Lowell, Government of England, I., Chap, 1;
Moran, English Government, Chaps. 2-3; Marriott,
English Political Institutions, Chap. 3; Macy,
English Constitution, Chap. 5; and Low, Governance
of England, Chaps. 14-15. More extended treatment
of the subject will be found in Anson, Law and
Custom of the Constitution, II., Pt. 1, Chaps 1 and
4; Todd, Parliamentary Government in England, I,
Pt. 2; Bagehot, English Constitution, Chaps. 2-3;
H. D. Traill, Central Government, Chap. 1. Mention
may be made of N. Caudel, Le souverain anglais, in
_Annales des Sciences Politiques_, July, 1910, and
J. Bardoux, Le pouvoir politique de la couronne
anglaise, in _Revue des Deux Mondes_, May 15,
1911.]
IV. PRIVY COUNCIL, MINISTRY, AND CABINET
*61. The Privy Council.*--One who would understand the modes by which
the powers of the crown are in practice exercised must begin by fixing
firmly in mind the nature and relations of three distinct but closely
interrelated institutions, the Privy Council, the ministry, and the
cabinet. As has appeared, the Privy Council through a long period of
English history comprised the body of men who advised the crown and
assisted to some extent in the supervision of administration. The
number of councillors from time to time varied widely, but it tended
constantly to be too large to admit of the requisite despatch and
secrecy, and by reason principally of this consideration the crown
fell into the custom of selecting as advisers a group of persons less
numerous, and perhaps more trustworthy, than the whole body of public
functionaries collectively designated as the Privy Council. Thus arose
the cabinet, which throughout its entire history has been only an
inner circle, unknown to the law, of the older and larger body. The
Privy Council survives to-day, and in both law and theory it still is
the advisory body of the crown. A cabinet member possesses authority
and is known to the law only as a privy councillor. In point of fact,
however, the Privy Council, once highly influential in affairs of
state, is now, as such, all but powerless. Such portions of the
dignity of its ancient place in the constitution as remain to it are
of a purely formal and ceremonial nature. It holds no meetings of a
deliberative character, and although legally its action is still
essential to many public measures, as the preparation of proclamations
and of orders in council, this action may be taken by as few as three
persons.[80] All cabinet members are members of the Council, so that
even one-fifth or one-sixth of the cabinet group is competent to meet
every legal requirement imposed upon the Council as a whole.[81] (p. 061)
All councillors are appointed by the crown and continue in office for
life or until dismissed. Their number is unlimited, and the only
qualification necessary for appointment is British nativity. Members
fall into three groups: (1) members of the cabinet; (2) holders of
certain important non-political offices who by custom are entitled to
appointment; (3) persons eminent in politics, literature, law, or
science, or by reason of service rendered the crown, upon whom the
dignity is conferred as an honorary distinction. Members bear
regularly the title of Right Honorable. The President of the Council,
designated by the crown, takes rank in the House of Lords next after
the Chancellor and Treasurer.[82]
[Footnote 80: On the nature of orders in council
see Anson, Law and Custom of the Constitution, II.,
Pt. 1, 147-149.]
[Footnote 81: It is to be observed, however, that
despite the transfer of the business devolving
formerly upon the Council into the hands of the
specially constituted departments of government,
the Council does still, through the agency of its
committees, perform a modicum of actual service. Of
principal importance among the committees is the
Judicial Committee, which hears appeals in
ecclesiastical cases and renders final verdict in
all appeals coming from tribunals outside the
United Kingdom. See p. 175.]
[Footnote 82: Traill, Central Government, Chap.
12.]
*62. Ministry and Cabinet.*--Another governmental group which, like the
Privy Council, differs from the cabinet while containing it, is the
ministry. The ministry comprises a large and variable body of
functionaries, some of whom occupy the principal offices of state and
divide their efforts between advising the crown, i.e., formulating
governmental policy, and administering the affairs of their respective
departments, and others of whom, occupying less important executive
positions, do not possess, save indirectly, the advisory function. The
first group comprises, approximately at least, the cabinet. Most heads
of departments are regularly and necessarily in the cabinet. A few are
in it as a rule, though not invariably. A few, still less important,
may be, but are not likely to be, admitted to it. And, finally, a
large number of parliamentary under-secretaries, party "whips," and
officers of the royal household are certain not to be admitted.[83]
[Footnote 83: On the relations of cabinet and
ministry see Lowell, Government of England, I.,
Chap. 3.]
V. THE EXECUTIVE DEPARTMENTS
In respect to both origin and legal status the executive departments
of the central government of Great Britain exhibit little of the
conformity to type which characterizes their counterparts in the
logical and self-consistent governmental systems of the majority of
continental countries. Under the pressure, however, of custom and (p. 062)
of parliamentary control, they have been reduced to essentially a
common style of organization and a common mode of administrative
procedure. In virtually every instance the department is presided over
by a single responsible minister, assisted as a rule by one or more
parliamentary under-secretaries and, more remotely, by a greater or
lesser body of non-political officials who carry on the actual work of
the department and whose tenure is not affected by the political
fortunes of their chiefs.
*63. The Treasury.*--Among the numerous departments, some represent
survivals of great offices of state of an earlier period, some are
offshoots of the ancient secretariat, and some comprise boards and
commissions established in days comparatively recent. In the first
group fall the offices of the Lord High Treasurer, the Lord High
Chancellor, and the Lord High Admiral. From the early sixteenth
century to the death of Queen Anne the principal official of the
Treasury was the Lord High Treasurer. Since 1714, however, the office
has been regularly in commission. The duties connected with it have
been intrusted to a board composed of certain Lords of the Treasury,
and no individual to-day bears the Lord High Treasurer's title. When a
ministry is made up the group of Treasury Lords is renewed, and as a
rule the post of First Lord is assumed by the premier. In point of
fact, however, the board is never called together, some of its members
have no actual connection whatsoever with the Treasury, and the
functions of this most important of all departments are in practice
exercised by the Chancellor of the Exchequer, assisted by the Junior
Lords and the under-secretaries. The Exchequer, i.e., the department
concerned principally with the collection of the taxes, is in fact,
though not in name, a branch of the Treasury Board. Within the
Treasury, and immediately under the direction of the Chancellor, is
drawn up the annual budget, embodying a statement of the contemplated
expenditures of the year and a programme of taxation calculated to
produce the requisite revenue. The Treasury exercises general control
over all other departments of the public service, e.g., the
Post-office and the Board of Customs, in which public money is
collected or expended.[84]
[Footnote 84: On the organization and workings of
the Treasury see Lowell, Government of England, I,
Chap. 5; Dicey, Law of the Constitution, Chap. 10;
Anson, Law and Custom of the Constitution, II., Pt.
1, 173-190; Traill, Central Government, Chap. 3.]
*64. The Admiralty Board and the Lord High Chancellorship.*--A second of
the ancient offices of state which survives only in commission is (p. 063)
that of the Lord High Admiral. The functions of this important post
devolve to-day upon an Admiralty Board, consisting strictly of a First
Lord, four Naval Lords (naval experts, usually of high rank), and a
Civil Lord, with whom, however, sit a number of parliamentary and
permanent secretaries. The First Lord is invariably a member of the
cabinet, and while legally the status of the six Lords is identical,
in practice the position of the First Lord approximates closely that
of the minister of marine in continental countries. Unlike the
Treasury Lords, the Lords of the Admiralty actually meet, and transact
business.
The third of the executive offices which comprise survivals from early
times is that of the Lord High Chancellor. There is in Great Britain
no single official who fills even approximately the position occupied
elsewhere by a minister of justice or an attorney-general, but the
most important of several officers who supply the lack is the Lord
Chancellor. "The greatest dignitary," says Lowell, "in the British
government, the one endowed by law with the most exalted and most
diverse functions, the only great officer of state who has retained
his ancient rights, the man who defies the doctrine of the separation
of powers more than any other personage on earth, is the Lord
Chancellor."[85] The Lord Chancellor is invariably a member of the
Cabinet. He is the chief judge in the High Court of Justice and in the
Court of Appeal. He appoints and removes the justices of the peace and
the judges of the county courts and wields large influence in
appointments to higher judicial posts. He affixes the Great Seal where
it is required to give validity to the acts of the crown and he
performs a wide variety of other more or less formal services.
Finally, it is the Lord High Chancellor who presides in the House of
Lords.
[Footnote 85: Government of England, I., 131.]
*65. The Five Secretaries of State.*--Five of the great departments
to-day represent the product of a curious evolution of the ancient
secretariat of state. Originally there was but a single official who
bore the designation of secretary of state. In the earlier eighteenth
century a second official was added, although no new office was
created. At the close of the century a third was added, after the
Crimean War a fourth, and after the Indian Mutiny of 1857 a fifth.
There are now, accordingly, five "principal secretaries of state," all
in theory occupying the same office and each, save for a few statutory
restrictions, competent legally to exercise the functions of any or
all of the others. In practice each of the five holds strictly to his
own domain. The group comprises: (1) the Secretary of State for the
Home Department, assisted by a parliamentary under-secretary and a
large staff of permanent officials, and possessing functions of a
highly miscellaneous sort--those, in general, belonging to the (p. 064)
ancient secretariat which have not been assigned to the care of other
departments; (2) the Secretary of State for Foreign Affairs, at the
head of a department which not only conducts foreign relations but
administers the affairs of such protectorates as are not closely
connected with any of the colonies; (3) the Secretary of State for the
Colonies; (4) the Secretary of State for War; and (5) the Secretary of
State for India, assisted by a special India Council of ten to
fourteen members.
*66. The Administrative Boards.*--The third general group of departments
comprises those which have arisen through the establishment in
comparatively recent years of a variety of administrative boards
or commissions. Two--the Board of Trade and the Board of
Education--originated as committees of the Privy Council. Three
others--the Board of Agriculture, the Board of Works, and the Local
Government Board--represent the development of administrative
commissions not conceived of originally as vested with political
character. All are in effect independent and co-ordinate governmental
departments. The composition and functions of the Board of Trade are
regulated by order in council at the opening of each reign, but the
character of the other four is determined wholly by statute. At the
head of each is a president (save that the chief of the Board of Works
is known as First Commissioner), and the membership embraces the five
secretaries of state and a variable number of other important
dignitaries. This membership, however, is but nominal. No one of the
Boards actually meets, and the work of each is performed entirely by
its president, with, in some instances, the assistance of a
parliamentary under-secretary. "In practice, therefore, these boards
are legal phantoms that provide imaginary colleagues for a single
responsible minister."[86] Very commonly the presidents are admitted
to the cabinet, but sometimes they are not.[87]
[Footnote 86: Lowell, Government of England, I.,
84.]
[Footnote 87: On the organization and workings of
the executive departments see Lowell, _op. cit._,
I., Chaps. 4-6; Marriott, English Political
Institutions, Chap. 5; Anson, Law and Custom of the
Constitution, II., Pt. 1, Chap. 3; Traill, Central
Government, Chaps. 3-11.]
VI. THE CABINET: COMPOSITION AND CHARACTER
*67. Regular and Occasional Members.*--The cabinet comprises a variable
group of the principal ministers of state upon whom devolves singly
the task of administering the affairs of their respective departments
and, collectively, that of shaping the policy and directing the conduct
of the government as a whole. The position occupied by the cabinet (p. 065)
in the constitutional system is anomalous, but transcendently
important. As has been pointed out, the cabinet as such is unknown to
English law. Legally, the cabinet member derives his administrative
function from the fact of his appointment to a ministerial post, and
his advisory function from his membership in the Privy Council. The
cabinet exists as an informal, extra-legal ministerial group into
whose hands, through prolonged historical development, has fallen the
supreme direction of both the executive and the legislative activities
of the state. The composition of the body is determined largely by
custom, but in part by passing circumstance. Certain ministerial heads
are invariably included: the First Lord of the Treasury, the Lord
Chancellor, the Chancellor of the Exchequer, the five Secretaries of
State, and the First Lord of the Admiralty. Two dignitaries who
possess no administrative function, i.e., the Lord President of the
Privy Council and the Lord Privy Seal,[88] are likewise always
included. Beyond this, the make-up of the cabinet group is left to the
discretion of the premier. The importance of a given office at the
moment and the wishes of the appointee, together with general
considerations of party expediency, may well enter into a decision
relative to the seating of individual departmental heads. In recent
years the presidents of the Board of Trade, the Board of Education,
and the Local Government Board have regularly been included, together
with the Lord Lieutenant or the Chief Secretary for Ireland.[89] The
Secretary for Scotland and the Chancellor of the Duchy of Lancaster
are usually included; the Postmaster-General and the President of the
Board of Agriculture frequently, and the First Commissioner of Works
and the Lord Chancellor for Ireland occasionally.
[Footnote 88: The functions of this official are
but nominal. In 1870 Sir Charles Dilke moved to
abolish the office as useless, but Gladstone urged
the desirability of having in the cabinet at least
one man who should not be burdened with the
management of a department, and the motion was
lost. The presidency of the Council is a post
likewise of dignity but of meager governmental
power or responsibility.]
[Footnote 89: In theory the powers of the executive
are exercised in Ireland by the Lord Lieutenant,
but in practice they devolve almost entirely upon
the nominally inferior official, the Chief
Secretary.]
*68. Increasing Size.*--The trend is distinctly in the direction of an
increase in the size of the body. The more notable cabinets of the
eighteenth century contained, as a rule, not above seven to ten
members. In the first half of the nineteenth century the number ran up
to thirteen or fourteen, and throughout the Gladstone-Disraeli period
it seldom fell below this level. The second Salisbury cabinet, at its
fall in 1892, numbered seventeen, and when, following the elections of
1900, the third Salisbury government was reconstructed, the cabinet
attained a membership of twenty.[90] The Balfour cabinet of 1905 (p. 066)
and the succeeding Campbell-Bannerman cabinet likewise numbered
twenty. The increase is attributable to several causes, especially the
pressure which comes from ambitious statesmen for admission to the
influential circle, the growing necessity of according representation
to varied elements and interests within the dominant party, the
multiplication of state activities which call for direction under new
and important departments, and the disposition to accord to every
considerable branch of the administrative system at least one
representative. The effect is to produce a certain unwieldiness, to
avoid which, it will be recalled, the cabinet was originally
instituted. Only through the domination of the cabinet by a few of its
most influential members can expeditiousness be preserved, and during
recent years there has been a tendency toward the differentiation of
an inner circle which shall bear to the whole cabinet a relation
somewhat analogous to that which the cabinet now bears to the
ministry. Development in this direction is viewed apprehensively by
many people who regard that the concentration of power in the hands of
an "inner cabinet" might well fail to be accompanied by a
corresponding concentration of recognized responsibility. During more
than a decade criticism of the inordinate size of the cabinet group
has been voiced freely upon numerous occasions and by many
observers.[91]
[Footnote 90: Lord Salisbury at this point retired
from the Foreign Office, which was assigned to Lord
Lansdowne, and assumed in conjunction with the
premiership the less exacting post of Lord Privy
Seal.]
[Footnote 91: Lowell, Government of England, I.,
59; Anson, Law and Custom of the Constitution, II.,
Pt. 1, 211.]
*69. Appointment of the Premier.*--When a new cabinet is to be made up
the first step is the designation of the prime minister. Legally the
choice rests with the crown, but considerations of practical politics
leave, as a rule, no room whatsoever for the exercise of discretion.
The crown sends as a matter of course for the statesman who is able to
command the support of the majority in the House of Commons. If the
retiring ministry has "fallen," i.e., has lost its parliamentary
majority, the new premier is certain to be the recognized leader of
the party which formerly has played the rôle of opposition. If there
has not occurred a shift in party status, the premiership will be
bestowed upon some one of the colleagues, at least upon one of the
fellow-partisans, of the retiring premier, nominated, if need be, by
the chiefs of the party. Thus, when in 1894 Gladstone retired from
office by reason of physical infirmity, the Liberal leaders in the two
houses conferred upon the question as to whether he should be succeeded
by Sir William Vernon-Harcourt or by Lord Rosebery. They (p. 067)
recommended Lord Rosebery, who was forthwith appointed by the Queen.
If, by any circumstance, the premiership should fall to the Opposition
at a moment when the leadership of this element is in doubt, the crown
would be guided, similarly, by the informally expressed will of the
more influential party members. While, therefore, the appointment of
the prime minister remains the sole important governmental act which
is performed directly by the sovereign, even here the substance of
power has been lost and only the form survives.
*70. Selection of Other Members.*--The remaining members of the cabinet
are selected by the premier, in consultation, as a rule, with leading
members of the party. Technically, what happens is that the first
minister places in the hands of the sovereign a list of the men whom
he recommends for appointment to the principal offices of state. The
crown accepts the list and there appears forthwith in the London
Gazette an announcement to the effect that the persons named have been
chosen by the crown to preside over the several departments.
Officially, there is no mention of the "cabinet." In the selection of
his colleagues the premier theoretically has a free hand. Practically
he is bound by the necessity of complying with numerous principles and
of observing various precedents and practical conditions. Two
principles, in particular, must be adhered to in determining the
structure of every cabinet. All of the members must have seats in one
or the other of the two houses of Parliament, and all must be
identified with the party in power, or, at the least, with an allied
political group. There was a time, when the personal government of the
king was yet a reality, when the House of Commons refused to admit to
its membership persons who held office under the crown, and this
disqualification found legal expression as late as the Act of
Settlement of 1701.[92] With the ripening of parliamentary government
in the eighteenth century, however, the thing that once had been
regarded properly enough as objectionable became a matter of
unquestionable expediency, if not a necessity. When once the ministers
comprised the real executive of the nation it was but logical that
they should be authorized to appear on the floor of the two houses to
introduce and advocate measures and to explain the acts of the
government. Ministers had occupied regularly seats in the upper
chamber, and not only was all objection to their occupying seats in
the lower chamber removed, but by custom it came to be an inflexible
rule that cabinet officers, and indeed the ministers generally, should
be drawn exclusively from the membership of the two houses.[93] (p. 068)
Under provision of an act of 1707 it is still obligatory upon
commoners who are tendered a cabinet appointment, with a few
exceptions, to vacate their seats and to offer themselves to their
constituents for re-election. But re-election almost invariably
follows as a matter of course and without opposition.[94] It is to be
observed that there are two expedients by which it is possible to
bring into the cabinet a desirable member who at the time of his
appointment does not possess a seat in Parliament. The appointee may
be created a peer; or he may stand for election to the Commons and,
winning, qualify himself for a cabinet post.
[Footnote 92: The clause of this measure which bore
upon the point in hand was repealed, however,
before it went into operation.]
[Footnote 93: The one notable instance in which
this rule has been departed from within the past
seventy-five years was Gladstone's tenure of the
post of Secretary of State for the Colonies during
the last six months of the Peel administration in
1846.]
[Footnote 94: On the reasons for the requirement of
re-election and the movement for the abolition of
the requirement see Moran, The English Government,
108-109.]
*71. Distribution Between the Houses of Parliament.*--Since the middle
of the eighteenth century the tenure of the premiership has been
divided approximately equally between peers and commoners, but the
apportionment of cabinet seats between the two houses has been
extremely variable. The first cabinet of the reign of George III.
contained fourteen members, thirteen of whom had seats in the House of
Lords, and, in general, throughout the eighteenth century the peers
were apt greatly to preponderate. With the growth in importance of the
House of Commons, however, and especially after the Reform Act of
1832, the tendency was to draw an ever increasing proportion of the
cabinet officers from the chamber in which lies the storm center of
English politics. By legal stipulation one of the secretaries of state
must sit in the upper house; and the Lord Privy Seal, the Lord
Chancellor, and the Lord President of the Council are all but
invariably peers. Beyond this, there is no positive requirement, in
either law or custom. In the ministries of recent times the number of
peers and of commoners has generally been not far from equal. To fill
the various posts the premier must bring together the best men he can
secure--not necessarily the ablest, but those who will work together
most effectively--with but secondary regard to the question of whether
they sit in the one or the other of the legislative houses. A
department whose chief sits in the Commons is certain to be
represented in the Lords by an under-secretary or other spokesman, and
_vice versa_.[95]
[Footnote 95: In France and other continental
countries in which the parliamentary system obtains
an executive department is represented in
Parliament by its presiding official only. But this
official is privileged, as the English minister is
not, to appear and to speak and otherwise
participate in proceedings on the floor of either
chamber.]
*72. Political Solidarity.*--A second fundamental principle which (p. 069)
dominates the structure of the cabinet is that which requires that the
members be men of one political faith. William III. sought to govern
with a cabinet in which there were both Whigs and Tories, but the
result was confusion and the experiment was abandoned. Except during
the ascendancy of Walpole, the cabinets of the eighteenth century very
generally embraced men of more or less diverse political affiliations,
but gradually the conviction took root that in the interest of unity
and efficiency the political solidarity of the cabinet group is
indispensable. The last occasion upon which it was proposed to make up
a cabinet from utterly diverse political elements was in 1812. The
scheme was rejected, and from that day to this cabinets have been
composed regularly, not necessarily of men identified with a common
political party, but at least of men who are in substantial agreement
upon the larger questions of policy and who have expressed their
willingness to co-operate in the carrying out of a given programme of
action. The fundamental requisite is unity. A Liberal Unionist may
occupy a post in a Conservative cabinet and a Laborite in a Liberal
administration, but he may not oppose the Government upon any
important question and expect to continue a member of it, save by the
express permission of the premier. It is the obligation of every
cabinet member to agree, or to appear to agree, with his colleagues.
If he is unable to do this, no course is open to him save resignation.
*73. Other Considerations Determining Appointment.*--In the selection of
his colleagues the premier works under still other practical
restrictions. One of them is the well-established rule that surviving
members of the last cabinet of the party, in so far as they are in
active public life and desirous of appointment, shall be given prior
consideration. Members of the party, furthermore, who have come into
special prominence and influence in Parliament must usually be
included. In truth, as Bagehot points out, the premier's independent
choice is apt to find scope not so much in the determination of the
cabinet's personnel as in the distribution of offices among the
members selected; and even here he will often be obliged to
subordinate his wishes to the inclinations, susceptibilities, and
capacities of his prospective colleagues. In the expressive simile of
Lowell, the premier's task is "like that of constructing a figure out
of blocks which are too numerous for the purpose, and which are not of
shapes to fit perfectly together."[96]
[Footnote 96: Government of England, I., 57. See
MacDonaugh, The Book of Parliament, 148-183.]
VII. THE CABINET IN ACTION (p. 070)
*74. Ministerial Responsibility.*--In its actual operation the English
cabinet system involves the unvarying application of three principles:
(1) the responsibility of cabinet ministers to Parliament; (2) the
non-publicity of cabinet proceedings; and (3) the close co-ordination
of the cabinet group under the leadership of the premier. Every
minister whether or not in the cabinet, is responsible individually to
Parliament, which in effect means to the House of Commons, for all of
his public acts. If he is accorded a vote of censure he must retire.
In the earlier eighteenth century the resignation of a cabinet officer
did not affect the tenure of his colleagues, the first of cabinets to
retire as a unit being that of Lord North in 1782. Subsequently,
however, the ministerial body so developed in compactness that in
relation to the outside world, and even to Parliament, the individual
officer came to be effectually subordinated to the group. Not since
1866 has a cabinet member retired singly in consequence of an adverse
parliamentary vote. If an individual minister falls into serious
disfavor one of two things almost certainly happens. Either the
offending member is persuaded by his colleagues to modify his course
or to resign before formal parliamentary censure shall have been
passed, or the cabinet as a whole rallies to the support of the
minister in question and stands or falls with him. This is but another
way of saying that, in practice, the responsibility of the cabinet is
collective rather than individual, a condition by which the
seriousness and effectiveness of it are vastly increased. This
responsibility covers the entire range of acts of the executive
department of the government, whether regarded as acts of the crown or
of the ministers themselves, and it constitutes the most distinctive
feature of the English parliamentary system. Formerly the only means
by which ministers could be held to account by Parliament was that of
impeachment. With the development, however, of the principle of
ministerial responsibility as a necessary adjunct to parliamentary
government, the occasional and violent process of impeachment was
superseded by continuous, inescapable, and pacific legislative
supervision. The impeachment of cabinet ministers may be regarded,
indeed, as obsolete.
*75. How a Ministry may Be Overthrown.*--A fundamental maxim of the
constitution to-day is that a cabinet shall continue in office only so
long as it enjoys the confidence and support of a majority in the
House of Commons. There are at least four ways in which a
parliamentary majority may manifest its dissatisfaction with a
cabinet, and so compel its resignation. It may pass a simple vote (p. 071)
of "want of confidence," assigning therefor no definite reason. It may
pass a vote of censure, criticising the cabinet for some specific act.
It may defeat a measure which the cabinet advocates and declares to be
of vital importance. Or it may pass a bill in opposition to the advice
of the ministers. The cabinet is not obliged to give heed to an
adverse vote in the Lords; but when any of the four votes indicated is
carried in the lower chamber the premier and his colleagues must do
one of two things--resign or appeal to the country. If it is clear
that the cabinet has lost the support, not only of Parliament, but
also of the electorate, the only honorable course for the ministry is
that of resignation. If, on the other hand, there is doubt as to
whether the parliamentary majority really represents the country upon
the matters at issue, the ministers are warranted in requesting the
sovereign to dissolve Parliament and to order a general election. In
such a situation the ministry continues tentatively in office. If at
the elections there is returned a majority disposed to support the
ministers, the cabinet is given a new lease of life. If, on the other
hand, the new parliamentary majority is adverse, no course is open to
the ministry save to retire. The new parliament will be convoked at
the earliest practicable date; but in advance of its assembling the
defeated cabinet will generally have resigned and a new government,
presided over by the leader of the late Opposition, will have assumed
the reins. During the interval required for the transfer of power none
save routine business is likely to be undertaken.
*76. Secrecy of Proceedings.*--Perpetually responsible to the House of
Commons and imperatively obligated to resign collectively when no
longer able to command a working majority in that body, the cabinet
must at all times employ every device by which it may be enabled to
present a solid and imposing front. Two such devices are those of
secrecy and the leadership of the premier. It is a sufficiently
familiar principle that a group of men brought together to agree upon
and execute a common policy in behalf of a widespread and diverse
constituency will be more likely to succeed if the differences that
must inevitably appear within their ranks are not published to the
world. It is in deference to this principle that the German Bundesrath
transacts its business to this day behind closed doors, and it was for
an analogous reason that the public was excluded from the sittings of
the convention by which the present constitution of the United States
was framed. Notices of meetings of the English cabinet and the names
of members present appear regularly in the press, but respecting the
subjects discussed, the opinions expressed, and the conclusions
arrived at not a word is given out, officially or unofficially. (p. 072)
The oath of secrecy, required of all privy councillors, is binding in
a special degree upon the cabinet officer. Not even the sovereign is
favored with more than a statement of the topics considered, together
with occasionally a formal draft of such decisions as require his
assent. In the earlier part of the nineteenth century meager minutes
of the proceedings were preserved, but nowadays no clerical employee
is allowed to be present and no record whatsoever is kept.[97] For
knowledge of past transactions members rely upon their own or their
colleagues' memories, supplemented at times by privately kept notes.
The meetings, which are held only as occasion requires (usually as
often as once a week when Parliament is in session) are notably
informal. There is not even a fixed place where meetings are held, the
members being gathered sometimes at the Foreign Office, sometimes at
the premier's house, and, as circumstance may arise, at almost any
convenient place.
[Footnote 97: The same thing is true of the
President's cabinet in the United States. The
reasons for the policy are obvious and ample; but
the preservation of cabinet records, whether in
Great Britain or the United States, would, if such
records were to be made accessible, facilitate
enormously the task of the historian and of the
student of practical government.]
*77. Leadership of the Premier.*--The unity of the cabinet is further
safeguarded and emphasized by the leadership of the prime minister.
Long after the rise of the cabinet to controlling influence in the
state the members of the ministerial body continued supposedly upon a
common footing in respect both to rank and authority. The habitual
abstention of the early Hanoverians from attendance at cabinet
meetings, however, left the group essentially leaderless, and by a
natural process of development the members came gradually to recognize
a virtual presidency on the part of one of their own number. In time
what was a mere presidency was converted into a thoroughgoing
leadership, in short, into the premier's office of to-day. It is
commonly regarded that the first person who fulfilled the functions of
prime minister in the modern sense was Sir Robert Walpole, First Lord
of the Treasury from 1715 to 1717 and from 1721 to 1742. The phrase
"prime minister" was not at that time in use, but that the realities
of the office existed is indicated by a motion made in the Commons
attacking Walpole on the ground that he had "grasped in his own hands
every branch of government; had attained the sole direction of
affairs; had monopolized all the powers of the crown; had compassed
the disposal of all places, pensions, titles, and rewards"--almost
precisely, as one writer puts it, what the present premier is doing
and is expected to do.[98] By the time of the establishment of (p. 073)
the ministry of the younger Pitt, in 1783, the ascendancy of the
premier among his colleagues was an accomplished fact and was
recognized as altogether legitimate. The enormous power of the
premier, arising immediately upon the ruins of the royal prerogative,
was brought virtually to completion when, during the later years of
George III., the rule became fixed that in constituting a ministry the
king should but ratify the choice of officials made by the premier.
[Footnote 98: Moran, The English Government, 99.]
Not until 1906 was the premier's office recognized by law,[99] but
through more than a century no other public position in the nation has
been comparable with it in volume of actual ruling power. Within the
ministry, more particularly the cabinet, the premier is the guiding
force. He presides, as a rule, at cabinet meetings; he advises with
colleagues upon all matters of consequence to the administration's
welfare; and, although he will shrink from doing it, he may require of
his colleagues that they acquiesce in his views, with the alternative
of his resignation.[100] He occupies one of the high offices of state,
usually that of First Lord of the Treasury; and, although ordinarily
his own portfolio will not require much of his time or energy, he must
maintain as close a watch as may be over the affairs of every one of
the departments in which his appointees have been placed. The prime
minister, is, furthermore, the link between the cabinet and, on the
one hand, the crown, and, on the other, Parliament. On behalf of the
cabinet he advises with the sovereign, communicating information
respecting ministerial acts and synopses of the daily debates in
Parliament. In the house of which he is a member he represents (p. 074)
the cabinet as a whole, makes such statements as are necessary
relative to general aspects of the government's policy, and speaks, as
a rule, upon every general or important projected piece of
legislation. As a matter of both theory and historical fact, the
premier who belongs to the House of Commons is more advantageously
situated than one who sits in the Lords.[101]
[Footnote 99: In a statute fixing the order of
precedence of public dignitaries. The premier's
position, however, was defined by a royal warrant
of December, 1905.]
[Footnote 100: The resignation of the premier
terminates _ipso facto_ the life of the ministry.
An excellent illustration of the accustomed
subordination of individual differences of opinion
to the interests of cabinet solidarity is afforded
by some remarks made by Mr. Asquith, December 4,
1911, to a deputation of the National League for
Opposing Woman Suffrage. The deputation had called
to protest against the Government's announced
purpose to attach a suffrage amendment (if carried
in the House of Commons) to a forthcoming measure
of franchise reform. The Premier explained that he
was, and always had been, of the opinion that "the
grant of the parliamentary franchise to women in
this country would be a political mistake of a very
grievous kind." "So far," he continued, "we are in
complete harmony with one another. On the other
hand, I am, as you know, for the time being the
head of the Government, in which a majority of my
colleagues, a _considerable_ majority of my
colleagues--I may say that without violating the
obligation of cabinet secrecy...--are of a
different opinion; and the Government in those
circumstances has announced a policy which is the
result of their combined deliberations, and by
which it is the duty of all their members, and
myself not least, to abide loyally. That is the
position, so far as I am personally concerned."]
[Footnote 101: Low, The Governance of England,
Chap. 9; M. Sibert, Étude sur le premier ministre
en Angleterre depuis ses origines jusqu'à l'époque
contemporaine (Paris, 1909).]
*78. The Cabinet's Central Position.*--In the English governmental
system the cabinet is in every sense the keystone of the arch. Its
functions are both executive and legislative, and indeed, to employ
the figure of Bagehot, it comprises the hyphen that joins, the buckle
that fastens, the executive and the legislative departments
together.[102] As has been pointed out, the uses of the crown are by
no means wholly ornamental. None the less, the actual executive of the
nation is the cabinet. It is within the cabinet circle that
administrative policies are decided upon, and it is by the cabinet
ministers and their subordinates in the several departments that these
policies, and the laws of the land generally, are carried into effect.
On the other side, the cabinet members not only occupy seats in one or
the other of the houses of Parliament; collectively they direct the
processes of legislation. They--primarily the prime minister--prepare
the Speech from the Throne, in which at the opening of a parliamentary
session the state of the country is reviewed and a programme of
legislation is outlined. They formulate, introduce, explain, and
advocate needful legislative measures upon all manner of subjects; and
although bills may be submitted in either house by private members it
is a recognized principle that all measures of large importance shall
emanate directly or indirectly from the cabinet. Statistics
demonstrate that measures introduced by private members have but an
infinitesimal chance of enactment.
[Footnote 102: The English Constitution (new ed.),
79.]
In effect, the cabinet comprises a parliamentary committee chosen, as
Bagehot bluntly puts it, to rule the nation. If a cabinet group does
not represent the ideas and purposes of Parliament as a whole, it at
least represents those of the majority of the preponderating chamber;
and that is ample to give it, during the space of its tenure of
office, a thoroughgoing command of the situation. The basal fact of
the political system is the control of party, and within the party the
power that governs is the cabinet. "The machinery," says Lowell, "is
one of wheels within wheels; the outside ring consisting of the (p. 075)
party that has a majority in the House of Commons; the next ring being
the ministry, which contains the men who are most active within that
party; and the smallest of all being the cabinet, containing the real
leaders or chiefs. By this means is secured that unity of party action
which depends upon placing the directing power in the hands of a body
small enough to agree, and influential enough to control."[103]
[Footnote 103: Government of England, I., 56. The
best discussion of the organization, functions, and
relationships of the cabinet is contained in
Lowell, _op. cit._, I., Chaps. 2-3, 17-18, 22-23.
Other good general accounts are Low, Governance of
England, Chaps. 2-4, 8-9; Moran, English
Government, Chaps. 4-9; Macy, English Constitution,
Chap. 6; Anson, Law and Custom of the Constitution,
II., Pt. 1, Chap. 2; and Maitland, Constitutional
History of England, 387-430. A detailed and still
valuable survey is in Todd, Parliamentary
Government, Parts 3-4. A brilliant study is
Bagehot, English Constitution, especially Chaps. 1,
6-9. The growth of the cabinet is well described in
Blauvelt, The Development of Cabinet Government in
England; and a monograph of value is P. le Vasseur,
Le cabinet britannique sous la reine Victoria
(Paris, 1902). For an extended bibliography see
Select List of Books on the Cabinets of England and
America (Washington, 1903), compiled in the Library
of Congress under the direction of A. P. C.
Griffin.]
CHAPTER IV (p. 076)
PARLIAMENT: THE HOUSE OF COMMONS
*79. Antiquity and Importance.*--The British Parliament is at once the
oldest, the most comprehensive in jurisdiction, and the most powerful
among modern legislative assemblages. In structure, and to some extent
in function, it is a product, as has appeared, of the Middle Ages. The
term "parliament," employed originally to denote a discussion or
conference, was applied officially to the Great Council in 1275;[104]
and by the opening of the fourteenth century the institution which the
English know to-day by that name had come clearly into existence,
being then, indeed, what technically it still is--the king and the
three estates of the realm, i.e., the lords spiritual, the lords
temporal, and the commons. During upwards of a hundred years the three
estates sat and deliberated separately. By the close of the reign of
Edward III. (1327-1377), however, the bicameral principle had become
fixed, and throughout the whole of its subsequent history (save during
the Cromwellian era of experimentation) Parliament has comprised
uninterruptedly, aside from the king, the two branches which exist at
the present time, the House of Lords and the House of Commons, or,
strictly, the Lords of Parliament and the Representatives of the
Commons.
[Footnote 104: In the First Statute of
Westminster.]
The range of jurisdiction which, step by step, these chambers, both
separately and conjointly, have acquired has been broadened until, so
far as the dominions of the British crown extend, it covers all but
the whole of the domain of human government. And within this enormous
expanse of political control the competence of the chambers knows, in
neither theory nor fact, any restriction. "The British Parliament, ..."
writes Mr. Bryce, "can make and unmake any and every law, change
the form of government or the succession to the crown, interfere with
the course of justice, extinguish the most sacred private rights of
the citizen. Between it and the people at large there is no legal
distinction, because the whole plenitude of the people's rights and
powers resides in it, just as if the whole nation were present within
the chamber where it sits. In point of legal theory it is the nation,
being the historical successor of the Folk Moot of our Teutonic
forefathers. Both practically and legally, it is to-day the only (p. 077)
and the sufficient depository of the authority of the nation; and
it is therefore, within the sphere of law, irresponsible and
omnipotent."[105] Whether the business in hand be constituent or
legislative, whether ecclesiastical or temporal, the right of
Parliament--or, more accurately "the King in Parliament"--to discuss
and to dispose is indisputable.
[Footnote 105: The American Commonwealth (3d ed.),
I., 35-36.]
I. THE HOUSE OF COMMONS PRIOR TO 1832
*80. Present Ascendancy.*--Legally, as has been explained, Parliament
consists of the king, the lords spiritual, the lords temporal, and the
commons. For practical purposes, however, it is the House of Commons
alone. "When," as Spencer Walpole wrote a quarter of a century ago, "a
minister consults Parliament he consults the House of Commons; when
the Queen dissolves Parliament she dissolves the House of Commons. A
new Parliament is simply a new House of Commons."[106] The gathering
of the "representatives of the commons" at Westminster is, and has
long been, without question the most important agency of government in
the kingdom. The House of Commons consists at the present day of 670
members, of whom 465 sit for English constituencies, 30 for Welsh, 72
for Scottish, and 103 for Irish. Nine of the members are chosen, under
somewhat special conditions, by the universities, but the remaining
661 are elected in county or borough constituencies under franchise
arrangements, which, while based upon residence and property
qualifications, fall not far short of manhood suffrage. The chamber is
at the same time the preponderating repository of power in the
national government and the prime organ of the popular will. It is in
consequence of its prolonged and arduous development that Great
Britain has attained democracy in national government; and the
influence of English democracy as actualized in the House of Commons
upon the political ideas and the governmental agencies of the outlying
world, both English-speaking and non-English-speaking, is simply
incalculable.
[Footnote 106: The Electorate and the Legislature
(London, 1892), 48.]
*81. Undemocratic Character at the Opening of the Nineteenth
Century.*--"The virtue, the spirit, the essence of the House of
Commons," once declared Edmund Burke, "consists in its being the
express image of the nation." In the eighteenth century, however, when
this assertion was made, the House of Commons was, in point of fact,
far from constituting such an "image." Until, indeed, the nineteenth
century was well advanced the nominally popular parliamentary branch
was in reality representative, not of the mass of the nation, but (p. 078)
of the aristocratic and governing elements, at best of the well-to-do
middle classes; and a correct appreciation of the composition and
character of the chamber as it to-day exists requires some allusion to
the process by which its democratization was accomplished. In
1832--the year of the first great Reform Act--the House of Commons
consisted of 658 members, of whom 186 represented the forty counties
and 472 sat for two hundred three boroughs. The apportionment of both
county and borough members was haphazard and grossly inequitable. In
the Unites States, and in many European countries, it is required by
constitutional provision that following a decennial census there shall
be a reapportionment of seats in the popular legislative chamber, the
purpose being, of course, to preserve substantial equality among the
electoral constituencies and, ultimately, an essential parity of
political power among the voters. At no time, however, has there been
in Great Britain either legislation or the semblance of a tradition in
respect to this matter. Reapportionment has taken place only partially
and at irregular intervals, and at but a few times in the history of
the nation have constituencies represented at Westminster been even
approximately equal. Save that, in 1707, forty-five members were added
to represent Scotland and, in 1801, one hundred to sit for Ireland,
the identity of the constituencies represented in the Commons
continued all but unchanged from the reign of Charles II. to the
reform of 1832.
*82. Need of a Redistribution of Seats.*--The population changes, in
respect to both growth and distribution, falling within this extended
period were, however, enormous. In 1689 the population of England and
Wales was not in excess of 5,500,000. The census of 1831 revealed in
these countries a population of 14,000,000. In the seventeenth and
earlier eighteenth centuries the great mass of the English people
lived in the south and east. Liverpool was but an insignificant town,
Manchester a village, and Birmingham a sand-hill. But the industrial
revolution had the effect of bringing coal, iron, and water-power into
enormous demand, and after 1775 the industrial center, and likewise
the population center, of the country was shifted rapidly toward the
north. In the hitherto almost uninhabited valleys of Lancashire and
Yorkshire sprang up a multitude of factory towns and cities. In
Parliament these fast-growing populations were either glaringly
under-represented or not represented at all. In 1831 the ten
southernmost counties of England contained a population of 3,260,000
and returned to Parliament 235 members.[107] At the same time the six
northernmost counties contained a population of 3,594,000, but (p. 079)
returned only 68 members. Cornwall, with 300,000 inhabitants, had 42
representatives; Lancashire, with 1,330,000, had 14. Among towns,
Birmingham and Manchester, each with upwards of 100,000 people, and
Leeds and Sheffield, each with 50,000, had no representation whatever.
On the other hand, boroughs were entitled to representation which
contained ridiculously scant populations, or even no population at
all. Gatto, in Surrey, was a park; Old Sarum, in Wiltshire, was a
deserted hill; the remains of what once was Dunwich were under the
waves of the North Sea. Bosseney, in Cornwall, was a hamlet of three
cottages, eight of whose nine electors belonged to a single family.
But Bosseney sent two members to the House of Commons.
[Footnote 107: That is to say, the quota of members
mentioned was returned by the counties and by the
boroughs contained geographically within them.]
*83. County and Borough Franchise in 1831.*--Not only was there, thus,
the most glaring lack of adjustment of parliamentary representation to
the distribution of population; where the right of representation
existed, the franchise arrangements under which members were elected
were hopelessly heterogeneous and illiberal. Originally, as has been
pointed out,[108] the representatives of the counties were chosen in
the county court by all persons who were entitled to attend and to
take part in the proceedings of that body. In 1429, during the reign
of Henry VI., an act was passed ostensibly to prevent riotous and
disorderly elections, wherein it was stipulated that county electors
should thereafter comprise only such male residents of the county as
possessed free land or tenement which would rent for as much as forty
shillings a year above all charges.[109] Leaseholders, copyholders,
small freeholders, and all non-landholders were denied the suffrage
altogether. Even in the fifteenth and sixteenth centuries the number
of forty-shilling freeholders was small. With the concentration of
land in fewer hands, incident to the agrarian revolution of the
eighteenth and early nineteenth centuries, it bore an increasingly
diminutive ratio to the aggregate county population, and by 1832 the
county electors comprised, as a rule, only a handful of large landed
proprietors. Within the boroughs the franchise arrangements existing
at the date mentioned were complicated and diverse beyond the
possibility of general characterization. Many of the boroughs had been
accorded parliamentary representation by the most arbitrary and
haphazard methods, and at no time prior to 1830 was there legislation
which so much as attempted to regulate the conditions of voting within
them. There were "scot and lot" boroughs, "potwalloper" boroughs,
burgage boroughs, corporation or "close" boroughs, and "freemen"
boroughs, to mention only the more important of the types that (p. 080)
can be distinguished.[110] In some of these the franchise was, at
least in theory, fairly democratic; but in most of them it was
restricted by custom or local regulation to petty groups of
property-holders or taxpayers, to members of the municipal
corporations, or even to members of a favored guild. With few
exceptions, the borough franchise was illogical, exclusive, and
non-expansive.
[Footnote 108: See p. 23.]
[Footnote 109: Equivalent in present values to £30
or £40.]
[Footnote 110: See p. 23.]
*84. Political Corruption.*--A third fact respecting electoral
conditions in the earlier nineteenth century is the astounding
prevalence of illegitimate political influence and of sheer
corruption. Borough members were very commonly not true
representatives at all, but nominees of peers, of influential
commoners, or of the government. It has been estimated that of the 472
borough members not more than 137 may be regarded as having been in
any proper sense elected. The remainder sat for "rotten" boroughs, or
for "pocket" boroughs whose populations were so meager or so docile
that the borough might, as it were, be carried about in a magnate's
pocket. In the whole of Cornwall there were only one thousand voters.
Of the forty-two seats possessed by that section of the country twenty
were controlled by seven peers, twenty-one were similarly controlled
by eleven commoners, and but one was filled by free election. In 1780
it was asserted by the Duke of Richmond that a clear majority of the
House of Commons was returned by six thousand persons. Bribery and
other forms of corruption were so common that only the most shameless
instances attracted public attention. Not merely votes, but seats,
were bought and sold openly, and it was a matter of general
understanding that £5,000 to £7,000 was the amount which a political
aspirant might expect to be obliged to pay a borough-monger for
bringing about his election. Seats were not infrequently advertised
for sale in the public prints, and even for hire for a term of
years.[111]
[Footnote 111: The monumental treatise on the House
of Commons prior to 1832 is E. Porritt, The
Unreformed House of Commons: Parliamentary
Representation before 1832, 2 vols. (2d ed.,
Cambridge, 1909). On the prevalence of corruption
see May and Holland, Constitutional History of
England, I., 224-238, 254-262.]
II. PARLIAMENTARY REFORM, 1832-1885
*85. Demand for Reform Prior to 1832.*--Active demand for a reformation
of the conditions that have been described antedated the nineteenth
century. As early as 1690, indeed, John Locke denounced the
absurdities of the prevailing electoral system,[112] although at the
time they were inconsiderable in comparison with what they became by
1832; and during the second half of the eighteenth century a (p. 081)
number of interesting reform proposals--notably that of the elder Pitt
in 1766, that of Wilkes in 1776, and that of the younger Pitt in
1785--were widely though fruitlessly discussed. In 1780 a group of
public-spirited men established a Society for Constitutional
Information which during the ensuing decade carried on actively a
propaganda in behalf of parliamentary regeneration, and at a meeting
under the auspices of this organization and presided over by Charles
James Fox a programme was drawn up insisting upon innovations no less
sweeping than the establishment of manhood suffrage, the creation of
equal electoral districts, the payment of members, the abolition of
property qualifications for members, and adoption of the secret
ballot.[113] The revolution in France and the prolonged contest with
Napoleon stayed the reform movement, but after 1815 agitation was
actively renewed. The economic and social ills of the nation in the
decade following the restoration of peace were many, and the idea took
hold widely that only through a reconstitution of Parliament could
adequate measures of amelioration be attained. The disposition of the
Tory governments of the period was to resist the popular demand, or,
at the most, to concede changes which would not affect the
aristocratic character of the parliamentary chambers. But the
reformers refused to be diverted from their fundamental object, and in
the end the forces of tradition, conservatism, and vested interest
were obliged to give way.[114]
[Footnote 112: Treatises of Government, II., Chap.
13, § 157.]
[Footnote 113: It is of interest to observe that
every one of the demands enumerated found a place
half a century later among the "six points" of the
Chartists. See pp. 82-83. A bill embodying the
proposed reforms was introduced by the Duke of
Richmond in 1780, but met with small favor. A
second society--The Friends of the People--was
formed in 1792 to promote the cause.]
[Footnote 114: The reform movement prior to 1832 is
admirably sketched in May and Holland,
Constitutional History of England, I., 264-280. See
also G. L. Dickinson, The Development of Parliament
during the Nineteenth Century (London, 1895), Chap.
1; J. H. Rose, The Rise and Growth of Democracy in
Great Britain (London, 1897), Chap. 1; C. B. R.
Kent, The English Radicals (London, 1899), Chaps.
1-2; and W. P. Hall, British Radicalism, 1791-1797
(New York, 1912).]
*86. The Reform Act of 1832.*--The first notable triumph was the
enactment of the Reform Bill of 1832. The changes wrought by this
memorable piece of legislation were two-fold, the first relating to
the distribution of seats in Parliament, the second to the extension
of the franchise. The number of Scottish members was increased from 45
to 54; that of Irish, from 100 to 105; that of English and Welsh was
reduced from 513 to 499. There was no general reapportionment of seats,
no effort to bring the parliamentary constituencies into precise and
uniform relation to the census returns. But the most glaringly
inequitable of former conditions were remedied. Fifty-six (p. 082)
boroughs, of populations under 2,000, were deprived entirely of
representation,[115] thirty-one, of populations between 2,000 and
4,000, were reduced from two members to one, and one was reduced from
four members to two. The 143 seats thus made available were
redistributed, and the aggregate number (658) continued as before.
Twenty-two large boroughs hitherto unrepresented were given two
members each; twenty-one others were given one additional member each;
and a total of sixty-five seats were allotted to twenty-seven of the
English counties, the remaining thirteen being given to Scotland and
Ireland. The redistribution had the effect of increasing markedly the
political power of the northern and north-central portions of the
country. The alterations introduced in the franchise were numerous and
important. In the counties the forty-shilling freehold franchise, with
some limitations, was retained; but the voting privilege was extended
to all leaseholders and copyholders of land renting for as much as £10
a year, and to tenants-at-will holding an estate worth £50 a year. In
the boroughs the right to vote was conferred upon all "occupiers" of
houses worth £10 a year. The total number of persons enfranchised was
approximately 455,000. By basing the franchise exclusively upon the
ownership or occupancy of property of considerable value the reform
fell short of admitting to political power the great mass of factory
employees and of agricultural laborers, and for this reason it was
roundly opposed by the more advanced liberal elements. If, however,
the voting privilege had not been extended to the masses it had been
brought appreciably nearer them; and--what was almost equally
important--it had been made substantially uniform, for the first time,
throughout the realm.[116]
[Footnote 115: Of the fifty-six all save one had
returned two members.]
[Footnote 116: The more important parts of the text
of the Reform Bill of 1832 are printed in
Robertson, Statutes, Cases and Documents, 197-212.]
*87. The Chartist Movement.*--The act of 1832 possessed none of the
elements of finality. Its authors were in general content, but with
the lapse of time it was made increasingly manifest that the nation
was not. Political power was still confined to the magnates of the
kingdom, the townsfolk who were able to pay a £10 annual rental, and
the well-to-do copyholders and leaseholders of rural districts. Whigs
and Tories of influence alike insisted that further innovation could
not be contemplated, but the radicals and the laboring masses insisted
no less resolutely that the reformation which had been begun should be
carried to its logical conclusion. The demands upon which emphasis was
especially placed were gathered up in the "six points" of the People's
Charter, promulgated in final form May 8, 1838. The six points were:
(1) universal suffrage for males over twenty-one years of age, (p. 083)
(2) equal electoral districts, (3) voting by secret ballot, (4) annual
sessions of Parliament, (5) the abolition of property qualifications
for members of the House of Commons, and (6) payment of members. The
barest enumeration of these demands is sufficient to reveal the
political backwardness of the England of three-quarters of a century
ago. Not only was the suffrage still severely restricted and the basis
of representation antiquated and unfair; voting was oral and public,
and only men who were qualified by the possession of property were
eligible for election.[117]
[Footnote 117: Rose, Rise and Growth of Democracy,
Chaps. 6-8; Kent, The English Radicals, Chap. 3;
and R. G. Gammage, History of the Chartist
Movement, 1837-1854 (Newcastle-on-Tyne, 1894).]
*88. The Representation of the People Act of 1867.*--After a decade of
spectacular propaganda Chartism collapsed, without having attained
tangible results. None the less, the day was not long postponed when
the forces of reform, sobered and led by practical statesmen, were
enabled to realize one after another of their fundamental purposes. In
1858 the second Derby government acquiesced in the enactment of a
measure by which all property qualifications hitherto required of
English, Welsh, and Irish members were abolished,[118] and after 1860
projects for franchise extension were considered with increasing
seriousness. In 1867 the third Derby government, whose guiding spirit
was Disraeli, carried a bill providing for an electoral reform of a
more thoroughgoing character than any persons save the most
uncompromising of the radicals had ever asked or desired. This
Representation of the People Act modified but slightly the
distribution of parliamentary seats. The total number of seats
remained unchanged, as did Ireland's quota of 105; Scotland's
apportionment was increased from 54 to 60, while that of England and
Wales was decreased from 499 to 493; and in the course of the
re-allotment that was made eleven boroughs lost the right of
representation and thirty-five others were reduced from two members to
one. The fifty-two seats thus vacated were utilized to enfranchise
twelve new borough and three university constituencies and to increase
the representation of a number of the more populous towns and
counties.
[Footnote 118: By law of 1710 it had been required
that county members should possess landed property
worth £600, and borough members worth £300, a year.
These qualifications were very commonly evaded, but
they were not abolished until 1858.]
The most important provisions of the Act were, however, those relating
to the franchise. In England and Wales the county franchise was
guaranteed to men whose freehold was of the value of forty shillings a
year, to copyholders and leaseholders of the annual value of £5, and
to householders whose rent amounted to not less than £12 a year. (p. 084)
The twelve pound occupation franchise was new,[119] and the
qualification for copyholders and leaseholders was reduced from £10 to
£5; otherwise the county franchise was unchanged. The borough
franchise was modified profoundly. Heretofore persons were qualified
to vote as householders only in the event that their house was worth
as much as £10 a year. Now the right was conferred upon every man who
occupied, as owner or as tenant, for twelve months, a dwelling-house,
or any portion thereof utilized as a separate dwelling, without regard
to its value. Another newly established franchise admitted to the
voting privilege all lodgers occupying for as much as a year rooms of
the clear value, unfurnished, of £10 a year. The effect of these
provisions was to enfranchise the urban working population, even as
the act of 1832 had enfranchised principally the urban middle class.
So broad, indeed, did the urban franchise at this point become that
little room was left for its modification subsequently. As originally
planned, Disraeli's measure would have enlarged the electorate by not
more than 100,000; as amended and carried, it practically doubled the
voting population, raising it from 1,370,793 immediately prior to 1867
to 2,526,423 in 1871.[120] By the act of 1832 the middle classes had
been enfranchised; by that of 1867 political power was thrown in no
small degree into the hands of the masses. Only two large groups of
people remained now outside the pale of political influence, i.e., the
agricultural laborers and the miners.
[Footnote 119: It may be regarded, however, as
taking the place of the £50 rental franchise.]
[Footnote 120: It is to be observed that these
figures are for the United Kingdom as a whole,
embracing the results not merely of the act of 1867
applying to England and Wales but of the two acts
of 1868 introducing similar, though not identical,
changes in Scotland and Ireland.]
*89. The Representation of the People Act of 1884.*--That the
qualifications for voting in one class of constituencies should be
conspicuously more liberal than in another class was an anomaly, and
in a period when anomalies were at last being eliminated from the
English electoral system remedy could not be long delayed. February 5,
1884, the second Gladstone ministry redeemed a campaign pledge by
introducing a bill extending to the counties the same electoral
regulations that had been established in 1867 in the towns. The
measure passed the Commons, but was rejected by the Lords by reason of
the fact that it was not accompanied by a bill for the redistribution
of seats. By an agreement between the two houses a threatened deadlock
was averted, and the upshot was that before the end of the year the
Lords accepted the Government's bill, on the understanding that its
enactment was to be followed immediately by the introduction of a
redistribution measure. The Representation of the People Act of (p. 085)
1884 is in form disjointed and difficult to understand, but the effect
of it is easy to state. By it there was established a uniform
household franchise and a uniform lodger franchise in all counties and
boroughs of the United Kingdom. The occupation of any land or tenement
of a clear annual value of £10 was made a qualification in boroughs
and counties alike; and persons occupying a house by virtue of office
or employment were to be deemed "occupiers" for the purpose of the
act. The measure doubled the county electorate and increased the total
electorate by some 2,000,000, or approximately forty per cent. Its
most important effect was to enfranchise the workingman in the
country, as the act of 1867 had enfranchised the workingman in the
town.
*90. The Redistribution of Seats Act, 1885.*--In 1885, the two great
parties co-operating, there was passed the Redistribution of Seats Act
which had been promised. Now for the first time in English history
attempt was made to apportion representation in the House of Commons
in something like strict accordance with population densities. In the
first place, the total number of members was increased from 658[121]
to 670, and of the number 103 were allotted to Ireland, 72 to
Scotland, and 495 to England and Wales. In the next place, the method
by which former redistributions had been accomplished, i.e.,
transferring seats more or less arbitrarily from flagrantly
over-represented boroughs to more populous boroughs and counties, was
replaced by a method based upon the principle of equal electoral
constituencies, each returning one member. In theory a constituency
was made to comprise 50,000 people. Boroughs containing fewer than
15,000 inhabitants were disfranchised as boroughs, becoming for
electorial purposes portions of the counties in which they were
situated. Boroughs of between 15,000 and 50,000 inhabitants were
allowed to retain, or if previously unrepresented were given, one
member each. Those of between 50,000 and 165,000 were given two
members, and those of more than 165,000 three, with one in addition
for every additional 50,000 people. The same general principle was
followed in the counties. Thus the city of Liverpool, which prior to
1885 sent three members to Parliament, fell into nine distinct
constituencies, each returning one member, and the great northern
county of Lancashire, which since 1867 had been divided into four
portions each returning two members, was now split into twenty-three
divisions with one member each. The boroughs which prior to 1885
elected two members, and at the redistribution retained that number,
remained single constituencies for the election of those two members.
Of these boroughs there are to-day twenty-three. They, together (p. 086)
with the city of London and the three universities of Oxford,
Cambridge, and Dublin, comprise the existing twenty-seven two-member
constituencies. By partition of the counties, of the old boroughs
having more than two members, and of the new boroughs with only two
members, all save these twenty-seven constituencies have been erected
into separate, single-member electoral divisions, each with its own
name and identity.[122]
[Footnote 121: Strictly 652, since after 1867 four
boroughs, returning six members, were
disfranchised.]
[Footnote 122: On the reforms of the period
1832-1885 see Cambridge Modern History, X., Chap.
18, and XI., Chap. 12; Dickinson, Development of
Parliament, Chap. 2; Rose, Rise and Growth of
Democracy, Chaps. 2, 10-13; Marriott, English
Political Institutions, Chap. 10. An excellent
survey is May and Holland, Constitutional History
of England, I., Chap. 6, and III., Chap. 1. Mention
may be made of H. Cox, A History of the Reform
Bills of 1866 and 1867 (London, 1868); J. S. Mill,
Considerations on Representative Government
(London, 1861); and T. Hare, The Election of
Representatives, Parliamentary and Municipal (3d
ed., London, 1865). An excellent survey by a Swiss
scholar is contained in C. Borgeaud, The Rise of
Modern Democracy in Old and New England, trans. by
B. Hill (London, 1894), and a useful volume is J.
Murdock, A History of Constitutional Reform in
Great Britain and Ireland (Glasgow, 1885). The
various phases of the subject are covered, of
course, in the general histories of the period,
notably S. Walpole, History of England from the
Conclusion of the Great War in 1815, 6 vols. (new
ed., London, 1902); W. N. Molesworth, History of
England from the year 1830-1874, 3 vols. (London,
1874); J. F. Bright, History of England, 5 vols.
(London, 1875-1894); H. Paul, History of Modern
England, 5 vols. (London, 1904-1906); and S. Low
and L. C. Sanders, History of England during the
Reign of Victoria (London, 1907). Three
biographical works are of special service: S.
Walpole, Life of Lord John Russell, 2 vols.
(London, 1889); J. Morley, Life of William E.
Gladstone, 3 vols. (London, 1903); and W. F.
Monypenny, Life of Benjamin Disraeli, Earl of
Beaconsfield, vols. 1-2 (London and New York,
1910-1912).]
III. THE FRANCHISE AND THE ELECTORAL QUESTIONS OF TO-DAY
*91. The Franchise as It Is.*--By the measures of 1884 and 1885 the
House of Commons was placed upon a broadly democratic basis. Both
measures stand to-day upon the statute-books, and neither has been
amended in any important particular. With respect to the existing
franchises there are two preponderating facts. One of them is that
individuals, as such, do not possess the privilege of voting; on the
contrary, the possession of the privilege is determined all but
invariably in relation to the ownership or occupation of property. The
other is that the franchise system, while substantially uniform
throughout the kingdom, is none the less the most complicated in
Europe. There are three important franchises which are universal and
two which are not. In the first group are included: (1) occupancy, as
owner or tenant, of land or tenement of a clear yearly value of £10;
(2) occupancy, as owner or tenant, of a dwelling-house, or part of a
house used as a separate dwelling, without regard to its value; (p. 087)
and (3) occupancy of lodgings of the value, unfurnished, of £10 a
year. The two franchises which are not universal are (1) ownership of
land of forty shillings yearly value or occupation of land under
certain other specified conditions--this being applicable only to
counties and, to a small extent, to boroughs which are counties in
themselves; and (2) residence of freemen in those towns in which they
had a right to vote prior to 1832. The conditions and exceptions by
which these various franchises are attended are so numerous that few
people in England save lawyers make a pretense of knowing them all,
and the volume of litigation which arises from the attempted
distinction between "householder" and "lodger," and from other
technicalities of the subject, is enormous. Voters must be twenty-one
years of age, and there are several complicated requirements in
respect to the period of occupation of land and of residence, and
likewise in respect to the fulfillment of the formalities of
registration.[123] There are also various incidental disqualifications.
No peer, other than a peer of Ireland who is in possession of a seat
in the House of Commons, may vote; persons employed as election
agents, canvassers, clerks, or messengers may not vote, nor may the
returning officers of the constituencies, save when necessary to break
a tie between two candidates; and aliens, felons, and, under
stipulated conditions, persons in receipt of public charity, are
similarly debarred. In the aggregate, however, the existing franchises
approach measurably near manhood suffrage. It has been computed that
the ratio of electors to population is approximately one in six,
whereas, the normal proportion of males above the age of twenty-one,
making no allowance for paupers, criminals, and other persons commonly
disqualified by law, is somewhat less than one in four. The only
classes of adult males at present excluded regularly from the voting
privilege are domestic servants, bachelors living with their parents
and occupying no premises on their own account, and persons whose
change of abode periodically deprives them of a vote.
[Footnote 123: On the process of registration see
Anson, Law and Custom of the Constitution, I.,
134-137, and M. Caudel, L'enregistrement des
électeurs en Angleterre, in _Annales des Sciences
Politiques_, Sept., 1906.]
"The present condition of the franchise," asserts Lowell, "is, indeed,
historical rather than rational. It is complicated, uncertain,
expensive in the machinery required, and excludes a certain number of
people whom there is no reason for excluding, while it admits many
people who ought not to be admitted if any one is to be debarred."[124]
During the past generation there has been demand from a variety (p. 088)
of quarters that the conditions of the franchise, and, indeed, the
electoral system as a whole, be overhauled, co-ordinated, and
liberalized; and at the date of writing (1912) there is pending in
Parliament a measure of fundamental importance looking in this
direction. The electoral changes which have been most widely
advocated, at least in recent years, are four in number: (1) a fresh
apportionment of seats in the Commons in accordance with the
distribution of population; (2) the extension of the franchise to
classes of men at present debarred; (3) the abolition of the plural
vote; and (4) the enfranchisement of women.
[Footnote 124: Government of England, I., 213. On
the franchise system see Anson, Law and Custom of
the Constitution, I., Chap. 4 and Lowell, _op.
cit._, I., Chap. 9.]
*92. The Question of Redistribution of Seats.*--As has been pointed out,
the Redistribution of Seats Act of 1885 established constituencies in
which there was some approach to equality. The principle was far from
completely carried out. For example, the newly created borough of
Chelsea contained upwards of 90,000 people, while the old borough of
Windsor had fewer than 20,000. But the inequalities left untouched by
the act were slight in comparison with those which have arisen during
a quarter of a century in which there has been no reapportionment
whatsoever. In 1901 the least populous constituency of the United
Kingdom, the borough of Newry in Ireland, contained but 13,137 people,
while the southern division of the county of Essex contained 217,030;
yet each was represented by a single member. This means, of course, a
gross disparity in the weight of popular votes, and, in effect, the
over-representation of certain sets of opinions and interests. In
January, 1902, an amendment to a parliamentary address urging the
desirability of redistribution was warmly debated in the Commons, and,
on the eve of its fall, in the summer of 1905, the Balfour government
submitted a Redistribution Resolution designed to meet the demands of
the "one vote, one value" propagandists. At this time it was pointed
out that whereas immediately after the reform of 1885 the greatest
ratio of disparity among the constituencies was 5.8 to 1, in twenty
years it had risen to 16.5 to 1. The plan proposed provided for the
fixing of the average population to be represented by a member at from
50,000 to 65,000, the giving of eighteen additional seats to England
and Wales and of four to Scotland, the reduction of Ireland's quota by
twenty-two, and such further readjustments as would bring down the
ratio of greatest disparity to 6.8 to 1. Under a ruling of the Speaker
to the effect that the resolution required to be divided into eight or
nine parts, to be debated separately, the proposal was withdrawn. It
was announced that a bill upon the subject would be brought in, but
the early retirement of the ministry rendered this impossible, (p. 089)
and throughout succeeding years this aspect of electoral reform
yielded precedence to other matters.[125]
[Footnote 125: _Annual Register_ (1905), 193.]
A special difficulty inherent in the subject is imposed by the
peculiar situation of Ireland. By reason of the decline of Ireland's
population during the past half century that portion of the United
Kingdom has come to be markedly over-represented at Westminster. The
average Irish commoner sits for but 44,147 people, while the average
English member represents 66,971. If a new distribution were to be
made in strict proportion to members Ireland would lose 30 seats and
Wales three, while Scotland would gain one and England about 30. It is
contended by the Irish people, however, that the Act of Union of 1800,
whereby Ireland was guaranteed as many as one hundred parliamentary
seats, is in the nature of a treaty, whose stipulations cannot be
violated save by the consent of both contracting parties; and so long
as the Irish are not allowed a separate parliament they may be
depended upon to resist, as they did resist in 1905, any proposal
contemplating the reduction of their voting strength in the parliament
of the United Kingdom.
*93. The Problem of the Plural Vote.*--Aside from the enfranchisement of
women, the principal suffrage questions in Great Britain to-day are
those pertaining to the conferring of the voting privilege upon adult
males who are still debarred, the abolition of the plural vote, and a
general simplification and unification of franchise arrangements. The
problem of the plural vote is an old one. Under existing law an
elector may not vote more than once in a single constituency, nor in
more than one division of the same borough; but aside from this, and
except in so far as is not prohibited by residence requirements, he is
entitled to vote in every constituency in which he possesses a
qualification. In the United States and in the majority of European
countries a man is possessed of but one vote, and any arrangement
other than this would seem to contravene the principle of civic
equality which lies at the root of popular government. In England
there have been repeated attempts to bring about the establishment of
an unvarying rule of "one man, one vote," but never as yet with
success. The number of plural voters--some 525,000--is relatively
small, but when it is remembered that a single voter may cast during a
parliamentary election as many as fifteen or twenty votes it will be
observed that the number quite suffices to turn the scale in many
closely contested constituencies. An overwhelming proportion of the
plural voters are identified with the Conservative party, whence it
arises that the Liberals are, and long have been, hostile to the
privilege. Following the Liberal triumph at the elections of 1906 (p. 090)
a Plural Voting Bill was introduced requiring that every elector
possessed of more than one vote should be registered in the
constituency of his choice and in no other one. The measure passed the
Commons, by a vote of 333 to 104, but the Conservative majority in the
Lords compassed its defeat, alleging that while it was willing to
consider a complete scheme of electoral reform the proposed bill was
not of such character.[126]
[Footnote 126: May and Holland, Constitutional
History of England, III., 48-49. It may be noted
that an able royal commission, appointed in
December, 1908, to study foreign electoral systems
and to recommend modifications of the English
system, reported in 1910 adversely to the early
adoption of any form of proportional
representation.]
*94. The Franchise Bill of 1912.*--Soon after the final enactment, in
August, 1911, of the Parliament Bill whereby the complete ascendancy
of the Commons was secured in both finance and legislation[127] the
Liberal government of Mr. Asquith made known its intention to bring
forward at an early date a comprehensive measure of franchise reform.
During the winter of 1911-1912 the project was formulated, and in the
early summer of 1912 the bill was introduced. The adoption of the
measure in its essentials is not improbable, although at the date of
writing[128] it is by no means assured. In the main, the bill makes
provision for three reforms. In the first place, it substitutes for
the present complicated and illogical network of suffrages a simple
residential or occupational qualification, thereby extending the
voting privilege to practically all adult males. In the second place,
it simplifies the process of registration and, in effect, enfranchises
large numbers of men who in the past have been unable to vote because
of change of residence or of the difficulties of the registration
process. Finally, it abolishes absolutely both the plural vote and the
separate representation of the universities. The effect of the first
two of these provisions, it is estimated, would be to enlarge the
electorate by 2,500,000 votes, that of the third, to reduce it by
upwards of 600,000;[129] so that the net result of the three would be
to raise an existing electorate of eight millions to one of ten
millions. A total of twenty-eight franchise statutes are totally, and
forty-four others are partially, repealed by the bill. The ground upon
which the measure, in its earlier stages, was attacked principally was
its lack of provision for a redistribution of seats. The defense of
the Government has been that, while the imperative need of
redistribution is recognized, such redistribution can be effected only
after it shall be known precisely what the franchise arrangements (p. 091)
of the kingdom are to be.[130]
[Footnote 127: See pp. 110-113.]
[Footnote 128: October, 1912.]
[Footnote 129: The number of plural voters is
placed at 525,000; that of graduates who elect the
university representatives, at 49,614.]
[Footnote 130: A timely volume is J. King and F. W.
Raffety, Our Electoral System; the Demand for
Reform (London, 1912).]
*95. The Question of Woman's Suffrage.*--It will be observed that the
Franchise Bill restricts the franchise to adult males. The measure was
shaped deliberately, however, to permit the incorporation of an
amendment providing for the enfranchisement of women. It is a fact not
familiarly known that English women of requisite qualifications were
at one time in possession of the suffrage at national elections. They
were not themselves allowed to vote, but a woman was privileged to
pass on her qualifications temporarily to any man, and, prior to the
seventeenth century, the privilege was occasionally exercised. It was
not indeed, until the Reform Act of 1832 that the law of elections, by
introducing the phrase "male persons," in effect vested the
parliamentary franchise exclusively in men.[131] The first notable
attempt made in Parliament to restore and extend the female franchise
was that of John Stuart Mill in 1867. His proposed amendment to the
reform bill of that year was defeated by a vote of 196 to 73. In 1870
a woman's suffrage measure drafted by Dr. Pankhurst and introduced in
the Commons by John Bright passed its second reading by a majority of
thirty-three, but was subsequently rejected. During the seventies and
early eighties a vigorous propaganda was maintained and almost every
session produced its crop of woman's suffrage bills. A determined
attempt was made to secure the inclusion of a woman's suffrage clause
in the Reform Bill of 1884. The proposed amendment was supported very
generally by the press, but in consequence of a threat by Gladstone to
the effect that if the amendment were carried the entire measure would
be withdrawn the project was abandoned. The next chapter of importance
in the history of the movement was inaugurated by the organization, in
1903, of the Women's Social and Political Union. In 1904 a suffrage
bill was introduced but failed to become law. Within the past decade,
however, the cause has made substantial headway, and by the
spectacular character which it has assumed it has attracted wide
attention. In March, 1912, a Woman's Enfranchisement measure was
rejected in the House of Commons by the narrow margin of 222 to 208
votes. Premier Asquith is opposed to female enfranchisement, but his
colleagues in the ministry are almost evenly divided upon the issue,
and it is not inconceivable that a woman's suffrage measure may be
carried through in the guise of an amendment to the pending Franchise
Bill. If it were to be, and the qualifications should be made (p. 092)
identical with those of men, the number of women voters would be
approximately 10,500,000.[132]
[Footnote 131: May and Holland, Constitutional
History of England, III., 61.]
[Footnote 132: K. Schirmacher, The Modern Woman's
Rights Movement, trans. by C. C. Eckhardt (New
York, 1912), 58-96; B. Mason, The Story of the
Woman's Suffrage Movement (London, 1911); E. S.
Pankhurst, The Suffragette; the History of the
Woman's Militant Suffrage Movement, 1905-1910
(London, 1911). The subject is surveyed briefly in
May and Holland, Constitutional History, III.,
59-66.]
*96. Qualifications for Election.*--The regulations governing the
qualifications essential for election to Parliament are to-day, on the
whole, simple and liberal. The qualification of residence was replaced
in the eighteenth century by a property qualification; but, as has
been pointed out, in 1858 this likewise was swept away. Oaths of
allegiance and oaths imposing religious tests once operated to debar
many, but all that is now required of a member is a very simple oath
or affirmation of allegiance, in a form compatible with any shade of
religious belief or unbelief. Any male British subject who is of age
is qualified for election, unless he belongs to one of a few small
groups--notably peers (except Irish); clergy of the Roman Catholic
Church, the Church of England, and the Church of Scotland; certain
office-holders; bankrupts; and persons convicted of treason, felony,
or corrupt practices. A member is not required to be a resident of the
electoral district which he represents. Once elected, a man properly
qualified cannot escape membership by resignation. He may be expelled,
but the only means by which he can retire from the House voluntarily
is the acceptance of some public post whose occupant is _ipso facto_
disqualified. To serve this end two or three sinecures are maintained,
the best known being the stewardship of the Chiltern Hundreds. The
member who desires to give up his seat accomplishes his purpose by
applying for one of these offices, receiving it, and after having
disqualified himself, resigning it.
IV. ELECTORAL PROCEDURE AND REGULATIONS
*97. Writs and Election Days.*--When a parliament is dissolved the royal
proclamation wherein the dissolution is declared expresses the desire
of the crown to have the advice of the people and announces the
sovereign's will and pleasure to call a new parliament. With this
proclamation as a warrant, the chancellors of Great Britain and
Ireland forthwith issue writs of election, addressed to the returning
officers of the counties and boroughs, i.e., in all Scotch and Irish
constituencies and in the English counties the sheriffs, or their
deputies, and in the English boroughs the mayors. The form of these
writs, as well as the nature of the electoral procedure generally, is
prescribed in the Parliamentary and Municipal Elections Act, commonly
known as the Ballot Act, of 1872.[133] Upon receipt of the proper (p. 093)
writ the returning officer gives notice of the day and place of the
election, and of the poll if it is known that the election will be
contested. In the counties the election must take place within nine
days, in the boroughs within four days, after receipt of the writ, but
within these limits the date is fixed in each constituency by the
returning officer. What actually happens on election day is: (1) all
candidates for seats are placed formally in nomination; (2) if within
an hour of the time fixed for the election the number of nominated
candidates does not exceed the number of places to be filled, the
election of these candidates is forthwith declared; and (3) if there
is a contest the election is postponed to a polling day, to be fixed
by the returning officer, in the counties from two to six, and in the
boroughs not more than three, days distant.
[Footnote 133: For the form of the writ see Anson,
Law and Custom of the Constitution, I., 57.]
*98. The Polling.*--Prior to 1872 candidates were nominated _viva voce_
at the "hustings," an outdoor platform erected for the purpose; but
nowadays nominations are made in writing. It is required that a
candidate shall be proposed by a registered elector of the
constituency and that his nomination shall be assented to formally by
nine other electors. The number of uncontested elections is invariably
large (especially in Ireland, where, in many instances, it is useless
to oppose a candidate to the Nationalists), the proportion reaching
sometimes one-fourth, and even one-third. Polling is completed within
an individual constituency during the course of a single day, the
hours being from eight o'clock in the morning until eight o'clock in
the evening, but under the arrangements that have been described it
falls out that a national election is extended invariably through a
period of more than two weeks. The system operates, of course, to the
advantage of the plural voter, who is enabled to present himself at
the polls from day to day in widely separated constituencies. For the
convenience of voters constituencies are divided regularly into
districts, or precincts. When the properly qualified and registered
elector appears at the polls a ballot paper is presented to him
containing the names of the candidates. He takes this to a screened
compartment and places a cross-mark opposite the name or names of
those for whom he desires to vote, after which the paper is deposited
in a box. At the conclusion of the polling, the boxes are transmitted
to the returning officer of the constituency, the votes are counted,
and the result is declared. The writ which served as the returning
officer's authority is indorsed with a certificate of the election and
returned to the clerk of the Crown in Chancery. It is to be observed,
however, that in the universities the Ballot Act does not apply. In
these constituencies an elector may deliver his vote orally, or (p. 094)
he may transmit it by proxy from his place of residence.[134]
[Footnote 134: On electoral procedure see Lowell,
Government of England, I., Chap. 10; M. MacDonaugh,
The Book of Parliament (London, 1897), 24-50; H. J.
Bushby, Manual of the Practice of Elections for the
United Kingdom (4th ed., London, 1874); W.
Woodings, The Conduct and Management of
Parliamentary Elections (4th ed., London, 1900); E.
T. Powell, The Essentials of Self-Government,
England and Wales (London, 1909); P. J. Blair, A
Handbook of Parliamentary Elections (Edinburgh,
1909); and H. Fraser, The Law of Parliamentary
Elections and Election Petitions (2d ed., London,
1910). A volume filled with interesting information
is J. Grego, History of Parliamentary Elections and
Electioneering from the Stuarts to Queen Victoria
(new ed., London, 1892). The monumental work upon
the entire subject is M. Powell (ed.), Rogers on
Elections, 3 vols. (16th ed., London, 1897).]
*99. Frequency of Elections: the Campaign.*--General elections do not
take place in Great Britain with periodic regularity. The only
positive requirement in the matter is that an election must be ordered
when a parliament has attained the maximum lifetime allowed it by law.
Prior to 1694 there was no stipulation upon this subject and the king
could keep a parliament in existence as long as he liked. Charles II.
retained for seventeen years the parliament called at his accession.
From 1694 to 1716, however, the maximum term of a parliament was three
years; from 1716 to 1911 it was seven years; to-day it is five
years.[135] In point of fact, parliaments never last through the
maximum period, and an average interval of three or four years between
elections has been the rule. In most instances an election is
precipitated more or less unexpectedly on an appeal to the country by
a defeated ministry, and it not infrequently happens that an election
turns all but completely upon a single issue and thus assumes the
character of a national referendum upon the subject in hand. This was
pre-eminently true of the last general election, that of December,
1910, at which the country was asked to sustain the Asquith government
in its purpose to curb the independent authority of the House of
Lords. In any event, the campaign by which the election is preceded is
brief, although it continues throughout the electoral period, and, if
the outcome is doubtful, tends to increase rather than to diminish in
intensity. Appeals to the voters are made principally through public
speaking, the controversial and illustrated press, the circulation of
pamphlets and handbills, parades and mass-meetings, and the generous
use of placards, cartoons, and other devices designed to attract and
focus attention. Plans are laid, arguments are formulated, and (p. 095)
leadership in public appeal is assumed by the members of the
Government, led by the premier, and, on the other side, by the men who
are the recognized leaders of the parliamentary Opposition.[136]
[Footnote 135: The Representation of the People Act
of 1867 made the duration of a parliament
independent of a demise of the crown. The text of
the Septennial Act and that of the Lords' Protest
against the measure are printed in Robertson,
Statutes, Cases, and Documents, 117-119.]
[Footnote 136: M. Ostrogorski, Democracy and the
Organization of Political Parties, trans. by F.
Clarke, 2 vols. (London, 1902), I., 442-501;
MacDonaugh, The Book of Parliament, 1-23. Among
numerous articles descriptive of English
parliamentary elections mention may be made of H.
W. Lucy, The Methods of a British General Election,
in _Forum_, Oct., 1900; S. Brooks, English and
American Elections, in _Fortnightly Review_, Feb.,
1910; W. T. Stead, The General Election in Great
Britain, in _American Review of Reviews_, Feb.,
1910; and d'Haussonville, Dix jours en Angleterre
pendant les élections, in _Revue des Deux Mondes_,
Feb. 1, 1910.]
*100. The Regulation of Electoral Expenditure.*--Time was, and within
the memory of men still living, when an English parliamentary election
was attended by corrupt practices so universal and so shameless as to
appear almost more ludicrous than culpable. Voters as a matter of
course accepted the bribes that were tendered them and ate and drank
and smoked and rollicked at the candidate's expense throughout the
electoral period and were considered men of conscience indeed if they
did not end by going over to the opposition. The notorious Northampton
election of 1768, in the course of which a body of voters numbering
under a thousand were the recipients of hospitalities from the backers
of three candidates which aggregated upwards of a million pounds, was,
of course, exceptional; but the history of countless other cases
differed from it only in the amounts laid out. To-day an altogether
different state of things obtains. From having been one of the most
corrupt, Great Britain has become one of the most exemplary of nations
in all that pertains to the proprieties of electoral procedure. The
Ballot Act of 1872 contained provisions calculated to strengthen
pre-existing corrupt practices acts, but the real turning point was
the adoption of the comprehensive Corrupt and Illegal Practices Act of
1883. By this measure bribery (in seven enumerated forms) and treating
were made punishable by imprisonment or fine and, under varying
conditions, political disqualification. The number and functions of
the persons who may be employed by the candidate to assist in a
campaign were prescribed, every candidate being required to have a
single authorized agent charged with the disbursement of all moneys
(save certain specified "personal" expenditures) in the candidate's
behalf and with the duty of submitting to the returning officer within
thirty-five days after the election a sworn statement covering all
receipts and expenditures. And, finally, the act fixed, upon a sliding
scale in proportion to the size of the constituencies, the maximum
amounts which candidates may legitimately expend. In boroughs
containing not more than 2,000 registered voters the amount is (p. 096)
£350, with an additional £30 for every thousand voters above the
number mentioned. In rural constituencies, where proper outlays will
normally be larger, the sum of £650 is allowed when the number of
registered electors falls under 2,000, with £60 for each additional
thousand. Beyond these sums the candidate is allowed an outlay of £100
for expenses of a purely personal character.
The range of expenditure which is thus permitted by law is, of course,
considerable, and the records of election cases brought into the
courts demonstrate that not infrequently in practice its limits are
exceeded. None the less, the effect of the law has been undeniably to
restrain the outpouring of money by candidates, to purify politics,
and at the same time to enable men of moderate means to stand for
election who otherwise would be at grave disadvantage as against their
wealthier and more lavish competitors. It is of interest to observe
that by reason of the non-participation of the state in electoral
costs there fall upon candidates certain charges which are unknown in
the United States and other countries. The bills submitted by the
returning officer must be paid by the candidates within the
constituency, and these bills cover the publishing of notices of the
election, the preparing and supplying of nomination papers, the cost
of dies, ballot-paper, polling-stations, and printing, the fees of
clerks, and, finally, the travelling expenses and fee of the returning
officer himself. The candidate's share of this outlay may be as small
as £25, but it is likely to be from £200 to £300 and may rise to as
much as £600.[137]
[Footnote 137: On the adoption of the Corrupt and
Illegal Practices Act of 1883 see May and Holland,
Constitutional History of England, III., 31-33. The
actual operation of the system established may be
illustrated by citing a specific case. At the
election of 1906 the maximum expenditure legally
possible for Mr. Lloyd-George in his sparsely
populated Carnarvon constituency was £470. His
authorized agent, after the election, reported an
outlay of £50 on agents, £27 on clerks and
messengers, £189 on printing, postage, etc., £30 on
public meetings, £25 on committee rooms, and £40 on
miscellaneous matters--a total of £361. The
candidate's personal expenditure amounted to £92,
so that the total outlay of £462 fell short by a
scant £8 of the sum that might legally have been
laid out. Divided among the 3,221 votes that Mr.
Lloyd-George received, his outlay per vote was 2s.,
10d. At the same election Mr. Asquith's expenditure
was £727; Mr. Winston Churchill's, £844; Mr. John
Morley's, £479; Mr. Keir Hardie's, £623; Mr. James
Bryce's, £480. In non-contested constituencies
expenditures are small. In 1906 Mr. Redmond's was
reported to be £25 and Mr. William O'Brien's, £20.
In 1900 a total of 1,103 candidates for 670 seats
expended £777,429 in getting 3,579,345 votes; in
1906, 1,273 candidates for the same 670 seats
expended £1,166,858 in getting 5,645,104 votes; in
January, 1910, 1,311 candidates laid out £1,296,382
in getting 6,667,394 votes. A well-informed article
is E. Porritt, Political Corruption in England, in
_North American Review_, Nov. 16, 1906.]
CHAPTER V (p. 097)
PARLIAMENT: THE HOUSE OF LORDS
I. COMPOSITION
*101. Origins.*--With the possible exception of the Hungarian Table of
Magnates, the British House of Lords is the most ancient second
chamber among parliamentary bodies. It is, furthermore, among second
chambers the largest and the most purely hereditary. Its descent can
be traced directly from the Great Council of the Plantagenet period
and, in the opinion of some scholars, from the witenagemot of
Anglo-Saxon times.[138] To the Council belonged originally the
nobility, and the clergy, greater and lesser. Practically, the body
was composed of the more influential churchmen and the more powerful
tenants-in-chief of the crown. In the course of time the lesser clergy
found it convenient to confine their attention to the proceedings of
the ecclesiastical assemblage known as Convocation; while the lesser
nobles, i.e., the poorer and more uninfluential ones, found it to
their interest to cast in their lot, not as formerly with the great
barons and earls, but with the well-to-do though non-noble knights of
the shire. From the elements that remained--the higher clergy and the
greater nobles--developed directly the House of Lords. The lesser
barons, the knights of the shire, and the burgesses, on the other
hand, combined to form the House of Commons.
[Footnote 138: "The House of Lords not only springs
out of, it actually is, the ancient Witenagemot. I
can see no break between the two." Freeman, Growth
of the English Constitution, 62. Professor Freeman,
it must be remembered, was prone to glorify
Anglo-Saxon institutions and to under-estimate the
changes that were introduced in England through the
agency of the Norman Conquest. For the most recent
statement of the opposing view see Adams, Origin of
the English Constitution, Chaps. 1-4.]
*102. Princes of the Blood and Hereditary Peers.*--In respect to its
fundamental constitution the House of Lords has undergone but slight
modification during the many centuries of its existence. In respect,
however, to the composition and size of the body changes have been
numerous and important. There are in the chamber to-day at least six
distinct groups of members, sitting by various rights and possessing
a status which is by no means identical. The first comprises (p. 098)
princes of the royal blood who are of age. The number of these is
variable, but of course never large. They take precedence of the other
nobility, but in point of fact seldom participate in the proceedings
of the Chamber. The second group is the most important of all. It
comprises the peers with hereditary seats and is itself divided
properly into three groups: the peers of England created before the
union with Scotland in 1707, the peers of Great Britain created
between the date mentioned and the union with Ireland in 1801, and the
peers of the United Kingdom created since that date. Technically,
peers are created by the crown; but in practice their creation is
controlled largely by the premier; and the act may be performed for
the purpose of honoring men of distinction in law, letters, science,
or business, or for the more practical purpose of altering the
political complexion of the upper chamber.[139] The power to create
peerages is unlimited[140] and, this being the only means by which the
membership of the body can be increased at discretion, the power is
one which is not infrequently exercised. Originally the right to sit
as a peer was conferred simply by an individual writ of summons, or by
the fact that such a writ had been issued to one's ancestor, but this
method has long since been replaced by a formal grant of letters
patent, accompanied by bestowal of the requisite writ. With exceptions
to be noted, peerages are hereditary, and the heir assumes his
parliamentary seat at the age of twenty-one. Peers are of five
ranks--dukes, marquises, earls, viscounts, and barons. The complicated
rules governing the precedence of these classes are of large social,
but of minor political, interest.
[Footnote 139: The first peerage bestowed purely in
recognition of literary distinction was that of
Lord Tennyson in 1884, the peerages bestowed upon
Macaulay and Bulwer Lytton having been determined
upon in part under the influence of political
considerations. The first professional artist to be
honored with a peerage was Lord Leighton, in 1896.
Lord Kelvin and Lord Lister are among well-known
men of science who have been so honored. Lord
Goschen's viscountcy was conferred, with universal
approval, as the fitting reward of a great business
career. The earldom of General Roberts and the
viscountcies of Generals Wolseley and Kitchener
were bestowed in recognition of military
distinction. With some aptness the House of Lords
has been denominated "the Westminster Abbey of
living celebrities."]
[Footnote 140: Except that, under existing law, the
crown cannot (1) create a peer of Scotland, (2)
create a peer of Ireland otherwise than as allowed
by the Act of Union with Ireland, and (3) direct
the devolution of a dignity otherwise than in
accordance with limitations applying in the case of
grants of real estate.]
*103. Representative Peers of Scotland and of Ireland.*--A third group
of members comprises the representative peers of Scotland. Under
provision of the Act of Union of 1707, when a new parliament is
summoned the whole body of Scottish peers elects sixteen of their
number to sit as their representatives at Westminster. By custom (p. 099)
the election takes place at Holyrood Palace in the city of
Edinburgh.[141] The act of 1707 made no provision for the creation of
Scottish peers, with the consequence that, through the extinction of
noble families and the occasional conferring of a peerage of the
United Kingdom upon a Scottish peer, the total number of Scottish
peerages has been reduced from 165 to 33.[142] The tenure of a
Scottish representative peer at Westminster expires with the
termination of a parliament. A fourth group of members is the Irish.
By the Act of Union of 1800 it was provided that not all of the peers
of Ireland should be accorded seats in the House of Lords, but only
twenty-eight of them, to be elected for life by the whole number of
Irish peers. The number of Irish peerages was put in the course of
gradual reduction and it is now under the prescribed maximum of one
hundred.[143] Unlike the English and Scottish peers, Irish peers, if
not elected to the House of Lords, may stand for election to the House
of Commons, though they may not represent Irish constituencies.[144]
While members of the Commons, however, they may not be elected to the
Lords, nor may they participate in the choice of representative peers.
[Footnote 141: For a statement of the process of
election see Anson, Law and Custom of the
Constitution (4th ed.), I., 219-229.]
[Footnote 142: In 1909. Lowell, Government of
England, I., 395.]
[Footnote 143: The crown was authorized to create
one Irish peerage only for every three such
peerages that should become extinct. During the
thirty years preceding the conferring of an Irish
peerage upon Mr. Curzon, in 1898, the creation of
Irish peerages was entirely suspended.]
[Footnote 144: Lord Palmerston, for example, was an
Irish peer, but sat in the House of Commons.]
*104. The Lords of Appeal.*--A fifth group of members comprises the
Lords of Appeal in Ordinary, who differ from other peers created by
the crown in that their seats are not hereditary. One of the functions
of the House of Lords is to serve as the highest national court of
appeal. It is but logical that there should be included within the
membership of the body a certain number of the most eminent jurists of
the realm, and, further, that the judicial business of the chamber
should be transacted largely by this corps of experts. In 1876 an
Appellate Jurisdiction Act was passed authorizing the appointment of
two (subsequently increased to four) "law lords" with the title of
baron, and by legislation of 1887 the tenure of these members,
hitherto conditioned upon the continued exercise of judicial
functions, was made perpetual for life. At the present day these four
justices, presided over by the Lord Chancellor, comprise in reality
the supreme tribunal of the kingdom. Three of them are sufficient to
constitute a quorum for the transaction of judicial business, and (p. 100)
although other legal-minded members of the chamber may participate,
and technically every member has a right to do so, in most instances
this inner circle discharges the judicial function quite alone.[145]
[Footnote 145: The recognized advisability of
strengthening the judicial element in the Lords
precipitated at one time a serious issue respecting
the power of the crown to create life peerages. In
1856, upon the advice of her ministers, Queen
Victoria conferred upon a distinguished judge, Sir
James Parke, a patent as Baron Wensleydale for
life. The purpose was to introduce into the chamber
desirable legal talent without further augmenting
the peerage. For the creation of life peerages
there was some precedent, but none later than the
reign of Henry VI., and the House of Lords,
maintaining that the right had lapsed and that the
peerage had become entirely hereditary, refused to
admit Baron Wensleydale until his patent was so
modified that his peerage was made hereditary.]
*105. The Lords Spiritual.*--Finally, there are the ecclesiastical
members--not peers, but "lords spiritual." In the fifteenth century
the lords spiritual outnumbered the lords temporal; but upon the
dissolution of the monasteries in the reign of Henry VIII., resulting
in the dropping out of the abbots, the spiritual contingent fell
permanently into the minority. At the present day the quota of
ecclesiastical members is restricted, under statutory regulation, to
26. Scotland, whose established church is the Presbyterian, has none.
Between 1801 and 1869 Ireland had four, but since the disestablishment
of the Irish church in 1869 there have been none. In England five
ecclesiastics, by statute, are entitled invariably to seats, i.e.,
the archbishops of Canterbury and York and the bishops of London,
Durham, and Winchester. Among the remaining bishops the law allows
seats to twenty-one, in the order of seniority. There are always,
therefore, some English bishops--in 1909, ten--who are not members of
the chamber.[146] All ecclesiastical members retain their seats during
tenure of their several sees, but do not, of course, transmit their
rights to their heirs, nor, necessarily, save in the case of the five
mentioned, to their successors in office. Bishops and archbishops are
elected, nominally, by the dean and chapter of the diocese; but when a
vacancy arises the sovereign transmits a _congé d'élire_ containing
the name of the person to be elected, so that, practically,
appointment is made by the crown, acting under the advice of the prime
minister. Bishoprics are created by act of Parliament.[147]
[Footnote 146: The Bishop of Sodor and Man is
entitled to a seat, but not to take part in the
chamber's proceedings. His status has been compared
to that of a territorial delegate in the United
States. Moran, The English Government, 170.]
[Footnote 147: On the composition of the House of
Lords see Lowell, Government of England, I., Chap.
21; Anson, Law and Custom of the Constitution, I.,
Chap. 5; May and Holland, Constitutional History of
England, I., Chap. 5; Moran, English Government,
Chap. 10; Low, Governance of England, Chap. 12;
Courtney, Working Constitution of the United
Kingdom, Chap. 11; Macy, English Constitution,
Chap. 4; Marriott, English Political Institutions,
Chaps. 6-7; and Walpole, The Electorate and the
Legislature, Chap. 2. The subject is treated in
greater detail in Pike, Constitutional History of
the House of Lords, especially Chap. 15.]
*106. Qualifications and Number of Members.*--A peer may be (p. 101)
prevented from occupying a seat in the chamber by any one of several
disqualifications. He must have attained the age of twenty-one; he
must not be an alien; he must not be a bankrupt; he must not be under
sentence for felony. On the other hand, a man who inherits a peerage
cannot renounce the inheritance. Upon more than one occasion this rule
has been a matter of political consequence, for its operation has
sometimes meant that an able and ambitious commoner has been compelled
to surrender his seat in the more important chamber and to assume a
wholly undesired place in the upper house. In 1895 Mr. William W.
Palmer, later Lord Selbourne, inheriting a peerage but desiring to
continue for a time in the Commons, put this rule to a definite test
by neglecting to apply for a writ of summons as a peer. The decision
of the Commons, however, was that he was obligated to accept
membership in the upper chamber, and hence to yield the place which he
occupied in the lower.
The House of Lords numbers to-day 620 members. In earlier periods of
its history it was a very much smaller body, and, indeed, its most
notable growth has taken place within the past one hundred and fifty
years. During the reign of Henry VII. there were never more than
eighty members, the majority of whom were ecclesiastics. To the first
parliament of Charles II. there were summoned 139 persons. At the
death of William III. the roll of the upper chamber comprised 192
names. At the death of Queen Anne the number was 209: at that of
George I. it was 216; at that of George II., 229; at that of George
III., 339; at that of George IV., 396; at that of William IV., 456.
Between 1830 and 1898 there were conferred 364 peerages--222 under
Liberal ministries (covering, in the aggregate, forty years) and 142
under the Conservatives (covering twenty-seven years). More than
one-half of the peerages of to-day have been created within the past
fifty years, and of the remainder only an insignificant proportion can
be termed ancient.
II. THE REFORM OF THE LORDS: THE QUESTION PRIOR TO 1909
*107. The Status of the Chamber.*--As a law-making body the House of
Lords antedates the House of Commons. At the beginning of the
fourteenth century the theory was that the magnates assented to
legislation while the Commons merely petitioned for it. In a statute
of 1322, however, the legislative character of Parliament as a (p. 102)
whole was effectively recognized, and at the same time the legislative
parity of the commons with the magnates. Thenceforth, until very
nearly the present day, the two chambers were legally co-ordinate and
every act of legislation required the assent of both. It is true that
during the course of the nineteenth century there was a remarkable
growth of legislative preponderance on the part of the House of
Commons, until, indeed, the point was reached where all important
measures were first presented in that chamber and the Lords were very
certain not to thwart the ultimate adoption of any project of which
the nation as represented in the popular branch unmistakably approved.
Yet upon numerous occasions bills, and sometimes--as in the case of
Gladstone's Home Rule Bill in 1893--highly important ones, were
defeated outright; and at all times the chamber imposed a check upon
the lower house and exercised a powerful influence upon the actual
course of legislative business. Under the provisions of the act of
1911, however, the status and the legislative functions of the House
of Lords have been profoundly altered, and an adequate understanding
of the workings of the British parliament to-day requires some review
of the changes wrought by that remarkable piece of legislation.
Throughout upwards of a century the "mending or ending" of the Lords
has been among the most widely discussed of public issues in the
United Kingdom. The question has been principally one of "mending,"
for the number of persons who have advocated seriously the total
abolition of the chamber has been small and their influence has been
slight. The utility of a second chamber, in a democratic no less than
in an illiberal constitutional system, is very generally
admitted,[148] and no one supposes that the House of Lords will ever
be swept completely out of existence to make room for the
establishment of a new and entirely different parliamentary body. If
it were to devolve upon the people of Great Britain to-day to adopt
for themselves _de novo_ a complete governmental system, they might
well not incorporate in that system an institution of the nature of
the present House of Lords; but since the chamber exists and is rooted
in centuries of national usage and tradition, the perpetuation of it,
in some form, may be taken to be assured.
[Footnote 148: There are, of course, Englishmen who
concur in the dictum of Sieyès that "if a second
chamber dissents from the first, it is mischievous;
if it agrees, it is superfluous." An able exponent
of this doctrine, within recent years, is Sir
Charles Dilke.]
*108. The Breach Between the Lords and the Nation.*--The indictments
which have been brought against the House of Lords have been sweeping
and varied. They have been based upon the all but exclusively
hereditary character of the membership, upon the meagerness of (p. 103)
attendance at the sittings and the small interest displayed by a
majority of the members, and upon the hurried and frequently
perfunctory nature of the consideration which is accorded public
measures. Fundamentally, however, the tremendous attack which has been
levelled against the Lords has had as its impetus the conviction of
large masses of people that the chamber as constituted stands
persistently and deliberately for interests which are not those of the
nation at large. Prior to the parliamentary reforms of the nineteenth
century the House of Commons was hardly more representative of the
people than was the upper chamber. Both were controlled by the landed
aristocracy, and between the two there was as a rule substantial
accord. After 1832, however, the territorial interests, while yet
powerful, were not dominant in the Commons, and a cleavage between the
Lords, on the one hand, and the Commons, increasingly representative
of the mass of the nation, on the other, became a serious factor in
the politics and government of the realm. The reform measures of 1867
and 1884, establishing in substance a system of manhood suffrage in
parliamentary elections, converted the House of Commons into an organ
of thoroughgoing democracy. The development of the cabinet system
brought the working executive, likewise, within the power of the
people to control. But the House of Lords underwent no corresponding
transformation. It remained, and still is, an inherently and
necessarily conservative body, representative, in the main, of the
interests of landed property, adverse to changes which seem to menace
property and established order, and identified with all the forces
that tend to perpetuate the nobility and the Anglican Church as
pillars of the state. By simply standing still while the remaining
departments of the governmental system were undergoing democratization
the second chamber became, in effect, a political anomaly.[149]
[Footnote 149: Dickinson, Development of Parliament
during the Nineteenth Century, Chap. 3.]
*109. Earlier Projects of Reform.*--Projects for the reform of the Lords
were not unknown before 1832, but it has been since that date, and,
more particularly during the past half-century, that the reform
question has been agitated most vigorously. Some of the notable
proposals that have been made relate to the composition of the
chamber, others to the powers and functions of it, and still others to
both of these things. In respect to the composition of the body, the
suggestions that have been brought forward have contemplated most
commonly the reduction of the chamber's size, the dropping out of the
ecclesiastical members, and the substitution, wholly or in part, of
specially designated members in the stead of the members who at present
sit by hereditary right. As early as 1834 it was advocated that (p. 104)
the archbishops and bishops of the Established Church should "be
relieved from their legislative and judicial duties," and this demand,
arising principally from the Non-conformists, has been voiced
repeatedly in later years. In 1835 the opposition of the peers to
measures passed by the Commons incited a storm of popular disapproval
of such proportions that more than one of the members of the chamber
gloomily predicted the early demolition of the body, and throughout
succeeding decades the idea took increasing hold, within the
membership as well as without, that change was inevitable. In 1869 a
bill of Lord Russell providing for the gradual infiltration of life
peers was defeated on the third reading, and in the same year a
project of Earl Grey, and in 1874 proposals of Lord Rosebery and Lord
Inchiquin, came to naught. The rejection by the Lords of measures
supported by Gladstone's government in 1881-1883 brought the chamber
afresh into popular disfavor, and in 1884 Lord Rosebery introduced a
motion "that a select committee be appointed to consider the best
means of promoting the efficiency of this House," with the thought
that there might be brought into the chamber representatives of the
nation at large, and even of the laboring classes. The motion was
rejected overwhelmingly, but in 1888 it was renewed, and in that year
the Salisbury government introduced two reform bills, one providing
for the gradual creation of fifty life peerages, to be conferred upon
men of attainment in law, diplomacy, and administrative service, and
the other (popularly known as the "Black Sheep Bill") providing for
the discontinuance of writs of summons to undesirable members of the
peerage. The bills, however, were withdrawn after their second reading
and an attempt on the part of Lord Carnarvon, in 1889, to revive the
second of them failed.
*110. The Lords and the Liberal Government, 1906-1907.*--Thence-forward
until 1907 the issue was largely quiescent. During a considerable
portion of this period the Unionist party was in power, and between
the upper chamber, four-fifths of whose members were Unionists, and
the Unionist majority in the Commons substantial harmony was easily
maintained. During the Liberal administration of 1893-1894 the Lords
rejected Gladstone's second Home Rule Bill and mutilated and defeated
other measures; but, although the Liberal leaders urged that the will
of the people had been frustrated, the appeal for second chamber
reform failed utterly to strike fire. With the establishment of the
Campbell-Bannerman ministry, in December, 1905, the Liberals entered
upon what has proved a prolonged tenure of power and the issue of the
Lords was brought again inevitably into the forefront of public
controversy. In consequence of the Lords' insistence upon an amendment
of the fundamentals of the Government's Education Bill, late in (p. 105)
1906, and the openly manifested disposition of the Unionist upper chamber
to obstruct the Liberal programme in a variety of directions,[150] the
warfare between the houses once more assumed threatening proportions.
A resolution introduced by the premier June 24, 1907, was adopted in
the Commons after a three days' debate by a vote of 385 to 100, as
follows: "That, in order to give effect to the will of the people as
expressed by elected representatives it is necessary that the power of
the other House to alter or reject bills passed by this House shall be
so restricted by law as to secure that within the limits of a single
parliament the final decision of the Commons shall prevail." It was
announced that a bill carrying into effect the substance of this
declaration would be introduced, and it was understood that the
Government's plan contemplated a reduction of the maximum life of a
parliament from seven years to five and the institution of a system of
conference committees whereby agreement might be effected upon
occasion between the two houses, reserving the eventual right of the
Commons, after a third rejection by the Lords, to enact a measure into
law alone. Preoccupied, however, with projects of general legislation,
the Government postponed and eventually abandoned the introduction of
its bill.
[Footnote 150: Notably in respect to legislation
abolishing the plural vote and regulating the
liquor traffic. The Lords rejected a Plural Voting
Bill and an Aliens Bill in 1906, a Land Values Bill
in 1907, and a Licensing Bill in 1908. In the
interest of accuracy it should be observed that
during the first session of 1906 a total of 121
bills became law, that only four (including the
Education Bill) passed by the Commons were rejected
by the Lords, and that fifteen passed by the Lords
were rejected in the Commons. The proportions at
most sessions during the period under review were
substantially similar. But, of course, measures
rejected by the Lords were likely to be those in
which the interest of the Liberal government was
chiefly centered.]
In the upper chamber a measure introduced by Lord Newton, providing
for (1) a reduction of the hereditary element by requiring that a peer
by descent alone should have a right to sit only if he were elected
(for a single parliament) as a representative peer or possessed other
stipulated qualifications and (2) the appointment by the crown of a
maximum of one hundred life peers, was discussed at some length. The
bill was withdrawn, but it was decided to create a Select Committee on
the House of Lords, under the chairmanship of Lord Rosebery, and in
December, 1908, this committee reported a scheme of reform in
accordance with which (1) a peerage alone should not entitle the
holder to a seat in the chamber; (2) the hereditary peers, including
those of Scotland and Ireland, should elect two hundred representatives
to sit in the upper house for each parliament; (3) hereditary peers
who had occupied certain posts of eminence in the government and the
army and navy should be entitled to sit without election; (4) the (p. 106)
bishops should elect eight representatives, while the archbishops
should sit as of right; and (5) the crown should be empowered to
summon four life peers annually, so long as the total did not exceed
forty. This series of proposals failed utterly to meet the Liberal
demand and no action was taken upon it. But it is to be noted that the
Lords' Reconstruction Bill of 1911, to be described presently, was
based in no small measure upon information and recommendations
forthcoming from the Rosebery committee.[151]
[Footnote 151: May and Holland, Constitutional
History of England, III., 343-349. For references
on the general subject of the reform of the Lords
see pp. 115-116.]
III. THE QUESTION OF THE LORDS, 1909-1911
*111. The Lords and Money Bills.*--In November, 1909, the issue was
reopened in an unexpected manner by the Lords' rejection of the
Government's Finance Bill, in which were included far-reaching
proposals of the Chancellor of the Exchequer, Mr. Lloyd-George,
respecting the readjustment of national taxation. This act of the
upper chamber, while not contrary to positive law, contravened in so
serious a manner long established custom that it was declared by those
who opposed it to be in effect revolutionary. Certainly the result was
to precipitate an alteration of first-rate importance in the
constitution of the kingdom. The priority of the Commons within the
domain of finance was established at an early period of parliamentary
history; and priority, in time, was converted into thoroughgoing
dominance. As early as 1407 Henry IV. recognized the principle that
money grants should be initiated in the Commons, assented to by the
Lords, and subsequently reported to the crown. This procedure was not
always observed, but after the resumption by the two houses of their
normal functions following the Restoration in 1660 the right of the
commoners to take precedence in fiscal business was forcefully and
continuously asserted. In 1671 the Commons resolved "that in all aids
given to the king by the Commons, the rate or tax ought not to be
altered by the Lords," and a resolution of 1678 reaffirmed that all
bills granting supplies "ought to begin with the Commons." At no time
did the Lords admit formally the validity of these principles; but, by
refusing to consider fiscal measures originated in the upper chamber
and to accept financial amendments there proposed, the Commons
successfully enforced observance of them.
The rules in this connection upon which the Commons insisted have been
summarized as follows: (1) The Lords ought not to initiate any (p. 107)
legislative proposal embodied in a public bill and imposing a charge
on the people, whether by taxes, rates, or otherwise, or regulating
the administration or application of money raised by such a charge,
and (2) the Lords ought not to amend any such legislative proposal by
altering the amount of a charge, or its incidence, duration, mode of
assessment, levy or collection, or the administration or application
of money raised by such a charge.[152] These rules, although not
embodied in any law or standing order, were through centuries so
generally observed in the usage of the two houses that they became for
all practical purposes, a part of the constitutional system--conventional,
it is true, but none the less binding. From their observance it
resulted (1) that the upper chamber was never consulted about the
annual estimates, about the amounts of money to be raised, or about
the purposes to which those amounts should be appropriated; (2) that
proposals of taxation came before it only in matured form and under
circumstances which discouraged criticism; and (3) that, since the
policy of the executive is controlled largely through the medium of
the power of the purse, the upper house lost entirely the means of
exercising such control. In 1860 the Lords, as has been mentioned,
made bold to reject a bill for the repeal of the duties on paper; but
the occasion was seized by the Commons to pass a resolution
reaffirming vigorously the subordination of the second chamber in
finance, and the next year the repeal of the paper duties was
incorporated in the annual budget and forced through. Thereafter it
became the invariable practice to give place to all proposals of
taxation in the one grand Finance Bill of the year, with the effect,
of course, of depriving the Lords of the opportunity to defeat a
proposal of the kind save by rejecting the whole of the measure of
which it formed a part.[153]
[Footnote 152: Ilbert, Parliament, 205.]
[Footnote 153: It was in pursuance of this policy
that Sir William Vernon-Harcourt incorporated in
the Finance Bill of 1894, extensive changes in the
death duties and Sir Michael Hicks-Beach, in 1899,
included proposals for altering the permanent
provisions made for the reduction of the national
debt.]
*112. The Finance Bill of 1909 and the Asquith Resolutions.*--The
rejection of the Finance Bill in 1909,[154] following as it did the
rejection of other important measures which the Liberal majority in
the Commons had approved, raised in an acute form the question of the
power of the Lords over money bills and precipitated a crisis in (p. 108)
the relations between the two houses. On the one hand the House of
Commons adopted, by a vote of 349 to 134, a memorable resolution to
the effect that "the action of the House of Lords in refusing to pass
into law the provision made by the House of Commons for the finances
of the year is a breach of the constitution, and a usurpation of the
privileges of the House of Commons"; and, on the other, the Asquith
ministry came instantly to the decision that the situation demanded an
appeal to the country. In January, 1910, a general election took
place, with the result that the Government was continued in power,
though with a reduced majority; and at the convening of the new
parliament, in February, the Speech from the Throne promised that
proposals should speedily be submitted "to define the relations
between the houses of Parliament, so as to secure the undivided
authority of the House of Commons over finance, and its predominance
in legislation." The Finance Bill of the year was reintroduced and
this time successfully carried through; but in advance of its
reappearance the premier laid before the House of Commons a series of
resolutions to the following effect:[155] (1) that the House of Lords
should be disabled by law from rejecting or amending a money bill; (2)
that the power of the chamber to veto other bills should be restricted
by law; and (3) that the duration of a parliament should be limited to
a maximum period of five years. During the course of the debate upon
these resolutions it was made clear that the Government did not desire
the abolition of the Lords, but wished merely to have the legislative
competence of the house confined to consultation, revision, and,
subject to proper safeguards, delay. April 14, 1910, the resolutions
were adopted in the Commons by substantial majorities,[156] and with
them as a basis the Government proceeded with the framing of its bill
upon the subject.
[Footnote 154: Strictly, the Lords declined to
assent to the Budget until it should have been
submitted to the judgment of the people. On the
nature of the Government's finance proposals see
May and Holland, Constitutional History of England,
III., 350-355; G. L. Fox, The British Budget of
1909, in _Yale Review_, Feb., 1910; and D.
Lloyd-George, The People's Budget (London, 1909),
containing extracts from the Chancellor's speeches
on the subject.]
[Footnote 155: The Finance Bill passed its third
reading in the House of Commons April 27, was
passed in the Lords April 28, without division, and
received the royal assent April 29.]
[Footnote 156: The votes on the three resolutions
were, respectively, 339 to 237, 351 to 246, and 334
to 236.]
Meanwhile, March 14, there had been introduced in the House of Lords
by Lord Rosebery an independent series of resolutions, as follows: (1)
that a strong and efficient second chamber is not merely a part of the
British constitution but is necessary to the well-being of the state
and the balance of Parliament; (2) that such a chamber may best be
obtained by the reform and reconstitution of the House of Lords; and
(3) that a necessary preliminary to such a reform and reconstitution
is the acceptance of the principle that the possession of a peerage
should no longer of itself involve the right to sit and vote in (p. 109)
the House. The first two of these resolutions were agreed to without
division; the third, although vigorously opposed, was carried
eventually by a vote of 175 to 17.
*113. The Unionists and the Referendum.*--The death of the king, May 6,
halted consideration of the subject, and through the succeeding summer
hope was centered in a "constitutional conference" participated in by
eight representatives of the two houses and of the two principal
parties. A total of twenty-one meetings were held, but all effort to
reach an agreement proved futile and at the reassembling of
Parliament, November 15, the problem was thrown back for solution upon
the houses and the country. November 17 there was carried in the
Lords, without division, a new resolution introduced by Lord Rosebery
to the effect that in future the House of Lords should consist of
Lords of Parliament in part chosen by the whole body of hereditary
peers from among themselves and by nomination of the crown, in part
sitting by virtue of offices held and qualifications possessed, and in
part designated from outside the ranks of the peerage. A few days
subsequently, the Government's Parliament Bill having been presented
in the second chamber (November 21), Lord Lansdowne, leader of the
Opposition in that chamber, came forward with a fresh series of
resolutions designed to clarify the Unionist position in anticipation
of the elections which were announced for the ensuing month. With
respect to money bills it was declared that the Lords were "prepared
to forego their constitutional right to reject or amend money bills
which are purely financial in character," provided that adequate
provision should be made against tacking, that questions as to whether
a bill or any provision thereof were purely financial should be
referred to a joint committee of the two houses (the Speaker of the
Commons presiding and possessing a casting vote), and that a bill
decided by such a committee to be not purely financial should be dealt
with in a joint sitting of the two houses. With respect to all
measures other than those thus provided for the resolutions declared
that "if a difference arises between the two houses with regard to any
bill other than a money bill in two successive sessions, and with an
interval of not less than one year, and such difference cannot be
adjusted by any other means, it shall be settled in a joint sitting
composed of members of the two houses; provided that if the difference
relates to a matter which is of great gravity, and has not been
adequately submitted for the judgment of the people, it shall not be
referred to the joint sitting, but shall be submitted for decision to
the electors by referendum." It will be observed that these resolutions
were hardly less drastic than were those carried through the (p. 110)
Commons by the ministry. Their adoption involved the abolition of the
absolute veto of the second chamber and might well involve the
intrusting of interests which the peers held dear to the hazards of a
nation-wide referendum.[157] None the less, the resolutions were
agreed to without division, and, both parties having in effect
pronounced the existing legislative system unsatisfactory, the
electorate was asked to choose between the two elaborate substitutes
thus proposed.
[Footnote 157: For the growth of the idea of the
referendum see H. W. Horwill, The Referendum in
Great Britain, in _Political Science Quarterly_,
Sept., 1911.]
*114. The Enactment of the Parliament Bill, 1911.*--The appeal to the
country, in December, yielded results all but exactly identical with
those of the elections of the previous January. The Government secured
a majority of 127, and in the new parliament, which met February 6,
the Parliament Bill was reintroduced without alteration. On the ground
that the measure had been submitted specifically to the people and had
been approved by them, the ministry demanded its early enactment by
the two houses. May 15 the bill passed its third reading in the
Commons by a vote of 362 to 241. During the committee stage upwards of
one thousand amendments were suggested. But the Government stood firm
for the instrument as originally drawn and, while it accepted a few
incidental changes, in the end it got essentially its own way.
Meanwhile, early in May, Lord Lansdowne introduced in the upper
chamber a comprehensive bill which put in form for legislation the
programme of reconstruction to which the more moderate elements in
that chamber were ready, under the circumstances, to subscribe. The
Lansdowne Reconstruction Bill proposed, at the outset, a reduction of
the membership of the chamber to 350. Princes of the blood and the two
archbishops should retain membership, but the number of bishops entitled
to sit should be reduced to five, these to be chosen triennially by
the whole body of higher prelates upon the principle of proportional
representation. The remainder of the membership should comprise lords
of parliament, as follows: (1) 100 elected from the peers possessing
carefully stipulated qualifications, for a term of twelve years, on
the principle of proportional representation, by the whole body of
hereditary peers (including the Scotch and Irish), one-fourth of the
number retiring triennially; (2) 120 members chosen by electoral colleges
composed of members of the House of Commons divided for the purpose
into local groups, each returning from three to twelve, under conditions
of tenure similar to those prevailing in the first class; and (3) 100
appointed, from the peerage or outside, by the crown on nomination by
the premier, with regard to the strength of parties in the House (p. 111)
of Commons, and under the before-mentioned conditions of tenure. It
was stipulated, further, that peers not sitting in the House of Lords
should be eligible for election to the House of Commons, and that,
except in event of the "indispensable" elevation of a cabinet minister
or ex-minister to the peerage, it should be unlawful for the crown to
confer the dignity of an hereditary peerage upon more than five
persons during the course of any single year.
This body of proposals, it will be observed, related exclusively to
the _composition_ of the upper chamber. The Liberal leaders preferred
to approach the problem from the other side and to assure the
preponderance of the Commons by the imposition of positive
restrictions upon the _powers_ which the Lords, under given
conditions, might exercise. Lord Lansdowne's bill--sadly characterized
by its author as the "deathblow to the House of Lords, as many of us
have known it for so long"--came too late, and the chamber, after
allowing it to be read a second time without division, was constrained
to drop it for the Government's measure. July 20 the Parliament Bill,
amended in such a manner as to exclude from its operation legislation
affecting the constitution and other matters of "great gravity," was
adopted without division. The proposed amendments were highly
objectionable to the Liberals and, relying upon an understanding
entered into with the king during the previous November relative to
the creation of peers favorable to the Government's programme, the
ministry let it be understood that no compromise upon essentials could
be considered.[158] Confronted with the prospect of a wholesale
"swamping,"[159] the Opposition fell back upon the policy of
abstention and, although a considerable number of "last-ditchers" held
out to the end, a group of Unionists adequate to carry the measure
joined the supporters of the Government, August 10, in a vote not to
insist upon the Lords' amendments, which meant, in effect, to approve
the bill as adopted in the lower house.[160] The royal assent was
extended August 18.
[Footnote 158: When, July 24, Premier Asquith rose
in the Commons to reply to the Lords' amendments
there resulted such confusion that for the first
time in generations, save upon one occasion in
1905, the Speaker was obliged to adjourn a sitting
on account of the disorderly conduct of members.]
[Footnote 159: Had the Unionists maintained to the
end their attitude of opposition the number of
peers which would have had to be created to ensure
the enactment of the bill would have been some
400.]
[Footnote 160: The final vote in the Lords was 131
to 114. The Unionist peers who voted with the
Government numbered 37.]
IV. THE PARLIAMENT ACT OF 1911 AND AFTER (p. 112)
*115. Provisions Relating to Money Bills.*--In its preamble the
Parliament Act promises further legislation which will define both the
composition and the powers of a second chamber "constituted on a
popular instead of an hereditary basis"; but the act itself relates
exclusively to the powers of the chamber as it is at present
constituted. The general purport of the measure is to define the
conditions under which, while the normal methods of legislation remain
unchanged, financial bills and proposals of general legislation may
nevertheless be enacted into law without the concurrence of the upper
house. The first signal provision is that a public bill passed by the
House of Commons and certified by the Speaker to be, within the terms
of the act, a "money bill" shall, unless the Commons direct to the
contrary, become an act of Parliament on the royal assent being
signified, notwithstanding that the House of Lords may not have
consented to the bill, within one month after it shall have been sent
up to that house. A money bill is defined as "a public bill which, in
the judgment of the Speaker, contains only provisions dealing with all
or any of the following subjects: the imposition, repeal, remission,
alteration, or regulation of taxation; the imposition for the payment
of debt or other financial purposes of charges on the Consolidated
Fund, or on money provided by Parliament, or the variation or repeal
of any such charges; supply; the appropriation, receipt, custody,
issue or audit of accounts of public money; the raising or guarantee
of any loan or the payment thereof; or subordinate matters incidental
to those subjects or any of them." A certificate of the Speaker given
under this act is made conclusive for all purposes. It may not be
questioned in any court of law.[161]
[Footnote 161: An incidental effect of the act is
to exalt the power and importance of the Speaker,
although it should be observed that the Speaker has
long been accustomed to state at the introduction
of a public bill whether in his judgment the rights
or privileges claimed by the House of Commons in
respect to finance had been infringed. If he were
of the opinion that there had been infringement, it
remained for the House to determine whether it
would insist upon or waive its privilege Ilbert,
Parliament, 207.]
*116. Provisions Relating to Other Public Bills.*--The second
fundamental stipulation is that any other public bill (except one to
confirm a provisional order or one to extend the maximum duration of
Parliament beyond five years) which is passed by the House of Commons
in three successive sessions, whether or not of the same parliament,
and which, having been sent up to the House of Lords at least one (p. 113)
month, in each case, before the end of the session, is rejected by
that chamber in each of those sessions, shall, unless the House of
Commons direct to the contrary, become an act of Parliament on the
royal assent being signified thereto, notwithstanding the fact that
the House of Lords has not consented to the bill. It is required that
at least two years shall have elapsed between the date of the second
reading of such a bill (i.e., the first real opportunity for its
discussion) in the first of these sessions of the House of Commons and
the final passage of the bill in the third of the sessions. To come
within the provisions of this act the measure must be, at its initial
and its final appearances, the "same bill;" that is, it must exhibit
no alterations save such as are rendered necessary by the lapse of
time. And a bill is to be construed to be "rejected" by the Lords if
it is not passed, or if amendments are introduced to which the House
of Commons does not agree, or which the House of Commons does not
suggest to the House of Lords at the second or third passage of the
bill.
*117. Effects of the Act.*--By the provisions which have been enumerated
the co-ordinate and independent position which, in law if not in fact,
the British upper chamber, as a legislative body, has occupied through
the centuries has been effectually subverted. Within the domain of
legislation, it is true, the Lords may yet exercise influence of no
inconsiderable moment. To the chamber must be submitted every project
of finance and of legislation which it is proposed to enact into law,
and there is still nothing save a certain measure of custom to prevent
the introduction of even the most important of non-financial measures
first of all in that house. But a single presentation of any money
bill fulfills the legal requirement and ensures that the measure will
become law. For such a bill will not be presented until it has been
passed by the Commons, and, emanating from the cabinet, it will not be
introduced in that chamber until the assent of the executive is
assured. The upper house is allowed one month in which to approve or
to reject, but, so far as the enactment of the bill is concerned, the
result is the same in any case. Upon ordinary legislation the House of
Lords possesses still a veto--a veto, however, which is no longer
absolute but only suspensive. The conditions which are required for
the enactment of non-fiscal legislation without the concurrence of the
Lords are not easy to bring about, but their realization is not at all
an impossibility. By the repeated rejection of proposed measures the
Lords may influence public sentiment or bring about otherwise a change
of circumstances and thus compass the defeat of the original intent of
the Commons, and this is the more possible since a minimum period of
two years is required to elapse before a non-fiscal measure can be (p. 114)
carried over the Lords' veto. But the continuity of political
alignments and of legislative policy is normally such in Great Britain
that the remarkable legislative precedence which has been accorded the
Commons must mean in effect little less than absolute law-making
authority.
*118. Possible Further Changes and the Difficulties Involved.*--What the
future holds in store for the House of Lords cannot be discerned. The
Parliament Act, as has been pointed out, promises further legislation
which will define both the composition and the powers of a second
chamber constituted on a popular instead of an hereditary basis; but
no steps have as yet (1912) been taken publicly in this direction, nor
has any authoritative announcement of purpose been made.[162] Many
Englishmen to-day are of the opinion that, as John Bright declared, "a
hereditary House of Lords is not and cannot be perpetual in a free
country." None the less, it is recognized that the chamber as it is at
present constituted contains a large number of conscientious, eminent,
and able men, that upon numerous occasions the body has imposed a
wholesome check upon the popular branch, and that sometimes it has
interpreted the will of the nation more correctly than has the popular
branch itself. The most reasonable programme of reform would seem to
be, not a total reconstitution of the chamber upon a non-hereditary
basis, but (1) the adoption of the Rosebery principle that the
possession of a peerage shall not of itself entitle the possessor to
sit, (2) the admission to membership of a considerable number of
persons representative of the whole body of peers, and (3) the
introduction of a goodly quota of life peers, appointed by reason of
legal attainments, governmental experience, and other qualities of
fitness and eminence.[163]
[Footnote 162: The Parliament Act is the handiwork,
of course, of the Liberal party, and only that
party is likely to acknowledge the obligation to
follow up the reform of the Lords which the measure
imposes. But the Unionists may be regarded as
committed by Lord Lansdowne's bill to some measure
of popularization of the chamber.]
[Footnote 163: During the discussions of 1910 an
interesting suggestion was offered (April 25) by
Lord Wemyss to the effect that the representative
character of the chamber should be given emphasis
by the admission of three members designated by
each of some twenty-one commercial, professional,
and educational societies of the kingdom, such as
the Royal Academy of Arts, the Society of
Engineers, the Shipping Federation, and the Royal
Institute of British Architects.]
It is to be observed, however, that neither this programme nor any
other that can be offered, unless it be that of popular election,
affords much ground upon which to hope for harmonious relations
between the upper chamber and a Liberal Government. The House of
Lords--_any_ House of Lords in which members sit for life or in
heredity--is inevitably conservative in its political tendencies (p. 115)
and sympathies, which means, as conditions are to-day, that the
chamber is certain to be dominated by adherents of the Unionist party.
History shows that even men who are appointed to the upper house as
Liberals become adherents almost invariably, in time, of Unionism. The
consequence is that, while a Unionist administration is certain to
have the support of a working majority in both of the houses, a
Liberal government cannot expect ever to find itself in the ascendancy
in the Lords. Its measures will be easy to carry in the lower house
but difficult or impossible to carry in the upper one. This was the
central fact in the situation from which sprang the Parliament Act of
1911. By this piece of legislation the Liberals sought to provide for
themselves a mode of escape from the _impasse_ in which the opposition
of the Lords so frequently has involved them. The extent, however, to
which the arrangements effected will fulfill the purpose for which
they were intended remains to be ascertained.[164] "An upper house in
a true parliamentary system," says Lowell, "cannot be brought into
constant accord with the dominant party of the day without destroying
its independence altogether; and to make the House of Lords a mere
tool in the hands of every cabinet would be well-nigh impossible and
politically absurd."[165] Therein must be adjudged still to lie (p. 116)
the essential dilemma of English politics.
[Footnote 164: The literature of the question of
second chamber reform in England is voluminous and
but a few of the more important titles can be
mentioned here. The subject is discussed briefly in
Lowell, Government of England, I., Chap. 22; Moran,
English Government, Chap. 11; Low, Governance of
England, Chap. 13; and H. W. V. Temperley, Senates
and Upper Chambers (London, 1910), Chap. 5.
Important books include W. C. Macpherson, The
Baronage and the Senate; or the House of Lords in
the Past, the Present, and the Future (London,
1893); T. A. Spalding, The House of Lords: a
Retrospect and a Forecast (London, 1894); J. W.
Wylie, The House of Lords (London, 1908); W. S.
McKechnie, The Reform of the House of Lords
(Glasgow, 1909); W. L. Wilson, The Case for the
House of Lords (London, 1910); and J. H. Morgan,
The House of Lords and the Constitution (London,
1910). Of these, the first constitutes one of the
most forceful defenses and the second one of the
most incisive criticisms of the upper chamber that
have been written. A brief review by an able French
writer is A. Esmein, La Chambre des Lords et la
démocratie (Paris, 1910). Among articles in
periodicals may be mentioned H. W. Horwill, The
Problem of The House of Lords, in _Political
Science Quarterly_, March, 1908; E. Porritt, The
Collapse of the Movement against the Lords, in
_North American Review_, June, 1908; ibid., Recent
and Pending Constitutional Changes in England, in
_American Political Science Review_, May, 1910; J.
L. Garvin, The British Elections and their Meaning,
in _Fortnightly Review_, Feb., 1910; J. A. R.
Marriott, The Constitutional Crisis, in _Nineteenth
Century_, Jan., 1910. A readable sketch is A. L. P.
Dennis, Impressions of British Party Politics,
1909-1911, in _American Political Science Review_,
Nov., 1911; and the best accounts of the Parliament
Act and of its history are: Dennis, The Parliament
Act of 1911, ibid., May and Aug., 1912; May and
Holland, Constitutional History of England, III.,
343-384; Lowell, Government of England (rev. ed.,
New York, 1912), Chap. 23a; _Annual Register_ for
the years 1910 and 1911; M. Sibert, Le vote du
Parliament Act, in _Revue du Droit Public_,
Jan.-March, 1912; and La réforme de la Chambre des
Lords, ibid., July-Sept., 1912. A book of some
value is C. T. King, The Asquith Parliament,
1906-1909; a Popular Sketch of its Men and its
Measures (London, 1910).]
[Footnote 165: Government of England, I., 418-419.]
CHAPTER VI (p. 117)
PARLIAMENT: ORGANIZATION, FUNCTIONS, PROCEDURE
I. THE ASSEMBLING OF THE CHAMBERS
*119. Sessions.*--Parliament is required by statute to meet at least
once in three years;[166] but, by reason of the enormous pressure of
business and, in particular, the custom which forbids the voting of
supplies for a period longer than one year, meetings are, in point of
fact, annual. A session begins ordinarily near the first of February
and continues, with brief adjournments at holiday seasons, until
August or September. It is required that the two houses shall
invariably be summoned together. Either may adjourn without the other,
and the crown can compel an adjournment of neither. A prorogation,
which brings a session to a close, and a dissolution, which brings the
existence of a parliament to an end, must be ordered for the two
houses conjointly. Both take place technically at the command of the
crown, actually upon the decision of the ministry. A prorogation is to
a specified date, and it terminates all pending business; but the
reassembling of the houses may be either postponed or hastened by
royal proclamation.
[Footnote 166: Triennial Act of December 22, 1694.]
*120. The Opening of a Parliament.*--At the beginning of a session the
members of the two houses gather first of all in their respective
chambers. The commoners are summoned thereupon to the chamber of the
Lords, where the letters patent authorizing the session are read and
the Lord Chancellor makes known the desire of the crown that the
Commons proceed with the choosing of a Speaker. The Commons withdraw
to attend to this matter, and on the next day the newly elected
official, accompanied by the members, presents himself at the bar of
the House of Lords, announces his election, and, through the Lord
Chancellor, receives the royal approbation. Having demanded and
received guarantee of the "ancient and undoubted rights and privileges
of the Commons," the Speaker and the members then retire to their own
quarters, where the necessary oaths are administered. If, as is not
unusual, the king meets Parliament in person, he goes in state, (p. 118)
probably the next day, to the House of Lords and takes his seat upon
the throne, and the Lord Chamberlain is instructed to desire the
Gentleman Usher of the Black Rod to _command_ the attendance once more
of the Commons. If the sovereign does not attend, the Lords
Commissioners bid the Usher to _desire_ the Commons' presence. In any
case, the commoners present themselves and the king (or, in his
absence, the Lord Chancellor) reads the Speech from the Throne, in
which is communicated succinctly the nature of the business to which
attention is to be directed. Following the retirement of the
sovereign, the Commons again withdraw, the Throne Speech is reread and
an address in reply voted in each house, and the Government begins the
introduction of fiscal and legislative proposals. In the event that a
session is not the first one of a parliament, the election of a
Speaker and the administration of oaths are omitted.[167]
[Footnote 167: On the ceremonies involved in the
opening, adjournment, prorogation, and dissolution
of a parliament see Anson, Law and Custom of the
Constitution, I., 61-77; J. Redlich, The Procedure
of the House of Commons; a Study of its History and
Present Form, trans. by A. E. Steinthal, 3 vols.
(London, 1908), II., 51-67; T. E. May, Treatise on
the Law, Privileges, Proceedings, and Usage of
Parliament (11th ed., London, 1906), Chap. 7; A.
Wright and P. Smith, Parliament, Past and Present,
2 vols. (London, 1902), II., Chap. 25; MacDonaugh,
The Book of Parliament, 96-114, 132-147, 184-203;
and H. Graham, The Mother of Parliaments (Boston,
1911), 135-157.]
*121. The Palace of Westminster.*--From the beginning of parliamentary
history the meeting-place of the houses has been regularly
Westminster, on the left bank of the Thames. The last parliament which
sat at any other spot was the third Oxford Parliament of Charles II.,
in 1681. The Palace of Westminster, in mediæval times outside, though
near, the principal city of the kingdom, was long the most important
of the royal residences, and it was natural that its great halls and
chambers, together with the adjoining abbey, should be utilized
habitually for parliamentary sittings. Of the enormous structure known
as Westminster to-day (still, technically, a royal palace, though not
a royal residence), practically all portions save old Westminster Hall
were constructed after the fire of 1834. The Lords first occupied
their present quarters in 1847 and the Commons theirs in 1850.[168]
[Footnote 168: MacDonaugh, The Book of Parliament,
79-95; Graham, The Mother of Parliaments, 60-80;
Wright and Smith, Parliament, Past and Present, I.,
Chaps. 11-13. The classic history of the old Palace
of Westminster is E. W. Brayley and J. Britton,
History of the Ancient Palace and Late Houses of
Parliament at Westminster (London, 1836).]
*122. The Chambers of the Commons and the Lords.*--From opposite sides
of a central lobby corridors lead to the halls in which the sittings
of the two bodies are held, these halls facing each other in such (p. 119)
a manner that the King's throne at the south end of the House of Lords
is visible from the Speaker's chair at the north end of the House of
Commons. The room occupied by the Commons is not large, being but
seventy-five feet in length by forty-five in breadth. It is bisected
by a broad aisle, at the upper end of which is a large table for the
use of the clerk and his assistants and beyond this the raised and
canopied chair of the Speaker. "Facing the aisle on each side long
rows of high-backed benches, covered with dark green leather, slope
upward tier above tier to the walls of the room; and through them, at
right angles to the aisle, a narrow passage known as the gangway, cuts
across the House. There is also a gallery running all around the room,
the part of it facing the Speaker being given up to visitors, while
the front rows at the opposite end belong to the reporters, and behind
them there stands, before a still higher gallery, a heavy screen, like
those erected in Turkish mosques to conceal the presence of women, and
used here for the same purpose."[169] The rows of benches on the gallery
sides are reserved for members, but they do not afford a very desirable
location and are rarely occupied, save upon occasions of special
interest. In the body of the house there are fewer than 350 seats for
670 members. As a rule, not even all of these are occupied, for there
are no desks and the member who wishes to read, write, or otherwise
occupy himself seeks the library or other rooms adjoining. The front
bench at the upper end of the aisle, at the right of the Speaker, is
known as the Treasury Bench and is reserved for members of the
Government. The corresponding bench at the Speaker's left is reserved
similarly for the leaders of the Opposition. In so far as is possible
in the lack of a definite assignment of seats, members of avowed party
allegiance range themselves behind their leaders, while members of
more independent attitude seek places below the gangway. "The accident
that the House of Commons sits in a narrow room with benches facing
each other, and not, like most continental legislatures, in a (p. 120)
semi-circular space, with seats arranged like those of a theatre,
makes for the two-party system and against groups shading into each
other."[170]
[Footnote 169: Lowell, Government of England, I.,
249. Visitors, technically "strangers," are present
only on sufferance and may be excluded at any time;
but the ladies' gallery is not supposed to be
within the chamber, so that an order of exclusion
does not reach the occupants of it. In the autumn
of 1908, however, the disorderly conduct of persons
in the ladies' and strangers' galleries caused the
Speaker to close these galleries during the
remainder of the session. In 1738 the House
declared the publication of its proceedings "a high
indignity and a notorious breach of privilege,"
and, technically, such publication is still
illegal. In 1771, however, the reporters' gallery
was fitted up, and through a century and a quarter
the proceedings have been reported and printed as a
matter of course. On the status of the public and
the press in the chamber see Ilbert, Parliament,
Chap. 8; Redlich, Procedure of the House of
Commons; II., 28-38; MacDonaugh, The Book of
Parliament, 310-329, 350-365; and H. Graham, The
Mother of Parliaments, 259-287.]
[Footnote 170: Ilbert, Parliament, 124. The chamber
is described fully in Wright and Smith, Parliament,
Past and Present, Chap. 19.]
The hall occupied by the Lords is smaller and more elaborately
decorated than that occupied by the Commons. It contains cross
benches, but in the main the arrangements that have been described are
duplicated in it. For social and ceremonial purposes there exists
among the members a fixed order of precedence.[171] In the chamber,
however, the seating is arranged without regard to this order, save
that the bishops sit in a group. The Government peers occupy the
benches on the right of the woolsack and the Opposition those on the
left, while members who prefer to remain neutral take their places on
the cross benches between the table and the bar.[172]
[Footnote 171: This order runs: Prince of Wales,
other princes of the royal blood, Archbishop of
Canterbury, Lord Chancellor, Archbishop of York,
Lord President of the Council, Lord Privy Seal, the
dukes, the marquises, the earls, the viscounts, the
bishops, and the barons.]
[Footnote 172: For full description, with
illustrations, see Wright and Smith, Parliament,
Past and Present, Chap. 18.]
II. ORGANIZATION OF THE HOUSE OF COMMONS
*123. Hours of Sittings.*--In the seventeenth century the sittings of
the Commons began regularly at 8.30 or 9 o'clock in the morning and
terminated with nightfall. In the eighteenth century, and far into the
nineteenth, they were apt to begin as late as 3 or 4 o'clock in the
afternoon and to be prolonged, at least not infrequently, until toward
daybreak. In 1888, however, a standing order fixed midnight as the
hour for the "interrupting" of ordinary business, and in 1906 the hour
was made 11 o'clock. Nowadays the House meets regularly on Mondays,
Tuesdays, Wednesdays, and Thursdays at 2.45 and continues in session
throughout the evening, the interval formerly allowed for dinner
having been abolished in 1906. On Fridays, set apart, until late in
the session, for the consideration of private members' bills, the hour
of convening is 12 o'clock. At sittings on days other than Friday the
first hour or more is consumed usually with small items of formal
business and with the asking and answering of questions addressed to
the ministers, so that the public business set for the day is reached
at approximately 4 o'clock.[173]
[Footnote 173: Redlich, Procedure of the House of
Commons, II., 68-77.]
*124. Officers.*--The principal officers of the House are the (p. 121)
Speaker, the Clerk and his two assistants, the Sergeant-at-Arms and
his deputies, the Chaplain, and the Chairman and Deputy Chairman of
Ways and Means. The Clerk and the Sergeant-at-Arms, together with
their assistants, are appointed for life by the crown, on nomination
of the premier, but the Speaker and the Chairman and Deputy Chairman
of Ways and Means are elected for a single parliament by the House.[174]
All save the Chairman and his deputy are, strictly, non-political
officers. The Clerk signs all orders of the House, indorses bills sent
or returned to the Lords, reads whatever is required to be read during
the sittings, records the proceedings of the chamber, and, with the
concurrence of the Speaker, supervises the preparation of the official
Journal. The Sergeant-at-Arms attends the Speaker, enforces the
House's orders, and presents at the bar of the House persons ordered
or qualified to be so presented. The Chairman of Ways and Means (in
his absence the Deputy Chairman) presides over the deliberations of
the House when the body sits as a committee of the whole[175] and
exercises supervision over private bill legislation. Although a
political official, he preserves, in both capacities, a strictly
non-partisan attitude.
[Footnote 174: In point of fact, the Chairman and
Deputy Chairman retire when the ministry by which
they have been nominated goes out of office.]
[Footnote 175: On this account he is referred to
ordinarily as the Chairman of Committees.]
*125. The Speakership.*--The speakership arose from the need of the
House when it was merely a petitioning body for a recognized
spokesman, and although the known succession of Speakers begins with
Sir Thomas Hungerford, who held the office in the last parliament of
Edward III. (1377), there is every reason to suppose that at even an
earlier date there were men whose functions were substantially
equivalent. The Speaker is elected at the beginning of a parliament by
and from the members of the House, and his tenure of office, unless
terminated by resignation or death, continues through the term of that
parliament. The choice of the House is subject to the approval of the
crown; but, whereas in earlier days the king's will was at this point
very influential, the last occasion upon which a Speaker-elect was
rejected by the crown was in 1679. Though nominally elected, the
Speaker is in fact chosen by the ministry, and he is pretty certain to
be taken, in the first instance, from the party in power. During the
nineteenth century, however, it became customary to re-elect a Speaker
as long as he should be willing to serve, regardless of party
affiliation.
*126. The Speaker's Functions and Powers.*--The functions of the Speaker
are regulated in part by custom, in part by rules of the House, and
in part by general legislation. They are numerous and, in the (p. 122)
aggregate, highly important. The Speaker is, first of all, the
presiding officer of the House. In this capacity he is a strictly
non-partisan moderator whose business it is to maintain decorum in
deliberations, decide points of order, put questions, and announce the
result of divisions. The non-partisan aspect of the English speakership
sets the office off in sharp contrast with its American counterpart.
"It makes little difference to any English party in Parliament," says
Mr. Bryce, "whether the occupant of the chair has come from their own
or from hostile ranks.... A custom as strong as law forbids him to
render help to his own side even by private advice. Whatever
information as to parliamentary law he may feel free to give must be
equally at the disposal of every member."[176] Except in the event of
a tie, the Speaker does not vote, even when, the House being in
committee, he is not occupying the chair. In the second place, the
Speaker is the spokesman and representative of the House, whether in
demanding privileges, communicating resolutions, or issuing warrants.
There was a time when he was hardly less the spokesman of the king
than the spokesman of the Commons, but the growth of independence of
the popular chamber enabled him long ago to cast off this dual and
extremely difficult rôle. The Speaker, furthermore, declares and
interprets, though he in no case makes, the law of the House. "Where,"
says Ilbert, "precedents, rulings, and the orders of the House are
insufficient or uncertain guides, he has to consider what course would
be most consistent with the usages, traditions, and dignity of the
House, and the rights and interests of its members, and on these
points his advice is usually followed, and his decisions are very
rarely questioned.... For many generations the deference habitually
paid to the occupant of the chair has been the theme of admiring
comment by foreign observers."[177] Finally, the fact should be noted
that by the Parliament Act of 1911 the Speaker is given sole power,
when question arises, to determine whether a given measure is or is
not to be considered a money bill.[178] Upon his decision may hinge
the entire policy of the Government respecting a measure, and even the
fate of the measure itself. The Speaker's symbol of authority is the
mace, which is carried before him when he formally enters or leaves
the House and lies on the table before him when he is in the chair. He
has an official residence in Westminster, and he receives a salary of
£5,000 a year which is paid from the Consolidated Fund, being on that
account not subject to change when the annual appropriation bills (p. 123)
are under consideration. At retirement from office a Speaker is likely
to be pensioned and to be elevated to the peerage.[179]
[Footnote 176: American Commonwealth, I., 135.]
[Footnote 177: Parliament, 140-141.]
[Footnote 178: See p. 112.]
[Footnote 179: On the officers of the House of
Commons see Lowell, Government of England, I.,
Chap. 12; on the speakership, Redlich, Procedure of
the House of Commons, II., 131-171; Graham, The
Mother of Parliaments, 119-134; MacDonaugh, The
Book of Parliament, 115-132; Porritt, Unreformed
House of Commons, I., Chaps. 21-22; A. I. Dasent,
The Speakers of the House of Commons from the
Earliest Times to the Present Day (New York, 1911);
and G. Mer, Les speakers: étude de la fonction
présidentielle en Angleterre et aux États-Unis
(Paris, 1910).]
*127. Quorum.*--As fixed by a resolution of 1640, a quorum for the
transaction of business in the Commons is forty. If at any time during
a sitting the attention of the Speaker is directed to the fact that
there are not forty members present, the two-minute sand-glass which
stands upon the Clerk's table is inverted and the members are summoned
from all portions of the building as for a division. At the close of
the allotted two minutes the Speaker counts the members present, and
if there be not forty the House adjourns until the time fixed for the
next regular sitting. Except upon occasions of special interest, the
number of members actually occupying the benches is likely to be less
than two hundred, although most of the remaining members are within
the building or, in any case, not far distant.
*128. Kinds of Committees.*--Like all important and numerous legislative
bodies, the House of Commons expedites the transaction of the business
which devolves upon it through the employment of committees. As early
as the period of Elizabeth the reference of a bill, after its second
reading, to a select committee was an established practice, and in the
reign of Charles I. it became not uncommon to refer measures to
committees of the whole house. The committees of the House to-day may
be grouped in five categories: (1) the Committee of the Whole; (2)
select committees on public bills; (3) sessional committees; (4)
standing committees on public bills; and (5) committees on private
bills. Until 1907 a public bill, after its second reading, went
normally to the Committee of the Whole; since the date mentioned, it
goes there only if the House so determines. The Committee of the Whole
is simply the House of Commons, presided over by the Chairman of
Committees in the place of the Speaker, and acting under rules of
procedure which permit virtually unrestricted discussion and in other
ways lend themselves to the free consideration of the details of a
measure. When the subject in hand relates to the providing of revenue
the body is known, technically, as the Committee of Ways and Means;
when to appropriations, it is styled the Committee of the Whole on
Supply, or simply the Committee of Supply.
*129. Select and Sessional Committees.*--Select committees (p. 124)
consist, as a rule, of fifteen members and are constituted to
investigate and report upon specific subjects or measures. It is
through them that the House collects evidence, examines witnesses, and
otherwise obtains the information required for intelligent
legislation. After a select committee has fulfilled the immediate
purpose for which it was constituted it passes out of existence. Each
such committee chooses its chairman, and each keeps detailed records
of its proceedings, which are included, along with its formal report,
in the published parliamentary papers of the session. The members may
be elected by the House, but in practice the appointment of some or
all is left to the Committee of Selection, which itself consists of
eleven members chosen by the House at the beginning of each session.
This Committee of Selection, which appoints members not only of select
committees but also of standing committees and of committees on
private and local bills, is made up after conference between the
leaders of the Government and of the Opposition; and the committees
whose members it designates are always so constituted that they
contain a majority favorable to the Government. The number of select
committees is, of course, variable, but it is never small. A few are
constituted for an entire year and are known as sessional committees.
Of these, the Committee of Selection is itself an example; others are
the Committee on Public Accounts and the Committee on Public
Petitions.
*130. Standing Committees.*--Beginning in 1882, certain great standing
committees have been created, to the general end that the time of the
House may be further economized. Through a change of the standing
orders of the chamber effected in 1907 the number of such committees
was raised from two to four, and all bills except money bills, private
bills, and bills for confirming provisional orders--that is to say,
all public non-fiscal proposals--are required to be referred to one of
these committees (the Speaker to determine which one) unless the House
otherwise directs. It is expected that measures so referred will be so
fully considered in committee that they will consume but little of the
time of the House. Each of the four committees consists of from sixty
to eighty members, who are named by the Committee of Selection in such
a manner that in personnel they will represent faithfully the
composition of the House as a whole. One of them, consisting of all
the representatives of Scotch constituencies and fifteen other
members, is constituted with a special view to the transaction of
business relating to Scotland. The chairmen of the four are selected
(from its own ranks) by a "chairman's panel" of not more than eight
members designated by the Committee of Selection. The procedure (p. 125)
of the standing committees is closely assimilated to that of the
Committee of the Whole, and, in truth, they serve essentially as
substitutes for the larger body.[180]
[Footnote 180: On committees on private bills see
p. 137. The committees of the House of Commons are
described in Lowell, Government of England, I.,
Chap. 13; Marriott, English Political Institutions,
Chap. 11; Ilbert, Parliament, Chap. 6; Redlich,
Procedure of the House of Commons, II., 180-214;
and May, Treatise on the Law, Privileges,
Proceedings, and Usage of Parliament, Chaps.
13-14.]
III. ORGANIZATION OF THE HOUSE OF LORDS
*131. Sittings and Attendance.*--It is required that the two houses of
Parliament shall be convened invariably together, and one may not be
prorogued without the other. The actual sittings of the Lords are,
however, very much briefer and more leisurely than are those of the
Commons. Normally the upper chamber meets but four times a week--on
Mondays, Thursdays, and Fridays at 4.30 o'clock and on Tuesdays at
5.30. By reason of lack of business or indisposition to consume time
in the consideration of measures whose eventual enactment is assured,
sittings not infrequently are concluded within an hour, although, of
course, there are occasions upon which the chamber deliberates
seriously and at much length. A quorum for the transaction of business
is fixed at the number three; although it is but fair to observe
that if a division occurs upon a bill and it is found that there are
not thirty members present the question is declared not to be
decided. Save upon formal occasions and at times when there is under
consideration a measure in whose fate the members are immediately
interested, attendance is always meager. There are members who after
complying with the formalities incident to the assumption of a seat,
rarely, and in some instances never, reappear among their colleagues.
It thus comes about that despite the fact that nominally the House of
Lords is one of the largest of the world's law-making assemblies, the
chamber exhibits in reality little of the unwieldiness ordinarily
characteristic of deliberative bodies of such magnitude. The
efficiency of the chamber is more likely to be impaired by paucity of
attendance than otherwise.
*132. Officers.*--The officers of the House of Lords are largely
appointive, though in part elective. Except during the trial of a
peer,[181] the presiding official is the Lord Chancellor, appointed by
the crown on the advice of the premier. The duty of presiding in the
Lords, as has been explained, is but one of many that fall to this
remarkable dignitary.[182] If at the time of his appointment an (p. 126)
incumbent is not a peer he is reasonably certain to be created one,
although there is no legal requirement to this effect. The theory is
that the woolsack which comprises the presiding official's seat is not
within the chamber proper[183] and that the official himself, as such,
is not a member of the body. The powers allowed him are not even those
commonly possessed by a moderator. In the event that two or more peers
request the privilege of addressing the chamber, the peers themselves
decide which shall have the floor. Order in debate is enforced, not by
the Chancellor, but by the members, and when they speak they address,
not the chair, but "My Lords." Although, if a peer, the Chancellor may
speak and vote as any other member, he possesses as presiding officer
no power of the casting vote. In short, the position which the Chancellor
occupies in the chamber is all but purely formal. In addition to
"deputy speakers," designated to preside in the Chancellor's absence,
the remaining officials of the Lords who owe their positions to
governmental appointment are the Clerk of Parliament, who keeps the
records; the Sergeant-at-Arms, who attends personally the presiding
officer and acts as custodian of the mace; and the Gentleman Usher of
the Black Rod, a pompous dignitary whose function it is to summon the
Commons when their attendance is required and to play a more or less
useful part upon other ceremonial occasions. The one important
official whom the House itself elects is the Lord Chairman of
Committees, whose duty it is to preside in Committee of the Whole.
[Footnote 181: See p. 127.]
[Footnote 182: See p. 63.]
[Footnote 183: In the days of Elizabeth the
presiding official sat upon a sack actually filled
with wool. He sits now, as a matter of fact, upon
an ottoman, upholstered in red. But the ancient
designation of the seat survives.]
IV. PRIVILEGES OF THE HOUSES AND OF MEMBERS
*133. Nature and Extent of Privileges.*--On the basis in part of custom
and in part of statute there exists a body of definitely established
privileges, some of which appertain to the Commons as a chamber, some
similarly to the Lords, and some to the individual members of both
houses. The privileges which at the opening of a parliament the
newly-elected Speaker requests and, as a matter of course, obtains for
the chamber over which he presides include principally those of
freedom from arrest, freedom of speech, access to the sovereign, and a
"favorable construction" upon the proceedings of the House. Freedom
from arrest is enjoyed by members during a session and a period of
forty days before and after it, but it does not protect a member (p. 127)
from the consequences of any indictable offense nor, in civil actions,
from any process save arrest. Freedom of speech, finally guaranteed
effectually in the Bill of Rights, means simply that a member may not
be held to account by legal process outside Parliament for anything he
may have said in the course of the debates or proceedings of the
chamber to which he belongs. The right of access to the sovereign
belongs to the Commons collectively through the Speaker, but to the
Lords individually. With the growth of parliamentary government both
it and the privilege of "favorable construction" have ceased to
possess practical importance. Another privilege which survives is that
of exemption from jury duty, though no longer of refusing to attend
court in the capacity of a witness. Each house enjoys the
privilege--for all practical purposes now the right--of regulating its
own proceedings, of committing persons for contempt, and of deciding
contested elections. The last-mentioned function the House of Commons,
however, has delegated to the courts. A privilege jealously retained
by the Lords is that of trial in all cases of treason or felony by the
upper chamber itself, under the presidency of a Lord High Steward
appointed by the crown. The Lords are exempt from arrest in civil
causes, not merely during and immediately preceding and succeeding
sessions, but at all times, and they enjoy all the rights, privileges,
and distinctions which, through law or custom, have become inherent in
their several dignities.
*134. Payment of Members of the Commons.*--Until recently the fact that
there was no salary attached to service in Parliament operated to
debar from election to the Commons men who were not of independent
means. Through some years the Labor Party was accustomed to provide
funds wherewith its representatives were enabled to maintain
themselves at the capital,[184] but this arrangement affected only a
small group of members and was of an entirely private and casual
nature. Public and systematic payment of members, to the end that poor
but capable men might not be kept out of the Commons, was demanded by
the Chartists three-quarters of a century ago, and from time to time
after 1870 there was agitation in behalf of such a policy. In 1893,
and again in 1895, a resolution in favor of the payment of members was
adopted in the Commons, and March 7, 1906, a resolution was carried to
the effect that every member should be paid a salary of £300 annually.
But it was not until 1911 that a measure of the kind could be got
through the upper chamber. Fresh impetus was afforded by the Osborne
Judgment, in which, on an appeal from the lower courts, the House of
Lords ruled in December, 1909, that the payment of parliamentary (p. 128)
members as such from the dues collected by labor organizations was
contrary to law. The announcement of the Judgment was followed by
persistent agitation for legislation to reverse the ruling. In
connection with the budget presented to the Commons by the Chancellor
of the Exchequer May 16, 1911, the proposition was made, not to take
action one way or the other upon the Lords' decision, but to provide
for the payment to all non-official members of the House of Commons of
a yearly salary of £400; and with little delay and no great amount of
opposition the proposal was enacted into law. The amount of the salary
provided is not large, but it is ample to render candidacy for seats
possible for numbers of men who formerly could not under any
circumstances have contemplated a public career.[185]
[Footnote 184: The sum provided from the party
funds was ordinarily £200 a year.]
[Footnote 185: On the privileges of the Commons see
Anson, Law and Custom of the Constitution, I.,
153-189; Lowell, Government of England, I., Chap.
11; Walpole, Electorate and Legislature, Chap. 5;
Redlich, Procedure of the House of Commons, III.,
42-50. A standard work in which the subject is
dealt with at length is May, Treatise on the Law,
Privileges, Proceedings, and Usage of Parliament,
Chaps. 3-6.]
V. THE FUNCTIONS OF PARLIAMENT
When the king summons the two chambers he does so, "being desirous and
resolved as soon as may be to meet his people, and to have their
advice in Parliament." No mention is made of legislative or financial
business, and, technically, Parliament is still essentially what
originally it was exclusively, i.e., a purely deliberative
assemblage. Practically, however, the mere discussion of public
questions and the giving of advice to the crown has become but one of
several distinctive parliamentary functions. The newer functions
which, with the passing of time, have acquired ever increasing
importance are, in effect, three. The first is that of criticism,
involving the habitual scrutiny and control of the measures of the
executive and administrative organs. The second is the exercise, under
limitations to be described, of the power of judicature. The third,
and much the most important, is the function of public and private
legislation and of fiscal control.
*135. Criticism: Ministerial Responsibility.*--Parliament does not
govern and is not intended to govern. Never save when the Long
Parliament undertook the administration of public affairs through
committees of its members has Parliament asserted a disposition to
gather immediately into its own hands those powers of state which are
executive in character. At the same time, the growth of parliamentary
government has meant the establishment of a connection between the
executive and the parliamentary chambers (principally the Commons) (p. 129)
as close as may be so long as separateness of organization is still
maintained. The officials who comprise the working executive are
invariably members of Parliament. They initiate public measures,
introduce them, advocate and defend them, and, in general, guide and
control the conduct of public business both inside and outside the
chambers. But for every act they are responsible directly to the House
of Commons. They may continue in power only so long as they are
supported by a majority in that chamber. And their conduct is subject
continually to review and criticism, through the instrumentality of
questions, formal inquiries, and, if need be, judicial procedure.
It is within the competence of any member to address a question to any
minister of the crown who is also a member, to obtain information.
Except in special cases, notice of questions must be given at least
one day in advance, and a period of approximately three-quarters of an
hour is set apart at four sittings every week for the asking and
answering of such questions. A minister may answer or decline to
answer, but unless a declination can be shown to arise from legitimate
considerations of public interest its effect politically may be
embarrassing. In any event, there is no debate, and in this respect
the English practice differs from the French "interpellation."[186]
The asking of questions is liable to abuse but, as is pointed out by
Ilbert, "there is no more valuable safeguard against maladministration,
no more effective method of bringing the searchlight of criticism to
bear on the action or inaction of the executive government and its
subordinates. A minister has to be constantly asking himself, not
merely whether his proceedings and the proceedings of those for whom
he is responsible are legally or technically defensible, but what kind
of answer he can give if questioned about them in the House, and how
that answer will be received."[187] Any member is privileged to bring
forward a motion censuring the Government or any member or department
thereof, and a motion of this sort, when emanating from the leader of
the Opposition, constitutes a vote of confidence upon whose result may
depend the continued tenure of the ministry. By a call upon the
Government or a given department for information, by the constitution
of parliamentary committees, departmental committees, or royal
commissions, and, in particular by taking advantage of the numberless
opportunities afforded by the enactment of appropriation bills, the
House of Commons may further impose upon the executive the most
thoroughgoing responsibility and control. "A strong executive (p. 130)
government, tempered and controlled by constant, vigilant, and
representative criticism," is the ideal at which the parliamentary
institutions of Great Britain are aimed.[188]
[Footnote 186: See p. 314.]
[Footnote 187: Parliament, 113-114.]
[Footnote 188: Ilbert, Parliament, 119. On the
Commons' control of the Government see Lowell,
Government of England, I., Chap. 17; Moran, English
Government, Chap. 8; Low, The Governance of
England, Chap. 5; Todd, Parliamentary Government,
II., 164-185.]
*136. Judicial Powers: Impeachment and Attainder.*--The functions of a
judicial character which, in the capacity of the High Court of
Parliament, the two chambers fulfill are of secondary importance and
do not call for extended discussion. So far as the law of the subject
goes, they comprise (1) the powers possessed by each of the houses to
deal with the constitution and conduct of its own membership; (2) the
power of the Lords to try their own members when charged with treason
or felony; (3) the jurisdiction of the Lords in the capacity of a
final court of appeal for the United Kingdom; (4) the power of the two
houses, acting jointly, to carry through impeachments of public
officers and to enact bills of attainder; and (5) the effecting of the
removal of certain kinds of public officers through the agency of an
address from both houses to the crown. In days when the king and the
ministers were disposed to defy the law and to evade responsibility
the power of impeachment by the Commons at the bar of the Lords,
originated as early as the reign of Edward III., was of the utmost
importance. When, however, the House of Commons progressed in
competence to the point where it was able to review and control the
conduct of ministers with such thoroughness and continuity as to make
it impossible for them to conduct business without a parliamentary
majority, impeachment lost its value and fell into disuse. The last
occasion upon which impeachment proceedings were instituted was in
1805.[189] Procedure by bill of attainder, arising from the
legislative omnipotence of Parliament and following the ordinary
course of legislation, is also obsolete.
[Footnote 189: Anson, Law and Custom of the
Constitution, I., 362-366; Moran, English
Government, 327-332.]
*137. The House of Lords as a Court.*--Most important among surviving
parliamentary functions of a judicial character is the exercise of
appellate jurisdiction by the House of Lords. The judicial authority
of the Lords is an anomaly, although as it is actually exercised it
does not seriously contravene the principle which forbids the bringing
together of judicial and legislative powers in the same hands.
Historically, it arose from a confusion of the functions of two groups
of men which were long largely identical in personnel, i.e., the
Great Council, on the one hand, and the Lords of Parliament, on (p. 131)
the other. In the reign of Henry IV. the Commons asked specifically to
be relieved from judicial business, and the parliamentary jurisdiction
which survived was recognized thereafter to be vested in the House of
Lords alone. From an early date this jurisdiction was, as it is
to-day, both original and appellate. As a court of first instance the
chamber acquired the right to try peers charged with treason and
felony and, on the accusation of the House of Commons, to bring to
justice, through the process of impeachment, offenders who were not of
the peerage. Nowadays these powers are of no practical consequence.
The position of the Lords as an appellate tribunal, however, is still
a fundamental fact in the judicial system. Starting with control, by
way of appeal, over the courts of common law in England, the chamber
acquired in time a similar control over the English courts of
chancery, and eventually over the courts of both Scotland and Ireland.
Its jurisdiction has stopped short only of the ecclesiastical courts,
and of the courts of the outlying portions of the Empire, appeals from
which are heard in the Judicial Committee of the Privy Council. By the
Supreme Court of Judicature Act of 1873, whereby the higher tribunals
of the realm were remodelled, the appellate jurisdiction of the Lords
was abolished outright; but in 1876, before the measure had been put
in operation the plan was modified and there was passed the Appellate
Jurisdiction Act whereby the appellate functions of the Lords were
restored and provision was made for the creation at first of two,
later of three, and eventually of four, salaried life peers, to be
selected from men of eminence in the law, and to be known as Lords of
Appeal in Ordinary. In so far as it is controlled by statute at all,
the appellate jurisdiction of the chamber is regulated to-day by this
measure. Nominally, judicial business is transacted by the House as a
whole, and every member has a right not only to be present but to
participate in the rendering of decisions. Actually, such business is
transacted by a little group of law lords (the attendance of but three
being necessary) under the presidency of the Lord Chancellor, and the
unwritten rule which prohibits the presence at judicial sessions of
any persons save the law lords is quite as strictly observed as is any
one of a score of other important conventions of the constitution.[190]
Under the act of 1876 it is within the competence of the law lords to
sit and to pronounce judgments in the name of the House at any time,
regardless of whether Parliament is in session.[191] A sitting of the
Court is, technically, a sitting of the Lords, and all actions (p. 132)
taken are entered in the Journal of the House as a part of its
proceedings.[192]
[Footnote 190: Lowell, Government of England, II.,
465.]
[Footnote 191: When Parliament is in session the
sittings of the law lords are held, as a rule,
prior to the beginning of the regular sitting at
4.30 p.m.]
[Footnote 192: The judicial functions of Parliament
are described at some length in Anson, Law and
Custom of the Constitution, I., Chap. 9. The
principal work on the subject is C. H. McIlwain,
The High Court of Parliament and its Supremacy (New
Haven, 1910). On the House of Lords as a court see
MacDonaugh, The Book of Parliament, 300-309; A. T.
Carter, History of English Legal Institutions
(London, 1902), 96-109; and W. S. Holdsworth,
History of English Law, I., 170-193.]
*138. Control of Legislation and Finance.*--The principal and altogether
most indispensable ends which Parliament to-day subserves are those of
legislation and of financial control. Many of the measures, important
and unimportant, under which the affairs of the realm are regulated
are but temporary and require annual re-enactment, and the volume of
fresh legislation which is unceasingly demanded is all but limitless.
Similarly, to employ the words of Anson, the revenues which accrue to
the crown and can be dealt with independently of Parliament would
hardly carry on the business of government for a day,[193] and not
only does Parliament (in effect, the House of Commons) by its
appropriation acts make possible the legal expenditure of virtually
all public moneys; it provides, by its measures of taxation, the funds
from which appropriations are made.
[Footnote 193: Law and Custom of the Constitution,
I., 52.]
VI. GENERAL ASPECTS OF PARLIAMENTARY PROCEDURE
By reason of the supreme importance which attaches to the legislative
and fiscal activities of the two chambers it is necessary that
attention be directed at this point to the character of the procedure
which these activities involve. For the purpose in hand it will be
sufficient to speak of only the more important principles of procedure
in relation to the three fundamental phases of legislative work: (1)
the enactment of non-financial public bills, (2) the adoption of money
bills, and (3) the passage of private bills. And within at least the
first two of these domains the preponderance of the Commons is such
that the procedure of that chamber alone need be described. The
procedure of the two chambers upon bills is substantially the same,
although, as is illustrated by the fact that amendments to bills may
be introduced in the Lords at any stage but in the Commons at only
stipulated stages, the methods of conducting business in the upper
house are more elastic than those prevailing in the lower.
*139. Fundamental Principles.*--The legislative omnipotence of
Parliament has been emphasized sufficiently.[194] Any sort of measure
upon any conceivable subject may be introduced and, if a sufficient
number of the members are so minded, enacted into law. No measure (p. 133)
may become law until it has been submitted for the consideration of
both houses, but under the terms of the Parliament Act of 1911 it has
been rendered easy for money bills, and not impossible for bills of
other sorts, to be made law without the assent of the House of Lords.
In the ordinary course of things, a measure is introduced in one
house, put through three readings, sent to the other house, put there
through the same routine, deposited with the House of Lords to await
the royal assent,[195] and, after having been assented to as a matter
of course, proclaimed as law. Bills, as a rule, may be introduced in
either house, by the Government or by a private member. It is
important to observe, however, in the first place, that certain
classes of measures must originate in one or the other of the houses,
e.g., money bills in the Commons and bills of attainder and other
judicial bills in the Lords, and, in the second place, that with the
growth of the leadership of the Government in legislation the
importance, if not the number, of privately introduced bills has
tended steadily to be decreased, and likewise the chances of their
enactment.
[Footnote 194: See p. 45.]
[Footnote 195: Except that money bills remain in
the custody of the Commons.]
*140. Public Bills: First and Second Readings.*--The steps through which
a public bill, whether introduced by the Government or by a private
member, must pass in the Commons are still numerous, but by the
reduction of some of them to sheer formalities which involve neither
debate nor vote the actual legislative process has been made much more
expeditious than once it was. The necessary stages in the enactment of
a bill in either house are, as a rule, five: first reading, second
reading, consideration by committee, report from committee, and third
reading. Formerly the introduction of a measure involved almost
invariably a speech explaining at length the nature of the proposal,
followed by a debate and a vote, sometimes consuming, in all, several
sittings. Nowadays only very important Government bills are introduced
in this manner. In the case of all other bills the first reading has
become a mere formality, involving nothing more than a motion on the
part of a member, official or private, for permission to bring in a
measure and the giving of leave by the House, almost invariably
without discussion. Upon all measures save the most important
Government projects, opportunity for debate is first afforded at the
second reading, although the discussion at this stage must relate to
general principles rather than to details. By the adoption of a motion
that the bill be read a second time "this day six months" (or at some
other date falling beyond the anticipated limits of the session) a
measure may at this point be killed.
*141. Public Bills: Later Stages.*--A bill which survives the (p. 134)
second reading is "committed." Prior to 1907 it would go normally to
the Committee of the Whole. Nowadays it goes there if it is a money
bill or a bill for confirming a provisional order,[196] or if, on
other grounds, the House so directs; otherwise it goes to one of the
four standing committees, assignment being made by the Speaker. This
is the stage at which the provisions of the measure are considered in
detail and amendments are introduced. After the second reading, however,
a bill may be referred to a select committee, and in the event that
this is done a step is added to the process, for after being returned
by the select committee the measure goes to the Committee of the Whole
or to one of the standing committees. Eventually the bill is reported
back to the House. If reported by a standing committee or, in amended
form by the Committee of the Whole, it is considered by the House
afresh and in some detail; otherwise, the "report stage" is omitted.
Finally comes the third reading, the question now being whether the
House approves the measure as a whole. At this stage any amendment
beyond verbal changes necessitates recommitment. The carrying of a
measure through these successive stages is spread over, as a rule,
several days, and sometimes several weeks, but it is not impossible
that the entire process be completed during the period of a sitting.
Having been adopted by the originating house, a bill is taken by a
clerk to the other house, there to be subjected to substantially the
same procedure. If amendments are introduced, it is sent back in order
that the suggested changes may be considered by the first house. If
they are agreed to, the measure is sent up for the royal approval. If
they are rejected and an agreement between the two houses cannot be
reached, the measure falls.[197]
[Footnote 196: See p. 138.]
[Footnote 197: The legislative process is summed up
aptly by Lowell as follows: "Leaving out of account
the first reading, which rarely involves a real
debate, the ordinary course of a public bill
through the House of Commons gives, therefore, an
opportunity for two debates upon its general
merits, and between them two discussions of its
details, or one debate upon the details if that one
results in no changes, or if the bill has been
referred to a standing committee. When the House
desires to collect evidence it does so after
approving of the general principle, and before
taking up the details. Stated in this way the whole
matter is plain and rational enough. It is, in
fact, one of the many striking examples of
adaptation in the English political system. A
collection of rules that appear cumbrous and
antiquated, and that even now are well-nigh
incomprehensible when described in all their
involved technicality, have been pruned away until
they furnish a procedure almost as simple, direct,
and appropriate as any one could devise."
Government of England, I., 277-278. The procedure
of the House of Commons on public bills is
described in Lowell, Government of England, I.,
Chaps. 13, 17, 19; Anson, Law and Custom of the
Constitution, I., 240-267; Low, Governance of
England, Chap. 4; Moran, English Government, Chap.
14; Marriott, English Political Institutions, Chap.
113; Todd, Parliamentary Government, II., 138-163;
Ilbert, Parliament, Chap. 3; Redlich, Procedure of
the House of Commons, III., 85-112; and May,
Treatise on the Law, Privileges, Proceedings, and
Usage of Parliament, Chap. 18. See also G. Walpole,
House of Commons Procedure, with Notes on American
Practice (London, 1902), and C. P. Ilbert,
Legislative Methods and Forms (Oxford, 1901),
77-121.]
*142. Money Bills: Appropriation and Finance Acts.*--The (p. 135)
procedure followed in the handling of money bills differs materially
from that which has been described. Underlying it are two fundamental
principles, incorporated in the standing orders of the House of
Commons during the first quarter of the eighteenth century. One of
them prescribes that no petition or motion for the granting of money
shall be proceeded upon save in Committee of the Whole. The other
forbids the receiving of any petition, or the proceeding upon any
motion, for a charge upon the public revenue unless recommended from
the crown. Although these principles apply technically only to
appropriations, they have long been observed with equal fidelity in
respect to the raising of revenue. All specific measures for the
expending of money and all proposals for the imposing of fresh
taxation or the increase of existing taxation must emanate from the
crown, i.e., in practice from the cabinet. A private member may go no
further in this direction than to introduce resolutions of a wholly
general character favoring some particular kind of expenditure, except
that it is within his right to move to repeal or to reduce taxes which
the Government has not proposed to modify.
Two great fiscal measures are introduced and carried through annually:
the Appropriation Act, in which are brought together all the grants
for the public services for the year, and the Finance Act in which are
comprised all regulations relating to the revenue and the national
debt. Before the close of the fiscal year (March 31) the ministry
submits to the Commons a body of estimates for the "supply services,"
drawn up originally by the government departments, scrutinized by the
Treasury, and approved by the cabinet. Early in the session the House
resolves itself into a Committee of the Whole on Supply, by which
resolutions of supply are discussed, adopted, and reported. These
resolutions are embodied in bills which, for purposes of convenience,
are passed at intervals during the session. But at the close all of
them are consolidated in one grand Appropriation Act.[198] Upwards of
half of the public expenditures, it is to be observed, e.g., the
Civil List, the salaries of judges, pensions, and interest on the
national debt, are provided for by permanent acts imposing charges (p. 136)
upon the Consolidated Fund and do not come annually under parliamentary
review.
[Footnote 198: Before the lapse of a twelvemonth
unforeseen contingencies require invariably the
voting of "supplementary grants."]
*143. The Budget.*--As soon as practicable after the close of the fiscal
year the House, resolved for the purpose into Committee of Ways and
Means, receives from the Chancellor of the Exchequer his Budget, or
annual statement of accounts. The statement comprises regularly three
parts: a review of revenue and expenditure during the year just
closed, a provisional balance-sheet for the year to come, and a series
of proposals for the remission, modification, or fresh imposition of
taxes. Revenues, as expenditures, are in large part "permanent," yet a
very considerable proportion are provided for through the medium of
yearly votes. In Committee of Ways and Means the House considers the
Chancellor's proposals, and after they have been reported back and
embodied in a bill they are carried with the assent of the crown,
though no longer necessarily of the Lords, into law. Prior to 1861 it
was customary to include in the fiscal resolutions and in the bill in
which they were embodied only the annual and temporary taxes, but in
consequence of the Lords' rejection, in 1860, of a separate finance
bill repealing the duties on paper it was made the practice to
incorporate in a single bill--the so-called Finance Bill--provision
for all taxes, whether temporary or permanent. In practice the House
of Commons rarely refuses to approve the financial measures
recommended by the Government. The chamber has no power to propose
either expenditure or taxation, and the right which it possesses to
refuse or to reduce the levies and the appropriations asked for is
seldom used. "Financially," says Lowell, "its work is rather
supervision than direction; and its real usefulness consists in
securing publicity and criticism rather than in controlling
expenditure."[199] The theory underlying fiscal procedure has been
summed up lucidly as follows: "The Crown demands money, the Commons
grant it, and the Lords assent to the grant;[200] but the Commons do
not vote money unless it be required by the Crown; nor impose or
augment taxes unless they be necessary for meeting the supplies which
they have voted or are about to vote, and for supplying general
deficiencies in the revenue. The Crown has no concern in the nature or
distribution of the taxes; but the foundation of all Parliamentary
taxation is its necessity for the public service as declared by the
Crown through its constitutional advisers."[201]
[Footnote 199: Government of England, I., 288.]
[Footnote 200: Since the enactment of the
Parliament Bill of 1911, as has been observed, the
assent of the Lords is not necessary. See p. 112.]
[Footnote 201: The procedure involved in the
handling of money bills is described in Lowell,
Government of England, I., Chap. 14; Anson, Law and
Custom of the Constitution, I., 268-281; Walpole,
Electorate and Legislature, Chap. 7; Todd,
Parliamentary Government, II., 186-271; Ilbert,
Parliament, Chap. 4; Redlich, Procedure of the
House of Commons, III., 113-174; May, Treatise on
the Law, Privileges, Proceedings, and Usage of
Parliament, Chap. 21. See also E. Porritt,
Amendments in the House of Commons Procedure since
1881, in _American Political Science Review_, Nov.,
1908. Among numerous works on taxation in England
the standard authority is S. Dowell, History of
Taxation and Taxes in England from the Earliest
Times to the Year 1885, 4 vols. (2d ed., London,
1888).]
*144. Private Bills: Nature and Procedure.*--In the matter of (p. 137)
procedure there is no distinction between a Government bill and a
private member's bill. Both are public bills. But a private bill is
handled in a manner largely peculiar to itself. A public bill is one
which affects the general interests of the state, and which has for
its object presumably the promotion of the common good. A private bill
is one which has in view the interest of some particular locality,
person, or collection of persons. The commonest object of private
bills is to enable private individuals to enter into combination to
undertake works of public utility--the building of railways or
tramways, the construction of harbors or piers, the draining of
swamps, the supplying of water, gas, or electricity, and the embarking
upon a wide variety of other enterprises which in the United States
would be regulated chiefly by state legislatures and city councils--at
their own risk and, in part at least, for their own profit. All
private bills originate in petitions, which must be submitted in
advance of the opening of the session during which they are to be
considered. Their presentation and the various stages of their
progress are governed by very detailed and stringent regulations, and
fees are required from both promoters and opponents, so that the
enactment of a private bill of importance becomes for the parties
directly concerned an expensive process, and for the Exchequer a
source of no inconsiderable amount of revenue.
After having been scrutinized and approved by parliamentary officials
known as Examiners of Petitions for Private Bills, a private bill is
introduced in one of the two houses.[202] Its introduction is
equivalent to its first reading. At its second reading debate may take
place upon the principle of the measure, after which the bill, if
opposed, is referred to a Private Bill Committee consisting of four
members and a disinterested referee. If the bill be not opposed, i.e.,
if no adverse petition has been filed by property owners,
corporations, or other interests, the committee of reference, under a
standing order of 1903, consists of the Chairman and Deputy Chairman
of Ways and Means, two other members of the House, appointed by (p. 138)
the Committee of Selection, and the Counsel to Mr. Speaker. The
committee stage of a contested bill assumes an essentially judicial
aspect. Promoters and opponents are represented by counsel, witnesses
are examined, and expert testimony is taken. After being reported by
committee, the measure goes its way under the same regulations as
those controlling the progress of public bills.
[Footnote 202: To facilitate their consideration,
such measures are distributed approximately equally
between the two houses. This is done through
conference of the Chairmen of Committees of the two
houses, or their counsel, prior to the assembling
of Parliament.]
*145. Provisional Orders.*--Two things are, however, to be noted. The
first one is that while in theory the distinction between a public and
a private bill is clear, in point of fact there is no little
difficulty in drawing a line of demarcation, and the result has been
the recognition of an indefinite class of "hybrid" bills, partly
public and partly private in content and handled under some
circumstances as the one and under others as the other, or even under
a procedure combining features of both. The second fact to be observed
is that, in part to reduce expense and in part to procure the
good-will of the executive department concerned, it has become common
for the promoters of enterprises requiring parliamentary sanction to
make use of the device known as provisional orders. A provisional
order is an order issued, after minute investigation, by a government
department authorizing provisionally the undertaking of a project in
behalf of which application has been made. It requires eventually the
sanction of Parliament, but such orders are laid before the houses in
groups by the several departments and their ratification is virtually
assured in advance. It is pointed out by Lowell that during the years
1898-1901 not one-tenth of the provisional orders laid before
Parliament were opposed, and but one failed of adoption.[203]
[Footnote 203: Government of England, I., 385. On
private bill legislation see Lowell, I., Chap. 20;
Anson, Law and Custom of the Constitution, I,
291-300; May, Treatise on the Law, Privileges,
Proceedings, and Usage of Parliament, Chaps. 24-29;
Courtney, Working Constitution of the United
Kingdom, Chap. 18; MacDonaugh, The Book of
Parliament, 398-420. The standard treatise upon the
subject is F. Clifford, History of Private Bill
Legislation, 2 vols. (London, 1885-1887). A recent
book of value is F. H. Spencer, Municipal Origins;
an Account of English Private Bill Legislation
relating to Local Government, 1740-1835, with a
Chapter on Private Bill Procedure (London, 1911).]
VII. THE CONDUCT OF BUSINESS IN THE TWO HOUSES
"How can I learn the rules of the Commons?" was a question once put by
an Irish member to Mr. Parnell. "By breaking them," was the
philosophic reply. Representing, as it does, an accumulation through
centuries of deliberately adopted regulations, interwoven and overlaid
with unwritten custom, the code of procedure by which the conduct of
business in the House of Commons is governed is indeed intricate (p. 139)
and forbidding. Lord Palmerston admitted that he never fully mastered
it, and Gladstone was not infrequently an inadvertent offender against
the "rules of the House." Prior to the nineteenth century the rules
were devised, as is pointed out by Anson, with two objects in view: to
protect the House from hasty and ill-considered action pressed forward
by the king's ministers, and to secure fair play between the parties
in the chamber and a hearing for all. It was not until 1811 that
business of the Government was permitted to obtain recognized
precedence on certain days; but the history of the procedure of the
Commons since that date is a record of (1) the general reduction of
the time during which private members may indulge in the discussion of
subjects or measures lying outside the Government's legislative
programme, (2) increasing limitation of the opportunity for raising
general questions at the various stages of Government business, and
(3) the cutting down of the time allowed for discussing at all the
projects to which the Government asks the chambers' assent.[204]
[Footnote 204: Anson, Law and Custom of the
Constitution, I., 253.]
*146. Rules.*--The rules governing debate and decorum are not only
elaborate but, in some instances, of great antiquity. In so far as
they have been reduced to writing they may be said to comprise (1)
"standing orders" of a permanent character, (2) "sessional orders,"
operative during a session only, and (3) "general orders,"
indeterminate in respect to period of application. In the course of
debate all remarks are addressed to the Speaker and in the event that
the floor is desired by more than one member it rests with the Speaker
to designate, with scrupulous impartiality, who shall have it. When a
"division" is in progress and the doors are closed members speak
seated and covered, but at all other times they speak standing and
uncovered. A speech may not be read from manuscript, and it is within
the competence of the Speaker not only to warn a member against
irrelevance or repetition but to compel him to terminate his
remarks.[205] A member whose conduct is reprehensible may be ordered
to withdraw and, upon vote of the House, may be suspended from
service. Except in committee, a member may not speak twice upon the
same question, although he may be allowed the floor a second time to
explain a portion of his speech which has been misunderstood. Undue
obstruction is not tolerated, and the Speaker may decline to put a
motion which he considers dilatory.
[Footnote 205: On parliamentary oratory see Graham,
The Mother of Parliaments, 203-224.]
*147. Closure and the Guillotine.*--For the further limitation of debate
two important and drastic devices are at all times available. One is
ordinary closure and the other is "the guillotine." Closure dates
originally from 1881. It was introduced in the standing orders of (p. 140)
the House in 1882, and it assumed its present form in 1888.[206] It
sprang from the efforts of the House to curb the intolerably
obstructionist tactics employed a generation ago by the Irish
Nationalists, but by reason of the increasing mass of business to be
disposed of and the tendency of large deliberative bodies to waste
time, it has been found too useful to be given up. "After a question
has been proposed," reads Standing Order 26, "a member rising in his
place may claim to move 'that the Question be now put,' and unless it
shall appear to the Chair that such motion is an abuse of the Rules of
the House, or an infringement of the rights of the minority, the
Question 'that the Question be now put' shall be put forthwith and
decided without amendment or debate." Discussion may thus be cut off
instantly and a vote precipitated. Closure is inoperative, however,
unless the number of members voting in the majority for its adoption
is at least one hundred, or, in a standing committee, twenty.
A more generally effective device by which discussion is limited and
the transaction of business is facilitated is that known as "closure
by compartments," or "the guillotine." When this is employed the House
in advance of the consideration of a bill agrees upon an allotment of
time to the various parts or stages of the measure, and at the
expiration of each period debate, whether concluded or not, is closed,
a vote is taken, and a majority adopts that portion of the bill upon
which the guillotine has fallen. In recent years this device has been
employed almost invariably when an important Government bill is
reserved for consideration in Committee of the Whole. Its advantage is
the saving of time and the ensuring that by a given date final action
upon a measure shall have been taken. Prior to the middle of the
nineteenth century liberty of discussion in the Commons was all but
unrestrained, save by what an able authority on English parliamentary
practice has termed "the self-imposed parliamentary discipline of the
parties."[206] The enormous change which has come about is
attributable to two principal causes, congestion of business and the
rise of obstructionism. The effect has been, among other things, to
accentuate party differences and to involve occasional disregard of
the rights of minorities.[207]
[Footnote 206: The name was first employed in
1887.]
[Footnote 207: Redlich, Procedure of the House of
Commons, I., 133-212; Graham, The Mother of
Parliaments, 158-172. An excellent illustration of
the use of the guillotine is afforded by the
history of the passage of the National Insurance
Bill of 1911. See _Annual Register_ (1911),
232-236.]
*148. Votes and Divisions.*--When debate upon the whole or a portion of
a measure is terminated there takes place a vote, which may or may
not involve, technically, a "division." The Speaker or Chairman (p. 141)
states the question to be voted upon and calls for the ayes and noes.
He announces the apparent result and, if his decision is not
challenged, the vote is so recorded. If, however, any member objects,
strangers are asked to withdraw (save from the places reserved for
them), electric bells are rung throughout the building, the two-minute
sand-glass is turned, and at the expiration of the time the doors are
locked. The question is then repeated and another oral vote is taken.
If there is still lack of acquiescence in the announced result, the
Speaker orders a division. The ayes pass into the lobby at the
Speaker's right and the noes into that at his left, and all are
counted by four tellers designated by the Speaker, two from each side,
as the members return to their places in the chamber. This method of
taking a division has undergone but little change since 1836. Under a
standing order of 1888 the Speaker is empowered, in the event that he
considers a demand for a division dilatory or irresponsible, to call
upon the ayes and noes to rise in their places and be counted; but
there is seldom occasion for resort to this variation from the
established practice. The device of "pairing" is not unknown, and when
the question is one of political moment the fact is made obvious by
the activity of the party "whips" in behalf of the interests which
they represent.[208]
[Footnote 208: On the conduct of business in the
Commons see Lowell, Government of England, I,
Chaps. 15-16; Moran, English Government, Chap. 15;
Walpole, Electorate and Legislature, Chap. 8;
Ilbert, Parliament, Chap. 5; Redlich, Procedure of
the House of Commons, II., 215-264, III., 1-41;
May, Treatise on the Law, Privileges, Proceedings,
and Usage of Parliament, Chaps, 8-12; Medley,
Manual of English Constitutional History, 231-284;
Graham, The Mother of Parliaments, 225-258; and
MacDonaugh, The Book of Parliament, 217-247.]
*149. Procedure in the Lords.*--The rules of procedure of the House of
Lords are in theory simple, and in practice yet more so. Nominally,
all measures of importance, after being read twice, are considered in
Committee of the Whole, referred to a standing committee for textual
revision, reported, and accorded final adoption or rejection. In
practice the process is likely to be abbreviated. Few bills, for
example, are actually referred to the revision committee. For the
examination of such measures as seem to require it committees are
constituted for the session, and others are created from time to time
as need of them appears, but the comparative leisure of the chamber
permits debate within the Committee of the Whole upon any measure
which the members really care to discuss. Willful obstruction is all
but unknown, so that there has never been occasion for the adoption of
any form of closure. Important questions are decided, as a rule, by a
division. When the question is put those members who desire to
register an affirmative vote repair to the lobby at the right of (p. 142)
the woolsack, those who are opposed to the proposal take their places
in the corresponding lobby at the left, and both groups are counted by
tellers appointed by the presiding officer. A member may abstain from
voting by taking his station on "the steps of the throne," technically
accounted outside the chamber. Prior to 1868 absent members were
allowed to vote by proxy, but this indefensible privilege, abolished
by standing order in the year mentioned, is likely never to be
revived.[209]
[Footnote 209: On the conduct of business in the
Lords see Anson, Law and Custom of the
Constitution, I., 281-291.]
CHAPTER VII (p. 143)
POLITICAL PARTIES
I. PARLIAMENTARISM AND THE PARTY SYSTEM
*150. Government by Party.*--Intimately connected with the parliamentary
scheme of government which has been described is the characteristic
British system of government by party. Indeed, not merely is there
between the two an intimate connection; they are but different aspects
of the same working arrangement. The public affairs of the kingdom at
any given time, as has appeared, are managed by the body of ministers,
acting with and through a supporting majority in the House of Commons.
These ministers belong to one or the other of the two great political
parties, with only occasional and incidental representation of minor
affiliated political groups. Their supporters in the Commons are, in
the main, their fellow-partisans, and their tenure of power is
dependent upon the fortunes of their party in Parliament and
throughout the country. They are at once the working executive, the
guiding agency in legislation, and the leaders and spokesmen of this
party. Confronting them constantly is the Opposition, consisting of
influential exponents of the contrary political faith who, in turn,
lead the rank and file of their party organization; and if at any time
the ministers in power lose their supporting majority in the Commons,
whether through adverse results of a national election or otherwise,
they retire and the Opposition assumes office. The parliamentary
system and the party system are thus inextricably related, the one
being, indeed, historically the product of the other. It was
principally through the agency of party spirit, party contest, and
party unity that there was established by degrees that single and
collective responsibility of ministers which lies at the root of
parliamentary government; and, but for the coherence and stability
with which political activity is invested by party organization, the
operation of the parliamentary system would be an impossibility. The
law of the British constitution does not demand the existence of
parties; on the contrary, it affords them no recognition or place. The
conventions, however, both assume and require them.
*151. Two-Party Organization.*--The relationship which subsists (p. 144)
between parliamentarism and party government is to be accounted for in
no small measure by the fact that the number of great parties in the
United Kingdom is but two. Certain continental nations, notably France
and Italy, possess the forms of parliamentary government, adopted
within times comparatively recent and taken over largely from Great
Britain. In these countries, however, the multiplicity of parties
effectually prevents the operation of the parliamentary system in the
fashion in which that system operates across the Channel. Ministries
must be made up invariably of representatives of a number of
essentially independent groups. They are apt to be in-harmonious, to
be able to execute but indifferently the composite will of the
Government coalition in the popular chamber, and, accordingly, to be
short-lived. Despite the rise in recent decades of the Irish
Nationalist and Labor groups, it is still true in Great Britain, as it
has been since political parties first made their appearance there,
that two leading party affiliations divide between themselves the
allegiance of the mass of the nation. The defeat of one means the
triumph of the other, and either alone is competent normally to govern
independently if elevated to power. This means, on the one hand, a
much more thoroughgoing predominance of the governing party than can
be acquired by a single party in France or Italy and, on the other
hand, a unique concentration of responsibility and, in turn, an
increased responsiveness to the public will. The leaders of the one
party for the time in the ascendancy govern the nation, by reason of
the fact that, _being_ the leaders of this party, they are selected
without doubt or equivocation to fill the principal offices of
state.[210]
[Footnote 210: For a fuller exposition of the
relations of party and the parliamentary system see
Lowell, Government of England, I., Chap. 24. The
best description of English parties and party
machinery is that contained in Chaps. 24-37 of
President Lowell's volumes. The growth of parties
and of party organization is discussed with
fullness and with admirable temper in M.
Ostrogorski, Democracy and the Organization of
Political Parties, trans. by F. Clarke, 2 vols.
(London, 1902). A valuable monograph is A. L.
Lowell, The Influence of Party upon Legislation in
England and America, in _Annual Report of American
Historical Association for 1901_ (Washington,
1902), I., 319-542. An informing study is E.
Porritt, The Break-up of the English Party System,
in _Annals of American Academy of Political and
Social Science_, V., No. 4 (Jan., 1895), and an
incisive criticism is H. Belloc and H. Chesterton,
The Party System (London, 1911). There is no
adequate history of English political parties from
their origins to the present day. G. W. Cooke, The
History of Party from the Rise of the Whig and Tory
factions in the Reign of Charles II. to the Passing
of the Reform Bill, 3 vols. (London, 1836-1837)
covers the subject satisfactorily to the end of the
last unreformed parliament. Other party
histories--as T. E. Kebbel, History of Toryism
(London, 1886); C. B. R. Kent, The English Radicals
(London, 1899); W. Harris, History of the Radical
Party in Parliament (London, 1885); and J. B. Daly,
The Dawn of Radicalism (London, 1892)--cover
important but restricted fields. An admirable work
which deals with party organization as well as with
party principles is R. S. Watson, The National
Liberal Federation from its Commencement to the
General Election of 1906 (London, 1907). For
further party histories see p. 160, 166.]
II. PARTIES IN THE LATER EIGHTEENTH AND EARLIER NINETEENTH (p. 145)
CENTURIES
*152. Whigs and Tories.*--The seventeenth-century origins of political
parties in England, the development of Whigs and Tories following the
Revolution of 1688-1689, and the prolonged Whig supremacy during the
reigns of George I. and George II., have been alluded to in another
place.[211] During the eighteenth century the parliamentary system was
but slowly coming into its own, and again and again party lines all
but disappeared. The recurring rivalry of Whig and Tory elements,
however, brought about gradually a habitual recognition of the
responsibility of ministers, and this responsibility, in turn, reacted
to accentuate party demarcation. The efforts of George III. to revive
the royal prerogative had the effect of calling into existence a body
of new Tories, not Jacobite, but Hanoverian, who supported the king in
his purpose, and at the same time, of driving the forces of opposition
to a closer union and more constant vigilance. Throughout the century
the tone of party politics was continuously low. Bribery and other
forms of corruption were rife, and the powers of government, both
national and local, were in the hands regularly of an aristocratic
minority which ruled in its own interest. The high-water mark of
intrigue was reached in 1783 when the old Tories, led by Lord North,
allied themselves with the old Whigs, led by Charles James Fox, to
retain power and to curtail the influence of the king. The coalition
was unsuccessful, and the defeat of Fox's India Bill, in December,
1783, became the occasion of the younger Pitt's elevation to the
premiership, followed within three months by a national election which
precipitated an end of the seventy years of Whig ascendancy.
[Footnote 211: See p. 39.]
*153. The Tory Ascendancy, 1783-1830.*--Throughout the ensuing forty-six
years, or until 1830, the new Tory party continued almost
uninterruptedly in power, although it is to be observed that after
1790 the composition and character of this party underwent important
modification. The first decade of the period covered by the Pitt
ministry (1784-1801) was a time of incipient but active propaganda in
behalf of constitutional, financial, and social reform, and the
government was not disinclined to favor a number of the changes which
were projected. The outbreak and progress of the Revolution in (p. 146)
France, however, completely altered the situation. The great
landowners, who constituted the dominating element in the Whig party,
detested the principles of the Revolution and were insistent in season
and out upon war with France. They secured the support of the
parliamentary classes generally, and Pitt and his colleagues were
forced to surrender to the apprehensions and demands of these
elements. The war was declared by France, but it was provoked mainly
by the hostile attitude of the English people and government. At home
all reform propaganda was stamped out, and Tories and Whigs alike
throughout the quarter-century of international conflict pointed
habitually to the abuses by which the upheaval in France was
accompanied as indicative of what might be expected in England, or
anywhere, when once the way was thrown open for unrestrained
innovation.
The Tories were in power during most of the war period and in 1815
their position was seemingly impregnable. During the years covered by
the ministry of Lord Liverpool (1812-1827), however, their hold was
gradually relaxed. They sought to secure for themselves the support of
the masses and talked much of the aristocratic exclusiveness of the
Whigs, yet they made it their first concern to maintain absolutely
intact the constitution of the kingdom and the political and social
order by which it was buttressed. As long as England was engaged in a
life and death contest with Napoleon the staying of innovation was
easy, but after 1815 the task became one of rapidly increasing
difficulty. In the reign of George IV. (1820-1830) the more
progressive of the Tory leaders, notably Canning, Huskisson, and Peel,
recognized that the demands of the nation would have to be met at some
points, and a number of liberalizing measures were suffered to be
carried through Parliament, though none which touched directly the
most serious problems of the day. In 1830 the resignation of the
ministry of the Duke of Wellington marked the end of the prolonged
Tory ascendancy, and with a ministry presided over by Earl Grey the
Whigs returned to power. With the exception of a few brief intervals
they and their successors, the Liberals, held office thereafter until
1874.[212]
[Footnote 212: The party history of the period
1700-1792 is related admirably and in much detail
in W. E. H. Lecky, History of England in the
Eighteenth Century, 7 vols. (new ed., New York,
1903). Beginning with 1815, the best work on
English political history in the earlier nineteenth
century is S. Walpole, History of England from the
Conclusion of the Great War in 1815, 6 vols. (new
ed., London, 1902). A good general account is
contained in I. S. Leadam, The History of England
from the Accession of Anne to the Death of George
II. (London, 1909), and W. Hunt, The History of
England from the Accession of George III. to the
Close of Pitt's First Administration (London,
1905). Briefer accounts of the period 1783-1830
will be found in May and Holland, Constitutional
History of England, I., 409-440, and in Cambridge
Modern History, IX., Chap. 22 and X., Chaps. 18-20
(see bibliography, pp. 856-870). Important
biographies of political leaders include A. von
Ruville, William Pitt, Graf von Chatham, 3 vols.
(Stuttgart and Berlin, 1905); W. D. Green, William
Pitt, Earl of Chatham (London, 1901); E.
Fitzmaurice, Life of William, Earl of Shelburne, 3
vols. (London, 1875-1876); Lord P. H. Stanhope,
Life of Pitt, 4 vols. (London, 1861-1862); Lord
Rosebery, Pitt (London, 1891); and Lord J. Russell,
Life of Charles James Fox, 3 vols. (1859-1867).]
III. THE SECOND ERA OF WHIG [LIBERAL] ASCENDANCY, 1830-1874 (p. 147)
*154. The Liberals and Reform.*--The political history of this second
great era of Whig ascendancy falls into some four or five stages. The
first, extending from the accession of the Grey ministry in 1830 to
the parliamentary elections of 1841, was an epoch of notable reforms,
undertaken and carried through mainly by the Whigs, with the
co-operation of various radical elements and of discontented Tories.
This was the period of the first Reform Act (1832), the emancipation
of slaves in the British colonies (1833), the beginning of
parliamentary appropriations for public education (1833), the Factory
Act of 1833, the New Poor Law (1834), the Municipal Corporations Act
(1835), and a number of other measures designed to meet urgent demands
of humanity and of public interest. This was the time, furthermore, at
which the party nomenclature of later days was brought into use. The
name Whig was superseded altogether by that of Liberal, while the name
Tory, though not wholly discontinued in everyday usage, was replaced
largely by the term Conservative.[213] The Liberals were in these
years peculiarly the party of reform, but it must not be inferred that
the Conservatives resisted all change or withheld support from all
measures of amelioration.
[Footnote 213: The name Conservative was employed
by Canning as early as 1824. Its use was already
becoming common when, in January, 1835, Peel, in
his manifesto to the electors of Tamworth,
undertook an exposition of the principles of what
he declared should be known henceforth as the
Conservative--not the Tory--party.]
*155. From Peel to Palmerston.*--The second stage of the period under
survey was that comprised by the Conservative ministry of Sir Robert
Peel, 1841-1846, established in consequence of the decisive defeat of
the Whigs at the elections of 1841. The memorable achievement of the
Peel government was the repeal of the Corn Laws and the casting off of
substantially the whole of the protective system; but the tariff
policy of the premier divided the Conservative party into the
protectionists or old Conservatives, led by Disraeli and Lord Derby,
and the free trade or liberal Conservatives, led by Aberdeen and (p. 148)
Gladstone, and the breach enabled the Liberals, under Lord John
Russell, to recover office in 1847. A third stage of the period, i.e.,
1847 to 1859, was one of ministerial instability. Disputes between
Russell and Palmerston, the foreign minister, undermined the Liberal
position, and in 1852 the Conservatives, under the leadership of
Derby, returned to power. In 1853, however, the free trade
Conservatives joined the Liberals, overthrew Derby, and placed in
office a coalition ministry under Aberdeen. This government maintained
itself until 1855, when, by reason of discontent aroused by his
management of England's part in the Crimean War, Aberdeen resigned and
was succeeded by Palmerston, at the head of another Liberal ministry.
Foreign difficulties drove Palmerston from office early in 1858, and
the establishment of a second Derby ministry marked a brief return of
the Conservatives to control. Defeated, however, on a resolution
censuring the Government for the inadequacy of the reform bill
introduced by it in 1859, and also for the failure of Lord Derby to
prevent the war between France and Austria, the ministry resigned, in
April, 1859, and Lord Palmerston returned to power, with Gladstone and
Lord John Russell as colleagues. Gladstone's acceptance of office
under Palmerston marked the final severance of the Peelites from the
Conservative party and the abandonment of all hope of the
reconstruction for which both Gladstone and Derby had labored.
*156. Party Regeneration.*--A fourth, and final, stage of the Liberal
period covered the years 1859 to 1874. Its importance arises not
merely from the fact that the culmination of the power of the Liberals
during the nineteenth century was attained at this point, but from the
further fact that it was during these years that the Liberal party was
transformed and popularized so as to be made for the first time really
worthy of the name which it bears. As long as Palmerston lived the
Liberals of the old school, men who disliked radicalism and were
content with the reform of 1832, were in the ascendancy, but after the
premier's death, October 18, 1865, new ideas and influences asserted
themselves and a new Liberal party came rapidly to the fore. This
regenerated party, whose leader was Gladstone, rejected definitely the
ideal of _laissez-faire_, took over numerous principles of the
Radicals, and, with the watchwords of "peace, retrenchment, and
reform," began to insist upon a broader parliamentary franchise and
upon fresh legislation for the protection and general betterment of
the masses. The new liberalism was paralleled, however, by a new
conservatism, whose principal exponent was Disraeli. The new
Conservatives likewise advocated franchise reform and legislation for
the people, although they put more emphasis upon the latter than upon
the former; and they especially favored a firm foreign policy, (p. 149)
an extension of British interests in all parts of the world, and the
adoption of a scheme of colonial federation. They appeared, at least,
to have less regard for peace and for economy than had the Liberals.
The temper and tendencies of the parties as they gradually assumed
shape during the third quarter of the nineteenth century have been
characterized effectively by a recent writer as follows: "The parties
of which Gladstone and Disraeli were the chiefs were linked by
continuous historical succession with the two great sections or
factions of the aristocracy, or hereditary oligarchy, which ruled
Great Britain in the eighteenth century. But each had been transformed
by national changes since the Reform Bill. The Whigs had become
Liberals, the Tories had become Conservatives. The Liberal party had
absorbed part of the principles of the French Revolution. They stood
now for individual liberty, laying especial stress on freedom of
trade, freedom of contract, and freedom of competition. They had set
themselves to break down the rule of the landowner and the Church, to
shake off the fetters of Protection, and to establish equality before
the law. Their acceptance of egalitarian principles led them to adopt
democratic ideals, to advocate extension of the suffrage, and the
emancipation of the working classes. Such principles, though not
revolutionary, are to some extent disruptive in their tendency; and
their adoption by the Liberals had forced the Tory party to range
themselves in defense of the existing order of things. They professed
to stand for the Crown, the Church, and the Constitution. They were
compelled by the irresistible trend of events to accept democratic
principles and to carry out democratic reforms. They preferred, in
fact, to carry out such reforms themselves, in order that the
safeguards which they considered necessary might be respected.
Democratic principles having been adopted, both parties made it their
object to redress grievances; but the Conservatives showed a natural
predisposition to redress those grievances which arose from excessive
freedom of competition, the Liberals were the more anxious to redress
those which were the result of hereditary or customary privilege. The
harmony of the State consists in the equilibrium between the two
opposing forces of liberty and order. The Liberals laid more stress
upon liberty, the Conservatives attached more importance to order and
established authority."[214]
[Footnote 214: S. Leathes, in Cambridge Modern
History, XII., 30-31.]
*157. The First Gladstone Ministry.*--Upon the death of Palmerston in
1865 Lord John Russell became premier a second time, but in the course
of the following year a franchise reform bill brought forward by the
Government was defeated in the Commons, through the instrumentality
chiefly of a group of old Liberals (the "Adullamites") who (p. 150)
opposed modification of the electoral system, and by curious
circumstance it fell to the purely Conservative Derby-Disraeli
ministry of 1866-1868 not only to carry the first electoral reform
since 1832 but to impart to that reform a degree of thoroughness upon
which none save the most advanced radicals had cared to insist. The
results of the doubling of the electorate were manifest in the
substantial majority which the new Liberals acquired at the elections
of 1868, and the Disraeli ministry (Derby had retired early in the
year) gave place to a government presided over by the indubitable
leader of the new Liberal forces, Gladstone. The years 1868-1874,
covered by the first Gladstone ministry, were given distinction by a
remarkable series of reforms, including the disestablishment of the
Church in Ireland (1869), the enactment of an Irish land bill (1870),
the institution of national control of elementary education (1870),
and the adoption of the Australian ballot in parliamentary elections
(1872). Defeated at last, however, on an Irish university bill, the
ministry resigned, and when, at the elections of 1874, the country was
appealed to, the Conservatives obtained a clear parliamentary majority
of fifty seats. This was the first really dependable majority, indeed,
which the party had possessed since 1842. Disraeli became prime
minister and Derby minister for foreign affairs.[215]
[Footnote 215: The political history of the period
1830-1874 is covered very satisfactorily in W. N,
Molesworth, History of England from the Year
1830-1874, 3 vols. (London, 1874). Other general
works include: Walpole, History of England, vols.
3-6, extending to 1856; H. Paul, History of Modern
England, 5 vols. (London, 1904-1906), vols. 1-3,
beginning with 1845; J. McCarthy, History of Our
Own Times from the Accession of Queen Victoria, 7
vols. (1877-1905), vols. 1-3, beginning with the
events of 1837; J. F. Bright, History of England, 5
vols. (London, 1875-1894), vol. 4; and S. Low and
L. C. Sanders, History of England during the Reign
of Victoria (London, 1907). Briefer treatment will
be found in May and Holland, Constitutional History
of England, I., 440-468, III., 67-88, and in
Cambridge Modern History, XI., chaps. 1, 11, 12
(see bibliography, pp. 867-873). Biographies of
importance include S. Walpole, Life of Lord John
Russell, 2 vols. (London, 1889); H. Maxwell, Life
of the Duke of Wellington, 2 vols. (London, 1899);
J. Morley, Life of William E. Gladstone, 3 vols.
(London, 1903); J. R. Thursfield, Peel (London,
1907); W. F. Monypenny, Life of Benjamin Disraeli,
Earl of Beaconsfield (London, 1910-1912), vols.
1-2, covering the years 1804-1846; and S. Lee,
Queen Victoria, a Biography (rev. ed., London,
1904).]
IV. THE SECOND ERA OF CONSERVATIVE ASCENDANCY, 1874-1905
*158. The Question of Irish Home Rule.*--During the five years covered
by the life of the second Disraeli ministry British imperialism
reached flood tide. The reforms of the Gladstone government were (p. 151)
not undone, but the Conservative leaders interested themselves
principally in foreign and colonial questions, and home affairs
received but scant attention. The result was public discontent, and at
the elections of 1880 the Liberals obtained a parliamentary majority
of more than one hundred seats. It remained for the second Gladstone
government, established at this point, to adjust a number of
difficulties on the frontiers of the Empire; but the heart of the
ministry was not in this sort of work and the way was cleared as
speedily as possible for a return to the consideration of problems of
a domestic nature. In 1884 the Representation of the People Act was
carried, and in 1885 the Redistribution of Seats Act. But now, and
throughout a decade and a half following, the question which
overshadowed all others was that of Home Rule for Ireland. Upon this
issue, in its variety of aspects, governments henceforth rose and
fell, parties were disrupted and re-aligned. In 1885 the Parnellites,
or Irish Nationalists, incensed because of Gladstone's indifference to
Home Rule, and taking advantage of the ministry's unpopularity arising
from the failure of its Egyptian policy, compassed the defeat of the
Government on a measure relating to the taxing of beer and spirits.
The Marquis of Salisbury, who after the death of Lord Beaconsfield, in
1881, had become leader of the Conservatives, made up a government;
but, absolutely dependent upon the Irish Nationalist alliance and yet
irrevocably committed against Home Rule, the Salisbury ministry found
itself from the outset in an impossible position.
*159. The Liberal Unionists.*--The elections at the end of 1885 yielded
the Conservatives 249 seats, the Irish Nationalists 86, and the
Liberals 335, and January 28, 1880, the Salisbury ministry retired.
Gladstone returned to power and Home Rule took its place in the formal
programme of the Liberal party. Then followed, April 8, 1886, the
introduction of the first of Gladstone's memorable Home Rule bills.
The measure accorded the Irish a separate parliament at Dublin, cut
them off from representation at Westminster, and required them to bear
a proportionate share of the expenses of the Imperial Government. It
was thrown out by the Commons on the second reading. The Conservatives
opposed it solidly, many of the Irish Nationalists were dissatisfied
with it, and upwards of a hundred Liberal members, led by Joseph
Chamberlain, flatly refused to follow the majority of their
fellow-partisans in voting for it. Under the name of Liberal Unionists
these dissenters eventually broke entirely from their earlier
affiliation; and, inclining more and more toward the position occupied
by the Conservatives, they ended by losing their identity in the ranks
of that party. Their accession, however, brought the Conservatives
new vigor, new issues, and even a new name, for in more recent (p. 152)
days the term Conservative has been supplanted very generally by that
of Unionist.
*160. Second Salisbury and Fourth Gladstone Ministries.*--The defeat of
Home Rule was followed by a national election, the result of which was
the return of 316 Conservatives, 78 Liberal Unionists, 191 Gladstonian
Liberals, and 85 Irish Nationalists. The combined unionists had a
majority of 118, and July 26, 1886, the short-lived third Gladstone
government was succeeded by a second ministry presided over by the
Marquis of Salisbury. Home Rule, however, was not dead. During the
years of the Salisbury ministry (1886-1892) the authorities were
obliged to devote much attention to Irish affairs, and in 1892 the
Liberals were returned to office on a platform which stipulated
expressly Home Rule for Ireland.[216] The Conservative appeal to the
country at this time was made on the ground, first, that Home Rule
should be resisted, and, second, that the Government's achievements in
reform and constructive legislation entitled the party to continuance
in power; but in the new parliament there was an adverse majority of
forty, and August 18 Gladstone, for the fourth time, was requested to
form a ministry.[217] The elections of 1892 are of interest by reason
of the fact that they marked the first appearance of independent labor
representatives in Parliament. Miners' delegates and an agricultural
laborer had been elected before, but they had identified themselves in
all instances with the radical wing of the Liberals. There were now
returned, however, four members, including John Burns and Keir Hardie,
who chose to hold aloof and, as they expressed it, "to sit in
opposition until they should cross the house to form a labor
government." The Home Rule bill which Gladstone introduced February
13, 1893, differed from its predecessor of 1886 principally in not
excluding the Irish from representation at Westminster. It was passed
in the House of Commons, although by an ultimate majority of but
thirty-four, but in the Lords it was rejected by a vote of 419 to 41.
In the face of an obstacle so formidable as that imposed by the
adverse majority in the upper chamber it appeared useless to press the
issue. The Lords, whose power in legislation became at this point
greater than at any time since 1832, systematically balked the
Government at every turn, and March 3, 1894, Gladstone, aged and (p. 153)
weary of parliamentary strife, retired from office. His last speech in
the Commons comprised a sharp arraignment of the House of Lords, with
a forecast of the clash which eventually would lead (and, in point of
fact, has led) to the reconstitution of that chamber.
[Footnote 216: This was the "Newcastle Programme,"
drawn up at a convention of the National Liberal
Federation at Newcastle in October, 1891. Items in
the programme, in addition to Home Rule, included
the disestablishment of the Church in Wales and
Scotland, a local veto on the sale of intoxicating
liquors, the abolition of the plural franchise, and
articles defining employers' liability and limiting
the hours of labor.]
[Footnote 217: C. A. Whitmore, Six Years of
Unionist Government, 1886-1892 (London, 1892).]
*161. Third and Fourth Salisbury Ministries.*--For the time the Earl of
Rosebery, who had been foreign secretary, assumed the premiership and
there was no break in the Government's policy. In June, 1895, however,
the ministry suffered a defeat on the floor of the Commons, and the
Marquis of Salisbury was a third time invited to form a government.
The retirement of Gladstone brought to light numerous rifts within the
Liberal party, and when the new ministry, in July, appealed to the
country, with Home Rule as a preponderating issue, its supporters
secured in the Commons a majority of 152 seats over the Liberals and
Nationalists combined. The Liberal Unionists returned 71 members, and
to cement yet more closely the Conservative-Unionist alliance Lord
Salisbury made up a ministry in which the Unionist elements were ably
represented by Joseph Chamberlain as Colonial Secretary, Viscount
Goschen as First Lord of the Admiralty, and the Duke of Devonshire as
President of the Council. The premier himself returned to the post of
Foreign Secretary, and his nephew, Arthur J. Balfour, now become again
Government leader in the Commons, to that of First Lord of the
Treasury. The accession of the third Salisbury ministry marked the
beginning of a Unionist ascendancy which lasted uninterruptedly a full
decade. In 1902 Lord Salisbury, whose fourth ministry, dating from the
elections of 1900, was continuous with his third, retired from public
life, but he was succeeded in the premiership by Mr. Balfour, and the
personnel and policies of the Government continued otherwise
unchanged.[218]
[Footnote 218: The most useful works on the party
history of the period 1874-1895 are Paul, History
of Modern England, vols. 4-5, and Morley, Life of
W. E. Gladstone, vol. 3. J. McCarthy's History of
Our Own Times, vols. 4-6, covers the ground in a
popular way. Useful brief accounts are May and
Holland, Constitutional History of England, III.,
88-127, and Cambridge Modern History, XII., Chap. 3
(bibliography, pp. 853-855). An excellent book is
H. Whates, The Third Salisbury Administration,
1895-1900 (London, 1901).]
*162. Unionist Imperialism: the Elections of 1900.*--During the larger
part of this Unionist decade the Liberal party, rent by factional
disputes and personal rivalries, afforded but ineffective opposition.[219]
The Home Rule question fell into the background; and although (p. 154)
the Unionists carried through a considerable amount of social and
industrial legislation, the interests of the period center largely in
the Government's policies and achievements within the domain of
foreign and colonial affairs. The most hotly contested issue of the
decade was imperialism; the most commanding public figure was Joseph
Chamberlain; the most notable enterprise undertaken was the war in
South Africa. In 1900 it was resolved by the ministerial leaders to
take advantage of the public spirit engendered by the war to procure
for the Unionists a fresh lease of power. Parliament was dissolved
and, on the eve of the announcement of the annexation of the
Transvaal, a general election was held. The Liberals, led since early
in 1899 by Sir Henry Campbell-Bannerman, charged the Unionists with
neglect of social and industrial matters, pledged themselves to
educational, housing, and temperance reform, and sought especially to
convince the electorate that they might be intrusted with safety to
defend the legitimate interests of the Empire. The Government forced
the fight upon the issue of South African policy almost exclusively,
and, representing the opposition as "Little-Englanders," went before
the people with the argument that from the course that had been
entered upon in South Africa there could be no turning back, and that
the present ministry was entitled to an opportunity to carry to
completion the work that it had begun. The appeal was altogether
successful. The Conservatives obtained 334 seats and the Liberal
Unionists 68--a total of 402; while the Liberals and Laborites carried
but 186 and the Nationalists 82--a total of 268. The Government
majority in the new parliament was thus 134, almost precisely that of
1895.[220]
[Footnote 219: The two principal aspirants to the
Gladstonian succession were Lord Rosebery and Sir
William Vernon-Harcourt. Rosebery represented the
imperialistic element of Liberalism and advocated a
return of the party to the general position which
it had occupied prior to the split on Home Rule.
Harcourt and the majority of the party opposed
imperialism and insisted upon attention rather to a
programme of social reform. From Gladstone's
retirement, in 1894, to 1896 leadership devolved
upon Rosebery, but from 1896 to the beginning of
1899 Harcourt was the nominal leader, although
Rosebery, as a private member, continued hardly
less influential than before.]
[Footnote 220: W. Clarke, The Decline in English
Liberalism, in _Political Science Quarterly_,
Sept., 1901; P. Hamelle, Les élections anglaises,
in _Annales des Sciences Politiques_, Nov., 1900.]
After the elections dissension within the Liberal ranks broke out
afresh. The Rosebery wing maintained that, the South African war
having been begun, it was the duty of all Englishmen to support it,
and that the Unionist government should be attacked only on the ground
of mismanagement. In July, 1901, Campbell-Bannerman, impelled by the
weakness of his position, demanded of his fellow-partisans that they
either ratify or repudiate his leadership of the party in the (p. 155)
Commons. Approval was accorded, but no progress was realized toward an
agreement upon policies. To careful observers it became clear that
there could be no effective revival of Liberalism until the war in
South Africa should have been terminated and the larger imperial
problems involved in it solved. For a time the only clear-cut
parliamentary opposition offered the Government was that of the
frankly pro-Boer Nationalists.
V. THE LIBERAL REVIVAL
*163. The Issue of Tariff Reform.*--The rehabilitation of the Liberal
party came during the years 1902-1905. It was foreshadowed by the
famous Chesterfield speech of Lord Rosebery, delivered December 16,
1901, although the immediate effect of that effort was but to
accentuate party cleavages,[221] and it was made possible by a
reversion of the national mind from the war to domestic questions and
interests. More specifically, it was the product of opposition to the
Government's Education Act of 1902, of public disapproval of what
seemed to be the growing arrogance of the Unionist majority in the
House of Lords, and, above all, of the demoralization which was
wrought within the ranks of Unionism by the rise of the issue of
preferential tariffs. In a speech to his constituents at Birmingham,
May 15, 1903, Mr. Chamberlain, but lately returned from a visit to
South Africa and now at the height of his prestige, startled the
nation by declaring that the time had come for Great Britain to
abandon the free trade doctrines of the Manchester school and to knit
the Empire more closely together, and at the same time to promote the
economic interests of both the colonies and the mother country, by the
adoption of a system of preferential duties on imported foodstuffs.
Later in the year the gifted exponent of this revolutionary programme
entered upon a vigorous speaking campaign in defense of his proposals,
and there was set up a large and representative tariff commission
which was charged with the task of framing, after due investigation, a
tariff system which would meet the needs alleged to exist. Among the
Unionist leaders there arose forthwith a division of opinion which
portended open rupture. The rank and file of the party was (p. 156)
nonplussed and undecided, and throughout many months the subject
engrossed attention to the exclusion of very nearly everything
else.[222]
[Footnote 221: In this speech, delivered at a great
Liberal meeting, there was outlined a programme
upon which Rosebery virtually offered to resume the
leadership of his party. The question of Boer
independence was recognized as settled, but
leniency toward the defeated people was advocated.
It was maintained that at the close of the war
there should be another general election. And the
overhauling of the army, of the navy, of the
educational system, and of the public finances, was
marked out as an issue upon which the Liberals must
take an unequivocal stand, as also temperance
reform and legislation upon the housing of the
poor.]
[Footnote 222: The literature of the Tariff Reform
movement in Great Britain is voluminous. The nature
of the protectionist proposals may be studied at
first hand in J. Chamberlain, Imperial Union and
Tariff Reform; speeches delivered from May 15 to
November 4, 1903 (London, 1903). Worthy of mention
are T. W. Mitchell, The Development of Mr.
Chamberlain's Fiscal Policy, in _Annals of American
Academy of Political and Social Science_, XXIII.,
No. 1 (Jan., 1904); R. Lethbridge, The Evolution of
Tariff Reform in the Tory Party, in _Nineteenth
Century_, June, 1908; and L. L. Price, An Economic
View of Mr. Chamberlain's Proposals, in _Economic
Review_, April, 1904. A useful work is S. H. Jeyes,
Life of Joseph Chamberlain, 2 vols. (London,
1903).]
In this situation the Liberals found their opportunity. All but
unanimously opposed to the suggested departure, they assumed with
avidity the rôle of defenders of England's "sacred principle of free
trade" and utilized to the utmost the appeal which could now be made
to the working classes in behalf of cheap bread. Mr. Chamberlain
denied that his scheme meant a wholesale reversal of the economic
policy of the nation, but in the judgment of most men the issue was
joined squarely between the general principle of free trade and that
of protection. Throughout 1904 and 1905 the Government found itself
increasingly embarrassed by the fiscal question, as well as by
difficulties attending the administration of the Education Act, the
regulation of Chinese labor in South Africa, and a number of other
urgent tasks, and the by-elections resulted so uniformly in Unionist
defeats as to presage clearly the eventual return of the Liberals to
power.
*164. The Liberals in Office: the Elections of 1906.*--Hesitating long,
but at the last bowing somewhat abruptly before the gathering storm,
Mr. Balfour tendered his resignation December 4, 1905. The Government
had in the Commons a working majority of seventy-six, and the
Parliament elected in 1900 had still another year of life. In the
Lords the Unionists outnumbered their opponents ten to one. The
administration, however, had fallen off enormously in popularity, and
the obstacles imposed by the fiscal cleavage appeared insuperable.
Unable wholly to follow Mr. Chamberlain in his projects, the premier
had grown weary of the attempt to balance himself on the tight rope of
ambiguity between the free trade and protectionist wings of his party.
Not caring, however, to give his opponents the advantage which would
accrue from an immediate dissolution of Parliament and the ordering of
an election which should turn on clear issues raised by the record of
the ten years of Unionist rule, he chose simply to resign and so to
compel the formation of a new government which itself should be (p. 157)
immediately on trial when the inevitable elections should come.
On the day of Mr. Balfour's resignation the king designated as premier
the Liberal leader, Sir Henry Campbell-Bannerman, who forthwith made
up a cabinet of rather exceptional strength in which the premier
himself occupied the post of First Lord of the Treasury, Sir Edward
Grey that of Foreign Affairs, Mr. Herbert H. Asquith that of the
Exchequer, Mr. Richard B. Haldane that of War, Lord Tweedmouth that of
the Navy, Mr. David Lloyd-George that of President of the Board of
Trade, Mr. John Burns that of President of the Local Government Board,
Mr. Augustine Birrell that of President of the Board of Education, and
Mr. James Bryce that of Chief Secretary for Ireland. January 8, 1906,
the "Khaki Parliament" was dissolved, a general election was ordered,
and the new parliament was fixed to meet at the earliest legal date,
February 13. The campaign that followed was the most animated, except
that of 1910, in recent British history. The Unionists, being
themselves divided beyond repair on the question of the tariff, pinned
their hope to a disruption of the Liberal forces on the issue of Home
Rule. The Liberal leaders, however, steadfastly refused to allow the
Irish question to be brought into the foreground. Recognizing that
Home Rule in the immediate future was an impossibility, but pledging
themselves to a policy contemplating its establishment by degrees,
they contrived to force the battle principally upon the issue of free
trade _versus_ protection and, in general, to direct their most
telling attack upon the fiscal record and fiscal policies of their
opponents. The result was an overwhelming Liberal triumph. In a total
of 6,555,301 votes,[223] 4,026,704 were cast for Liberal, Nationalist,
and Labor candidates, and only 2,528,597 for Conservatives and
Unionists. There were returned to the House of Commons 374 Liberals,
84 Nationalists, 54 Laborites, 131 Conservatives, and 27 Liberal
Unionists, assuring the Liberals and their allies a clear
preponderance of 354.[224] Prior to the elections careful observers
believed the return of the Liberals to power inevitable, but a victory
of such proportions was not dreamed of by the most ardent of the
party's well-wishers.[225]
[Footnote 223: The number of electors in the United
Kingdom in 1906 was 7,266,708.]
[Footnote 224: Of the Opposition 102 were Tariff
Reformers of the Chamberlain school, while but 16
were thoroughgoing "Free Fooders."]
[Footnote 225: M. Caudel, Les élections générales
anglaises (janvier 1906), in _Annales des Sciences
Politiques_, March, 1906; E. de Noirmont, Les
élections anglaises de janvier 1906; les résultats
généraux in _Questions Diplomatiques et
Coloniales_, March 1, 1906; E. Porritt, Party
Conditions in England, in _Political Science
Quarterly_, June, 1906.]
VI. THE RULE OF THE LIBERALS, 1906-1912 (p. 158)
*165. The Liberal Mandate.*--The Liberal ascendancy, made thus secure by
the elections of 1906, has continued uninterruptedly to the date of
writing (1912), and the years covered by it have been in many respects
the most important in the political history of modern Britain. The
significance of the period arises principally from the vast amount of
social and economic legislation that has been attempted within it. A
considerable portion of this legislation has been successfully carried
through and is now in effect. Some important portions, however, have
failed of eventual adoption, chiefly in consequence of the opposition
of the Unionist majority in the Lords; and a direct outcome of the
series of clashes between the Liberals and the Lords has been the
important constitutional readjustments comprised within the Parliament
Act of 1911 already described. Speaking broadly, the Liberals were
restored to power in 1906 because the nation desired the doing of
certain things which the Unionists seemed unable or disinclined to do.
Most important among these things were: (1) the reduction of public
expenditures and the curbing of national extravagance; (2) the
remission of taxation imposed during the South African war; (3) the
reform of the army; and (4) the undertaking of an extended programme
of social reform, embracing the establishment of old age pensions, the
remedying of unemployment, the regulation of the liquor traffic, and
the liberation of education from ecclesiastical domination. The nation
was solicitous, too, that the system of free trade be maintained
without impairment. To all of these policies, and more, the Liberals
were committed without reserve when they entered office.
*166. The Party's Performance.*--During the years intervening between
the elections of 1906 and those of 1910 the Liberal governments
presided over successively by Mr. Campbell-Bannerman and Mr.
Asquith[226] made honest effort to redeem the election pledges of the
party. They stopped the alarming increase of the national debt and
made provision for debt reduction at a rate equalled at but two brief
periods since the middle of the nineteenth century. They repealed
approximately half of the war taxes which were still operative when
they assumed office. In the matter of national expenditures they
accomplished a momentary reduction, although the normal increase (p. 159)
of civil outlays, the adoption of old age pensions, and, above all,
the demand of the propertied interests for the maintenance of a
two-power naval standard brought about eventually an increase rather
than a diminution of the sums carried by the annual budget. In
accordance with a scheme worked out by Mr. Haldane they remodelled the
army. They maintained free trade. They made no headway toward Home
Rule, but they enacted, in 1909, an Irish Universities bill and an
Irish Land Purchase bill which were regarded as highly favorable to
Irish interests. Above all, they labored to meet the demand of the
nation for social legislation. The prevalence of unemployment, the
misery occasioned by widespread poverty, the recurrence of strikes and
other industrial disorders, the growing volume of emigration, and
other related aspects of England's present social unsettlement, have
served to fix unshakably in the public mind the idea that the state
must plan, undertake, and bear the cost of huge projects of social and
industrial amelioration and of democratization and reform. In the
realization of those portions of their programme which relate to these
matters the Liberals have been only partially successful. They enacted
important labor legislation, including an eight-hour working day in
mines, a Labor Exchanges act, and a Trades Disputes act, and they
established, by act of 1908, an elaborate system of old age pensions.
By reason of the opposition of the House of Lords, however, they
failed to enact the bill of 1906 for the abolition of plural
voting, the hotly contested measure of 1906 providing for the
undenominationalizing of the schools, the Aliens Bill of 1906, the
Land Values Bill of 1907, the Licensing Bill of 1908, the London
Elections Bill of 1909, and, finally, the Finance Bill of 1909, whose
rejection by the Lords precipitated a dissolution of Parliament and
the ordering of the elections of January, 1910.
[Footnote 226: Mr. Campbell-Bannerman resigned
April 5, 1908. His successor was Mr. Asquith, late
Chancellor of the Exchequer. Most of the ministers
were continued in their respective offices, but Mr.
Lloyd-George became Chancellor of the Exchequer,
Mr. Winston Churchill President of the Board of
Trade, Lord Tweedmouth President of the Council,
and the Earl of Crewe Secretary of State for the
Colonies.]
*167. The Liberals Versus the Lords: the Elections of January,
1910.*--Four years of conflict with the overpowering Opposition in the
upper chamber brought the Liberals to a place from which they neither
could nor would go on until certain fundamentals were settled. The
first was the assurance of revenues adequate to meet the growing
demands upon the treasury. The second was the alteration of the status
of the Lords to make certain the predominance of the popular branch of
Parliament in finance and legislation. During the two years
(1909-1911) while these great issues were pending the nation was
stirred to the depths and party conflict was unprecedented in
intensity. On the side of finance, Unionists and Liberals were in
substantial agreement upon the policies--especially old age pensions
and naval aggrandizement--which rendered larger outlays inevitable;
they differed, rather, upon the means by which the necessary funds (p. 160)
should be obtained. The solution offered in the Lloyd-George budget of
1909 was the imposition of new taxes on land and the increase of
liquor license duties and of the taxes on incomes and inheritances.
The new burdens were contrived to fall almost wholly upon the
propertied, especially the landholding, classes. To this plan the
Unionists offered the alternative of Tariff Reform, urging that the
needed revenues should be derived from duties laid principally upon
imported foodstuffs, although the free trade members of the party
could not with consistency lend this proposal their support. The
rejection of the Finance Bill by the Lords, November 30, 1909,
sweeping aside as it did three centuries of unbroken precedent,
brought to a crisis the question of the mending or ending of the
Lords, and although the electoral contest of January, 1910, was fought
immediately upon the issue of the Government's finance proposals, the
question of the Lords could by no means be kept in the background. The
results of this election were disappointing to all parties save the
Nationalists. The final returns gave the Liberals 274 seats, the
Unionists 273, the Nationalists 82, and the Laborites 41. The Asquith
government found itself still in power, but absolutely dependent upon
the co-operation of the Labor and Nationalist groups. Upon the great
issues involved there was no very clear pronouncement, but it was a
foregone conclusion that the tax proposals would be enacted, that some
reconstitution of the House of Lords would be undertaken, and that
free trade would not yet be in any measure abandoned.[227]
[Footnote 227: R. G. Lévy, Le budget radical
anglais, in _Revue Politique et Parlementaire_,
Oct. 10, 1909; G. L. Fox, The Lloyd-George Budget,
in _Yale Review_ (Feb., 1910); E. Porritt, The
Struggle over the Lloyd-George Budget, in
_Quarterly Journal of Economics_, Feb., 1910; P.
Hamelle, Les élections anglaises, in _Annales des
Sciences Politiques_, May 15, 1910; S. Brooks, The
British Elections, in _North American Review_,
March, 1910; W. T. Stead, The General Elections in
Great Britain, in _Review of Reviews_, Feb., 1910.
A useful survey is Britannicus, Four Years of
British Liberalism, in _North American Review_,
Feb., 1910, and a more detailed one is C. T. King,
The Asquith Parliament, 1906-1909; a Popular
History of its Men and Measures (London, 1910). A
valuable article is E. Porritt, British Legislation
in 1906, in _Yale Review_, Feb., 1907. A French
work of some value is P. Millet, La crise anglaise
(Paris, 1910). A useful collection of speeches on
the public issues of the period 1906-1909 is W. S.
Churchill, Liberalism and the Social Problem
(London, 1909).]
*168. The Liberal Triumph: the Elections of December, 1910.*--The
developments of the ensuing year and a half have been sketched
elsewhere.[228] They comprised, in the main: (1) the re-introduction
and the enactment of the Finance Bill of 1909: (2) the bringing
forward by Mr. Asquith of the Government's proposals relative to (p. 161)
the alteration of relations between the two houses of Parliament; (3)
the adoption by the House of Lords of the principle of Lord Rosebery's
projected scheme of upper chamber reform; (4) the interruption and
postponement of the contest by reason of the death of Edward VII.; (5)
the failure of the Constitutional Conference in the summer of 1910;
(6) the adoption by the second chamber of the reform resolutions of
Lord Lansdowne; (7) the dissolution of Parliament, after an existence
of but ten months, to afford an opportunity for a fresh appeal to the
country on the specific issue of second chamber reform; (8) the
elections of December, 1910, and the assembling of the new parliament
in January, 1911; and (9) the re-introduction and the final enactment,
in the summer of 1911, of the Government's momentous Parliament Bill.
At the December elections the contending forces were so solidly
entrenched that the party quotas in the House of Commons remained all
but unchanged. Following the elections they stood as follows:
Liberals, 272; Unionists, 272; Nationalists, 76; Independent
Nationalists (followers of William O'Brien), 8; and Laborites, 42. The
Unionists gained substantially in Lancashire, Devonshire, and
Cornwall, but lost ground in London and in several boroughs throughout
the country. Still dependent upon the good-will of the minor parties,
the Government addressed itself afresh to the limitation of the veto
power of the Lords and to the programme of social amelioration which
during the recent months of excitement had been accorded meager
attention. Effort in the one direction bore fruit in the Parliament
Act, approved by the crown August 18, 1911; while upon the other side
substantial results were achieved in the enactment, December 16, 1911,
of a far-reaching measure instituting a national system of insurance
against both sickness and unemployment.[229]
[Footnote 228: See pp. 108-111.]
[Footnote 229: On the elections of December, 1910,
see P. Hamelle, La crise anglaise: les élections de
décembre 1910, in _Revue des Sciences Politiques_,
July-Aug., 1911; E. T. Cook, The Election--Before
and After, in _Contemporary Review_, Jan., 1911;
Britannicus, The British Elections, in _North
American Review_, Jan., 1911; and A. Kann, Les
élections anglaises, in _Questions Diplomatiques et
Coloniales_, Jan. 16, 1911. The best account of the
adoption of the Parliament Bill is A. L. P. Dennis,
The Parliament Act of 1911, in _American Political
Science Review_, May and Aug., 1912. For other
references see p. 115. On the National Insurance
Act see E. Porritt The British National Insurance
Act, in _Political Science Quarterly_, June, 1912;
A. Gigot, La nouvelle loi anglaise sur l'assurance
nationale, in _Le Correspondant_, May 10, 1912; O.
Clark, The National Insurance Act of 1911 (London,
1912); and A. S. C. Carr, W. H. Stuart, and J. H.
Taylor, National Insurance (London, 1912). The text
of the Insurance Act is printed in _Bulletin of the
United States Bureau of Labor_, No. 102
(Washington, 1912).]
VII. THE PARTIES OF TO-DAY (p. 162)
*169. Significance of "Liberal" and "Conservative."*--Of the four
political parties of Great Britain to-day one, the Irish Nationalist,
is localized in Ireland and has for its essential purpose the
attainment of the single end of Irish Home Rule;[230] another, the
Labor party, is composed all but exclusively of workingmen, mainly
members of trade-unions, and exists to promote the interests of the
laboring masses; while the two older and more powerful ones, the
Liberal and the Conservative or Unionist, are broadly national in
their constituencies and well-nigh universal in the range of their
principles and policies. It is essential to observe, however, that
while the programme of the Nationalists is, at least to a certain
point, perfectly precise, and that of the Laborites is hardly less so,
there is no longer, despite the heat of recurring electoral and
parliamentary combats, much that is fundamental or permanent in the
demarcation which sets off the two major parties the one against the
other. Even the names "Liberal" and "Conservative" denote in reality
much less than might be supposed. During the generation which began
with the Reform Act of 1832 the Liberals, indeed, extended the
franchise to the middle classes, reformed the poor law, overhauled the
criminal law, introduced a new and more satisfactory scheme of
municipal administration, instituted public provision for elementary
education, enacted statutes to safeguard the public health, removed
the disabilities of dissenters, and assisted in the overthrow of the
protective system. But if the Conservatives of the period 1830-1870
played, in general, the rôle implied by their party designation, their
attitude none the less was by no means always that of obstructionists,
and in the days of the Disraelian leadership they became scarcely less
a party of reform than were their opponents. Beginning with the Reform
Act of 1867, a long list of progressive and even revolutionizing
measures must be credited to them, and in late years they and the
Liberals have vied in advocating old age pensions, factory
legislation, accident insurance, housing laws, and other sorts of
advanced and remedial governmental action. The differences which
separate the two parties are not so much those of principle or of (p. 163)
political dogma as those of policy respecting immediate and particular
measures, and especially those of attitude toward certain important
organizations and interests. The Liberals assert themselves to be more
trustful of the people and more concerned about the popular welfare,
but the Conservatives enter a denial which possesses plausibility. It
is probably true that the Liberals have fostered peace and economy
with more resoluteness than have their rivals, yet so far as
expenditures go the Liberal administration to-day is laying out more
money than was ever laid out by a Conservative government in time of
peace. The Liberals are seemingly more regardful of the interests of
Scotland, Wales, and Ireland, but the difference is not so large as is
sometimes supposed.
[Footnote 230: A recent and important work on party
history is F. H. O'Donnell, A History of the Irish
Parliamentary Party, 2 vols. (London, 1910). See
Earl of Crewe, Ireland and the Liberal Party, in
_New Liberal Review_, June, 1901; E. Porritt,
Ireland's Representation in Parliament, in _North
American Review_, Aug., 1905; J. E. Barker, The
Parliamentary Position of the Irish Party, in
_Nineteenth Century_, Feb., 1910; and P. Sheehan,
William O'Brien and the Irish Centre Party, in
_Fortnightly Review_, Dec, 1910.]
*170. Present-day Issues.*--Aside from the tariff question (and the
Conservatives are far from united upon the Chamberlain programme), the
principal issues which separate the two leading parties to-day are
those which arise from the Conservative attitude of friendliness
toward the House of Lords, the Established Church, the landowners, and
the publicans. Most of the political contests of recent years have
been waged upon questions pertaining to the constitution of the upper
chamber, denominational control of education, disestablishment, the
taxation of land, and the regulation of the liquor traffic, and in all
of these matters the Liberals have been insisting upon changes which
their opponents either disapprove entirely or desire to confine within
narrower bounds than those proposed. In the carrying through of the
Parliament Bill of 1911, providing a means by which measures may be
enacted into law over the protest of the Conservative majority in the
Lords, the Liberals achieved their greatest triumph since 1832. The
party stands committed to-day to a large number of far-reaching
projects, including the extension of social insurance, the revision of
the electoral system, the establishment of Home Rule, and, ultimately,
a reconstitution of the second chamber as promised in the preamble of
the Parliament Act. At the date of writing (October, 1912) there are
pending in Parliament a momentous measure for the granting of Home
Rule to Ireland[231] and another for the overhauling of the electoral
system,[232] an important bill for the disestablishment of the Church
in Wales, a measure virtually annulling the principle involved in the
Osborne Decision,[233] and several minor Government proposals. The
recent victories of the Liberals have been won with the aid of Labor
and Irish Nationalist votes, and the concessions which have been, (p. 164)
and are being, made to the interests of these auxiliary parties may be
expected to affect profoundly the course of legislation during the
continuance of the Liberal ascendancy.[234] There are, it may be said,
indications that the Liberals possess less strength throughout the
country than they exhibited during the critical years 1910-1911. At
thirty-eight by-elections contested by the Unionists since December,
1910, the Liberals have suffered a net loss of eight seats; and one of
the contests lost was that in Midlothian, long the constituency
represented by Gladstone, which returned, in September, 1912, a
Conservative member for the first time in thirty-eight years. There is
a tradition that when a Liberal government is defeated in Midlothian
the end of that government is not far distant. Prophecy in such
matters, however, is futile. Meanwhile the Unionists continue to be
divided upon the tariff, but in the main they are united in opposition
to the overturning of the ancient constitutional system, although they
no longer generally oppose a moderate reform of the House of Lords. In
a speech delivered at Leeds, November 16, 1911, the new parliamentary
leader of the party, Mr. Bonar Law,[235] enumerated as the immediate
Unionist purposes (1) to oppose the Government's Welsh Disestablishment
scheme, (2) to resist Home Rule, (3) to labor for tariff reform as the
only practicable means of solving the problem of unemployment, and (4)
to defend at all costs the unity of the Empire.
[Footnote 231: W. J. Laprade, The Present Status of
the Home Rule Question, in _American Political
Science Review_, Nov., 1912.]
[Footnote 232: See p. 90.]
[Footnote 233: See p. 127.]
[Footnote 234: H. Seton-Karr, The Radical Party and
Social Reform, in _Nineteenth Century_, Dec, 1910.]
[Footnote 235: Mr. Law was chosen Opposition leader
in the Commons November 13, 1911, upon the
unexpected retirement of Mr. Balfour from that
position.]
*171. Party Composition.*--Both of the great parties as constituted
to-day possess substantial strength in all portions of the kingdom
save Ireland, the Liberals being in the preponderance in Scotland,
Wales, and northern England, and the Conservatives in the south and
southwest. Within the Conservative ranks are found much the greater
portion of the people of title, wealth, and social position; nearly
all of the clergy of the Established Church, and some of the
Dissenters; a majority of the graduates of the universities[236] and
of members of the bar; most of the prosperous merchants,
manufacturers, and financiers; a majority of clerks and approximately
half of the tradesmen and shopkeepers; and a very considerable mass,
though not in these days half, of the workingmen. During the second
half of the nineteenth century the well-to-do and aristocratic (p. 165)
Whig element in the Liberal party was drawn over, in the main, to the
ranks of the Conservatives,[237] and to this day the Liberal party
contains but a small proportion of the rank and wealth of the kingdom.
It is pre-eminently an organization of the middle and popular classes.
[Footnote 236: At the election of 1906, 21,505 of
the 25,771 votes recorded in the university
constituencies were cast for Unionist candidates.
Since 1885 not a Liberal member has been returned
from any one of the universities.]
[Footnote 237: The defection was largest at the
time of the Liberal Unionist secession in 1886.]
*172. The Independent Labor Party.*--The Labor party of the present day
is the product largely of the twin agencies of socialism and
trade-unionism. As early as 1868 two persons sought seats in
Parliament as representatives of labor, and at the elections of 1874
there were no fewer than thirteen labor candidates, two of whom were
successful. Great industrial upheavals of succeeding years, notably
the strike of the London dock laborers in 1889, together with the rise
of new organizations composed of unskilled labor and pronouncedly
infected with socialism, created demand for the interference of the
state for the improvement of labor conditions and led eventually to
the organization of the Independent Labor Party in 1893. The aim of
this party as set forth in its constitution and rules is essentially
socialistic, namely, "the establishment of collective ownership and
control of the means of production, distribution, and exchange"; and
the working programme as originally announced includes (1) a universal
eight-hour day, (2) the abolition of over-time, piece-work, and the
employment of children under fourteen, (3) state provision for the
ill, the invalid, and the aged, (4) free, non-sectarian education of
all grades, (5) the extinction by taxation of unearned incomes, and
(6) universal disarmament. To this programme has been added woman's
suffrage, a second ballot in parliamentary elections, municipal
control of the liquor traffic and of hospitals, and a number of other
proposed innovations. At the elections of 1895 the party named
twenty-eight candidates, but no one of them was successful and Keir
Hardie, founder and president, lost the seat which he had occupied
since 1892. In 1900 it attained, in the re-election of Hardie, its
first parliamentary victory, and in 1906 when the tide of radicalism
was running high seven of its candidates and sixteen of its members
were elected to the House of Commons.
*173. The Labor Party To-day.*--The Independent Labor Party has been
throughout its history avowedly socialistic. It has sought and
obtained the adherence of thousands of laboring men, some of whom are,
and some of whom are not, socialists. But its character is too radical
to attract the mass of trade-union members and alongside it there has
grown up a larger and broader organization known simply as the Labor
Party. A trade-union congress held at London in September, 1899, (p. 166)
caused to be brought together an assemblage of representatives of all
co-operative, trade-union, socialist, and working-class organizations
which were willing to share in an effort to increase the representation
of labor in Parliament. This body held its first meeting at London in
February, 1900, and an organization was formed in which the ruling
forces were the politically inclined but non-socialistic trade-unions.
The object of the affiliation was asserted to be "to establish a
distinct labor group in Parliament, who shall have their own whips,
and agree upon their own policy, which must embrace a readiness to
co-operate with any party which for the time being may be engaged in
promoting legislation in the direct interest of labor." The growth of
the organization was rapid, and in 1906 the name which had been
employed, i.e., Labor Representation Committee, gave place to that of
Labor Party. At the elections of 1906 twenty-nine of the fifty-one
candidates of this party were chosen to the House of Commons. Taking
into account eleven members connected with miners' organizations and
fourteen others who were Independent Laborites or Liberal Laborites
("Lib.-Labs."), the parliament chosen in 1906 contained a labor
contingent aggregating fifty-four members. Since 1908 there has been
in progress a consolidation of the labor forces represented at
Westminster and, although at the elections of 1910 some seats were
lost, there are in the House of Commons to-day forty-two labor
representatives. The entire group is independent of, but friendly
toward, the Liberal Government; and since the Liberals stand in
constant need of Labor support, its power in legislation is altogether
disproportioned to its numbers.[238]
[Footnote 238: Two satisfactory volumes on the
political activities of labor in the United Kingdom
are C. Noel, The Labour Party, What it is, and What
it wants (London, 1906) and A. W. Humphrey, A
History of Labor Representation (London, 1912). See
E. Porritt, The British Socialist Labor Party, in
_Political Science Quarterly_, Sept., 1908, and The
British Labor Party in 1910, ibid., June, 1910; M.
Alfassa, Le parti ouvrier au parlement anglais, in
_Annales des Sciences Politiques_, Jan. 15, 1908;
H. W. Horwill, The Payment of Labor Representatives
in Parliament, in _Political Science Quarterly_,
June, 1910; J. K. Hardie, The Labor Movement, in
_Nineteenth Century_, Dec, 1906; and M. Hewlett,
The Labor Party of the Future, in _Fortnightly
Review_, Feb., 1910. Two books of value on English
socialism are J. E. Barker, British Socialism; an
Examination of its Doctrines, Policy, Aims, and
Practical Proposals (London, 1908) and H. O.
Arnold-Foster, English Socialism of To-day (London,
1908).]
CHAPTER VIII (p. 167)
JUSTICE AND LOCAL GOVERNMENT
I. ENGLISH LAW
The preponderating principle in the governmental system of Great
Britain to-day is the rule of law, which means, in effect, two things:
first, that no man may be deprived of liberty or property save on
account of a breach of the law proved in one of the ordinary courts
and, second, that no man stands above the law and that for every
violation of the law some reparation may be obtained, whatever the
station or character of the offender.[239] Upon these fundamental
guarantees has been erected through the centuries a fabric of personal
liberty which lends the British nation one of its principal
distinctions. The influence of English concepts and forms of law has
counted for much, furthermore, in the shaping of continental legal
systems; and outside of Europe, and especially in the English-speaking
countries of both hemispheres, the law of England has been, within
modern times, much the most universal and decisive formative agency in
legal development.
[Footnote 239: The only exception to this general
proposition is afforded by the fact that the
sovereign may not be sued or prosecuted in the
ordinary courts; but this immunity, as matters now
stand, is of no practical consequence.]
*174. Statute Law and Common Law.*--From at least the seventeenth
century law has been conceived of in England as exclusively the body
of rules, of whatsoever origin or nature, which can be enforced in the
regular courts. As it has taken form, it falls into two principal
categories. The one is statute law, the other is the Common Law.
Statute law consists of specific acts of Parliament, supplemented by
by-laws, rules, and regulations made under parliamentary sanction by
public officials and bodies. Chronologically, it begins in 1235, in
the reign of Henry III.; and inasmuch as it is amended and amplified
at substantially every parliamentary session, the bulk of it has come
to be enormous. The more comprehensive and fundamental part of English
law, however, is, and has always been, the Common Law. The Common Law
is a product of growth rather than of legislation. No definite time
can be assigned for its beginning, for at as early a period as (p. 168)
there are reports of judicial decisions the existence of a body of
law not emanating from law-makers was taken for granted. Long before
the close of the Middle Ages the essentials of the Common Law had
acquired not only unquestioned sanction but also thoroughgoing
coherence and uniformity. Despite the greatly increased legislative
activity of modern times, it still may be said that the rules of the
Common Law are fundamental, the laws of Parliament but incidental.
Statutes regularly assume the principles of the Common Law, and are
largely, as one writer has put it, "the addenda and errata" of this
law, incomplete and meaningless save in co-ordination with the legal
order by which they are supported and enveloped.[240] Thus no act of
Parliament enjoins in general terms that a man shall pay his debts, or
fulfill his contracts, or pay damages for trespass or slander.
Statutes define the _modes_ in accordance with which these obligations
shall be met, but the obligations themselves are derived entirely from
the Common Law. It is, however, a fixed rule that where statutes fall
in conflict with the Common Law it is the statutes that prevail. The
limitless competence of Parliament involves the power to set aside or
to modify at any time any Common Law principle or practice, while, on
the other hand, no development of the Common Law can repeal an act of
Parliament.
[Footnote 240: W. M. Geldart, Elements of English
Law (London and New York, 1912), 9. As this author
further remarks, "if all the statutes of the realm
were repealed, we should have a system of law,
though, it may be, an unworkable one; if we could
imagine the Common Law swept away and the Statute
Law preserved, we should have only disjointed rules
torn from their context, and no provision at all
for many of the most important relations of life."]
*175. The Form of the Law.*--Statute law takes invariably, of course,
written form. The acts of Parliament are to be found in imposing
printed collections, to which a substantial volume is added every
year. Of the Common Law, however, there is no single or authoritative
text. The Common Law grew up originally as unwritten law, and in a
large measure it preserves still that character. The sources, however,
from which knowledge of it must be drawn are mainly in writing or in
print. The most important are (1) the decisions of the judges of the
English courts (reported anonymously in Year Books from the reign of
Edward I. to that of Henry VIII., and thereafter by lawyers reporting
under their own names) which from at least the sixteenth century
acquired weight as precedents and are nowadays all but absolutely
decisive in analogous cases; (2) the decisions of courts of other
countries in which there is administered a law derived from the English,
such decisions being, of course, not binding, yet highly influential;
and (3) certain "books of authority" written by learned lawyers (p. 169)
of earlier times, such as Coke's seventeenth-century Commentary on
Littleton's Tenures and Foster's eighteenth-century treatise on Crown
Law. Some small branches of the Common Law have, indeed, been codified
in the form of statutes, among them the law of partnership, that of
sales, and that of bills of exchange.
*176. The Rules of Equity.*--There is one other body of English law
which requires mention, namely, the rules of equity. These rules had
their origin in the administration of an extraordinary sort of justice
by the king's chancellor in mediæval times, a practice which arose
from the sheer necessity of redressing grievances occasioned by the
omissions or commissions of the regularly constituted tribunals.
Interference on the part of the chancellor, which started as a matter
of special favor in unusual cases, became gradually an established
practice, and, contrary to the original intention, there was brought
into existence a body of definite and separate rules of equity which
by the seventeenth century acquired systematic character, and likewise
a court of chancery in which these rules were at all times
enforceable. Reports of equity cases became continuous, and lawyers of
eminence began to specialize in equity procedure. The rules of equity
thus developed partake largely of the nature of the Common Law, of
which, indeed, they are to be considered, in effect, a supplement or
appendix; and practically, though not theoretically, they prevail as
against any provisions of the ordinary Common Law with which they may
be inconsistent. Their general purpose is to afford means of
safeguarding rights which exist in morals, but which the Common Law
courts cannot or will not protect. Until 1875 they were administered
by tribunals separate from the ordinary courts. Nowadays they are not
separately administered, but they preserve, none the less, their
highly distinctive character.[241]
[Footnote 241: Two monumental works dealing with
the earlier portions of English legal development
are F. Pollock and F. W. Maitland, History of
English Law to the Time of Edward I., 2 vols.
(Cambridge, 1898) and W. S. Holdsworth, History of
English Law, 3 vols. (London, 1903-1909). The first
volume of Holdsworth contains a history of English
courts from the Norman Conquest to the present day;
the other volumes deal exhaustively with the growth
of the law itself. Books of value include H.
Brunner, The Sources of the Law of England, trans.
by W. Hastie (Edinburgh, 1888); R. K. Wilson,
History of Modern English Law (London, 1875). J. F.
Stephen, History of the Criminal Law of England, 3
vols. (London, 1883); Ibid., Commentaries on the
Laws of England, 4 vols. (London, 1908); O. W.
Holmes, The Common Law (Boston, 1881); and H. Broom
and E. A. Hadley, Commentaries on the Laws of
England, 4 vols. (London, 1869). A recent treatise
by a German authority is J. Hatschek, Englisches
Staatsrecht mit Berücksichtigung der für Schottland
und Irland geltenden Sonderheiten (Tübingen, 1905).
An incisive work is A. V. Dicey, Law and Public
Opinion in England in the Nineteenth Century
(London, 1905). A good single volume history of the
law is E. Jenks, Short History of the English Law
(Boston, 1912). A satisfactory introduction to both
the history and the character of the law is W. M.
Geldart, Elements of English Law (London and New
York, 1912). Another is F. W. Maitland, Outlines of
English Legal History, in Collected Papers
(Cambridge, 1911), II., 417-496. Other excellent
introductory treatises are Maitland, Lectures on
Equity (Cambridge, 1909), and C. S. Kenny, Outlines
of Criminal Law (New York, 1907). Maitland's
article on English Law in the Encyclopædia
Britannica, IX., 600-607, is valuable for its
brevity and its clearness. On the English
conception of law and the effects thereof see
Lowell, Government of England, II., Chaps. 61-62.
The character and forms of the statute law are
sketched to advantage in C. P. Ilbert, Legislative
Methods and Forms (Oxford, 1901), 1-76.]
II. THE INFERIOR COURTS (p. 170)
*177. The Hierarchy of Tribunals.*--In the majority of continental
countries a distinction is drawn between ordinary law and what is
known as administrative law, i.e., the body of rules governing the
conduct of public officials and, more particularly, the adjudication
of disputes between these officials, in their public capacity, and
private citizens. This differentiation of law entails customarily the
maintenance of administrative courts, separate from the ordinary
tribunals, in which administrative cases are heard and decided. In
Great Britain, however, there is no such thing as administrative law,
and in consequence there is no need of administrative courts. Public
officials, from the ministers downwards, are amenable to the processes
of the ordinary tribunals precisely as are all other classes of
people. Simpler, therefore, at this point than the continental systems
of courts, the English system is none the less one of the most
elaborate and complicated in the world. There are features of it which
in origin are mediæval, others which owe their existence to the
reforming enterprises of the earlier nineteenth century, and still
others which have a history covering hardly more than a generation.
Reduced to its simplest aspect, the system comprises, at the bottom,
three principal varieties of tribunals--the county courts for civil
cases and the courts of the justices of the peace and the borough
criminal courts for criminal cases--and, at the top, a Supreme Court
of Judicature in two branches, i.e., the High Court of Justice and
the Court of Appeal, in addition to the Judicial Committee of the
Privy Council, the House of Lords, and a number of other occasional or
special central tribunals.[242]
[Footnote 242: It should be noted that the judicial
system herein to be described is that of England
alone. The systems existing in Scotland and Ireland
are at many points unlike it. In Scotland the
distinction between law and equity is virtually
unknown and the Common Law of England does not
prevail. In Ireland, on the other hand, the Common
Law is operative and judicial organization and
procedure are roughly similar to the English.]
*178. The County Courts.*--The county courts of the present day (p. 171)
were established under provision of the County Court Act of 1846, and
it is to be observed that they are in no manner connected with the
historic courts of the shire or county. They are known as county
courts, but in point of fact the area of their jurisdiction is a
district which not only is smaller than the county but bears no
relation to it. There are in England at present some five hundred of
these districts, the object of the arrangement being to bring the
agencies of justice close to the people and so to reduce the costs and
delays incident to litigation.[243] The volume of business to be
transacted in a district is insufficient to occupy a judge during any
considerable portion of his working time, and the districts are
grouped in some fifty circuits, to each of which is assigned by the
Lord Chancellor one judge who holds court in each district of his
circuit approximately once a month. The judge sits almost invariably
without a jury, although unless the amount involved is very small
either party to a suit is privileged to request the employment of a
jury of eight persons. The jurisdiction of the county courts has been
enlarged a number of times, notably by a statute of 1905, but it is
still not as extended as many people believe it should be. In a few
matters, such as certain claims of workingmen for injuries, this
jurisdiction is exclusive, but at most points it is concurrent with
the jurisdiction of the High Court of Justice, and Common Law, equity,
bankruptcy, probate, and admiralty cases may be brought, at the
discretion of the plaintiff, in either tribunal, subject to the
restriction that the county court may not assume jurisdiction when the
value in dispute exceeds a certain amount, commonly £100 in Common Law
cases and £500 in cases of equity. On all points of law appeal lies to
the High Court; but appeals are rare.[244]
[Footnote 243: Prior to 1846 justice in civil cases
could be obtained only at Westminster, or, in any
event, by means of an action instituted at
Westminster and tried on circuit.]
[Footnote 244: A few inferior civil courts of
special character have survived from earlier days,
but they are anomalous and do not call for comment.
It may be added that the judges of the county
courts receive a salary of £1,500.]
*179. The Justices of the Peace.*--The county courts exist for the
adjudication of civil cases exclusively. The corresponding local
tribunals for the administration of criminal justice are the courts of
the justices of the peace, and, in certain towns, other courts to
which the powers of the justices have been transferred. The county is
normally the area of the jurisdiction of the justices, and with a few
exceptions every county has a separate "commission of the peace,"[245]
consisting of all the judges of the Supreme Court of Judicature, all
members of the Privy Council, and such other persons as the crown, (p. 172)
acting through the Lord Chancellor, may designate as justices on
recommendation of the Lord Lieutenant or independently.[246] The Lord
Lieutenant is chief of the justices and keeper of the county records.
In many counties the list of justices contains three or four hundred
names (in Lancashire eight hundred), but it is to be observed that
some of the appointees do not take the oaths required to qualify them
for magisterial service and that the actual work is performed in each
county by a comparatively small number of persons. The justices serve
without pay, but the office carries much local distinction and
appointments are widely coveted. Until 1906 a property qualification[247]
was required of all save certain classes of appointees whose station
was deemed a sufficient guarantee of fitness, but in the year
mentioned the Liberals brought about its abolition. The justices are
drawn still, in large part, from the class of country gentlemen. They
are removable by the crown, but tenure is almost invariably for life.
[Footnote 245: The three ridings of Yorkshire and
the three divisions of Lincolnshire have separate
commissions, and there are a few "liberties" or
excepted jurisdictions.]
[Footnote 246: A royal commission created to
consider the mode of appointment reported in 1910;
but no important modification of the existing
practice was suggested.]
[Footnote 247: Ownership of land, or occupation of
a house, worth £100 a year.]
*180. Powers of the Justices.*--At one time the functions of the
justices of the peace were administrative as well as judicial, but by
the Local Government Act of 1888 functions of an administrative nature
were transferred all but completely to the newly created county
councils,[248] and the justices to-day are judicial officials almost
exclusively. Their judicial labors may be performed under three
conditions, namely, by justices acting singly, by two or more justices
meeting in petty sessions, and by the whole body of justices of the
county assembled in quarter sessions. The powers of a justice acting
alone are those largely of the ordinary police magistrate. He may
order the arrest of offenders; he conducts preliminary examinations
and releases the accused or commits them for indictment by a grand
jury; and he hears cases involving unimportant breaches of the law and
imposes small penalties. The justices sitting by twos in petty
sessions exercise an extensive summary jurisdiction over offenses
specified minutely by the law.[249] They sit without a jury, but
appeal can be carried, as a rule, to the justices at quarter sessions
and even, on questions of law, to the High Court. Four times a year
all of the justices of the county, or such of them as care to be
present, meet in quarter sessions. The jurisdiction here exercised is
in part appellate and in part original. The court tries, without a
jury, all cases appealed from petty sessions, and it tries, with a (p. 173)
jury, and after indictment by a grand jury, all cases involving
offenses not of a minor nature, save that the most serious offenses,
punishable in most instances with death or life imprisonment, are
reserved for trial in the assizes, i.e., by judges from Westminster
travelling on circuit. By means of the writs of _mandamus_ and
_certiorari_ the actual proceedings of quarter sessions are controlled
not infrequently by the superior courts.[250]
[Footnote 248: See p. 183.]
[Footnote 249: Chiefly by the Summary Jurisdiction
Act of 1879.]
[Footnote 250: Medley, Manual of English
Constitutional History, 392-400. An excellent
monograph is C. A. Beard, The Office of Justice of
the Peace in England, in _Columbia University
Studies in History, Economics, and Public Law_,
XX., No. 1. (New York, 1904).]
*181. Special Borough Arrangements.*--The smaller boroughs, having no
separate commissions of the peace, are for purposes of criminal
justice merely portions of the counties in which they lie. In many of
the larger ones, however, there have been set up judicial arrangements
in consequence of which the borough is withdrawn from the county
jurisdiction. Some have a commission of the peace but no quarter
sessions. In them the justices can exercise, in addition to the usual
functions of police magistrate, only a summary jurisdiction. Others
have a court of quarter sessions; though it is to be observed that
where this tribunal exists its work is performed actually by the
recorder, a barrister appointed by the crown and paid by the borough.
III. THE HIGHER COURTS
*182. Supreme Court of Judicature: the High Court.*--The higher
tribunals within the judicial system were once numerous and extremely
complex. As reconstituted, however, by the great Judicature Act of
1873, which, together with an Amending Act, took effect near the close
of 1875, they have acquired a considerable degree of orderliness and
even of simplicity. The measure of 1873 abolished the appellate
jurisdiction of the House of Lords, but the Amending Act three years
later rescinded this modification, and, as has been explained
elsewhere, the House of Lords is still a court of very great
importance.[251] Aside from the Lords, however, the higher courts of
the realm--the Chancery, the three great Common Law courts, the
Admiralty, Probate, and Divorce courts, and the intermediate courts of
appeal from these tribunals of first instance--were consolidated by
the legislation of 1873-1875 to form one grand organization, the
Supreme Court of Judicature, which was thereupon cut into two
branches, the High Court of Justice and the Court of Appeal. The High
Court of Justice was assigned a general jurisdiction, civil and
criminal, as a court of first instance and also as a court of (p. 174)
appeal from inferior courts. Its jurisdiction represents essentially
the aggregate of jurisdictions of the tribunals which it superseded,
and the various divisions into which it falls perpetuate in a measure
the names and functions of those tribunals. There were originally five
of these divisions. To-day there are three: Chancery, King's Bench
(with which the Common Pleas and Exchequer divisions were united by
order in council of December 16, 1880), and Probate, Divorce, and
Admiralty. Any High Court judge may sit in a tribunal belonging to any
one of these divisions. The Lord Chancellor presides over the Chancery
division, the Chief Justice over the King's Bench. The number of
judges is variable. The Chancery division contains at present six, the
King's Bench fifteen, and the Probate, Divorce, and Admiralty division
but two. All save the Chancellor (who is a cabinet official, owing his
position to selection by the premier) are appointed by the crown upon
advice of the Chancellor, and all hold office during good behavior but
may be dismissed on addresses of the two houses of Parliament. The
judges of the High Court sit both singly and in groups. The ordinary
trial of cases is conducted, under a variety of stipulated conditions,
by a single judge, either at Westminster or on circuit. The judges who
go on circuit are taken as a rule from the King's Bench division, and
when both civil and criminal cases are to be adjudicated they travel
ordinarily in pairs, one attending to the civil and the other to the
criminal business. Judges sit also, without juries, in divisional
courts, composed of two or more members, to hear appeals from inferior
tribunals, motions for new trials, and applications for writs. The
High Court never sits as a single body, nor does even the Chancery or
the King's Bench division.
[Footnote 251: See p. 130.]
*183. Supreme Court of Judicature: the Court of Appeals.*--The second
branch of the Supreme Court of Judicature is the Court of Appeal. This
tribunal is composed of the Master of the Rolls and five Lords
Justices of Appeal, all appointed by the crown upon the advice of the
Lord Chancellor. The presidents of the three divisions of the High
Court are also members, but they rarely participate in the work of the
court; and since 1891 men who have occupied the office of Chancellor
are _ex-officio_ members, although they sit only if they choose to
comply with a request of the Chancellor that they do so. The court
performs its functions regularly in two sections of three members
each, although for some matters the presence of but two judges is
required. Sittings are held only in London. The jurisdiction of the
court is exclusively appellate, and its business consists very largely
in the hearing of appeals in civil cases carried from the High Court.
Prior to 1907 there was no general right of appeal in criminal cases.
By the Criminal Appeal Act of that year, however, there was (p. 175)
established a Court of Criminal Appeal to which any person convicted
may appeal on a question of law and, under stipulated conditions, on a
question of fact also. This tribunal is composed of the Lord Chief
Justice and eight judges of the King's Bench appointed by him with the
assent of the Lord Chancellor. It, therefore, has no immediate
connection with the Court of Appeal.
*184. The House of Lords and the Judicial Committee.*--Of superior
tribunals there are two others of large importance, the House of Lords
and the Judicial Committee of the Privy Council. The functions of the
House of Lords as a court of last resort have been described
elsewhere.[252] By the act of 1876 the appellate jurisdiction of the
Lords, withdrawn by the act of 1873, was restored and provision was
made for the strengthening of the legal element in the chamber by the
creation of life peers to be known as Lords of Appeal in Ordinary.
Under existing law appeal lies to the Lords from any order or judgment
of the Court of Appeal in England and of all Scottish and Irish courts
from which appeals might, prior to 1876, be carried. The Judicial
Committee of the Privy Council was constituted in 1833 to assume
jurisdiction over a variety of cases formerly heard and decided
nominally by the Council as a whole. The composition of the body has
been changed a number of times. The members at present comprise the
Lords of Appeal in Ordinary, such members of the Privy Council as hold
or have held high judicial office, two other Privy Councillors
designated at pleasure by the crown, and, as a rule, one or two paid
members who have held judicial office in India or the colonies. The
membership is thus large, but only four members need be present at the
hearing of a case, and it may be pointed out that the working members
of the Committee are predominantly the four "law lords" who comprise
also the working judicial element in the House of Lords. It is the
business of the Judicial Committee to consider and determine any
matter that may be referred to it by the crown, but, in the main, to
hear final appeals from the ecclesiastical courts, from courts in the
Channel Islands and the Isle of Man, from the courts of the colonies
and dependencies, and from English courts established by treaty in
foreign countries. Its decisions are tendered under the guise of
"advice to the crown" and, unlike the decisions of the Lords, they
must bear the appearance, at least of unanimity.[253]
[Footnote 252: See p. 130.]
[Footnote 253: For brief descriptions of the
English judicial system see Lowell, Government of
England, II., Chaps. 59-60; Anson, Law and Custom
of the Constitution, II., Pt. 1., Chap. 10;
Marriott, English Political Institutions, Chap. 14;
and Macy, The English Constitution, Chap. 7. As is
stated elsewhere (p. 169), the first volume of
Holdsworth's History of English Law contains an
excellent history of the English courts. A useful
handbook, though much in need of revision, is F. W.
Maitland, Justice and Police (London, 1885).
Perhaps the best brief account of the development
of the English judicial system is A. T. Carter,
History of English Legal Institutions (4th ed.,
London, 1910). Mention may be made of Maitland,
Constitutional History of England, 462-484, and
Medley, Manual of English Constitutional History,
318-383. Two valuable works by foreign writers are
C. de Franqueville, Le système judiciaire de la
Grande-Bretagne (Paris, 1898), and H. B. Gerland,
Die englische Gerichtsverfassung; eine
systematische Darstellung, 2 vols. (Leipzig, 1910).
On the Judicature Acts of 1873-1876 see Holdsworth,
I., 402-417.]
IV. LOCAL GOVERNMENT TO THE MUNICIPAL CORPORATIONS ACT, 1835 (p. 176)
*185. Periods in Local Governmental History.*--No description of a
governmental system can be adequate which does not take into account
the agencies and modes by which the powers of government are brought
close to the people, as well as those by which the people in greater
or lesser measure regulate locally their own public affairs. More
especially is this true in the instance of a government such as the
English in which local self-control is a fundamental rather than an
incidental fact. The history of local institutions in England covers
an enormous stretch of time, as well as a remarkable breadth of public
organization and activity, and by no means its least important phases
are those which have appeared in most recent times. Speaking broadly,
it may be said to fall into four very unequal periods. The first,
extending from the settlement of the Saxons to the Norman Conquest,
was marked by the establishment of the distinctive English units of
administration--shire, hundred, and township--and by the planting of
the principle of broadly popular local control. The second, extending
from the Conquest to the fourteenth century, was characterized by a
general increase of centralization and a corresponding decrease of
local autonomy. The third, extending from the fourteenth century to
the adoption of the Local Government Act of 1888, was pre-eminently a
period of aristocratic control of local affairs, of government by the
same squirearchy which prior to 1832, if not 1867, was accustomed to
dominate Parliament. The last period, that from 1888 to the present
time, has been notable in a special degree for the democratization and
systematization of local governing arrangements which has taken place
within it.
*186. County and Parish before 1832.*--The transformation by which the
institutions of local government have been brought to their present
status paralleled, and in a large measure sprang from, the
revolutionizing of Parliament during the course of the nineteenth
century. Two periods of change are especially noteworthy, the one
following closely the Reform Act of 1832 and culminating in the
adoption of the Municipal Corporations Act of 1835, the other following
similarly the Representation of the People Act of 1884 and (p. 177)
attaining fruition in the Local Government Act of 1888 and the
District and Parish Councils Act of 1894. At the opening of the
century rural administration was carried on principally in the shire
or county and the civil or "poor law" parish; urban administration in
the corporate towns, or municipal boroughs. The counties were
fifty-two in number. Most of them were of Saxon origin, although some
were the product of absorptions or delimitations which took place in
later centuries. The last to be added were those of Wales. Altered
often in respect to their precise functions, the counties retained
from first to last a large measure of importance, and at the beginning
of the nineteenth century they were still the principal areas of local
governing activity. From Saxon times to the fourteenth century the
dominating figure in county administration was the sheriff, but in the
reign of Edward III. justices of the peace were created into whose
hands during the ensuing five hundred years substantially all
administrative and judicial affairs of the county were drawn. These
dignitaries were appointed by the crown, chiefly from the ranks of the
smaller landowners and rural clergy, and as a rule they comprised in
practice a petty oligarchy whose conduct of public business was
inspired by aristocratic, far more than by democratic, ideals.
The principal division of the county was the civil parish, usually but
not always identical with the ecclesiastical parish. The governing
bodies of the parish were two--the vestry (either open to all
rate-payers or composed of elected representatives), which
administered general affairs, and the overseers of the poor who under
the Elizabethan statute of 1601 were empowered to find employment for
the able-bodied poor, to provide other forms of relief as should be
required, and to levy a local rate to meet the costs of their work.
Since the passage of Gilbert's Act of 1782 the parishes had been
arranged in groups for poor-law purposes, and boards of guardians
appointed by the justices of the peace had come to be the real
authorities in the administration of poor relief, as well as in most
other matters. The abuses arising from poor-law administration were
not infrequently appalling.
*187. The Borough before 1832.*--The corporate towns in England and
Wales numbered, in 1832, 246. They comprised population centers which,
on the basis of charters granted by the crown, had become distinct
areas of local government. They did not, however, stand entirely apart
from the county and parish organization. On the contrary, except in so
far as they were exempted specifically by the terms of their charters,
they were subject to the authority of the justices of the peace and of
the governing agencies of the parishes within whose jurisdiction they
were situated. Their style of government was determined largely (p. 178)
by the provisions of their charters, and since these instruments
exhibited a marked degree of variety, uniformity of organization was
entirely lacking. As a rule, however, the borough was a close
corporation, and the burgesses, or "freemen," in whom were vested
peculiar trading and fiscal rights and an absolute monopoly of the
powers of government, comprised but a small fraction of the general
body of citizens. The governing authority of the borough was the town
council, whose members were either elected by the freemen or recruited
by co-optation. Government was regularly oligarchical and
irresponsible; sometimes it was inefficient and corrupt.
*188. The New Poor Law (1834) and the Municipal Corporations Act
(1835).*--The reforms accomplished since 1832 within the domain of
parliamentary organization and procedure have been hardly more
remarkable than those wrought during the same period within the field
of local government. It must suffice to mention but the principal
steps by which the local governing system has been brought to its
present high degree of democracy and effectiveness. Among the subjects
to which the first reformed parliament addressed its attention was the
direful condition into which had fallen the relief of the poor, and
the initial stage of local government regeneration was marked by the
adoption of the Poor Law Amendment Act of 1834, abolishing outdoor
relief for the able-bodied, providing for the regrouping of parishes
in "poor-law unions," and establishing a national Poor Law Commission.
The administration of relief within the unions was intrusted all but
exclusively to newly created boards of guardians, composed in part of
the justices of the peace sitting _ex-officio_ and in part of members
specially elected by the rate-payers. The arrangements set up by the
act proved very successful and they survive almost intact at the
present day. The second notable change was that effected by the
Municipal Corporations Act of 1835. The enfranchising of large numbers
of the townspeople in 1832 led inevitably to demand for the
democratization of the aristocratic borough governments, and within
three years the demand was met in a statute so sweeping as to justify
the assertion that with its enactment the modern history of the
English town begins.[254] Sixty-nine of the old corporate towns, by
reason of their unimportance, were now deprived of the character of
boroughs. The city of London was not touched, but elsewhere all
municipal corporations were broadened so as to personify legally the
entire population of the borough. The time-honored municipal oligarchy
was broken down by the giving of the franchise to all rate-payers, the
town councils were made wholly elective, trading monopolies and
privileges were swept away, and a variety of other reforms were (p. 179)
introduced. With the adoption of this important measure, however, the
work of reform came for a time to a halt, and the widely assailed
system of county government through nominated magistrates in quarter
sessions survived until 1888.[255]
[Footnote 254: Lowell, Government of England, II.,
144.]
[Footnote 255: The history of the local
institutions of England prior to 1835 is related in
detail in two comprehensive works: H. A. Merewether
and A. J. Stephens, History of the Boroughs and
Municipal Corporations of the United Kingdom, 3
vols. (London, 1835) and S. and B. Webb, English
Local Government from the Revolution to the
Municipal Corporations Act, 3 vols. (London and New
York, 1904-1908). The first of these was written to
promote the cause of municipal reform, but is
temperate and reliable. The second is especially
exhaustive, volume 3 containing probably the best
existing treatment of the history of borough
government. For a brief sketch see May and Holland,
Constitutional History of England, II., Chap. 15.]
V. LOCAL GOVERNMENT REFORM, 1835-1912
*189. Mid-Century Confusion of Areas and Jurisdictions.*--Throughout the
earlier and middle portions of the Victorian period legislation
respecting local government was abundant, but it was special rather
than general. It pertained principally to the care of highways and
burial grounds, the laying out and organization of districts for the
promotion of sanitation, the establishment of "improvement act"
districts, and, notably, the erection and administration of school
districts under the Elementary Education Act of 1870. With each
successive measure the confusion of jurisdictions and agencies was
increased. The prevailing policy was to provide for each fresh need as
it arose a special machinery designed to meet that particular need,
and arrangements effected were seldom or never uniform throughout the
country, nor did they bear any logical relation to arrangements
already existing for other purposes. By 1871 the country, as Lowell
puts it, was divided into counties, unions, and parishes, and spotted
over with boroughs and with highway, burial, sanitary, improvement
act, school, and other districts, and of these areas none save the
parishes and unions bore any necessary relation to any of the
rest.[256] In the effort to adapt the framework of the administrative
system to the fast changing conditions of a rapidly growing population
Parliament piled act upon act, the result being a sheer jungle of
interlacing jurisdictions alike baffling to the student and subversive
of orderly and economical administration. It is computed that in 1883
there were in England and Wales no fewer than 27,069 independent local
authorities,[257] and that the rate-payer was taxed by eighteen
different kinds of rates.
[Footnote 256: Government of England, II., 135.]
[Footnote 257: These included the 52 counties, the
239 municipal boroughs, the 70 improvement act
districts, the 1,006 urban sanitary districts, the
577 rural sanitary districts, the 2,051 school
board districts, the 424 highway districts, the 853
burial board districts, the 649 poor-law unions,
the 14,946 poor-law parishes, the 5,064 highway
parishes not included in urban or highway
districts, and the 1,300 ecclesiastical parishes.
For the situation in 1888 see G. L. Gomme, Lectures
on the Principles of Local Government (London,
1897), 12-13.]
*190. Local Government Act of 1888 and District and Parish (p. 180)
Councils Act of 1894.*--Soon after the passage of the Elementary
Education Act of 1870 reform began to be attempted in the direction
both of concentration of local governing authority and the
readjustment and simplification of local governing areas. In 1871 the
Poor Law Board (which succeeded the Poor Law Commission in 1847) was
converted into the Local Government Board, with the purpose of
concentrating in a single department the supervision of the laws
relating to public health, the relief of the poor, and local
government; and when, in 1872, the entire country was divided into
urban and rural sanitary districts, the work was done deliberately in
such a fashion as to involve the least possible addition to the
existing complexities of the administrative system.[258] The two
measures, however, by which, in the main, order was brought out of
confusion were the Local Government Act of 1888 and the District and
Parish Councils Act of 1894. The first of these, referred to commonly
as the County Councils Act, was the sequel of the Representation of
the People Act of 1884 and was definitely intended to invest the newly
enfranchised rural population with a larger control of county affairs.
The act created sixty-two administrative counties (some coterminous
with pre-existing counties, others comprising subdivisions of them)
and some three score "county boroughs," comprising towns of more than
50,000 inhabitants.[259] In each county and county borough there was
set up a council, at least two-thirds of whose members were elective,
and to this council was transferred the administrative functions of
the justices of the peace, leaving to those dignitaries of the old
régime little authority save of a judicial character. The
democratization of rural government accomplished by the Conservative
ministry of Lord Salisbury in 1888 was supplemented by the provisions
of the District and Parish Councils Act, carried by a Liberal ministry
in 1894.[260] This measure provided (1) that every county should be
divided into districts, urban and rural, and every district into (p. 181)
parishes, and (2) that in every district and in every rural parish
with more than three hundred inhabitants there should be an elected
council, while in the smallest parishes there should be a primary
assembly of all persons whose names appear on the local government and
parliamentary register. To the parish councils and assemblies were
transferred all of the civil functions of the vestries, leaving to
those bodies the control of ecclesiastical matters only, while to the
district councils, whether rural or urban, were committed control of
sanitary affairs and highways.
[Footnote 258: The arrangements effected at this
time were perpetuated in the great Public Health
Act of 1875. Lowell, Government of England II.,
137.]
[Footnote 259: The number of county boroughs had
been increased by 1910 to seventy-four. See p.
188.]
[Footnote 260: It should be observed that the
original intent in 1888 was to deal with district
as well as county organization. In its final form
the bill carried in that year had to do only,
however, with the counties.]
The effect of the acts of 1888 and 1894 was two-fold. In the first
place, they put the administrative affairs of the rural portions of
the country in the hands almost exclusively of popularly elected
bodies. In the second place, their adoption afforded opportunity for
the immediate or gradual abolition of all local governing authorities
except the county, municipal, district, and parish councils, the
boards of guardians, and the school boards, and thus they contributed
vastly to that gradual simplification of the local governing system
which is one of the most satisfactory developments of recent years.
The act of 1894 alone abolished some 8,000 authorities. Since 1894 the
consolidation of authorities and the elimination of areas have been
carried yet further, the most notable step being the abolition of the
school boards by the Education Act of 1902 and the transfer of the
functions of these bodies to the councils of the counties, boroughs,
and districts. Both the majority and minority reports of the recent
Poor Law Commission, submitted in 1909, recommend the abolition of the
parish union area; but no action has been taken as yet by Parliament
upon this subject.[261]
[Footnote 261: The history of local government
changes since 1870 is well sketched in May and
Holland, Constitutional History of England, III.,
Chap. 5.]
VI. LOCAL AND CENTRAL GOVERNMENT
The system of local government as it operates at the present time is
by no means free from anomalies, but it exhibits, none the less, an
orderliness and a simplicity which were altogether lacking a
generation ago. The variety of areas of administration has been
lessened, the number of officials has been reduced and their relations
have been simplified, the guiding hand of the central authorities in
local affairs has been strengthened. Stated briefly, the situation is
as follows: the entire kingdom is divided into counties and county
boroughs; the counties are subdivided into districts, rural and urban,
and boroughs; these are subdivided further into parishes, which are
regrouped in poor-law unions; while the city of London is organized
after a fashion peculiar to itself. In order to make clear the (p. 182)
essentials of the system it will be necessary to allude but briefly to
the connection which obtains between the local and central
administrative agencies, and to point out the principal features of
each of the governmental units named.
*191. The Five Central Departments.*--Throughout most periods of its
history English local government has involved a smaller amount of
interference and of direction on the part of the central authorities
than have the local governments of the various continental nations.
Even to-day the general government is not present in county or borough
in any such sense as that in which the French government, in the
person of the prefect, is present in the department, or the Prussian,
through the agency of the "administration," is present in the
district. A noteworthy aspect of English administrative reform during
the past three-quarters of a century has been, nevertheless, a large
increase of centralized control, if not of technical centralization,
in relation to poor-relief, education, finance, and the other varied
functions of the local governing agencies. There are to-day five
ministerial departments which exercise in greater or lesser measure
this kind of control. One, the Home Office, has special surveillance
of police and of factory inspection. A second, the Board of Education,
directs and supervises all educational agencies which are aided by
public funds. A third, the Board of Agriculture, supervises the
enforcement of laws relating to markets and to diseases of animals. A
fourth, the Board of Trade, investigates and approves enterprises
relating to the supply of water, gas, and electricity, and to other
forms of "municipal trading." Most important of all, the Local
Government Board directs in all that pertains to the execution of the
poor laws and the activities of the local health authorities, oversees
the financial operations of the local bodies, and fulfills a variety
of other supervisory functions too extended to be enumerated. The
powers of these departments in relation to local affairs are exercised
in a number of ways, but chiefly through the promulgation of orders
and regulations, the giving or withholding of assent to proposed
measures of the local bodies, and the giving of expert advice and
guidance. It need hardly be added that the powers and functions of the
local authorities are subject at all times to control by parliamentary
legislation.[262]
[Footnote 262: On the relations between the central
and local agencies of government see Lowell,
Government of England, II., Chap. 46; J. Redlich
and F. W. Hirst, Local Government in England, 2
vols. (London, 1903), II., Pt. 6; Traill, Central
Government, Chap. 11; and M. R. Maltbie, English
Local Government of To-day; a Study of the
Relations of Central and Local Government (New
York, 1897).]
VII. LOCAL GOVERNMENT TO-DAY: RURAL (p. 183)
*192. The Administrative County.*--Since the reform of 1888 there have
been in England counties of two distinct kinds. There are, in the
first place, the historic counties, fifty-two in number, which survive
as areas for parliamentary elections and, in some instances, for the
organization of the militia and the administration of justice. Their
officials--the lord lieutenant, the sheriff, and the justices of the
peace--are appointed by the crown. Much more important, however, are
the administrative counties, sixty-two in number,[263] created and
regulated by the local government legislation of 1888 and 1894. Six of
these administrative counties coincide geographically with ancient
counties, while most of the remaining ones represent no wide variation
from the historic areas upon which they are based. Yorkshire and
Lincolnshire were divided into three of the new counties each, and
eight others were divided into two. The administrative counties do not
include the seventy-four county boroughs which are located geographically
within them, but they do include all non-county boroughs and urban
districts, so that they are by no means altogether rural. They are
extremely unequal in size and population, the smallest being Rutland
with 19,709 inhabitants and the largest Lancashire with 1,827,436.
[Footnote 263: Including the county of London. See
p. 190.]
*193. The County Council.*--The governing authority in each
administrative county is the county council, a body composed of (1)
councillors elected for a term of three years in single-member
electoral divisions under franchise qualifications identical with
those prevailing in the boroughs, save that plural voting is not
permitted, and (2) aldermen chosen for six years by the popularly
elected councillors. The number of aldermen is regularly one-third
that of the other councillors, and half of the quota retire
triennially. Between the two classes of members there is no
distinction of power or function. The council elects a chairman and
vice-chairman who hold office one year but are commonly re-elected.
Other officers are the clerk, the chief constable, the treasurer, the
surveyor, the public analyst, inspectors of various kinds, educational
officials, and coroners. The tenure of these is not affected by
changes in the composition of the council. Legally, the chairman is
only a presiding official, though in practice his influence may be,
and not infrequently is, greater than that of any other member. In the
election of councillors party feeling seldom displays itself, and (p. 184)
elections are very commonly uncontested.[264] Members are drawn mainly
from the landowners, large farmers, and professional men, though
representatives of the lower middle and laboring classes occasionally
appear. The councils vary greatly in size, but the average membership
is approximately seventy-five. The bringing together of so many men at
frequent intervals is not easily accomplished and the bodies do not
assemble ordinarily more than the four times a year prescribed by law.
The mass of business devolving upon them is transacted largely through
the agency of committees. Of these, some, as the committees on
finance, education, and asylums, are required by law; others are
established as occasion arises.
[Footnote 264: At the elections of 1901 there were
contests in but 433 of 3,349 divisions. P. Ashley,
Local and Central Government; a Comparative Study
of England, France, Prussia, and the United States
(London, 1906), 25, note.]
The powers and duties of the council are many and varied. In the main,
though not wholly, they represent the former administrative functions
of the justices of the peace. In the act of 1888 they are enumerated
in sixteen distinct categories, of which the most important are the
raising, expending, and borrowing of money; the care of county
property, buildings, bridges, lunatic asylums, reformatory and
industrial schools; the appointment of inferior administrative
officials; the granting of certain licenses other than for the sale of
liquor;[265] the care of main highways and the protection of streams
from pollution; and the execution of various regulations relating to
animals, fish, birds, and insects. By the Education Act of 1902 the
council is given large authority within the domain of education. It
must see that adequate provision is made for elementary schools, and
it may assist in the maintenance of agencies of education of higher
grades. The control of police within the county devolves upon a joint
committee representing the council and the justices of the peace.
Finally, the council may make by-laws for the county, supervise in a
measure the minor rural authorities, and perform the work of these
authorities when they prove remiss.[266]
[Footnote 265: Liquor licenses are granted by the
justices of the peace.]
[Footnote 266: Lowell, Government of England, II.,
274-275.]
*194. The Rural District.*--Within the administrative county are four
kinds of local government areas--rural districts, rural parishes,
urban districts, and municipal boroughs. Of rural districts there are
in England and Wales 672. They are coterminous, as a rule, with rural
poor-law unions, or with the rural portions of unions which are both
rural and urban; but they may not comprise parts of more than one
county. The governing authority of the district is a council, (p. 185)
composed of persons (women being eligible) chosen in most instances
triennially by the rural parishes in accordance with population.
Unless an order is made to the contrary, one-third retire each year.
The members at the same time represent on the board of guardians of
the union the parishes from which they have been elected, although the
two bodies are legally distinct. The council must meet at least once a
month. Its chairman, who during his year of office is _ex-officio_ a
justice of the peace, may be chosen from among the councillors or from
outside; and the same is true of members of committees. The principal
salaried and permanent officials are the clerk, the treasurer, a
medical officer, a surveyor, and sanitary inspectors. The functions of
the councils pertain, in the main, to the administration of sanitation
and of highways. The bodies are responsible largely for the execution
in the rural localities of the various public health acts, and they
have charge of all highways which are not classed as "main roads." To
meet in part the costs of this administration they are empowered to
levy district rates.
*195. The Parish.*--Of parishes there are two types, the rural and the
urban, and their aggregate number in England and Wales is
approximately 15,000. The urban parishes possess no general
administrative importance and further mention need not be made of them
here. Under the act of 1894 the rural parish, however, has been
revived in a measure from the inert condition into which it had
fallen, and it to-day fills an appreciable if humble place in the
rural administrative régime. The style of its organization is
dependent to a degree upon its population. In each parish there is a
meeting in which all persons on the local government and parliamentary
registers (including women and lodgers) are privileged to participate.
This meeting elects its own chairman, and it likewise chooses a number
of overseers whose duty it is to assess and collect certain local
rates, to administer the poor-rate, and to make up the electoral and
jury lists. All parishes whose population numbers as much as three
hundred have a council composed of from five to fifteen members (women
being eligible), elected as a rule for a term of three years. The list
of powers which the parish authorities may exercise is extended, if
not imposing. It includes the maintenance of foot-paths, the
management of civil parochial property, the provision of fire
protection, the inspection of local sanitation, and the appointment of
trustees of civil charities within the parish. The meagerness of the
population of large numbers of the parishes, however, together with
the severe limitations imposed both by law and by practical conditions
upon rate-levying powers, preclude the authorities very generally (p. 186)
from undertaking many or large projects. It is regarded commonly that
the parishes are too small to be made such areas of public activity as
the authors of the act of 1894 had in mind. Practically, the parish is
little more than a unit for the election of representatives and the
collection of rates.[267]
[Footnote 267: Lowell, Government of England, II.,
281.]
For purposes of poor-law administration, as has been pointed out,
there have existed since 1834 poor-law unions, consisting of numbers
of parishes grouped together, usually without much effort to obtain
equality of size or population. These unions not infrequently comprise
both rural and urban parishes, and in cases of this kind the board of
guardians is composed of the persons elected as district councillors
in the rural parishes of the union, together with other persons who
are elected immediately as guardians in the urban parishes and have no
other function. The conditions under which poor relief is administered
are prescribed rather minutely in general regulations laid down by the
Local Government Board at London, so that, save in the matter of
levying rates, the range of discretion left to the boards of guardians
is closely restricted.[268]
[Footnote 268: Ashley, Local and Central
Government, 52-60.]
VIII. LOCAL GOVERNMENT TO-DAY: URBAN
*196. The Urban District.*--Of areas within which are administered the
local affairs of the urban portions of the kingdom there are several
of distinct importance, although in reality the institutions of urban
government are less complex than they appear on the surface to be. In
the main, the legal basis of urban organization is the Municipal
Corporations Consolidation Act of 1882, which comprises a codification
of the Municipal Corporations Act of 1835 and a mass of subsequent and
amending legislation. This great statute is supplemented at a number
of points by the Local Government Act of 1888, the District and Parish
Councils Act of 1894, the Education Act of 1902, and other regulative
measures of the past thirty years. At the bottom of the scale among
urban governmental units stands the urban district, which differs from
an ordinary borough principally in that it has no charter and its
council possesses less authority than does that of the borough.[269]
The number of urban districts is in the neighborhood of eight hundred.
Under the terms of the act of 1894 the governing authority in each is
a council consisting of members elected for three years, women being
eligible. There are no aldermen, and no mayor is chosen. The (p. 187)
council elects its own chairman and other officers, and it meets at
least once a month. Its functions, of which the most important is the
control of sanitation and of highways, are discharged largely through
the agency of committees. The district council possesses none of the
police and judicial privileges which the borough councils commonly
enjoy. It is more closely controlled by the Local Government Board,
and, in general, it lacks "the status and ornamental trappings of a
municipal authority.[270]" Yet in practice its powers are hardly less
extensive than are those of the council of a full-fledged borough. New
urban districts may be created in thickly populated localities by
joint action of the county council and the Local Government Board.
[Footnote 269: Speaking strictly, a borough is an
urban district, and something more.]
[Footnote 270: Ashley, Local and Central
Government, 45.]
*197. Boroughs and "Cities."*--The standard type of municipal unit is
the borough. Among boroughs there is a certain amount of variation,
but the differences which exist are those rather of historic
development and of nomenclature than of governmental forms or
functions. There are "municipal" boroughs, "county" boroughs, and
cities. Any non-rural area upon which has been conferred a charter
stipulating rights of local self-government is a borough. Areas of the
sort which have been withdrawn from the jurisdiction of the
administrative counties in which they are situated are county
boroughs; those not so withdrawn are municipal boroughs. The term
"city" was once employed to designate exclusively places which were or
had been the seat of a bishop. Nowadays the title is borne not only by
places of this nature but also by places, as Sheffield and Leeds, upon
which it has been conferred by royal patent. Save, however, in the
case of the city of London, where alone in England ancient municipal
institutions have been generally preserved, the term possesses no
political significance.[271] The governments of the cities are
identical with those of the non-city boroughs. It is to be observed,
further, that whereas formerly the borough as organized for municipal
purposes coincided with the borough as constituted for purposes of
representation in Parliament, there is now no necessary connection
between the two. An addition to a municipal borough does not alter the
parliamentary constituency.
[Footnote 271: See p. 190.]
*198. Kinds of Boroughs.*--The Municipal Corporations Act of 1835 made
provision for 178 boroughs in England and Wales and stipulated
conditions under which the number might be increased from time to time
by royal charter. In not a few instances the charters of boroughs at
the time existing were of mediæval origin. Since 1875 new charters (p. 188)
have been conferred until the number of boroughs has been brought up
to approximately 350. For the obtaining of a borough charter no fixed
requirement of population is laid down. Each application is considered
upon its merits, and while the size and importance of an urban
community weigh heavily in the decision other factors not infrequently
are influential, with the consequence that some boroughs are very
small while some urban centers of size are not yet boroughs. Of the
present number of boroughs, seventy-four, or about one-fifth, are
county boroughs. By the act of 1888 it was provided that every borough
which had or should attain a population of 50,000 should be deemed,
for purposes of administration, a separate county, and should
therefore be exempt from the supervision exercised over the affairs of
the municipal boroughs by the authorities of the administrative
counties. Any borough with a population exceeding the figure named may
be created a county borough by simple order of the Local Government
Board. Unlike the ordinary municipal borough, the county borough is
not represented in the council of the county in which the borough
lies; on the contrary, the council of the borough exercises
substantially an equivalent of the powers exercised normally by the
county council, and it is, to all intents and purposes, a council of
that variety. Much the larger portion of the English boroughs are,
however, simple municipal boroughs, whose activities are subject to a
supervision more or less constant upon the part of the county
authorities.
*199. The Borough Authorities.*--The difference between county and
municipal boroughs is thus one of degree of local autonomy, not one of
forms or agencies of government. The charters of all boroughs have
been brought into substantial agreement and the organs of borough
control are everywhere the same. The governing authority is the
borough council, which consists of councillors, aldermen, and a mayor,
sitting as a single body. The councillors, varying in number from nine
to upwards of one hundred, are elected by the voters of the borough,
either at large or by wards, for three years, and one-third retire
annually. The aldermen, equal in number to one-third of the
councillors, are chosen by the entire council for six years, and are
selected usually from among the councillors of most prolonged
experience. The mayor is elected annually by the councillors and
aldermen, frequently from their own number. In boroughs of lesser size
re-elections are not uncommon. Service in all of the capacities
mentioned is unpaid. The council determines its own rules of
procedure, and its work is accomplished in large measure through the
agency of committees, some of which are required by statute, others of
which are created as occasion demands; but, unlike the county (p. 189)
council, the council of the borough cannot delegate any of its powers,
save those relating to education, to these committees. The mayor
presides over the council meetings, serves commonly as an _ex-officio_
member of committees, and represents the municipality upon ceremonial
occasions. The office is not one of power, although it is possible for
an aggressive and tactful mayor to wield real influence. The permanent
officers of the council include a clerk, a treasurer, a medical
official, a secretary for education, and a variable number of
inspectors and heads of administrative departments.
*200. The Borough Council.*--In the capacity of representative authority
of the municipality the council controls corporation property, adopts
and executes measures relative to police and education, levies rates,
and not infrequently administers waterways, tramways, gas and electric
plants, and a variety of other public utilities. The enormously
increased activity of the town and urban district councils in respect
to "municipal trading" within the past two score years has aroused
widespread controversy. The purposes involved have been, in the main,
two--to avert the evils of private monopoly and to obtain from
remunerative services something to set against the heavy
unremunerative expenditures rendered necessary by existing sanitary
legislation. And, although opposed by reason of the outlays which it
requires and the invasion of the domain of private enterprise which it
constitutes, the device of municipal ownership is being ever more
widely adopted, as in truth it is also in Germany and other European
countries.[272] Aside from its general functions, the borough councils
is in particular a sanitary authority, and among its most important
tasks is the execution of regulations concerning drainage, housing,
markets, hospitals, and indeed the entire category of matters provided
for in the long series of Public Health acts. The expenditures of the
council as a municipal authority are met from a fund made up of fees,
fines, and other proceeds of administration, together with the income
from a borough rate, which is levied on the same basis as the poor
rate; its expenditures as a sanitary authority are met from a fund
raised by a general district rate. To assist in the administration of
education, sanitation, and police, grants are made regularly by
Parliament.[273]
[Footnote 272: Ashley, Local and Central
Government, 42.]
[Footnote 273: The best of existing works upon the
general subject of English local government is J.
Redlich, and F. W. Hirst, Local Government in
England, 2 vols. (London, 1903). There are several
convenient manuals, of which the most useful are P.
Ashley, English Local Government (London, 1905); W.
B. Odgers, Local Government (London, 1899), based
on the older work of M. D. Chalmers; E. Jenks, An
Outline of English Local Government (2d ed.,
London, 1907); R, S. Wright and H. Hobhouse, An
Outline of Local Government and Local Taxation in
England and Wales (3d ed., London, 1906); and R. C.
Maxwell, English Local Government (London, 1900),
in Temple Primer Series. The subject is treated
admirably in Lowell, Government of England, II.,
Chaps. 38-46, and a portion of it in W. B. Munro,
The Government of European Cities (New York, 1909),
Chap. 3 (full bibliography, pp. 395-402). There are
good sketches in Ashley, Local and Central
Government, Chaps. 1 and 5, and Marriott, English
Political Institutions, Chap. 13. A valuable group
of papers read at the First International Congress
of the Administrative Sciences, held at Brussels in
July, 1910, is printed in G. M. Harris, Problems of
Local Government (London, 1911). A useful
compendium of laws relating to city government is
C. Rawlinson, Municipal Corporation Acts, and Other
Enactments (9th ed., London, 1903). Two
appreciative surveys by American writers are A.
Shaw, Municipal Government in Great Britain (New
York, 1898) and F. Howe, The British City (New
York, 1907). On the subject of municipal trading
the reader may be referred to Lowell, Government of
England, II., Chap. 44; Lord Avebury, Municipal and
National Trading (London, 1907); L. Darwin,
Municipal Ownership in Great Britain (New York,
1906); G. B. Shaw, The Common Sense of Municipal
Trading (London, 1904); and C. Hugo,
Städteverwaltung und Municipal-Socialismus in
England (Stuttgart, 1897). Among works on poor-law
administration may be mentioned T. A. Mackay,
History of the English Poor Law from 1834 to the
Present Time (New York, 1900); P. T. Aschrott and
H. P. Thomas, The English Poor Law System, Past and
Present (2d ed., London, 1902); and S. and B. Webb,
English Poor Law Policy (London, 1910). The best
treatise on educational administration is G.
Balfour, The Educational Systems of Great Britain
and Ireland (2d ed., London, 1904). Finally must be
mentioned C. Gross, Bibliography of British
Municipal History (New York, 1897), an invaluable
guide to the voluminous literature of an intricate
subject.]
*201. The Government of London.*--The unique governmental (p. 190)
arrangements of London are the product in part of historical survival
and in part of special and comparatively recent legislation.
Technically, the "city" of London is still what it has been through
centuries, i.e., an area with a government of its own comprising but
a single square mile on the left bank of the Thames. By a series of
measures covering a period of somewhat more than fifty years, however,
the entire region occupied by the densely populated metropolis has
been drawn into a closely co-ordinated scheme of local administration.
London was untouched by the Municipal Corporations Act of 1835 and the
changes by which the governmental system of the present day was
brought into being began to be introduced only with the adoption of
the Metropolis Management Act of 1855. The government of the city was
left unchanged, but the surrounding parishes, hitherto governed
independently by their vestries, were at this time brought for certain
purposes under the control of a central authority known as the
Metropolitan Board of Works. The Local Government Act of 1888 carried
the task of organization a stage further. The Board of Works was
abolished, extra-city London was transformed into an administrative
county of some 120 square miles, and upon the newly created London (p. 191)
County Council (elected by the rate-payers) was conferred a varied and
highly important group of powers. Finally, in 1899 the London
Government Act simplified the situation by sweeping away a mass of
surviving authorities and jurisdictions and by creating twenty-eight
metropolitan boroughs, each with mayor, aldermen, and councillors such
as any provincial borough possesses, though with powers specially
defined and, on the side of finance, somewhat restricted. Within each
borough are urban parishes, each with its own vestry.
At the center of the metropolitan area stands still the historic City,
with its lord mayor, its life aldermen, and its annually elected
councillors, organized after a fashion which has hardly changed in
four and a half centuries. Within the administrative county the county
council acts as a central authority, the borough councils and the
parish vestries serve as local authorities. While areas of common
administration still very much larger than the county comprise, among
others, the districts of the Metropolitan Water Board and of the
Metropolitan Police. The jurisdiction of the Metropolitan Police
extends over all parishes within fifteen miles of Charing Cross, an
area of almost 700 square miles.[274]
[Footnote 274: For excellent descriptions of the
government of London see Munro, Government of
European Cities, 339-379 (bibliography, 395-402),
and Lowell, Government of England, II., 202-232.
Valuable works are G. L. Gomme, Governance of
London: Studies on the Place occupied by London in
English Institutions (London, 1907); ibid., The
London County Council: its Duties and Powers
according to the Local Government Act of 1888
(London, 1888); A. MacMorran, The London Government
Act (London, 1899); A. B. Hopkins, Boroughs of the
Metropolis (London, 1900); and J. R. Seager,
Government of London under the London Government
Act (London, 1904). A suggestive article is G. L.
Fox, The London County Council, in _Yale Review_,
May, 1895.]
PART II.--GERMANY (p. 193)
CHAPTER IX
THE EMPIRE AND ITS CONSTITUTION
I. POLITICAL DEVELOPMENT PRIOR TO 1848
*202. Napoleonic Transformations.*--Among the political achievements of
the past hundred years few exceed in importance, and none surpass in
interest, the creation of the present German Empire. The task of
German unification may be regarded as having been brought formally to
completion upon the occasion of the memorable ceremony of January 18,
1871, when, in the presence of a brilliant concourse of princes and
generals gathered in the Hall of Mirrors in the palace of the French
kings at Versailles, William I., king of Prussia, was proclaimed
German Emperor. Back of the dramatic episode at Versailles, however,
lay a long course of nationalizing development, of which the
proclamation of an Imperial sovereign was but the culminating event.
The beginnings of the making of the German Empire of to-day are to be
traced from a period at least as remote as that of Napoleon.
Germany in 1814 was still disunited and comparatively backward, but it
was by no means the Germany of the seventeenth and eighteenth
centuries. The transformations wrought to the east of the Rhine during
the period of the Napoleonic ascendancy were three-fold. In the first
place, after more than a thousand years of existence, the Holy Roman
Empire was, in 1806, brought to an end, and Germany, never theretofore
since the days of barbarism entirely devoid of political unity, was
left without even the semblance or name of nationality. In the second
place, there was within the period a far-reaching readjustment of the
political structure of the German world, involving (1) the reducing of
the total number of German states--kingdoms, duchies, principalities,
ecclesiastical dominions, and knights' holdings--from above three
hundred to two score; (2) the augmenting of the importance of Austria
by the acquisition of a separate imperial title,[275] and the (p. 194)
raising of Saxony, Bavaria, and Württemberg from duchies to kingdoms;
and (3) the bringing into existence of certain new and more or less
artificial political aggregates, namely, the kingdom of Westphalia,
the grand-duchy of Warsaw, and the Confederation of the Rhine, for the
purpose of facilitating the Napoleonic dominance of north-central
Europe. Finally, in several of the states, notably Prussia, the
overturn occasioned by the Napoleonic conquests prompted systematic
attempts at reform, with the consequence of a revolutionizing
modernization of social and economic conditions altogether comparable
with that which within the generation had been achieved in France.
[Footnote 275: In anticipation of the prospective
abolition of the dignity of Emperor of the Holy
Roman Empire, the Emperor Francis II., in 1804,
assumed the title of Emperor of Austria, under the
name Francis I.]
The simple reduction of the German states in number, noteworthy though
it was, did not mean necessarily the realization of a larger measure
of national unity, for the rivalries of the states which survived
tended but to be accentuated. But if the vertical cleavages by which
the country was divided were deepened, those of a horizontal
character, arising from social and economic privilege, were in this
period largely done away. Serfdom was abolished; the knights as a
political force disappeared; the free cities were reduced to four; and
such distinctions of caste as survived rapidly declined in political
importance. By an appreciable levelling of society the way was
prepared for co-ordinated national development, while by the
extinction of a variety of republican and aristocratic sovereignties
monarchy as a form of government acquired new powers of unification
and leadership.[276]
[Footnote 276: On Germany during the Napoleonic
period see Cambridge Modern History, IX., Chap. 11;
J. H. Rose, Life of Napoleon I., 2 vols. (new ed.,
New York, 1910), II., Chaps. 24-25; A. Fournier,
Napoleon I., a Biography, trans, by A. E. Adams, 2
vols, (New York, 1911), I., Chaps. 11-12; J. R.
Seeley, Life and Times of Stein; or Germany and
Prussia in the Napoleonic Age, 3 vols. (Cambridge,
1878); H. A. L. Fisher, Studies in Napoleonic
Statesmanship, Germany (Oxford, 1903).]
*203. The Congress of Vienna and the Confederation of 1815.*--The
collapse of the dominion of Napoleon was followed in Germany by rather
less of a return to earlier arrangements than might have been
expected. Indeed, it can hardly be said to have involved any such
return at all. The Confederation of the Rhine was dissolved, and both
the grand-duchy of Warsaw and the kingdom of Westphalia ceased, as
such, to be. But the Holy Roman Empire was not revived; the newly
acquired dignities of the sovereigns of Saxony, Bavaria, and other
states were perpetuated; despite the clamors of the mediatized
princes, the scores of German states which during the decade had been
swallowed up by their more powerful neighbors, or had been otherwise
blotted out, were not re-established; and--most important of all--the
social and economic changes by which the period had been given (p. 195)
distinction were, in large part, not undone.
As has been pointed out, the close of the Napoleonic period found
Germany entirely devoid of political unity, in both name and fact. By
the governments which were chiefly influential in the reconstruction
of Europe in 1814-1815, it was deemed expedient that there be
re-established some degree of German unity, though on the part of most
of them, both German and non-German, there was no desire that there be
called into existence a united German nation of substantial
independence and power. In the Final Act of the Congress of Vienna,
promulgated under date of June 9, 1815, there was included the draft
of a constitution, prepared by a committee of the Congress under the
presidency of Count Metternich, in which was laid down the fundamental
law of an entirely new German union. Within Germany proper there were
recognized to be, when the Congress had completed its work of
readjustment, thirty-eight states, of widely varying size, importance,
and condition. Under authorization of the Congress, these states were
now organized, not into an empire with a common sovereign, but into a
_Bund_, or Confederation, whose sole central organ was a _Bundestag_,
or Diet, sitting at Frankfort-on-the-Main and composed of delegates
commissioned by the sovereigns of the affiliated states and serving
under their immediate and absolute direction. Save only in respect to
certain matters pertaining to foreign relations and war, each of the
thirty-eight states retained its autonomy unimpaired.[277]
[Footnote 277: In 1817 the number was brought up to
39 by the adding of Hesse-Homburg, unintentionally
omitted when the original list was made up. By
successive changes the number was reduced to 33
before the dissolution of the Confederation in
1866.]
*204. The Diet.*--The Diet was in no proper sense a parliamentary body,
but was rather a congress of sovereign states. Nominally, its powers
were large. They included both the regulation of the fundamental law
and the performance of the functions of ordinary legislation. But, in
practice, the authority of the body was meager and exercise of
discretion was absolutely precluded. The members, as delegates of the
princes, spoke and voted only as they were instructed. Questions
relating to the fundamental laws and the organic institutions of the
Confederation and "other arrangements of common interest" were
required to be decided by the Diet as a whole (_in Plenum_), with
voting power distributed among the states, in rough proportion to
their importance. Of the total of 69 votes, six of the principal
states possessed four each. The preparation of measures for discussion
_in Plenum_ was intrusted to the "ordinary assembly," a smaller (p. 196)
gathering in which Austria, Prussia, and nine other states had each
one vote, and six _curiæ_, comprising the remaining states in groups
had likewise each a single vote. The presidency of the two assemblies
was vested permanently in Austria, and the Austrian delegation
possessed in each a casting vote. Proposals were carried in the
smaller body by simple majority, but _in Plenum_ only by a two-thirds
vote. For the enactment of fundamental laws, the modification of
organic institutions, the amendment of individual rights, and the
regulation of religious affairs, it was declared by the Federal Act
that a majority vote should be insufficient, and, although it was not
expressly so stipulated, the intent was that in such cases unanimity
should be required. Early in the Diet's history, indeed, the president
was instructed solemnly to announce that the fundamental law of the
Confederation, far from being subject to revision, was to be regarded
as absolutely final.
The Confederation was, and was intended to be, only the loosest sort
of a league of sovereign powers. The party of German unity,
represented by Stein and the Liberals generally, began by assuming it
to be a _Bundesstaat_, or true federal state; but at the opening of
the first session of the Diet (November 5, 1816) the Austrian
authorities formally pronounced it a _Staatenbund_, or federation of
states, and from this ruling, according strictly with both the facts
of the situation and the intent of the founders, there was no possible
escape. The powers and functions which were vested in the
Confederation were exercised exclusively through and upon states, and
with the private individual it had no sort of direct relation, being,
in these respects, essentially similar to the federal government of
the United States under the Articles of Confederation. The function of
the Diet, in effect, came to be little more than that of registering
and promulgating the decrees of the authorities at Vienna.
*205. Constitutional Progress, 1815-1848.*--Notwithstanding these facts,
the decade which terminates with the creation of the Confederation of
1815 contributed enormously to the clearing of the way for the
establishment of modern German unity and of vigorous and efficient
national government. Among large numbers of the German people there
had been engendered a genuine desire, not only for constitutionalism
in government, but for a substantial unification of the German-speaking
world; and the increased homogeneity and prosperity of the kingdom of
Prussia pointed already to the eventual realization of these aspirations
under the leadership of that powerful state. The history of Germany
during the period from 1815 to 1848 is a story largely of the growth
of these twin ideas of constitutionalism and nationality, and of (p. 197)
the relentless combat which was waged between their exponents and the
entrenched forces of autocracy and particularism. Gradually the
results of this conflict found expression through two developments,
(1) the promulgation of liberalizing constitutions in a majority of
the states and (2) the building of the Zollverein, or customs union.
The original draft of the Federal Act of 1815 pledged every member of
the Confederation to establish a constitution within a year. In the
final form of the instrument, however, the time limit was omitted and
what had been a specific injunction became but a general promise. The
sovereigns of the two preponderating states, Austria and Prussia,
delayed and eventually evaded the obligation altogether. But in a
large number of the lesser states the promise that had been made was
fulfilled with despatch. In the south the ground had been cleared by
the Napoleonic domination, and the influence of French political
experimentation was more generally felt, so that, very naturally, the
progress of constitutionalism was most rapid in that quarter. The new
era of constitution-making was inaugurated by the promulgation of the
fundamental law of Schwarzburg-Rudolstadt, January 8, 1816. In rapid
succession followed similar grants in Schaumburg-Lippe, January 15, 1816;
Waldeck, April 19, 1816; the grand-duchy of Saxe-Weimar-Eisenach, May 5,
1816; Saxe-Hildburghausen, March 19, 1818; Bavaria, May 26, 1818;
Baden, August 22, 1818; Lichtenstein, November 9, 1818; Württemberg,
September 25, 1819; Hanover, December 7, 1819; Brunswick, April 25,
1820, and the grand-duchy of Hesse, December 17, 1820. Instruments
promulgated later during the period under review include those of
Saxe-Meiningen, in 1829; Hesse-Cassel, Saxe-Altenburg, and Saxony, in
1831; Hohenzollern-Sigmaringen, in 1833; Lippe, in 1836; and Lübeck,
in 1846. In a number of the states mentioned, including Bavaria,
Baden, Württemberg, and Saxony, the constitutions at this time granted
are still in operation. Many of them were, and some of them remain,
highly illiberal. But, in the aggregate, the ground gained in behalf
of constitutional and enlightened government through their
promulgation was enormous.
The spread of constitutionalism was paralleled by the gradual
creation, after 1818, of the Zollverein. This was a customs union,
taking its origin in the establishment of free trade throughout the
kingdom of Prussia, and extended from state to state until by 1842 the
whole of Germany had been included save the Hanseatic towns,
Mecklenburg, Hanover, and Austria. The union was maintained for
purposes that were primarily commercial, but by accustoming the people
to concerted effort and by emphasizing constantly their common
interests it must be regarded as having contributed in a very (p. 198)
important way to the growth of national consciousness and solidarity.
Under its agency the lesser states were schooled deliberately in
independence of Austria and in reliance upon Prussian leadership.
II. THE CREATION OF THE EMPIRE
*206. The Revolution of 1848.*--From 1815 onwards the Liberals
advocated, in season and out, the conversion of the Confederation into
a more substantial union under a constitutional style of government.
Aside from the promulgation of a number of new state constitutions,
the effects of the revolutionary movements of 1830 were, in Germany,
of little consequence. But during the period 1830-1848 conditions so
developed that only the stimulus of a near-by liberal demonstration
was required to precipitate to the east of the Rhine a popular
uprising of revolutionary proportions. In the constitutional history
of the German countries of central Europe few periods are to be
assigned larger importance than the years 1848-1849. Taking advantage
of the interest created by the contemporary revolution in France, the
Liberal leaders began by convening at Heidelberg, March 31, 1848, a
_Vorparlament_, or preliminary meeting, by which arrangements were
effected for the election, by manhood suffrage, of a national assembly
of some six hundred members whose business it should be to draw up a
constitution for a united German nation. This assembly, reluctantly
authorized by the Diet, convened May 18 in the free city of Frankfort.
The task to be accomplished was formidable and much valuable time was
consumed in learned but irrelevant disputation. In the end it was
decided that not the whole of Austria, but only the German portions,
should be admitted to the new union; that there should be established
a full-fledged parliamentary system, with a responsible ministry; and
that the parliament should consist of two chambers, the lower to be
chosen by direct manhood suffrage, the upper to be made up half of
members appointed by the princes and half of members elected for six
years by the legislative bodies of the several states. As an executive
some desired a directory of three princes and some wanted a single
president; but the majority voted at length to establish the dignity
of German Emperor and to offer it to Frederick William IV., king of
Prussia.
*207. The Reaction.*--The refusal of the Prussian monarch to accept the
proffered title, save upon the impossible condition that all of his
brother princes in Germany should give their assent to his so doing,
blasted the hopes of the patriots. In May, 1849, the Frankfort
assembly broke up. Not long thereafter Prussia, Saxony, and (p. 199)
Hanover agreed upon a constitution substantially like that which the
Frankfort meeting had proposed. Other states accepted it, and March
20, 1850, a parliament was convened under it at Erfurt. By reason of
the recovery of Austria, however, and the subsidence of the
revolutionary movement generally throughout Germany the experiment
promptly collapsed. The conception of a German empire had been
formulated with some definiteness, but for its realization the day had
not yet arrived. The old Confederation, under Austrian domination,
kept the field. After an upheaval which involved the enforced
promulgation of a constitution, the accession of a new emperor (the
present Francis Joseph), and the threatened loss of Hungary, Bohemia,
and the Italian dependencies, the Austrian monarchy recovered its
balance and inaugurated a fresh era of reaction, during the course of
which there was revoked not only the constitution conceded at Vienna
but also that of almost every one of the German states.[278]
[Footnote 278: See pp. 454-456.]
In Prussia the outcome was more fortunate. In January, 1850, Frederick
William IV, granted a constitution which established a national
legislative assembly and admitted a portion of the Prussian people to
an active participation in the government. Although the instrument
proved a disappointment to the Liberals, it has survived, with some
modifications, to the present day as the fundamental law of the
Prussian kingdom; and the fact that Prussia had become fixedly a
constitutional state, together with the hopeless deadlock which arose
between Prussia and Austria in the attempted readjustments of
1848-1849, emphasized the conclusion that the future of Germany lay
with Prussia rather than with Austria, and that, indeed, there could
be no adequate unification of the German people until one of the two
great rival states should have been definitely ejected.[279]
[Footnote 279: On the revolution of 1848 in Germany
see Cambridge Modern History, XI., Chaps. 3, 6, 7;
H. von Sybel, The Founding of the German Empire
trans. by M. L. Perrin, 7 vols. (New York,
1890-1898), I., 145-243; H. Blum, Die deutsche
Revolution, 1848-1849 (Florence and Leipzig, 1897);
P. Matter, La Prusse et la révolution de 1848
(Paris, 1903).]
*208. The War of 1866.*--With the elevation of Count von Bismarck,
September 23, 1862, to the presidency of the Prussian ministry,
affairs began to move rapidly toward the inevitable conclusion. A
month prior to Bismarck's appointment there had been held at Frankfort
a conference--the so-called _Fürstentag_--whose object was the
proposal of a plan for the reconstitution of the Confederation. The
scheme suggested contemplated the establishment of a directory, an
assembly composed of delegates from the various diets, and a federal
court of appeal. The conference was held at the instigation of (p. 200)
Austria, and it was intended primarily to promote an alignment of the
liberal forces against Prussia. The last-mentioned state refused,
naturally, to have part in the proceedings, and the enterprise came to
naught. A brief interlude in the fast developing contest was afforded
by the Austro-Prussian alliance against Denmark in 1864; but the net
result of this episode was only to supply the occasion for war which
Bismarck desired. In 1866 Prussia came forward with a project for the
reorganization of the Confederation (in reality, a counter-bid for
popular support), the more noteworthy features of which were the total
exclusion of Austria from the league and the establishment of a
parliament elected by manhood suffrage. As was inevitable, the Diet
rejected the scheme; whereupon, with the object of forcing Austria
into helpless isolation, Bismarck and his royal master, William I., in
June, 1866, proclaimed the Confederation to be dissolved and plunged
the whole of Germany in civil war.
*209. The North German Bund, 1867.*--The conflict was short and sharp.
Its outcome was the crushing defeat of Austria, and in the treaty of
Prague (August 23, 1866) the proud Hapsburg monarchy was compelled to
assent to a reconstitution of the German federation in which Austria
should have no part. A number of lesser states which had supported
Austria--Hanover, Nassau, Hesse-Cassel, and Frankfort--were forthwith
incorporated by Prussia, by decree of September 20, 1866,[280] and
among the group of surviving powers the preponderance of Prussia was
more than ever indisputable. Realizing, however, that the states of
the south--Bavaria, Baden, Württemberg, and Hesse-Darmstadt--were not
as yet ready to be incorporated under a centralized administration,
Prussia contented herself for the moment with setting up a North
German _Bund_, comprising the states to the north of the river Main,
twenty-two in all. February 24, 1867, there was brought together in
Berlin a constitutional diet, representing all of the affiliated
states and elected by manhood suffrage and secret ballot. A
constitution, drafted previously by a committee of plenipotentiaries,
was debated from March 9 to April 16 and was adopted by a vote of 230
to 53. After having been ratified by the legislative bodies of the
various states, the instrument was put in operation, July 1. The
principal organs of government for which it made provision were three
in number: (1) the _Præsidium_, or President, of the Confederation,
the dignity being hereditary and vested in the king of Prussia; (2)
the _Bundesrath_, or Federal Council, representing the various
governments; and (3) the _Bundestag_, or Diet, composed of deputies
elected directly by manhood suffrage. For all practical purposes (p. 201)
the German Empire, under the hegemony of Prussia, was a reality.
[Footnote 280: The disputed districts of
Schleswig-Holstein were annexed at the same time.]
*210. Establishment of the Empire, 1871.*--For the time being the states
to the south of the Main were left to their own devices, though the
constitution of the _Bund_ was shaped purposely to permit, and even to
encourage, the accession of new members. Very soon these southern
states entered the new customs union of 1867, maintained by the
northern states, and ere long they were concluding with Prussia
treaties of both offensive and defensive alliance. The patriotic
fervor engendered by the war with France in 1870-1871 sufficed to
complete the work. Contrary to the expectation of Napoleon III., the
states of the south contributed troops and otherwise co-operated
vigorously with the Prussians throughout the contest, and before its
close they let it be known that they were ready to become full-fledged
members of the Confederation. On the basis of treaty arrangements,
concluded in November, 1870, it was agreed that the North German
Confederation should be replaced by a German Empire, and that for the
title of President, borne by the Prussian sovereign, should be
substituted that of _Deutscher Kaiser_, German Emperor. January 18,
1871, at Versailles, William, king of Prussia and President of the
Confederation, was formally proclaimed German Emperor. The siege of
Paris was at the time still in progress, and the treaty of Frankfort,
by which peace with France was concluded, was not signed until the
following May.[281]
[Footnote 281: For brief accounts of the founding
of the Empire see B. E. Howard, The German Empire
(New York, 1906), Chap. 1; E. Henderson, Short
History of Germany (New York, 1906). Chaps. 8-10;
Cambridge Modern History, XI., Chaps. 15-17, XII.,
Chap. 6; and Lavisse et Rambaud, Histoire Générale,
XI., Chap. 8. A very good book is G. B. Malleson,
The Refounding of the German Empire, 1848-1871 (2d
ed., London, 1904). More extended presentation of
German history in the period 1815-1871 will be
found in A. Stern, Geschichte Europas seit den
Verträgen von 1815 bis zum Frankfurter Frieden von
1871, 6 vols. (Berlin, 1894-1911), extending at
present to 1848; C. F. H. Bulle, Geschichte der
neuesten Zeit, 4 vols. (Leipzig, 1886-1887),
covering the years 1815-1885; H. G. Treitschke,
Deutsche Geschichte im Neunzehnten Jahrhundert, 5
vols. (Leipzig, 1879-1894), covering the period to
1848; H. von Sybel, Die Begründung des deutschen
Reiches durch Wilhelm I. (Munich and Leipzig,
1890), and in English translation under title of
The Founding of the German Empire (New York, 1890);
H. von Zwiedeneck-Sudenhorst, Deutsche Geschichte
von der Auflösung d. alten bis zur Errichtung d.
neuen Kaiserreichs (Stuttgart, 1903-1905); and M.
L. Van Deventer, Cinquante années de l'histoire
fédérale de l'Allemagne (Brussels, 1870). A book of
some value is A. Malet, The Overthrow of the
Germanic Confederation by Prussia in 1866 (London,
1870). P. Bigelow, History of the German Struggle
for Liberty (New York, 1905) is readable, but not
wholly reliable. An excellent biography of Bismarck
is that by Headlam (New York, 1899). For full
bibliography see Cambridge Modern History, X.,
826-832; XI., 879-886, 893-898; XII., 869-875.]
III. THE CONSTITUTION: NATURE OF THE EMPIRE (p. 202)
*211. The Constitution Framed.*--As ordained in the treaties of
November, 1870, ratified subsequently by the _Bundesrath_ and the
_Bundestag_ of the North German Confederation, and by the legislative
assemblies of the four incoming states, the German Empire came legally
into existence January 1, 1871. It consisted fundamentally of the
Confederation, which in the process of expansion did not lose its
corporate identity, together with the four states, whose treaties
bound them severally to it. The _Bund_ was conceived of technically,
not as replaced by, but rather as perpetuated in, the new Empire. The
accession of the four southern states, however, involved of necessity
a considerable modification of the original character of the
affiliation; and the innovations that were introduced called for a
general reconstitution of the fundamental law upon which the enlarged
structure was to be grounded.
The elements at hand for the construction of the constitution of the
Empire were four: (1) the constitution of the North German
Confederation, in operation since 1867; (2) the treaties of November
15, 1870, between the Confederation, on the one hand, and the
grand-duchies of Baden and Hesse on the other; (3) the treaty of
November 23, 1870, by which was arranged the adhesion of the kingdom of
Bavaria; and (4) the treaty of November 25, 1870, between the _Bund_,
Baden, and Hesse, on the one side, and the kingdom of Württemberg on
the other. Each of these treaties stipulated the precise conditions
under which the new affiliation should be maintained, these
stipulations comprising, in effect, so many projected amendments of
the original constitution of the _Bund_.[282] At the initiative of the
Emperor there was prepared, early in 1871, a revised draft of this
constitution, and in it were incorporated such modifications as were
rendered necessary by the adhesion of the southern states and the
creation of the Imperial title. March 31 the Reichstag was convened in
Berlin and before it was laid forthwith the constitutional _projet_,
to which the Bundesrath had already given its assent. April 14 the
instrument was approved by the popular chamber, and two days later it
was promulgated as the supreme law of the land.
[Footnote 282: The first three of these treaties
were concluded at Versailles; the fourth was signed
at Berlin.]
*212. Contents of the Instrument.*--As it came from the hands of its
framers, the new constitution comprised a judicious amalgamation of
the various fundamental documents that have been mentioned, i.e., the
constitution of the Confederation and the treaties. Within the (p. 203)
scope of its seventy-eight articles most subjects which are dealt with
ordinarily in such instruments find ample place: the nature and extent
of the legislative power; the composition, organization, and procedure
of the legislative chambers; the privileges and powers of the
executive; the adjustment of disputes and the punishment of offenses
against the national authority; the process of constitutional
amendment. It is a peculiarity of the German constitution, however,
that it contains elaborate provisions relating to a variety of things
concerning which constitutions, as a rule, are silent. There is an
extended section upon customs and commerce; another upon railways;
another upon posts and telegraphs; another upon navigation; another
upon finance; and an especially detailed one relating to the military
organization of the realm. In part, the elaboration of these
essentially legislative subjects within the constitution was
determined by the peculiarly federal character of the Empire, by which
was entailed the necessity of a minute enumeration of powers. In a
greater measure, however, it arose from the underlying purpose of
Bismarck and of William I. to smooth the way for the conversion of
Germany into the premier militant power of Europe. Beyond a guarantee
of a common citizenship for all Germany and of equal protection for
all citizens as against foreign powers, the constitution contains
little that relates to the status or privileges of the individual.
There is in it no bill of rights, and it makes no mention of abstract
principles. Among instruments of its kind, none is of a more
thoroughly practical character.[283]
[Footnote 283: The text of the constitution, in
German, is printed in A. L. Lowell, Governments and
Parties in Continental Europe, 2 vols. (Boston,
1896), II., 355-377, and in Laband, Deutsches
Reichsstaatsrecht, 411-428; in English, in W. F.
Dodd, Modern Constitutions, 2 vols. (Chicago,
1909), I., 325-351, and in Howard, The German
Empire, 403-435. Carefully edited German texts are:
L. von Rönne, Verfassung des deutschen Reiches (8th
ed., Berlin, 1899); A. Arndt, Verfassung des
deutschen Reiches (Berlin, 1902). On the formation
of the Imperial constitution see A. Lebon, Les
origines de la constitution allemande, in _Annales
de l'École Libre des Sciences Politiques_, July,
1888; ibid., Études sur l'Allemagne politique
(Paris, 1890).]
*213. Federal Character of the Empire.*--The political system of Germany
to-day is the product of centuries of particularistic statecraft,
capped, in 1871, by a partial centralization of sovereign organs and
powers. The Empire is composed of twenty-five states: the four kingdoms
of Prussia, Bavaria, Saxony, and Württemberg; the six grand-duchies of
Baden, Hesse, Mecklenburg-Schwerin, Saxe-Weimar, Mecklenburg-Strelitz,
and Oldenburg; the five duchies of Brunswick, Saxe-Meiningen,
Saxe-Altenburg, Saxe-Coburg-Gotha, and Anhalt; the seven (p. 204)
principalities of Schwarzburg-Sonderhausen, Schwarzburg-Rudolstadt,
Waldeck, Reuss Älterer Linie, Reuss Jüngerer Linie, Lippe, and
Schaumburg-Lippe; and the three free cities of Hamburg, Bremen, and
Lübeck. These states vary in size from Prussia, with 134,616 square
miles, to Bremen, with 99; and in population, from Prussia, with
40,163,333, to Schaumburg-Lippe, with 46,650. There is, in addition,
the _Reichsland_, or Imperial domain, of Alsace-Lorraine, whose status
until 1911 was that of a purely dependent territory, but which by act
of the year mentioned was elevated to a condition of quasi-statehood.[284]
[Footnote 284: See p. 285.]
Prior to the formation in 1867, of the North German Confederation,
each of the twenty-five states was sovereign and essentially
independent. Each had its own governmental establishment, and in many
instances the existing political system was of considerable antiquity.
With the organization of the _Bund_, those states which were
identified with the federation yielded their independence, and
presumably their sovereignty; and with the establishment of the
Empire, all gave up whatever claim they as yet maintained to absolute
autonomy. Both the _Bund_ and the Empire were creations, strictly
speaking, of the states, not of the people; and, to this day, as one
writer has put it, the Empire is "not a juristic person composed of
fifty-six million members, but of twenty-five members."[285] At the
same time, it is not what the old Confederation of 1815 was, i.e., a
league of princes. It is a state established by, and composed of,
states.[286]
[Footnote 285: P. Laband, Das Staatsrecht des
deutschen Reiches, I., 91.]
[Footnote 286: On the more purely juristic aspects
of the Empire the best work in English is Howard,
The German Empire (Chap. 2, on "The Empire and the
Individual States"). A very useful volume covering
the governments of Empire and states is Combes de
Lestrade, Les monarchies de l'Empire allemand
(Paris, 1904). The monumental German treatise is P.
Laband, Das Staatsrecht des deutschen Reiches (4th
ed., Tübingen, 1901), in four volumes. There is a
six-volume French translation of this work, Le
droit public de L'Empire allemand (Paris,
1900-1904). Other German works of value are: O.
Mayer, Deutsches Verwaltungsrecht (Leipzig,
1895-1896); P. Zorn, Das Staatsrecht des deutschen
Reiches (2d ed., Berlin, 1895-1897); and A. Arndt,
Das Staatsrecht des deutschen Reiches (Berlin,
1901). There is a four-volume French translation of
Mayer's important work, under the title Le droit
administratif allemand (Paris, 1903-1906). Two
excellent brief German treatises are: P. Laband,
Deutsches Reichsstaatsrecht (3d ed., Tübingen,
1907), and Hue de Grais, Handbuch der Verfassung
und Verwaltung in Preussen und dem deutschen Reiche
(18th ed., Berlin, 1907). The most recent work upon
the subject is F. Fleiner, Institutionen des
deutschen Verwaltungsrechts (Tübingen, 1911). A
suggestive monograph is J. du Buy, Two Aspects of
the German Constitution (New Haven, 1894).]
IV. THE EMPIRE AND THE STATES (p. 205)
*214. Sovereignty and the Division of Powers.*--The Germans are not
themselves altogether agreed concerning the nature and precise
location of sovereignty within the Empire, but it is reasonably clear
that sovereignty, in the ultimate meaning of that much misused term,
is vested in the government of the Empire, and not in that of any
state. The embodiment of that sovereignty, as will appear
subsequently, is not the national parliament, nor yet the Emperor, but
the Bundesrath, which represents the "totality" of the affiliated
governments.[287] As in the United States, Switzerland, and federal
nations generally, there is a division of powers of government between
the central governmental establishment and the states. The powers of
the Imperial government, it is important to observe, are specifically
enumerated; those of the states are residual. It is within the
competence of the Imperial government to bring about an enlargement of
the powers that have been confided to it; but until it does so in any
particular direction the power of the state governments in that
direction is unlimited. On the one hand, there is a considerable field
of legislative activity--in respect to citizenship, tariffs, weights,
measures, coinage, patents, military and naval establishment of the
Empire, etc.--in which the Empire, by virtue of constitutional
stipulation, possesses exclusive power to act.[288] On the other,
there is a no less extensive domain reserved entirely to the
states--the determination of their own forms of government, of laws of
succession, of relations of church and state, of questions pertaining
to their internal administration; the framing of their own budgets,
police regulations, highway laws and laws relating to land tenure; the
control of public instruction. Between lies a broad and shifting area,
which each may enter, but within which the Imperial authority, in so
far as is warranted by the constitution, must be accorded precedence
over the authority of a state. "The matters over which the states
preserve control," says a great German jurist, "cannot be separated
completely from those to which extends the competence of the Empire.
The various powers of government are intimately related the one to
another. They run together and at the same time impose mutual checks
in so many ways, and are so interlaced, that one cannot hope to set
them off by a line of demarcation, or to set up among them a Chinese
wall of division. In every sphere of their activity the states (p. 206)
encounter a superior power to which they are obliged to submit. They
are free to move only in the circle which Imperial law-making leaves
open to them. That circle does exist. It is delimited, but not wholly
occupied, by the Empire.... In a certain sense it may be said that it
is only by sufferance of the Empire that the states maintain their
political rights at all, and that, at best, their tenure is
precarious."[289]
[Footnote 287: Howard, German Empire, 21.]
[Footnote 288: Matters placed under the supervision
of the Empire and made subject to Imperial
legislation are enumerated in the sixteen sections
of Article 4 of the constitution. Dodd, Modern
Constitutions, I., 327-328.]
[Footnote 289: Laband, Das Staatsrecht des
deutschen Reiches (2d ed.), I., 102-103.]
In passing, it may be observed that there is, in fact, a distinct
tendency toward the reduction of the spheres of authority which
formerly were left to the states. One of the means by which this has
been brought about is the establishment of uniform codes of law
throughout the Empire, containing regulations respecting a multitude
of things which otherwise would have been regulated by the states
alone. Most important among these is the great Civil Code, which went
into effect January 1, 1900. Another means to the same end is the
increase in recent years of Imperial legislation relating to
workingmen's insurance, factory regulations, industrial conditions,
and other matters of a social and economic nature. Not infrequently in
recent times have the states, or some of them, raised protest against
this centralizing tendency, and especially against the "Prussianization"
of the Empire which it seems clearly to involve. In many states,
especially those to the south of the Main, the separatist tradition is
still very strong. In Bavaria, more than anywhere else, is this true,
and in 1903 the new Bavarian premier, Baron Podevils, was able to
arouse genuine enthusiasm for his government by a solemn declaration
before the diet that he and his colleagues would combat with all their
might "any attempt to shape the future of the Empire on lines other
than the federative basis laid down in the Imperial constitution."
*215. The Interlacing of Governmental Agencies.*--The functions of a
legislative character which are delegated to the Imperial government
are numerous and comprehensive, and in practice they tend all the
while to be increased. Those of an executive and judicial character
are very much more restricted. In respect to foreign relations, the
navy, and the postal and telegraph service, administration is
absolutely centralized in the organs of the Empire; in respect to
everything else, administrative functions are performed entirely, or
almost entirely, through the agency of the states. In the United
States the federal government is essentially complete within itself.
It has its own law-makers, administrators, and judges, who carry on
the national government largely independently of the governing agencies
of the various states. In Germany, where the state occupies in (p. 207)
some respects a loftier position in the federation than does its
counterpart in America, the central government, in respect to all save
the fields that have been mentioned, relies for the execution of its
measures upon the officials of the states. The Empire establishes
taxes and customs duties, but the imposts are collected by state
authorities. Similarly, justice is rendered, not in the name of the
Empire, but in the name of the state, and by judges in the employ of
the state. In respect to machinery, the Imperial government is,
therefore, but a part of a government. Alone, it could not be made to
operate. It lacks a judiciary; likewise the larger portion of the
administrative agencies without which mere powers of legislative
enactment are futile. To put the matter succinctly, the working
government of the Empire comprises far more than the organs and
functions that are purely Imperial; it comprises the federal organs
and functions possessed by the individual states as well.[290]
[Footnote 290: Laband, Das Staatsrecht des
deutschen Reiches, § 7-10; Lebon, Études sur
l'Allemagne politique, 93-104.]
*216. The States: the Prussian Hegemony.*--Legally, the union of the
German states is indestructible. The Imperial government is vested
with no power to expel a state, to unite it with another state, to
divide it, or in any way to alter its status in the federation. On the
other hand, no state possesses a right to secede, or to modify its
powers or obligations within the Empire. If a state violates its
obligations or refuses to be bound by the authority of the Empire, the
federal army, on decision of the Bundesrath, may be mobilized by the
Emperor against it.[291]
[Footnote 291: Art. 19. Dodd, Modern Constitutions,
I., 332.]
Among the states, however, there is a glaring lack of equality of
status and privilege. When the Empire was formed the component states
differed widely in area, population, and traditional rights, and there
was no attempt to reduce them to a footing that should be absolutely
uniform. Prussia, besides comprising the moving spirit in the new
affiliation, contained a population considerably in excess of that of
the other twenty-four states combined. The consequence was that
Prussia became inevitably the preponderating power in the Empire. The
king of Prussia is _ex-officio_ German Emperor; the Prussian votes in
the Bundesrath can defeat any proposed amendment of the constitution,
and likewise any measure looking toward a change in the army, the
navy, or the taxes; and Prussia controls the chairmanship of all
standing committees in the Bundesrath.[292]
[Footnote 292: A. Lebon, La constitution allemande
et l'hégémonie prussienne, in _Annales de l'École
Libre des Sciences Politiques_, Jan., 1887.]
*217. Military Arrangements.*--Other privileges Prussia possesses (p. 208)
by virtue, not of the constitution, but of agreements with her sister
states. The most important of these relates to the army. By the
constitution it was provided at the outset that the armed forces of
the Empire should be organized into a single establishment, to be
governed by Imperial law and to be under the supreme command of the
Emperor.[293] In respect to the appointment of minor officers, and
some other matters, powers of jurisdiction were left, however, to the
individual states. These powers were in themselves worth little, and
in the course of time all of the states save Bavaria, Saxony, and
Württemberg were brought to the point of yielding to Prussia the
slender military authority that remained to them.[294] In this manner
Prussia acquired the right to recruit, drill, and officer the
contingents of twenty-one states--a right which appreciably increased
her already preponderant authority in all matters of a military
character. Technically, there is no _German_ army, just as there is no
_German_ minister of war. Each state maintains its own contingent, and
the contingent maintained by the state is stationed normally within
that state. By virtue of the treaties, however, all contingents save
those of Bavaria, Saxony, and Württemburg are administered precisely
as if they comprised integral parts of the Prussian establishment.[295]
[Footnote 293: Arts. 61, 63, 64. Dodd, Modern
Constitutions, I., 345-347.]
[Footnote 294: The first of the Prussian military
treaties, that concluded with Saxe-Coburg-Gotha,
dates from 1861; the last, that with Brunswick,
from 1885.]
[Footnote 295: Howard, The German Empire, Chap. 12;
Laband, Das Staatsrecht des deutschen Reiches, §§
95-113; C. Morhain, De l'empire allemand (Paris,
1886), Chap. 15.]
*218. The Sonderrechte.*--In the possession of special privileges
Prussia, however, is not alone. When the states of the south became
members of the federation all of them stipulated certain
_Sonderrechte_, or reserved rights, whose acknowledgment was made the
condition upon which they came into the union. Württemberg and Bavaria,
for example, retain on this basis the administration of posts and
telegraphs within their boundaries, and Württemberg, Bavaria, and
Baden possess the exclusive right to tax beers and brandies produced
within each state respectively. Bavaria retains the administration of
her own railways. At one time it was feared that the special privileges
accorded the southern states would constitute a menace to the stability
of the Empire. Such apprehension, however, has proved largely
groundless.[296] In this connection it is worth pointing out that under
the Imperial constitution the right to commission and despatch diplomatic
(though not consular) agents is not withdrawn from the individual states.
In most instances, however, the maintenance of diplomatic representatives
abroad has long since been discontinued. Saxony, Bavaria, and (p. 209)
Württemberg retain to-day only their posts at Vienna, St. Petersburg,
and the Vatican.
[Footnote 296: Laband, Das Staatsrecht des
deutschen Reiches, §§ 11-13.]
*219. Constitutional Amendment.*--It is stipulated within the Imperial
constitution that amendments may be adopted by a process identical
with that of ordinary legislative enactment, save that an amendment
against which as many as fourteen votes are cast in the Bundesrath is
to be considered rejected. The practical operation of this
last-mentioned provision is to confer upon Prussia, possessing
seventeen votes and controlling twenty in the federal chamber, an
absolute veto upon all propositions looking toward constitutional
change. Clauses of the constitution whereby special rights are secured
to particular states may be amended only with the consent of the
states affected.[297] In 1873, 1888, and 1893 the text of the
constitution was amended, and upon several other occasions important
modifications have been introduced in the working constitution without
the formality of altering the letter of the instrument.
[Footnote 297: Art. 78. Dodd, Modern Constitutions,
I., 351.]
CHAPTER X (p. 210)
THE IMPERIAL GOVERNMENT: EMPEROR, CHANCELLOR, AND BUNDESRATH
I. THE EMPEROR
*220. Status and Privileges.*--Under the North German Confederation of
1867-1871 the king of Prussia was vested with supreme command of the
federal navy, the functions of Bundesfeldherr, or commander-in-chief
of the federal army, and a large group of purely governmental powers,
including the summoning, proroguing, and adjourning of the Bundesrath
and Bundestag, the appointment and dismissal of the Chancellor and of
other federal officials, the publication of the federal laws, and a
general supervision of the federal administration. These powers were
exercised by the king in the capacity of _Bundespræsidium_, or chief
magistrate, of the federation. Upon the accession of the south German
states in 1870-1871 Bismarck and his royal master determined to bring
once more into use in Germany the title of Emperor, although between
the empire which was now assuming form and the empire which had been
terminated in 1806 there was recognized to be no historical
connection. The constitution of April 16, 1871, accordingly stipulates
that "to the king of Prussia shall belong the presidency of the
Confederation, and he shall bear the title of _Deutscher Kaiser_
(German Emperor)."[298]
[Footnote 298: Art. II. Dodd, Modern Constitutions,
I., 330. It will be observed that the title is not
"Emperor of Germany." The phrase selected was
intended to denote that the Emperor is only _primus
inter pares_ in a confederation of territorial
sovereigns (_Landesherren_.) He is a territorial
sovereign only in Prussia.]
The revival of the Imperial title and dignity involved, and was
intended to involve, no modification of the status of the
Bundespræsident, save in respect to his official designation and
certain of his personal privileges. His relations with the states and
with the princes of the federation continued precisely as before. The
powers of the Kaiser were, and are, the powers of the old President,
and nothing in excess of those. The title might be taken to imply a
monarchy of the customary sort; but properly it does not. There is no
Imperial crown, no Imperial civil list, no Imperial "office" as such.
The king of Prussia, in addition to his purely Prussian prerogatives,
is by the Imperial constitution vested with the added prerogative (p. 211)
of bearing the Kaiser title and of exercising those powers which under
the constitution and laws are conferred upon the bearer of that title.
Apart from the Prussian crown the Imperial function does not exist;
from which it follows that there is no law of Imperial succession
apart from the Prussian law regulating the tenure of the Prussian
throne,[299] and that in the event of a regency in Prussia the regent
would, _ipso facto_, exercise the functions of Emperor. Chief among
the privileges which belong to the Kaiser as such are those of special
protection of person and family and of absolute exemption from legal
process. Responsible to no superior earthly authority, the Emperor may
not be brought for trial before any tribunal, nor be removed from
office by any judicial proceeding. Assaults upon his person are
punishable with death, and attacks, in speech or writing, which are
adjudged to constitute _lèse majesté_ are subject to special and
severe penalties.[300]
[Footnote 299: Arts. 53-58 of the Prussian
Constitution. See p. 253.]
[Footnote 300: R. C. Brooks, Lèse Majesté, in _The
Bookman_, June, 1904.]
*221. Powers: Military and Foreign Affairs.* The king of Prussia being
_ipso facto_ Emperor, the royal and Imperial functions which are
combined in the hands of the one sovereign are of necessity closely
interrelated. There are powers which belong to William II. to-day
solely by virtue of his position as king of Prussia. There are others,
of an Imperial nature, which he possesses by reason of the fact that,
being king of Prussia, he is also Emperor. In practice, if not in law,
there are still others which arise from the thoroughgoing
preponderance of the Prussian kingdom as a state within the
Empire--the power, in general, of imparting a bent to Imperial policy
such as would not be possible if, for example, the king of Württemberg
were Emperor, rather than the king of Prussia.
The functions of the Emperor as such are not numerous, but, so far as
they go, they are of fundamental importance. In the first place, the
Emperor is commander-in-chief of the army and navy. He may control the
organization of the Landwehr, or national defense; determine the
strength and composition of the armed contingents; supervise the
equipment and drilling of the troops; and mobilize the whole, or any
part, of the forces.[301] A second group of Imperial functions are
those relating to foreign affairs. "It shall be the duty of the
Emperor," says the constitution, "to represent the Empire among
nations, to declare war and to conclude peace in the name of the
Empire, to enter into alliances and other treaties with foreign
countries, to accredit ambassadors and to receive them."[302] The (p. 212)
Emperor's power, however, is not in all of these directions absolute.
One important limitation arises from the requirement that, under all
circumstances save in the event of an attack upon the federal
territory or its coasts, war may be declared only with the consent of
the Bundesrath. Another is that in so far as treaties with foreign
countries relate to matters which are to be regulated by Imperial
legislation, "the consent of the Bundesrath shall be required for
their conclusion, and the approval of the Reichstag shall be necessary
to render them valid."[303]
[Footnote 301: Howard, The German Empire, Chap. 12;
Laband, Deutsches Reichsstaatsrecht, 345-359.]
[Footnote 302: Art. II. Dodd, Modern Constitutions,
I., 330.]
[Footnote 303: Art. II, clause 3. Dodd, I., 331.]
*222. Powers: Legislation and Justice.*--A third group of functions has
to do with legislation. By the constitution the Emperor is vested with
the right to convene the Bundesrath and the Reichstag, and to open,
adjourn, and close them.[304] In accordance with resolutions of the
Bundesrath, bills are laid before the Reichstag in the name of the
Emperor; and it is the Emperor's duty to prepare and publish the laws
of the Empire, as well as to supervise their execution.[305] In so far
as is permitted by the constitution, and by laws from time to time
enacted, decrees and ordinances may be promulgated by the Emperor,
under the countersignature of the Chancellor. Speaking strictly, the
Emperor possesses no veto upon measures passed in the Bundesrath and
Reichstag, though in practice he may refuse to publish a law in the
enactment of which he believes the ordinary formal requirements not to
have been complied with. He may not withhold a measure by reason
simply of its content.
[Footnote 304: Art. 12. Ibid.]
[Footnote 305: "The laws of the Empire shall
receive their binding force by Imperial
promulgation, through the medium of an Imperial
Gazette. If no other time is designated for the
published law to take effect it shall become
effective on the fourteenth day after its
publication in the Imperial Gazette at Berlin."
Art. 2. Dodd, Modern Constitutions, I., 326.]
The Emperor is vested, in the next place, with certain prerogatives in
relation to the judiciary. On motion of the Bundesrath, he appoints
(though he may not remove) the members of the Reichsgericht, or
Imperial Court; and by the Code of Criminal Procedure it is stipulated
that in cases in which the Imperial Court shall have rendered judgment
as a tribunal of first instance, the Emperor shall possess the power
of pardon. The pardoning power is extended likewise to cases adjudged
in consular courts, prize courts, and other tribunals specified by
law.
*223. Powers: Execution of the Law.*--Finally, the execution of the laws
is intrusted to the Emperor with, however, this limitation, that,
under the German system, the execution of law is committed largely to
the states and the officials thereof, so that the measures of the (p. 213)
Imperial Government whose execution is not specifically provided for
by the constitution and the laws are presumably carried into effect by
the constituted authorities of the states. There are, however,
Imperial agents whose business it is to inspect the execution of
Imperial measures by the states and to report to the Emperor
infractions or omissions. When such delinquencies are adjudged
sufficiently serious, the Emperor may bring them to the attention of
the Bundesrath, and that body may order an "execution," i.e., a show
of military force to coerce the erring state. The carrying out of the
"execution" is intrusted to the Emperor.[306] Incident to the general
executive function is the power to make appointments. By the
constitution it is stipulated that the Emperor, in addition to
appointing the Imperial Chancellor, shall appoint Imperial officials,
require of them the taking of an oath to the Empire, and, when
necessary, dismiss them.[307] The position which the Chancellor
occupies in the Imperial administrative system is of such weight that
the power of appointing to, and of removing from, the chancellorship
is in itself of very large importance; and the Kaiser's control of
administration is still further increased by his power of appointment
and removal of subordinate officials.[308]
[Footnote 306: Art. 19. Dodd, Modern Constitutions,
I., 332.]
[Footnote 307: Art. 18. Ibid.]
[Footnote 308: Art. 19. Dodd, Modern Constitutions,
I., 332. On the status and functions of the German
Emperor see Howard, The German Empire, Chap. 3; J.
W. Burgess, The German Emperor, in _Political
Science Quarterly_, June, 1888; Laband, Das
Staatsrecht des deutschen Reiches, §§ 24-26; ibid.,
Das deutsche Kaiserthum (Strassburg, 1896); R.
Fischer, Das Recht des deutschen Kaisers (Berlin,
1895); K. Binding, Die rechtliche Stellung des
Kaisers (Dresden, 1898); R. Steinbach, Die
rechtliche Stellung des deutschen Kaisers
verglichen mit des Präsidenten der Vereinigten
Staaten von Amerika (Leipzig, 1903).]
II. THE CHANCELLOR
*224. Non-existence of a Parliamentary System.*--Within the domain of
Imperial government the place filled in other governmental systems by
a ministry or cabinet of some variety is occupied by a single official,
the _Reichskanzler_, or Chancellor. When the Imperial constitution was
framed it was the intention of Bismarck to impart to the Imperial
administration the fullest facility and harmony by providing the
Chancellor with no colleagues, and by making that official responsible
solely to the Emperor. Such a scheme would have meant, obviously, a
thoroughgoing centralization in all Imperial affairs and the utter
negation of anything in the way of a parliamentary system of government.
The more liberal members of the constituent Reichstag compelled (p. 214)
a modification of the original Bismarckian programme; so that when the
constitution assumed its permanent form it contained not merely the
stipulation that "the Imperial Chancellor, to be appointed by the
Emperor, shall preside in the Bundesrath and supervise the conduct of
its business," but the significant provision that "the decrees and
ordinances of the Emperor shall be issued in the name of the Empire,
and shall require for their validity the countersignature of the
Imperial Chancellor, who thereby assumes the responsibility for
them."[309]
[Footnote 309: Arts. 15 and 17. Dodd, Modern
Constitutions, I., 331.]
Nominally, this article establishes the principle of ministerial
responsibility, even though there is but a single minister to be made
responsible. Practically, it does nothing of the sort, for the reason
that no machinery whatever is provided for the enforcing of
responsibility. There is not even specification of the authority to
which responsibility shall lie. The article stipulating
responsibility, appropriated from the constitution of Prussia, was
merely tacked on the Imperial instrument and has never been brought
into organic relation with it. In practice the Imperial Government has
always been able to do business without for a moment admitting the
right of the Reichstag to unseat the Chancellor by an adverse vote.
The Chancellor may be criticised and the proposals which he introduces
may be defeated; expediency may even require his removal by his
Imperial master; but he has never felt obliged to retire merely by
reason of lack of support in the legislative chamber, as would a
British or a French minister similarly situated. This does not mean,
of course, that the blocking of a governmental programme may not tend
to produce the practical effect of a parliamentary vote of "want of
confidence." It means simply that the Chancellor, in such a case, is
under no admitted obligation to resign. The retirement of Chancellor
von Bülow during the crisis of 1908-1909 was more nearly involuntary
than that of any one of his three predecessors, but persons most
conversant with the circumstances agree that there was involved in it
no intention of concession to the parliamentary principle. The
Chancellor's fall was, in reality, only his punishment for
countenancing the popular indignation occasioned by the Emperor's
memorable _Daily Telegraph_ interview, for which the Chancellor
himself had been, at least technically, responsible.[310]
[Footnote 310: For an excellent discussion of this
general subject see W. J. Shepard, Tendencies
toward Ministerial Responsibility in Germany, in
_American Political Science Review_, Feb., 1911. In
the course of an impassioned speech in the
Reichstag in 1912, occasioned by a storm of protest
against the Emperor's alleged threat to withdraw
the newly granted constitution of Alsace-Lorraine,
Chancellor von Bethmann-Hollweg stated the theory
and fact of the office which he holds in these
sentences: "No situation has been created for which
I cannot take the responsibility. As long as I
stand in this place I shield the Emperor (_trete
ich vor den Kaiser_). This not for courtiers'
considerations, of which I know nothing, but as in
duty bound. When I cannot satisfy this my duty you
will see me no more in this place."]
There is a clause of the constitution[311] which confers upon the (p. 215)
Chancellor the right to delegate the power to represent him to _any
other_ member of the Bundesrath; whence it seems to follow that the
Chancellor must be himself a member of that body. The relations of the
Empire and the Prussian kingdom practically require, further, that the
Chancellor be identified with the Prussian contingent in the federal
chamber. Since, however, the Emperor, in his capacity of king of
Prussia, designates the Prussian delegates in that body, it is open to
him to make such an appointment in this second capacity as will enable
him when selecting, in his Imperial capacity, a chancellor to procure
the services of the man he wants.
[Footnote 311: Art. 15, cl. 2. Dodd, Modern
Constitutions, I., 331.]
*225. Functions: in the Bundesrath and the Reichstag.*--Speaking
broadly, the functions of the Chancellor are two-fold. The first
arises from his position within the Bundesrath. Not only does he
represent in that body, as do his Prussian colleagues, the king of
Prussia; he is vested constitutionally with the presidency of it and
with the supervision of its business. He determines the dates of its
sessions. Through his hands pass all communications and proposals,
from the states as well as from the Reichstag, addressed to it, and he
is its representative in all of its external relations. In the name of
the Emperor he lays before the Reichstag all measures enacted by the
Bundesrath; and as a member of the Bundesrath, though not as Imperial
Chancellor, he may appear on the floor of the Reichstag to advocate
and explain proposed legislation. Measures which have been enacted
into law are binding only after they have been proclaimed by the
Chancellor, such proclamation being made regularly through the
official organ known as the _Reichsgesetzblatt_.
*226. Functions: Administration.*--A second function, so inextricably
intertwined with those just mentioned as to be in practice sometimes
not clearly distinguishable from them, is that which arises from the
Chancellor's position as the principal administrative official of the
Empire. As has been pointed out, the work of administration under the
German system is largely decentralized, being left to the states; but
the ultimate administrative _authority_ is very highly centralized,
being gathered in the hands of the Chancellor in a measure not
paralleled in any other nation of western Europe. As an administrative
official the Chancellor has been described with aptness as the
Emperor's "other self." He is appointed by the Emperor; he may be
dismissed by him; he performs his functions solely as agent and (p. 216)
assistant of the Emperor; and, although according to the letter of
the constitution responsible to the Reichstag, he is, in practice,
responsible to no one save his Imperial master.
Prior to 1870 the administrative functions of the Confederation were
vested in a single department, the _Bundeskanzleramt_, or Federal
Chancery, which was organized in three sections--the "central office,"
the postal office, and the bureau of telegraphs. For the time being,
affairs pertaining to the army, the navy, and foreign relations were
confided to the care of the appropriate ministries of Prussia. In 1870
there was created a separate federal department of foreign affairs,
and in the following year a federal department of the marine. One by
one other departments were established, until in 1879 the process was
completed by the conversion of what remained of the Bundeskanzleramt
into a department of the interior. The status of these departments,
however, was from the outset totally unlike that of the corresponding
branches of most governments. They were, and are, in effect but
bureaus of the Imperial Chancellery, and their heads comprise in no
degree a collegiate ministry or cabinet. Each official in charge of a
department owes his position absolutely to the Chancellor, and is
responsible, not to the Reichstag, nor yet to the Emperor directly,
but to the Chancellor. Some of the more important officials bear the
title of "secretary of state," but in any case they are legally
nothing more than expert and essentially non-political functionaries
of the administrative hierarchy, answerable to the Chancellor for all
that they may do.[312] Of the principal departments there are at
present seven: the Foreign Office, the Colonial Office, the Imperial
Home Office, the Department of Justice, the Imperial Treasury, the
Imperial Admiralty, and the Imperial Post-Office. In the nature of
things some are more important than others; and in addition to them
there are several Imperial bureaus, notably those of Railways, the
Bank, and the Debt Commission. Throughout all branches of the Imperial
administrative service appointments and dismissals are made regularly
by the Chancellor, in the name of the Emperor, and by the same
authority all administrative regulations are promulgated.[313]
[Footnote 312: At the same time it is to be
observed that, in practice, the more important
state secretaries are apt to sustain a relation
with the other organs of government which is
somewhat closer than might be inferred from what
has been said. Not infrequently they sit in the
Bundesrath, and are by reason of that fact
privileged to defend their measures in person on
the floor of the Reichstag. Not infrequently, too,
they are members of the Prussian ministry.]
[Footnote 313: Laband, Das Staatsrecht des
deutschen Reiches, §§ 41, 64-66.]
*227. Delegation of Powers.*--There are two arrangements in accordance
with which it is possible for the functions of the Chancellor to (p. 217)
be vested in a substitute. By the constitution the Chancellor is
authorized, as has been observed, to delegate to any other member of
the Bundesrath the power of representing him in that body; and there
is a special agreement to the effect that, in such a contingency,
should no acceptable Prussian substitute be available, the choice
shall fall on a Bavarian. In the second place, under statute of March
17, 1878, the Chancellor is empowered to call for the appointment of a
substitute, or substitutes, in his capacity of Imperial minister. The
appointment in such a case is made, not by the Chancellor himself, but
by the Emperor, and there may be designated either a general
substitute (_Generalstellvertreter_) or a substitute for the discharge
of the Chancellor's functions in some particular department
(_Specialstellvertreter_).[314] In the one case there is no limit upon
the Emperor's freedom of choice; in the other, appointments must be
made from chiefs of the department or departments affected. The
Chancellor may at any time resume functions thus delegated.[315]
[Footnote 314: The law of 1878 was enacted on the
occasion of Bismarck's prolonged absence from
Berlin, during his retirement at Varzin. A
_Generalstellvertreter_ takes the title of
_Reichsvicekanzler_, or Imperial Vice-Chancellor.]
[Footnote 315: On the status and functions of the
Chancellor see Howard, The German Empire, Chap. 7;
Laband, Das Staatsrecht des deutschen Reiches, §
40; L. Dupriez, Les ministres dans les principaux
pays d'Europe et d'Amérique, 2 vols. (Paris, 1892),
I., 483-548; Hensel, Die stellung des
Reichskanzlers nach dem Staatsrechte des deutschen
Reiches, in Hirth, _Annalen des deutschen Reiches_,
1882; M. I. Tambaro, La transformation des pouvoirs
en Allemagne, in _Revue du Droit Public_,
July-Sept., 1910.]
III. THE BUNDESRATH
If the chancellorship is without a counterpart among modern
governments, no less so is the Federal Council, or Bundesrath. No
feature of the German political system is more extraordinary; none, as
one writer has observed, is more thoroughly native.[316] It is not an
"upper house," nor even, in the ordinary sense, a deliberative chamber
at all. On the contrary, it is the central institution of the whole
Imperial system, and as such it is possessed of a broad combination of
functions which are not only legislative, but administrative,
consultative, judicial, and diplomatic.
[Footnote 316: Lowell, Governments and Parties, I.,
259.]
*228. Composition: the Allotment of Votes.*--The Bundesrath is composed
of delegates appointed by the princes of the monarchical states and by
the senates of the free cities. In the Imperial constitution it is
required that the fifty-eight votes to which the twenty-five states
of the confederation are entitled shall be distributed in such a (p. 218)
manner that Prussia shall have seventeen, Bavaria six, Saxony four,
Württemberg four, Baden three, Hesse three, Mecklenburg-Schwerin two,
Brunswick two, and the seventeen other states one apiece.[317] Save
for the increase of the Bavarian quota from four to six and of the
Prussian from four to seventeen, these numbers were simply carried
over from the Diet of the Confederation of 1815. The Prussian increase
arose, in 1866, from the absorption of Hanover, Hesse Cassel,
Holstein-Lauenburg, Nassau, and Frankfort; the Bavarian, from a
customs union treaty of July 8, 1867. Subsequent to the adoption of
the constitution of 1871 Prussia acquired, by contract, the vote of
the government of Waldeck; also, through the establishment in
1884-1885 of a perpetual Prussian regency in Brunswick, the two votes
to which that state is entitled; so that the total of the votes
controlled by the government of Prussia has been raised, for all
practical purposes, to twenty.
[Footnote 317: Under the Alsace-Lorraine
Constitution Act of 1911 (see p. 285), comprising
for all practical purposes an amendment of the
Imperial constitution, the territory of
Alsace-Lorraine has become nominally a state of the
Empire, being accorded three votes in the
Bundesrath. The whole number of votes was thus
raised to sixty-one. The Alsatian delegates are
appointed by the Statthalter, who is the immediate
and responsible agent of the Emperor. Their votes
are cast, however, under regulations which are
inconsistent with full-fledged statehood.]
It may be observed that the allocation of votes for which provision
was made in the constitution of 1867-1871 was largely arbitrary. That
is to say, except for the quotas of Prussia and Bavaria, it was
perpetuated from the constitution of 1815 with no attempt to apportion
voting power among the several states in exact relation to population,
wealth, or importance. Upon any one of these bases Prussia must have
been accorded an absolute majority of the aggregate number, rather
than a scant third. In 1867 the population of Prussia comprised
four-fifths of that of the North German Confederation; in 1871,
two-thirds of that of the Empire. That Prussia should intrust to her
sister states a total of forty-one votes, retaining but seventeen for
herself, was one of the arrangements by which Bismarck sought to
assure the lesser members of the federation against too complete
domination on the part of the Prussian kingdom.
*229. Status of Delegates and Method of Voting.*--Each state is
authorized, though not required, to send to the Bundesrath a number of
delegates identical with the number of votes to which the state is
entitled. The full quota of members is, therefore (since the
Alsace-Lorraine Constitution Act of 1911), sixty-one. Legally, and to
a large extent practically, the status of the delegate is that, not of
a senator, but of a diplomat; and the Emperor is required to (p. 219)
extend to the members of the body the "customary diplomatic
protection."[318] Delegates are very commonly officials, frequently
ministers, of the states which they represent. They are appointed
afresh for each session, and they may be recalled or replaced at any
time. The purely federal character of the Bundesrath is further
emphasized by two principal facts. The members speak and act and vote
regularly, not at their own discretion, but under the specific
instructions of the governing authorities by whom they are accredited.
Only rarely do their instructions allow to them any considerable
measure of independence. Strictly, the Bundesrath is not a
deliberative assembly at all; though, unlike the former Diet, it is
something more than a meeting of ambassadors of the states. In the
second place, the votes cast are the votes, not of the individual
members, but of the states, and they are cast in indivisible blocks by
the delegations of the states, regardless of the number of members in
attendance. Thus, Bavaria is entitled to six votes. Whatever the
individual opinions of the six Bavarian delegates, the six Bavarian
votes are cast solidly upon any question that may arise. It is not
even necessary that six delegates actually participate in the
decision. A single delegate may cast the entire quota of votes to
which his state is entitled. The twenty votes controlled by Prussia
are therefore cast invariably in a block, from which it follows that
Prussia usually preponderates in the chamber. On several occasions the
smaller states have been able to combine in sufficient numbers to
defeat a project upon which Prussia was bent, but such a proceeding is
distinctly exceptional.
[Footnote 318: Art. 10. Dodd, Modern Constitutions,
I., 330.]
*230. Sessions and Procedure.*--The Bundesrath may be convened by the
Emperor, which in effect means by the Chancellor, at any time. The
constitution stipulates that there shall be at least one session a
year, and, furthermore, that it shall be obligatory upon the Emperor
to convene the body whenever a meeting is demanded by one-third of the
total number of votes. The Bundesrath may be called together "for the
preparation of business" without the Reichstag; but the Reichstag may
not be convened without the Bundesrath.[319] The presiding officer at
all sessions is the Chancellor, or some other member of the body by
him designated as a substitute. It is within the competence of each
member of the confederation, i.e., each state, to propose measures
and to introduce motions. The phraseology of the constitution debars
the Emperor, as Emperor, from introducing proposals. As king of
Prussia, however, he may bring forward any project through the (p. 220)
medium of the Prussian delegation; and in actual practice it has
not always been deemed necessary to resort to this subterfuge.
[Footnote 319: Arts. 13 and 14. Dodd, Modern
Constitutions, I., 331.]
From all sittings of the Bundesrath the public is rigorously excluded;
and although ordinarily upon the conclusion of a session a statement
regarding the results of the proceedings is given to the press, the
chamber may vote to withhold such information altogether. Business
left unfinished at the close of a session may be resumed upon the
reassembling, precisely as if no lapse of time had occurred. With some
exceptions, a simple majority of the sixty-one votes is adequate for
the adoption of a measure. In the event of a tie, the Prussian
delegation possesses the deciding voice. The principal limitations
upon decisions by simple majority are: (1) any proposal to amend the
constitution may be rejected by as few as fourteen votes, whence it
arises that Prussia has an absolute veto on amendments; and (2) when
there is a division upon proposed legislation relating to military
affairs, the navy, the tariff, and various consumption taxes, the vote
of Prussia prevails if it is cast in favor of maintaining the _status
quo_.[320]
[Footnote 320: Art. 5. Dodd, Modern Constitutions,
I., 328.]
*231. Committees.*--The work of the Bundesrath consists largely in the
preparation of measures for the consideration of the Reichstag, and a
goodly share of its labor is performed in committees. Of permanent
committees there are now twelve--eight provided for within the
constitution itself and four existing by virtue of standing orders.
The committees prescribed by the constitution are those on the army
and fortifications; marine; customs and taxes; commerce; railroads,
posts and telegraphs; judicial affairs; accounts; and foreign
relations. Under certain limitations, each of these committees,
constituted for one year, is chosen by the Bundesrath itself, by
secret ballot, except that the Emperor appoints the members of the
committee on the marine and all but one of the members of the
committee on the army and fortifications.[321] The committees existing
by virtue of standing orders are those on Alsace-Lorraine, railroad
freight rates, standing orders, and the constitution. All committees
consist of seven members, save those on foreign affairs and the
marine, which have five; and each includes representatives of at least
four states. Prussia holds all chairmanships, save that of the
committee on foreign affairs, which belongs to Bavaria.
[Footnote 321: Art. 8. Ibid., I., 330. Strictly,
the Bundesrath but indicates by ballot the states
which shall be represented on each committee,
leaving to the states themselves the right to name
their representatives.]
*232. Powers of Legislation.*--By reason of the pivotal position (p. 221)
which the Bundesrath occupies in the German constitutional system the
functions of the body are fundamental and its powers comprehensive.
Its competence is in the main legislative and fiscal, but also in part
executive and judicial. By the constitution it is stipulated that the
legislative power of the Empire shall be exercised by the Bundesrath
and the Reichstag, and that a majority of the votes of both bodies
shall be necessary and sufficient for the enactment of a law.[322] The
right of initiating legislation is expressly conferred upon the
Reichstag, but in practice it is exercised almost exclusively by the
Bundesrath. Even finance bills all but invariably originate in the
superior chamber. Under the normal procedure bills are prepared,
discussed, and voted in the Bundesrath, submitted to the Reichstag for
consideration and acceptance, and returned for further scrutiny by the
Bundesrath before their promulgation by the Emperor. In any case, the
final approval of a measure must take place in the Bundesrath, by
whose authority alone the character of law can be imparted. Speaking
strictly, it is the Bundesrath that makes law, with merely the assent
of the Reichstag.
[Footnote 322: Art. 5. Dodd, Modern Constitutions,
I., 328.]
*233. Executive Authority.*--The Bundesrath's executive functions
represent a curious admixture, but the sum total is very considerable.
In the first place, the body possesses supplementary administrative
powers. By the constitution it is required to take action upon "the
general administrative provisions and arrangements necessary for the
execution of the Imperial laws, so far as no other provision is made
by law," as well as upon "the defects which may be discovered in the
execution of the Imperial laws."[323] This function is performed
through the issuing of ordinances so devised as not to contravene the
constitution, existing law, or the proper prerogatives of any
constituted authority, Imperial or state. In the second place, certain
powers vested in the Emperor may be exercised only with the
Bundesrath's consent. Most important of these are: (1) the declaration
of war, save in the event of an attack upon the territory or coasts of
the Empire; (2) the concluding of treaties, in so far as they relate
to matters falling within the range of Imperial legislation; and (3)
the carrying out of an "execution" against a delinquent state. Finally
certain relations are maintained with the Reichstag which involve the
exercise of authority that is essentially executive. With the assent
of the Emperor, the Bundesrath may dissolve the popular chamber; and
every member of the Bundesrath has the right to appear in the (p. 222)
Reichstag and to be heard there at any time upon his own request,
somewhat after the manner of a minister in a parliamentary
government.[324] Large functions in connection with public finance,
likewise, are vested in the body. By it the annual budget is prepared,
the accounts which the Empire carries with the states are audited, and
important supervisory relations with the Imperial Bank, the Imperial
Debt Commission, and other fiscal agencies, are maintained. Lastly,
there is some participation in the power of appointment; for although
that power, as such, is vested in the Emperor, officials of some kinds
(e.g., judges of the Imperial Court) are actually chosen by the
Bundesrath, and in many other instances the body preserves an
acknowledged right to approve appointments which are made.
[Footnote 323: Art. 7. Dodd, I., 329.]
[Footnote 324: Arts. 9 and 24. Dodd, Modern
Constitutions, I., 330-333. It should be observed,
however, that the members of the Bundesrath are
authorized to appear in the Reichstag, not for the
purpose of advocating a measure which the
Bundesrath has enacted, or would be willing to
enact, but simply to voice the interests or demands
of their own states.]
*234. Judicial Powers.*--In its judicial capacity the Bundesrath sits as
a supreme court of appeal, to which cases may be carried from the
tribunals of a state, when it can be shown that justice is not to be
had in those tribunals.[325] It serves also as a court of last resort
for the settlement of disputes between the Imperial Government and a
state; or between two states, when the point at issue is not a matter
of private law and when a definite request for action is made by one
of the parties. Finally, in disputes relating to constitutional
questions in states whose constitution does not designate an authority
for the settlement of such differences, the Bundesrath is required, at
the request of one of the parties, to effect an amicable adjustment;
or, if this shall prove impossible, to see to it that the issue is
settled by Imperial law.[326]
[Footnote 325: Art. 77. Dodd, Modern Constitutions,
I., 350.]
[Footnote 326: Art. 76. Dodd, Modern Constitutions,
I., 350. On the Bundesrath see Howard, The German
Empire, Chap. 4; J. H. Robinson, The German
Bundesrath, in _Publications of University of
Pennsylvania_, III. (Philadelphia, 1891); P.
Laband, Das Staatsrecht des deutschen Reiches, §§
27-31; A. Lebon, Études sur l'Allemagne politique,
137-151; Dupriez, Les Ministres, I., 505-523; Zorn,
Das Staatsrecht des deutschen Reiches, I., 136-160;
E. Kliemke, Die Staatsrechtliche Natur und Stellung
des Bundesrathes (Berlin, 1894); A. Herwegen,
Reichsverfassung und Bundesrat (Cologne, 1902).]
CHAPTER XI (p. 223)
THE IMPERIAL GOVERNMENT: REICHSTAG, PARTIES, JUDICIARY
I. COMPOSITION OF THE REICHSTAG--ELECTORAL SYSTEM
In complete contrast with the Bundesrath, which is a purely federal
institution, the Reichstag is broadly national. It represents, not the
states, nor yet the people of the states, but the people of the Empire
as a whole. From what has been said regarding the preponderance of the
autocratic principle in the German system it follows that there is no
room in that system for a parliamentary chamber of the nature of the
British House of Commons or of the French Chamber of Deputies. None
the less, restricted as are its functions, the Reichstag is one of the
world's most vigorous and interesting legislative bodies.
*235. Allotment of Seats.*--Members of the Reichstag are chosen for a
term of five years,[327] by direct and secret ballot, at an election
which takes place on a given day throughout the entire Empire. The
number of seats, fixed tentatively by the constitution of 1871 at 382,
was, by law of June 25, 1873, providing for the election of fifteen
members from Alsace-Lorraine, increased to 397; and it thereafter
remained unchanged. The electoral "circles," or districts, each of
which returns one member, were laid out originally in such a way as to
comprise 100,000 inhabitants each, and also in such a manner that no
district would embrace portions of two or more states. Since 1871
there has been no redistricting of the Empire, and the populations
comprising the various constituencies have become grossly unequal.
Berlin, with more than two million people, is still entitled to but
six seats; and the disproportion in other great cities and densely
inhabited regions is almost as flagrant.[328] There has long been
demand for a redistribution of seats; but, by reason of the proneness
of urban constituencies to return to the Reichstag socialists or other
radicals, the Government has never been willing to meet the (p. 224)
demand. By states, the 397 seats are distributed as follows: Prussia,
236; Bavaria, 48; Saxony, 23; Württemberg, 17; Alsace-Lorraine
(Imperial territory), 15; Baden, 14; Hesse, 9; Mecklenburg-Schwerin,
6; Saxe-Weimar, 3; Oldenburg, 3; Brunswick, 3, Hamburg, 3;
Saxe-Meiningen, 2; Saxe-Coburg-Gotha, 2; Anhalt, 2; and all others,
one each. As in the American House of Representatives, a state is
entitled to one member regardless of its population.
[Footnote 327: The term, originally three years,
was made five by a law of 1888. The modification
went into effect with the Reichstag elected in
February, 1890.]
[Footnote 328: In Conservative East Prussia the
average number of voters in a district is 121,000;
in Socialist Berlin it is 345,000. Twelve of the
most populous districts represented in the
Reichstag contain 1,950,000 voters; twelve of the
least populous, 170,000. The district of
Schaumburg-Lippe has but 9,891.]
*236. Time and Method of Elections.*--Electoral procedure is regulated
by the Election Law of May 31, 1869, amended in minor particulars at
subsequent dates, and extended in 1871 and in 1873 to the southern
states and to Alsace-Lorraine respectively. Elections are held
uniformly throughout the Empire on a day fixed by the Emperor. In the
event of a dissolution prior to the end of the five-year term an
election is required to take place within a period of sixty days, and
the new Reichstag must be convened not later than ninety days after
the dissolution.[329] For election on the first ballot an absolute
majority of the votes cast within the circle, or district, is
required. If no candidate obtains such a majority, there follows a
second balloting (_Stichwahl_) a fortnight later, when choice is made
between the two candidates who upon the first occasion polled the
largest number of votes. In the event of a tie, decision is by
lot.[330] Secrecy of the ballot is specially safeguarded by
regulations enacted April 28, 1903. Each voter, upon appearing at the
polls, is furnished with an envelope and a white voting-paper bearing
an official stamp. In a compartment arranged for the purpose in the
polling room he marks his ballot and incloses it in the envelope. As
he leaves the room he hands the envelope to the presiding officer or
deposits it in a voting urn. Once elected, a member, according to
constitutional stipulation, is a representative, not of the
constituency that chose him, but of the people of the Empire as a
whole, and he may not be bound by any order or instruction.[331]
[Footnote 329: Art. 25. Dodd, Modern Constitutions,
I., 333.]
[Footnote 330: By reason of the multiplicity of
parties the number of second ballotings required is
invariably large. In 1890 it was 138; in 1893, 181;
in 1898, 185; in 1903, 180; in 1907, 158; and in
1912, 191. It is calculated that the effect of
forty per cent of the second ballotings is to
prevent the election of the candidate obtaining
originally the largest number of votes. The
arrangement operates to the advantage principally
of the National Liberals, the Radicals, and other
essentially moderate parties, and to the
disadvantage especially of the Social Democrats. On
this subject see A. N. Holcombe, Direct Primaries
and the Second Ballot, in _American Political
Science Review_, Nov., 1911.]
[Footnote 331: Art. 29. Dodd, Modern Constitutions,
I., 333.]
*237. The Franchise.*--The franchise is broadly democratic. (p. 225)
Every male who, possessing citizenship in the Empire, has completed
his twenty-fifth year is entitled to vote in the district in which he
has his domicile, provided his name appears on the registration lists.
He is not required to be a citizen of the state in which he votes. The
only exceptions to the general rule of universal manhood suffrage
arise from the disfranchisement of persons under guardianship,
bankrupts, beneficiaries of public charity, persons suffering judicial
deprivation in respect to certain of their rights as citizens, and
persons in active service in the army and navy. Any male citizen,
possessed of the right to vote, twenty-five years of age or over, and
a resident of a state of the Empire during at least one year, is
eligible as a candidate. He is not required to be a citizen of the
state from which he aspires to be elected.[332]
[Footnote 332: On the German Imperial electoral
system see Howard, The German Empire, Chap. 5;
Lebon, Études sur l'Allemagne politique, 70-83;
ibid., Étude sur la législation électorale de
l'empire d'Allemagne, in _Bulletin de Législation
Comparée_, 1879; G. Below, Das parlamentarische
Wahlrecht in Deutschland (Berlin, 1909); and M. H.
Nézard, L'Évolution du suffrage universel en Prusse
et dans l'Empire allemand, in _Revue du Droit
Public_, Oct.-Dec., 1904.]
*238. Privileges of Members.*--Solicitous lest if members of the
Reichstag should be entitled to remuneration for their services the
poorer classes would arrive at a preponderance in the chamber,
Bismarck insisted in season and out upon the non-payment of
representatives, and by the constitution of 1871 salaries were
specifically forbidden.[333] During the eighties the Imperial Court of
Appeal ruled that the payment of socialist members by their supporters
was illegal,[334] though such payment has been in recent times not
unknown. Again and again measures providing for the payment of all
members from the Imperial treasury were passed in the Reichstag, only
to be thrown out by the Bundesrath. May 21, 1906, such a measure was
at last enacted by both chambers, providing for a payment of 3,000
marks a session (with a deduction of twenty-five marks for each day's
absence), and in addition free passes over German railways during, and
for eight days before and after, sessions. Upon the taking effect of
this measure, Germany became one of the several European countries in
which, within years comparatively recent, the members of the popular
legislative chamber have been given a right to public compensation.
Special privileges enjoyed by members are of the customary sort. No
member may at any time be held legally to account outside the chamber
by reason of his utterances or his votes within it. Unless taken (p. 226)
in the commission of a misdemeanor, or during the ensuing day, a
member may not be arrested for any penal offense, or for debt, without
the consent of the chamber; and at the request of the chamber all
criminal proceedings instituted against a member, and any detention
for judicial investigation or in civil cases, must be suspended during
a session.[335]
[Footnote 333: "The members of the Reichstag, as
such, shall draw no salary or compensation." Art.
32. Dodd, Modern Constitutions, I., 334.]
[Footnote 334: Cf. the Osborne Judgment of 1909 in
England (see p. 127).]
[Footnote 335: Arts. 30 and 31. Dodd, Modern
Constitutions, I., 334.]
II. ORGANIZATION AND POWERS OF THE REICHSTAG
*239. Sessions and Officers.*--The constitution stipulates that the
Reichstag and the Bundesrath shall meet annually. Beyond this, and the
further requirement that the Reichstag shall never be in session when
the Bundesrath is not, the Imperial Government is left entirely free
in respect to the convening of the representative body.[336] The
summons is issued by the Emperor and the sessions are opened by him,
in person or by proxy. By him the assembly may be prorogued (though
not more than once during a session, and never for a longer period
than thirty days without its own consent); by him also, with the
assent of the Bundesrath, it may be dissolved.[337] The chamber
validates the election of its members, regulates its own procedure and
discipline, and elects its president, vice-presidents, and
secretaries.[338] Under standing orders adopted February 10, 1876, the
president and vice-president are chosen at the opening of the first
session following a general election for a temporary term of four
weeks, and upon the expiration of this period an election takes place
for the remainder of the session. At the opening of each succeeding
session an election of these officials for the session takes place at
once. The secretary is chosen at the beginning of each session for the
entire session.
[Footnote 336: Mention has been made of the
regulation that, following a dissolution prior to
the end of the five-year term, the chamber shall be
convoked within ninety days. It will be recalled,
also, that the Bundesrath may be convoked without
the Reichstag.]
[Footnote 337: Nominally by a resolution of the
Bundesrath, with the consent of the Emperor. Art.
24. Dodd, Modern Constitutions, I., 333.]
[Footnote 338: Art. 27. Ibid.]
*240. Abtheilungen and Committees.*--At the opening of a session the
entire membership of the Reichstag is divided by lot into seven
Abtheilungen, or bureaus, as nearly equal as it is possible to make
them. The bureaus of the French Chamber of Deputies are reconstituted
once a month, and those of the Italian once in two months, but those
of the Reichstag are maintained unchanged throughout a session, unless
upon motion of as many as thirty members the body decides upon a fresh
distribution. The functions of the bureaus comprise, in the main, (p. 227)
the passing upon the credentials of members of the chamber and
the designating of members of committees. There is in the Reichstag
but one standing committee--that on elections. It is perpetuated
throughout a session. All other committees are made up, as occasion
requires, by the appointment by ballot of an equal number of members
by each of the seven bureaus; although, in point of fact, the
preparation of committee lists falls largely to the party leaders of
the chamber. The function of committees is the preliminary
consideration of measures and the reporting of them and of evidence
relating to them, to the chamber, Bills are not, however, in all cases
referred to committees.
*241. Methods of Business.*--Measures proposed for enactment pass
through the three readings which have come to be customary among
modern legislative assemblies. Debate is carried on under regulations
closely resembling those which prevail in the British House of Commons
and distinctly less restrictive than those in vogue in the French
Chamber of Deputies. Members of the Bundesrath, to whom is assigned a
special bench, possess the right to appear and to speak at pleasure.
Debaters address the chamber from the tribune or from their seats as
they choose, and they speak whenever they can secure the recognition
of the presiding official, not, as in France, in the hard and fast
order indicated by a previously prepared written list. Like the
Speaker of the House of Commons, the president of the Reichstag is a
strictly non-partisan moderator. A fixed tradition of the office is
that during debate the chair shall recognize alternately the
supporters and the opponents of the measure under consideration. As a
general rule, closure of debate may be ordered upon the initiative of
thirty members.
Unlike the sittings of the Bundesrath, which take place invariably
behind closed doors, those of the Reichstag are, by constitutional
provision, public. Under the standing orders, however, the body may go
into secret session, on motion of the president, or of ten members.
Publicity is further assured by the constitutional stipulation that
"no one shall be held responsible for truthful reports of the
proceedings of the public sessions of the Reichstag."[339] Measures
are carried by absolute majority; and, while discussion may proceed in
the absence of a quorum, no vote or other action is valid unless there
is present a majority of the full membership of the body, that is,
since 1873, 199.
[Footnote 339: Art. 22. Dodd, Modern Constitutions,
I., 333.]
*242. Powers.*--The legislative power of the Empire is vested in the
Reichstag and the Bundesrath conjointly, and a majority of the votes
of both bodies is necessary for the enactment of a law. So declares
the constitution. The legislative functions of the popular chamber (p. 228)
are, however, in practice distinctly subordinate to those of the
Bundesrath. The Reichstag possesses no such power of legislative
initiative and discretion as is possessed by the popular chambers of
Great Britain, France, Italy, and the United States. Its consent is
necessary for the enactment of every law, for the adoption of every
constitutional amendment, and for the ratification of every treaty
affecting matters within the domain of Imperial legislation. But
bills, including those relating to finance, originate ordinarily with
the Chancellor and the Bundesrath; the procedure followed in the
shaping of revenue and military measures puts the Reichstag distinctly
at a disadvantage; and, at the best, the part which the chamber can
play in the public policy of the Empire is negative and subsidiary. It
can block legislation and discuss at length the policy of the
Government, but it is not vested by the constitution with power
sufficient to make it an effective instrument of control. It is within
the competence of the Bundesrath, with the assent of the Emperor, to
dissolve the popular chamber at any time, and, as has been pointed
out, such action is taken without an iota of the ministerial
responsibility which in other nations ordinarily accompanies the right
of dissolution. On several occasions since 1871 the Reichstag has been
dissolved with the sheer intent of putting an end to its
obstructionism.[340]
[Footnote 340: Lowell, Governments and Parties, I.,
257.]
The standing orders of the chamber make mention of the right of
interpellation, and resort is occasionally had to this characteristic
continental legislative practice. There are no ministers, however, to
whom an interpellation may be addressed except the Chancellor, and
even he has no right to appear in the Reichstag save as a member of
the Bundesrath. The consequence is that interpellations are addressed,
in practice, to the Bundesrath. It is only where the parliamentary
system prevails, as in France and Italy, that the device of
interpellation can be made to assume much importance. The possibility
of a larger opportunity for interpellation, which should involve the
right of the chamber to adopt resolutions declaring satisfaction or
dissatisfaction with the answer made, was warmly, but on the whole
inconclusively, discussed in the Reichstag in 1912.[341]
[Footnote 341: On the Reichstag see Howard, The
German Empire, Chap. 5; A. Lebon, Le Reichstag
allemand, in _Annales de l'École Libre des Sciences
Politiques_, April, 1889; ibid., Études sur
l'Allemagne politique, Chap. 2; Laband, Das
Staatsrecht des deutschen Reiches, §§ 32-38; H.
Robalsky, Der deutsche Reichstag (Berlin, 1897); G.
Leser, Untersuchungen über das Wahlprüfungsrecht
des deutschen Reichstags (Leipzig, 1908). There is
a full discussion of German methods of legislation
in Laband, _op. cit._, §§ 54-59.]
III. THE RISE OF POLITICAL PARTIES (p. 229)
In Germany, as in continental countries generally, the number of
political groups is legion. Many are too small and unstable to be
entitled properly to the designation of parties; and, in truth, of
even the larger ones none has ever become so formidable numerically as
to acquire a majority in the popular chamber. For the enactment of
measures the Government is obliged to rely always upon some sort of
coalition, or, at best, upon the members of a group which for the time
being holds the balance between two opposing alignments.
*243. Conservatives and Progressives.*--The party situation of the
present day has been reached in consequence of the gradual
disintegration of the two great political groups with which Prussia
entered upon the period of Bismarck's ministry; and to this day the
parties of the German Empire and those of the Prussian kingdom are
largely identical.[342] The two original Prussian groups were the
Conservatives and the Fortschritt, or Progressives, of which the one
comprised, throughout the middle portion of the nineteenth century,
the supporters of the Government and the other its opponents. The
Conservatives were pre-eminently the party of the landed aristocracy
of northern and eastern Germany. During twenty years prior to 1867
they dominated completely the Prussian court and army. Following the
Austrian war of 1866, however, the Conservative ascendancy was broken
and there set in that long process of party dissolution by which
German political life has been brought to its present confused
condition. To begin with, each of the two original parties broke into
two distinct groups. From the Conservatives sprang the Frei
Conservativen, or Free Conservatives; from the Fortschritt, the
National-Liberal-Partei, or National Liberals. In the one case the new
group comprised the more advanced element of the old one; in the
other, the more moderate; so that, in the order of radicalism, the
parties of the decade following 1866 were the Conservatives, the Free
Conservatives, the National Liberals, and the Fortschrittspartei, or
Radicals. Among these four groups Bismarck was able to win for his
policy of German unification the support of the more moderate, that is
to say, the second and third. The ultra-Conservatives clung to the
particularistic régime of earlier days, and with them the genius of
"blood and iron" broke definitely in 1866. The Free Conservatives
comprised at the outset simply those elements of the original (p. 230)
Conservative party who were willing to follow Bismarck.
[Footnote 342: To so great an extent is this true
that, having described in this place the parties of
the Empire, it will not be necessary subsequently
to allude at length to those of Prussia.]
*244. Rise and Preponderance of the National Liberals.*--Similarly among
the Progressives there was division upon the attitude to be assumed
toward the Bismarckian programme. The more radical wing of the party,
i.e., that which maintained the name and the policies of the original
Fortschritt, refused to abandon its opposition to militarism and
monarchism, opposed the constitution of 1867 for its illiberality, and
withheld from Bismarck's government all substantial support. The
larger portion of the party members, however were willing to
subordinate for a time to Bismarck's nationalizing projects the
contest which the united Fortschritt had long been waging in behalf of
constitutionalism. The party of no compromise was strongest in Berlin
and the towns of east Prussia. It was almost exclusively Prussian. The
National Liberals, on the contrary, became early an essentially
German, rather than simply a Prussian, party. Even before 1871 they
comprised, in point both of numbers and of power, the preponderating
party in both Prussia and the Confederation as a whole; and after
1871, when the Nationalists of the southern states cast in their lot
with the National Liberals, the predominance of that party was
effectually assured. Upon the National Liberals as the party of unity
and uniformity Bismarck relied absolutely for support in the
upbuilding of the Empire. It was only in 1878, after the party had
lost control of the Reichstag, in consequence of the reaction against
Liberalism attending the great religious contest known as the
Kulturkampf, that the Chancellor was in a position to throw off the
not infrequently galling bonds of the Liberal alliance.
*245. The Newer Groups: the Centre.*--Meanwhile the field occupied by
the various parties that have been named was, from an early date, cut
into by an increasing number of newly organized parties and groups.
Most important among these were the Clericals, or Centre, and the
Social Democrats. The origins of the Centre may be traced to the
project which was formulated in December, 1870, to found a new party,
a party which should be essentially Catholic, and which should have
for its purpose the defense of society against radicalism, of the
states against the central government, and of the schools against
secularization. A favorite saying of the founders was that "at the
birth of the Empire Justice was not present." The party, gaining
strength first in the Rhenish and Polish provinces of Prussia and in
Bavaria, was able in the elections of 1871 to win a total of sixty
seats. Employed by the Catholic clergy during the decade that followed
to maintain the cause of the papacy against the machinations of
Bismarck, the party early struck root deeply; and by reason of (p. 231)
the absolute identification in the public mind of its interests
with the interests of the Catholic Church, ensuring its preponderance
in the states of the south, and also by reason of the fact that it has
always been more successful than any of its rivals in maintaining
compactness of organization, it became, and has continued almost
uninterruptedly to the present time, the strongest numerically of all
political groups within the Reichstag.
*246. The Newer Groups: the Social Democrats.*--The Social Democratic
party was founded in 1869 under the leadership of Wilhelm Liebknecht
and August Bebel. In 1863 there had been organized at Leipzig, under
the inspiration of the eloquent Marxist Ferdinand Lassalle, a
Universal German Workingman's Association. Between the two bodies
there was for a time keen rivalry, but at a congress held at Gotha, in
May, 1875, they (together with a number of other socialistic
societies) were merged in one organization, which has continued to
this day to be known as the Social Democratic party. The development
of socialism in the Empire between 1870 and 1880, in respect to both
numbers and efficiency of organization, was phenomenal. At the
parliamentary elections of 1871 the Social Democratic vote was 124,655
(three per cent of the total) and two Social Democrats were chosen to
the Reichstag. In 1874 the popular vote was 351,952, and nine members
were elected; in 1877 it was 493,288, and the number of successful
candidates was twelve. By the Emperor William I. and by his
chancellor; Bismarck, as indeed by the governing and well-to-do
classes generally, the progress of the movement was viewed with
frankly avowed apprehension. Most of the great projects of the
Imperial Government were opposed by the Social Democrats, and the
members of the party were understood to be enemies of the entire
existing order, and even of civilization itself. Two attempts in 1878
upon the life of the Emperor, made by men who were socialists, but
disavowed by the socialists as a body, afforded the authorities an
opportunity to enter upon a campaign of socialist repression, and from
1878 to 1890 anti-socialist legislation of the most thoroughgoing
character was regularly on the statute books and was in no slight
measure enforced. At the same time that effort was being made to stamp
out socialist propaganda a remarkable series of social reforms was
undertaken with the deliberate purpose not only of promoting the
public well-being, but of cutting the ground from under the
socialists' feet, or, as some one has observed, of "curing the Empire
of socialism by inoculation." The most important steps taken in this
direction comprised the inauguration of sickness insurance in 1883, of
accident insurance in 1884, and of old-age and invalidity insurance in
1889.
For a time the measures of the government seemed to accomplish (p. 232)
their purpose, and the official press loudly proclaimed that socialism
in Germany was extinct. In reality, however, socialism thrived on
persecution. In the hour of Bismarck's apparent triumph the socialist
propaganda was being pushed covertly in every corner of the Empire. A
party organ known as the _Social Democrat_ was published in
Switzerland, and every week thousands of copies found their way across
the border and were passed from hand to hand among determined readers
and converts. A compact organization was maintained, a treasury was
established and kept well filled, and with truth the Social Democrats
aver to-day that in no small measure they owe their superb
organization to the Bismarckian era of repression. At the elections of
1878 the party cast but 437,158 votes, but in 1884 its vote was
549,990 (9.7 per cent of the whole) and the contingent of
representatives returned to the Reichstag numbered twenty-four. In
1890 the socialist vote attained the enormous total of 1,427,298 (19.7
per cent of the whole), and the number of representatives was
increased to thirty-five. Repression was manifestly a failure, and in
1890 the Reichstag, with the sanction of the new emperor, William II.,
wisely declined to renew the statute under which proscription had been
employed.
*247. Minor Parties.*--Aside from the Centre and the Social Democrats,
the newer party groups in Germany--the Guelfs, the Poles, the Danes,
the Alsatians, the Antisemites, etc.--are small and relatively
unimportant. All are particularistic and irreconcilable; all are
organized on the basis of local, racial, or religious interests.
Apart, indeed, from the National Liberals and the Socialists, it
cannot be said that any one of the German political groups, large or
small, is broadly national, in either its tenets or its constituency.
The Guelfs, or Hanoverische Rechtspartei, comprise the irreconcilables
among the old Hanoverian nobility who refuse to recognize the validity
of the extinction of the ancient Hanoverian dynasty by the deposing of
George V. in 1866. As late as 1898 they returned to the Reichstag nine
members. In 1903 they elected but five, and in 1907 their
representation was reduced to a single deputy. In 1912 their quota
became again five. The Poles comprise the Slavic voters of the
districts of West Prussia, Posen, and Silesia, who continue to send to
the Reichstag members who protest against the incorporation of the
Poles in Prussia and in the Empire. At the elections of 1903 they
secured sixteen seats, at those of 1907 twenty, and at those of 1912
eighteen. The Danes of northern Schleswig keep up some demand for
annexation to Denmark, and measures looking toward Germanization are
warmly resented; but the number of people concerned--not more than
150,000--is so small that their political power is almost _nil_. (p. 233)
They have, as a rule, but a single spokesman in the Reichstag. The
Alsatians comprise the autonomists of Alsace-Lorraine, and the
Antisemites form a group whose original purpose was resistance to
Jewish influence and interests.
IV. PARTY POLITICS AFTER 1878
*248. Shifting "Government" Parties.*--To rehearse here the details of
German party history during the period since the Government's break
with the Liberals in 1878 is impossible. A few of the larger facts
only may be mentioned. Between 1878 and 1887 there was in the
Reichstag no one great party, nor even any stable coalition of
parties, upon which the Government could rely for support. For the
time being, in 1879, Bismarck allied with the Centre to bring about
the adoption of his newly-framed policy of protection and of the
famous Frankenstein clause relative to the matricular contributions of
the states.[343] The National Liberals, left in the lurch, broke up,
and in 1881 the remnant of the party was able to obtain only
forty-five seats. After the elections of that year the Centre
commanded in the Reichstag a plurality of forty. The upshot was that,
in the effort to procure the dependable support of the Centre, the
Government gradually abandoned the Kulturkampf, and for a time the
Centre virtually succeeded to the position occupied prior to 1878 by
the National Liberals. The elections of 1887, however, again changed
the situation. The Centre retained a plurality of some twenty seats,
but the Conservatives, Free Conservatives, and National Liberals
formed a coalition and between them obtained a total of 220 seats and,
accordingly, the control of the Reichstag. Thereupon the Conservatives
became the Government's principal reliance and the Centre dropped for
a time into a position of neutrality. At the elections of 1890 the
coalition, which in truth had been built up by the Government on the
basis of a cartel, or agreement, suffered heavy losses. Of 397 seats
it carried only 130,[344] while the Centre alone procured 116.
Coincident with the overturn came the dismissal of Bismarck and the
elevation to the chancellorship of General von Caprivi. Throughout his
years of office (1890-1894) Caprivi was able to rely habitually upon
the support of no single party or group of parties, and for the
enactment of its measures the Government was obliged to seek (p. 234)
assistance now in one quarter and now in another, according as
circumstances dictated.
[Footnote 343: This measure provided that each year
all proceeds from the Imperial customs and tobacco
tax in excess of 130,000,000 marks should be
distributed among the several states in proportion
to their population. Its author was Frankenstein, a
leader of the Centre.]
[Footnote 344: Conservatives 65, Free Conservatives
24, National Liberals 41.]
*249. The Agrarian Movement and the Rise of the Bloc.*--Two or three
developments of the period stand out with some distinctness. One was
the break-up, apparently for all time, of the Fortschrittspartei, or
Radical party, in consequence of the elections of 1893. A second was
the rise of the Government's prolonged contest with the Agrarians. The
Agrarian group, of which indeed one hears as early as 1876, comprised
principally the grain-growing landholders of northern and eastern
Germany. By treaties concluded in 1892-1894 with Austria-Hungary,
Italy, Belgium, Russia, and other nations, German import duties on
grain were considerably reduced in return for advantages given to
German manufacturers. Low duties meant cheap foodstuffs, and in the
negotiation of these treaties the Government found itself supported
with enthusiasm not only by the Centre, but also by the Social
Democrats and the surviving Radicals. The Conservatives were divided.
Those of Agrarian sympathies (especially the Prussian landholders)
allied themselves with the forces of opposition. But the remainder
gave the Government some measure of support. And from this
last-mentioned fact arose a final political development of large
significance during the Caprivi period, namely, the creation of that
_bloc_, or affiliation, of Centre and Conservatives (popularly
referred to as the "blue-black" _bloc_) upon which the Government was
destined regularly to rely through upwards of a decade and a half.
During the chancellorship of Prince Chlodwig Hohenlohe-Schillingsfürst
(1894-1900) the struggle with the Agrarians was continued and the
preponderance of the _bloc_ became an established fact. Finally,
should be mentioned the rapidly accelerating growth of the Social
Democracy. In 1893 the popular party cast a total of 1,876,738 votes
and elected forty-four representatives. In 1896 its vote was 2,007,076
and the number of members elected was fifty-seven. In 1903 its vote
rose to the enormous proportions of 3,008,000 (24 per cent of the
total, and larger than that of any other single party), and the quota
in the Reichstag was increased to seventy-nine.
*250. The Elections of 1903 and 1907.*--At the elections of 1903 the
_bloc_ suffered numerically a loss of strength. The Centre obtained
102 seats, the Conservatives 53, and the Free Conservatives, or "Party
of the Empire," 22--an aggregate of only 177. By deft management,
however, Chancellor von Bülow (1900-1908) contrived to play off
through several years the opposing forces, and so to preserve, for all
practical purposes, the working efficiency of the Government
coalition. The elections of January, 1907, brought on by a dissolution
of the Reichstag after the refusal of that body to vote the (p. 235)
Government's colonial estimates, were of interest principally by
reason of the continued show of strength of the Centre and the falling
off of the Social Democrats in their representation in the Reichstag.
In the practical working out of political forces it had come about
that the Centre occupied in the chamber a pivotal position of such
consequence that the Government was in effect absolutely dependent
upon the vote of that party for the enactment of its measures.
Naturally enough, the party, realizing its power, was prone to put its
support upon a contractual basis and to drive with the Government a
hard bargain for the votes which it commanded. While hardly in a
position to get on without Clerical assistance, the Government in 1907
would have been willing enough to see the Centre's power and
independence broken. Not only, however, did the Centre not lose seats
by that contest; it in fact realized a gain of two. On the other hand,
there was compensation for the Government in the fact that the Social
Democrats fell back. They polled a total of 3,250,000 popular votes,
as compared with 3,008,000 in 1903; but by reason of the antiquated
distribution of seats which prevails in the Empire, the unusual vote
polled by other parties, and also the unusual co-operation of the
party groups opposed to the Social Democrats, their representation in
the Reichstag was cut from 79 to 43.[345]
[Footnote 345: The total number of popular votes
cast in the election was 10,857,000, of which
number government candidates received 4,962,000,
and opposition candidates 5,895,000. The numerical
strength of the various elements composing the
Reichstag consequent upon the elections of 1903 and
1907 was as follows:
_1903_ _1907_ _Seats_ _Seats_
_gained_ _lost_
Centre 102 104 2 0
Conservatives 53 58 5 0
Free Conservatives 22 22 0 0
National Liberals 51 56 5 0
Social Democrats 79 43 0 36
Radicals 42 50 8 0
Antisemites and
Economic Union 22 30 8 0
Poles 16 20 4 0
Liberal Union 10 13 3 0
Volkspartei
(Democrats of South) 6 7 1 0
Alsatians 10 7 0 3
Guelfs or Hanoverians 5 1 0 4
Danes 1 1 6 0
Independents 0 7 7 0
Total 397 397 43 43]
V. PARTIES SINCE 1907 (p. 236)
*251. The Bülow Bloc.*--The period covered by the life of the Reichstag
elected in 1907 was remarkable in German political history chiefly by
reason of the prolonged struggle for the establishment of
parliamentary government which took place within it--a struggle which
had its beginning, indeed, in the deadlock by which the dissolution of
1906 was occasioned, which reached its climax in the fiscal debates of
1908-1909, and which during the years that followed gradually
subsided, leaving both the status of parties and the constitutional
order of the Empire essentially as they were at the beginning. Even
before the dissolution of 1906 the Conservative-Centre _bloc_ was
effectually dissolved, principally by the defection of the Centre, and
through upwards of three years it was replaced by an affiliation,
known commonly as the "_Bülow bloc_," of the Conservatives and the
Liberals. This combination, however, was never substantial, and in the
course of the conflict over the Government's proposed budget of
November, 1908, there was a return to the old alignment, and
throughout ensuing years the Conservative-Clerical _bloc_ remained a
preponderating factor in the political situation.
*252. The Elections of 1912: Parties and Issues.*--The Reichstag of 1907
was dissolved at the termination of its five-year period, and in
January, 1912, there was elected a new chamber, the thirteenth since
the creation of the Empire. The contest was pre-eminently one of
measures rather than of men, but the public interest which it excited
was extraordinary. Broadly, the line was drawn between the Government
and the parties of the _bloc_, on the one hand, and the more purely
popular parties, especially the National Liberals, the Radicals, and
the Social Democrats, on the other;[346] and the issues were chiefly
such as were supplied by the spirit, purposes, and methods of
Chancellor von Bethmann-Hollweg and his Conservative-Clerical allies.
Of the alleged reactionism of the Government parties there was
widespread complaint. They were held responsible for the fiscal reform
of 1909 which imposed burdens unduly heavy on industry and commerce,
while sparing land and invested capital; they were charged with
re-establishing the yoke of the Catholic Centre upon the Lutheran (p. 237)
majority; and they were reproached for having failed to redeem their
promise to liberalize the antiquated franchise arrangements of
Prussia. The Conservatives in particular were attacked on the ground
of their continued monopoly of patronage and of power. On the whole,
however, the most important of practical issues was that of the
tariff. Throughout a twelvemonth discontent occasioned by the high
cost of living had been general and the Government had been besought
by municipalities, workingmen's organizations, and political societies
to inaugurate a project for the reduction of the duties imposed upon
imported foodstuffs. The demand was in vain and the country was given
to understand by the Chancellor that the Government, under
Conservative-Agrarian mastery, would stand or fall with "protection
for the nation's work" as its battle-cry. Upon this question the
National Liberals, being protectionist by inclination, stood with the
Government, but the Radicals, the Social Democrats, and some of the
minor groups assumed an attitude of clear-cut opposition.
[Footnote 346: The gravest abuse in connection with
the conduct of campaigns and elections in Germany
is the pressure which the Government brings to bear
systematically upon the enormous official
population and upon railway employees (alone
numbering 600,000) to vote Conservative, or, in
districts where there is no Conservative candidate,
Centrist. This pressure is applied through the
local bureaucratic organs, principally the Landrath
of the Kreis, who not uncommonly is a youthful
official of noble origin, related to some important
landed family, and a rigid Conservative. It has
been estimated that official influence controls a
million votes at every national election.]
*253. The Results and Their Significance.*--The total number of
candidates in the 397 constituencies was 1,428. The Social Democrats
alone had a candidate in every constituency, a fact which emphasizes
the broadly national character which that party has acquired. The
National Liberals had candidates in 200 constituencies, the Centre in
183, the Radicals in 175, and the Conservatives in 132. A second
ballot was required in 191 constituencies, or nearly one-half of the
whole number. The final results of the election justified completely
the general expectation of observers that the Social Democrats would
realize enormous gains. The appeal of von Bethmann-Hollweg for
solidarity against the Socialists had no such effect as did the
similar appeal of von Bülow in 1907. The tactfulness and personal hold
of the Chancellor was inferior to that of his predecessor, and the
mass of the nation was aroused in 1912 as it was not upon the earlier
occasion. The results may be tabulated as follows:
_Seats_ _Seats acquired_
_at dissolution_ _by elections of 1912_
Centre 103 90
Conservatives 58 45
Free Conservatives 25 13
Social Democrats 53 110
National Liberals 51 44
Radicals 49 41
Poles 20 18
Antisemites and Economic Union 20 11
Guelfs or Hanoverians 1 5
Alsatians, Danes, and Independents 16 20
___ ___
Total 397 397
Two of the three parties of the Left, i.e., the National Liberals (p. 238)
and the Radicals, suffered substantial losses, but the victory of the
Social Democrats was so sweeping that there accrued to the Left as a
whole a net gain of forty-two seats.[347] On the other hand, the three
parties of the _bloc_ lost heavily--in the aggregate thirty-eight
seats. The number of popular votes cast for candidates of the _bloc_
was approximately 4,500,000; that for candidates of the Left
approximately 7,500,000.[348] In Berlin, five of whose six constituencies
were represented already by Social Democrats, there was a notable
attempt on the part of the socialists to carry the "Kaiser district"
in which is located the Kaiserhof, or Imperial residence, and the seat
of the Government itself. The attempt failed, but it was only at the
second ballot, and by the narrow margin of seven votes, that the
socialist candidate was defeated by his Radical opponent. As has been
pointed out, the parties of the Left are entirely separate and they
are by no means able always to combine in action upon a public
question. The ideal voiced by the publicist Naumann, "from Bassermann
to Bebel," meaning that the National Liberals under the leadership of
Bassermann should, through the medium of the Radicals, amalgamate for
political purposes with the Social Democrats under Bebel, has not as
yet been realized. None the less there has long been community of
interest and of policy, and the elections of 1912 made it possible for
the first time for a combination of the three groups and their allies
to outweigh decisively any combination which the parties of the _bloc_
and their allies can oppose. Before the election there was a clear
Government majority of eighty-nine; after it, an opposition majority
of, at the least, fourteen. When, in February, 1912, the new Reichstag
was opened, it was only by the most dexterous tactics on the part of
the _bloc_ that the election of the socialist leader Bebel to the
presidency of the chamber was averted.
[Footnote 347: Many of the socialist victories
were, of course, at the expense of the National
Liberals and Radicals.]
[Footnote 348: The number of electors inscribed on
the lists was 14,236,722. The number who actually
voted was 12,188,337. The exact vote of the Social
Democrats was 4,238,919; of the National Liberals,
1,671,297; of the Radicals, 1,556,549; of the
Centre, 2,012,990; and of the Conservatives,
1,149,916.]
*254. The Parties To-day: Conservatives and Centre.*--The principal
effect of the election would seem to be to accentuate the already
manifest tendency of Germany to become divided between two great
hostile camps, the one representative of the military, bureaucratic,
agrarian, financial classes and, in general, the forces of resistance
to change, the other representative of modern democratic forces,
extreme and in principle even revolutionary. Leaving out of account
the minor particularist groups, the most reactionary of existing
parties is the Conservatives, whose strength lies principally in (p. 239)
the rural provinces of Prussia along the Baltic. The most radical is
the Social Democrats, whose strength is pretty well diffused through
the states of the Empire but is massed, in the main, in the cities.
Between the two stand the Centre, the Radicals, and the National
Liberals. The Centre has always included both an aristocratic and a
popular element, being, indeed, more nearly representative of all
classes of people in the Empire than is any other party. Its numerical
strength is drawn from the peasants and the workingmen, and in order
to maintain its hold in the teeth of the appeal of socialism it has
been obliged to make large concessions in the direction of liberalism.
At all points except in respect to the interests of the Catholic
Church it has sought to be moderate and progressive, and it should be
observed that it has abandoned long since its irreconcilable attitude
on religion. Geographically, its strength lies principally in the
south, especially in Bavaria.
*255. The Social Democrats.*--Nominally revolutionary, the German Social
Democracy comprises in fact a very orderly organization whose
economic-political tenets are at many points so rational that they
command wide support among people who do not bear the party name.
Throughout a generation the party has grown steadily more practical in
its demands and more opportunist in its tactics. Instead of opposing
reforms undertaken on the basis of existing institutions, as it once
was accustomed to do, in the hope of bringing about the establishment
of a socialistic state by one grand _coup_, it labors for such reforms
as are adjudged attainable and contents itself with recurring only
occasionally and incidentally to its ultimate ideal. The supreme
governing authority of the party is a congress composed of six
delegates from each electoral district of the Empire, the socialist
members of the Reichstag, and the members of the party's executive
committee. This congress convenes annually to regulate the
organization of the party, to discuss party policies, and to take
action upon questions submitted by the party members. Nominally, the
principles of the party are those of Karl Marx, and its platform is
the "Erfurt programme" of 1891, contemplating the abolition of class
government and of classes themselves, the termination of every kind of
exploitation of labor and oppression of men, the destruction of
capitalism, and the inauguration of an economic régime under which the
production and distribution of goods shall be controlled by the state
exclusively. The Radical Socialists, i.e., the old-line members of the
party, cling to these time-honored articles of faith. But the mass of
the younger element of the party, ably led by Edward Bernstein--the
"Revisionists," as they call themselves--consider that the Marxist
doctrines are in numerous respects erroneous, and they are insisting
that the Erfurt programme shall be overhauled and brought into (p. 240)
accord with the practical and positive spirit of the party to-day.
Except Bebel and Kautsky, every socialist leader of note in Germany at
the present time is identified with the revisionist movement.[349] The
political significance of this situation arises from the fact that the
"new socialists" stand ready to co-operate systematically with
progressive elements of whatsoever name or antecedents. Already the
socialists of Baden, Württemberg, and Bavaria have voted for the local
state budgets and have participated in court functions, and upon
numerous occasions they have worked hand in hand, not only at
elections but in the Reichstag and in diets and councils, with the
National Liberals and the Radicals. For the future of sane liberalism
in Germany this trend of the party in the direction of co-operative
and constructive effort augurs well. At the annual congress held at
Chemnitz in September, 1912, the issue of revisionism was debated at
length and with much feeling, but an open breach within the party was
averted and Herr Bebel was again elected party president. It was shown
upon this occasion that the party membership numbered 970,112, a gain
of 133,550 during the previous year. It need hardly be observed that
of the millions of men who in these days vote for Social Democratic
candidates for office hardly a fourth are identified with the formal
party organization.[350]
[Footnote 349: Herr Bebel died August 13, 1913.]
[Footnote 350: Two important works of recent date
dealing with the history and character of political
parties in Germany are C. Grotewald, Die Parteien
des deutschen Reichstags. Band I. Der Politik des
deutschen Reiches in Einzeldarstellungen (Leipzig,
1908); and O. Stillich, Die politischen Parteien in
Deutschland. Band I. Die Konservativen (Leipzig,
1908), Band II. Der Liberalismus (Leipzig, 1911).
The second is a portion of a scholarly work planned
to be in five volumes. A brief treatise is F.
Wegener, Die deutschkonservative Partei und ihre
Aufgaben für die Gegenwart (Berlin, 1908). An
admirable study of the Centre is L. Goetze, Das
Zentrum, eine Konfessionelle Partie; Beiträge zur
seiner Geschichte (Bonn, 1906). The rise of the
Centre is well described in L. Hahn, Geschichte des
Kulturkampfes (Berlin, 1881). On the rise and
progress of the Social Democracy see E. Milhaud, La
démocratie socialiste allemande (Paris, 1903); C.
Andler, Origines du socialisme d'état en Allemagne
(Paris, 1906); E. Kirkup, History of Socialism
(London, 1906); W. Sombart, Socialism (New York,
1898); W. Dawson, Bismarck and State Socialism
(London, 1891); J. Perrin, The German Social
Democracy, in _North American Review_, Oct., 1910.
Under the title "Chroniques politiques" there is
printed in the _Annales_ (since 1911 the _Revue_)
_des Sciences Politiques_ every year an excellent
review of the current politics of Germany, as of
other European nations. Other articles of value
are: M. Caudel, Les élections allemandes du 16
juin, 1898, et le nouveau Reichstag, in _Annales de
l'École Libre des Sciences Politiques_, Nov., 1898;
J. Hahn, Une élection au Reichstag allemand, in
_Annales des Sciences Politiques_, Nov., 1903; G.
Isambert, Le parti du centre en Allemagne et les
élections de janvier-février 1907, ibid., March,
1907; P. Matter, La crise du chancelier en
Allemagne, ibid., Sept., 1909; A. Marvaud, La
presse politique allemande, in _Questions
Diplomatiques et Coloniales_, March 16 and April 1,
1910. There are valuable chapters on German
politics in W. Dawson, The Evolution of Modern
Germany (London, 1908) and O. Eltzbacher (or J.
Ellis Barker), Modern Germany, her Political and
Economic Problems (new ed., London, 1912). For a
sketch of party history during the period 1871-1894
see Lowell, Governments and Parties, II., Chap. 7.
An excellent survey of the period 1906-1911 is
contained in P. Matter, D'un Reichstag à l'autre,
in _Revue des Sciences Politiques_, July-Aug.,
1911. On the elections of 1912 see G. Blondel, Les
élections au Reichstag et la situation nouvelle des
partis, in _Le Correspondant_, Jan. 25, 1912; J. W.
Jenks, The German Elections, in _Review of
Reviews_, Jan., 1912; A. Quist, Les élections du
Reichstag allemand, in _Revue Socialiste_, Feb. 15,
1912; and W. Martin, La crise constitutionelle et
politique en Allemagne, in _Revue Politique et
Parlementaire_, Aug. 10, 1912.]
VI. LAW AND JUSTICE (p. 241)
*256. Dual Character.*--Upon the subject of the administration of
justice the Imperial constitution of 1871 contained but a single
clause, by which there was vested in the Empire power of "general
legislation concerning the law of obligations, criminal law,
commercial law and commercial paper, and judicial procedure." By an
amendment adopted December 20, 1873, the clause was modified to read,
"general legislation as to the whole domain of civil and criminal law,
and of judicial procedure."[351] Each of the federated states has
always had, and still has, its own judicial system, and justice is
administered all but exclusively in courts that belong to the states.
These courts, however, have been declared to be also courts of the
Empire, and, to the end that they may be systematized and that
conditions of justice may be made uniform throughout the land, the
federal government has not hesitated to avail itself of the regulative
powers conferred in 1871 and amplified in 1873 in the constitutional
provisions which have been cited.
[Footnote 351: Art. 4. Dodd, Modern Constitutions,
I., 328.]
*257. Diversity of Law Prior to 1871.*--In the first place, there has
been brought about within the past generation a unification of German
law so thoroughgoing in character as to be worthy of comparison with
the systematization of the law of France which was accomplished
through the agency of the Code Napoléon. In 1871 there were comprised
within the Empire more than two score districts each of which
possessed an essentially distinct body of civil and criminal law; and,
to add to the confusion, the boundaries of these districts, though at
one time coincident with the limits of the various political divisions
of the country, were no longer so. The case of Prussia was typical. In
1871 the older Prussian provinces were living under a Prussian code
promulgated in 1794; the Rhenish provinces maintained the Code
Napoléon, established by Napoleon in all Germany west of the Rhine; in
the Pomeranian districts there were large survivals of Swedish law;
while the territories acquired after the war of 1866 had each its (p. 242)
indigenous legal system. Two German states only in 1871 possessed a
fairly uniform body of law. Baden had adopted a German version of the
Code Napoléon, and Saxony, in 1865, had put in operation a code of her
own devising. At no period of German history had there been either
effective law-making or legal codification which was applicable to the
whole of the territory contained within the Empire. In the domain of
the civil law, in that of the criminal law, and in that of procedure
the diversity was alike obvious and annoying.
*258. Preparation of the Codes.*--German legal reform since 1871 has
consisted principally in the formation and adoption of successive
codes, each of which has aimed at essential completeness within a
given branch of law. The task had been begun, indeed, before 1871. As
early as 1861 the states had agreed upon a code relating to trade and
banking, and this code had been readopted, in 1869, by the
Confederation of 1867.[352] In 1869 a code of criminal law had been
worked out for the Confederation, and in 1870 a code relating to
manufactures and labor. Upon the establishment of the Empire, in 1871,
there was created a commission to which was assigned the task of
drawing up regulations for civil procedure and for criminal procedure,
and also a plan for the reorganization of the courts. Beginning with a
scheme of civil procedure, published in December, 1872, the commission
brought in an elaborate project upon each of the three subjects. The
code of civil procedure, by which many important reforms were
introduced in the interest of publicity and speed, was well received.
That relating to criminal procedure, proposing as it did to abolish
throughout the Empire trial by jury, was, however, vigorously opposed,
and the upshot was that all three reports were referred to a new
commission, by which the original projects relating to criminal
procedure and to the organization of the courts were completely
remodelled. In the end the revised projects were adopted. October 1,
1879, there went into effect a group of fundamental laws under which
the administration of justice throughout the Empire has been
controlled from that day to the present. The most important of these
was the Gerichtsverfassungsgesetz, or Law of Judicial Organization,
enacted January 27, 1877; the Civilprozessordnung, or Code of Civil
Procedure, of January 30, 1877; and the Strafprozessordnung, or Code of
Criminal Procedure, of February 1, 1877.
[Footnote 352: It was replaced by a new code May
10, 1897.]
It remained only to effect a codification of the civil law. A
committee constituted for the purpose completed its work in 1887, and
the draft submitted by it was placed for revision in the hands of a
new commission, by which it was reported in 1895. In an amended form
the Civil Code was approved by the Reichstag, August 18, 1896, and (p. 243)
it was put in operation January 1, 1900. Excluding matters pertaining
to land tenure (which are left to be regulated by the states), the
Code deals not only with all of the usual subjects of civil law but
also with subjects arising from the contact of private law and public
law.[353]
[Footnote 353: A convenient manual for English
readers is E. M. Borchard, Guide to the Law and
Legal Literature of Germany (Washington, 1912), the
first of a series of guides to European law in
preparation in the Library of Congress.]
*259. The Inferior Courts.*--By these and other measures it has been
brought about that throughout the Empire justice is administered in
tribunals whose officials are appointed by the local governments and
which render decisions in their name, but whose organization, powers,
and rules of procedure are regulated minutely by federal law. The
hierarchy of tribunals provided for in the Law of Judicial
Organization comprises courts of four grades. At the bottom are the
Amtsgerichte, of which there are approximately two thousand in the
Empire. These are courts of first instance, consisting ordinarily of
but a single judge. In civil cases their jurisdiction extends to the
sum of three hundred marks; in criminal, to matters involving a fine
of not more than six hundred marks or imprisonment of not over three
months. In criminal cases the judge sits with two Schöffen (sheriffs)
selected by lot from the jury lists. Besides litigious business the
Amtsgerichte have charge of the registration of land titles, the
drawing up of wills, guardianship, and other local interests.
Next above the Amtsgerichte are the 173 district courts, or
Landgerichte, each composed of a president and a variable number of
associate judges. Each Landgericht is divided into a civil and a
criminal chamber. There may, indeed, be other chambers, as for example
a Kammer für Handelssachen, or chamber for commercial cases. The
president presides over a full bench; a director over each chamber.
The Landgericht exercises a revisory jurisdiction over judgments of
the Amtsgerichte, and possesses a more extended original jurisdiction
in both civil and criminal matters. The criminal chamber, consisting
of five judges (of whom four are necessary to convict), is competent,
for example, to try cases of felony punishable with imprisonment for a
term not exceeding five years. For the trial of many sorts of criminal
cases there are special Schwurgerichte, or jury courts, which sit
under the presidency of three judges of the Landgerichte. A jury
consists of twelve members, of whom eight are necessary to convict.
Still above the Landgerichte are the Oberlandesgerichte, of which
there are twenty-eight in the Empire, each consisting of seven judges.
The Oberlandesgerichte are courts of appellate jurisdiction largely.
Each is divided into a civil and a criminal senate. There is a (p. 244)
president of the full court and a similar official for each senate.[354]
[Footnote 354: In Bavaria alone there is an Oberste
Landesgericht, with twenty-one judges. Its relation
to the Bavarian Oberlandesgerichte is that of an
appellate tribunal.]
*260. The Reichsgericht.*--At the apex of the system stands the
Reichsgericht (created by law of October i, 1879), which, apart from
certain administrative, military, and consular courts,[355] is the
only German tribunal of an exclusively Imperial, or federal,
character. It exercises original jurisdiction in cases involving
treason against the Empire and hears appeals from the consular courts
and from the state courts on questions of Imperial law. Its members,
ninety-two in number, are appointed by the Emperor for life, on
nomination of the Bundesrath, and they are organized in six civil and
four criminal senates. Sittings are held invariably at Leipzig, in the
kingdom of Saxony.
[Footnote 355: The highest administrative court is
the Oberverwaltungsgericht, whose members are
appointed for life. Under specified conditions, the
"committees" of circles, cities, and districts
exercise inferior administrative jurisdiction. For
the adjustment of disputed or doubtful
jurisdictions there stands between the ordinary and
the administrative tribunals a Gerichtshof für
Kompetenz-konflikte, or Court of Conflicts,
consisting of eleven judges appointed for life.]
All judges in the courts of the states are appointed by the sovereigns
of the respective states. The Imperial law prescribes a minimum of
qualifications based on professional study and experience, the state
being left free to impose any additional qualifications that may be
desired. All judges are appointed for life and all receive a salary
which may not be reduced; and there are important guarantees against
arbitrary transfer from one position to another, as well as other
practices that might operate to diminish the judge's impartiality and
independence.[356]
[Footnote 356: On the German judiciary see Howard,
The German Empire, Chap. 9; Laband, Das Staatsrecht
des deutschen Reiches, §§ 83-94; C. Morhain, De
l'empire allemand (Paris, 1886), Chap. 9.]
CHAPTER XII (p. 245)
THE CONSTITUTION OF PRUSSIA-THE CROWN AND THE MINISTRY
I. THE GERMAN STATES AND THEIR GOVERNMENTS
*261. Variations of Type.*--Within the bounds of Germany to-day there
are twenty-five states and one Imperial territory with certain
attributes of statehood, Alsace-Lorraine. During the larger portion of
the nineteenth century each of these states (and of the several which
no longer exist) was possessed of substantial sovereignty, and each
maintained its own arrangements, respecting governmental forms and
procedure. Under the leadership of Prussia, as has been pointed out,
the loose Confederation of 1815 was transformed, during the years
1866-1871, into an Imperial union, federal but yet vigorous and
indestructible, and to the constituted authorities of this Empire was
intrusted an enormous aggregate of governmental powers. The powers
conferred were, however, not wholly abstracted from the original
prerogatives of the individual states. In a very appreciable measure
they were powers, rather, of a supplementary character, by virtue of
which the newly created central government was enabled to do, on a
broadly national scale, what, in the lack of any such central
government, there would have been neither means of doing, nor occasion
for doing, at all. Only at certain points, as, for example, in respect
to the levying of customs duties and of taxes, was the original
independence of the individual state seriously impaired by the terms
of the new arrangement.
The consequence is that, speaking broadly, each of the German states
maintains to this day a government which is essentially complete within
itself. No one of these governments covers quite all of the ground which
falls within the range of jurisdiction of a sovereign state; each is
cut into at various points by the superior authority of the Empire;
but each is sufficiently ample to be capable of continuing to run,
were all of the other governments of Germany instantly to be blotted
out.[357] Of the twenty-five state governments, three--those of the
free cities of Bremen, Hamburg, and Lübeck--are aristocratic (p. 246)
republics; all the others are monarchies. Among the monarchies there
are four kingdoms: Prussia, Bavaria, Saxony, and Württemberg; six
grand-duchies: Baden, Hesse, Mecklenburg-Schwerin, Mecklenburg-Strelitz,
Oldenburg, and Saxe-Weimar; five duchies: Anhalt, Brunswick,
Saxe-Altenburg, Saxe-Coburg-Gotha, and Saxe-Meiningen; and seven
principalities: Lippe, Schwarzburg-Rudolstadt, Schwarzburg-Sonderhausen,
Schaumburg-Lippe, Reuss Älterer Linie, Reuss Jüngerer Linie, and
Waldeck-Pyrmont.
[Footnote 357: The best survey in English of the
governments of the German states is that in Lowell,
Governments and Parties, I., Chap. 6. Fuller and
more recent is G. Combes de Lestrade, Les
monarchies de l'empire allemand (Paris, 1904). The
most elaborate treatment of the subject is to be
found in an excellent series of studies edited by
H. von Marquardsen and M. von Seydel under the
title Handbuch des Oeffentlichen Rechts der
Gegenwart in Monographien (Freiburg and Tübingen,
1883-1909). A new series of monographs, comprising
substantially a revision of this collection, is at
present in course of publication by J. C. B. Mohr
at Tübingen. The texts of the various constitutions
are printed in F. Stoerk, Handbuch der deutschen
Verfassungen (Leipzig, 1884).]
*262. The Preponderance of Prussia.*--From whatever angle one approaches
German public affairs, the fact that stands out with greatest
distinctness is the preponderant position occupied by the kingdom of
Prussia. How it was that Prussia became the virtual creator of the
Empire, and how it is that Prussia so dominates the Imperial
government that that government and the Prussian are at times all but
inextricable, has already been pointed out.[358] Wholly apart from the
sheer physical fact that 134,616 square miles of Germany's 208,780,
and 40,163,333 people of the Empire's 64,903,423, are Prussian, the
very conditions under which the Imperial organization of the present
day came into being predetermined that Prussia and things Prussian
should enjoy unfailing pre-eminence in all that pertains to German
government and politics. Both because they are extended immediately
over a country almost two-thirds as large as France, and because of
their peculiar relation to the political system of the Empire, the
institutions of Prussia call for somewhat detailed consideration.
[Footnote 358: See pp. 200-201, 207.]
II. THE RISE OF CONSTITUTIONALISM IN PRUSSIA
*263. Regeneration in the Napoleonic Period.*--By reason of the
vacillating policies of her sovereign, Frederick William III., the
successive defeats of her armies at Jena, Auerstädt, and elsewhere,
and the loss, by the treaty of Tilsit in 1807, of half of her
territory, Prussia realized from the first decade of the Napoleonic
period little save humiliation and disaster. Through the years
1807-1815, however, her lot was wonderfully improved. Upon the failure
of the Russian expedition of Napoleon in 1812, Frederick William (p. 247)
shook off his apprehensions and allied himself openly with the
sovereigns of Russia and Austria. The people rose _en masse_, and in
the titanic struggle which ensued Prussia played a part scarcely
second in importance to that of any other power. At the end she was
rewarded, through the agency of the Congress of Vienna, by being
assigned the northern portion of Saxony, Swedish Pomerania, her old
possessions west of the Elbe, the duchies of Berg and Julich, and a
number of other districts in Westphalia and on the Rhine. Her area in
1815 was 108,000 square miles, as compared with 122,000 at the
beginning of 1806; but her loss of territory was more than compensated
by the substitution that had been made of German lands for
Slavic.[359] The homogeneity of her population was thereby increased,
her essentially Germanic character emphasized, and her capacity for
German leadership enhanced.
[Footnote 359: L. A. Himly, Histoire de la
formation territoriale des états de l'Europe
centrale, 2 vols. (Paris, 1876), I., 93-110.]
It was not merely in respect to territory and population that the
Prussia of 1815 was different from the Prussia of a decade earlier.
Consequent upon the humiliating disasters of 1806 there set in a moral
regeneration by which there was wrought one of the speediest and one
of the most thoroughgoing national transformations recorded in
history. In 1807 Frederick William's statesmanlike minister Stein
accomplished the abolition of serfdom and of all legal distinctions
which separated the various classes of society.[360] In 1808 he
reformed the municipalities and gave them important powers of
self-government. By a series of sweeping measures he reconstructed the
ministerial departments, the governments of the provinces, and the
local administrative machinery, with the result of creating an
executive system which has required but little modification to the
present day. In numerous directions, especially in relation to
economic conditions, the work of Stein was continued by that of the
succeeding minister, Prince Hardenberg. By Scharnhorst and Gneisenau
the military régime was overhauled and a body of spiritless soldiery
kept in order by fear was converted into "a union of all the moral and
physical energies of the nation." By Wilhelm von Humboldt the modern
Prussian school system was created; while by Fichte, Arndt, and a
galaxy of other writers there was imparted a stimulus by which the
patriotism and aspiration of the Prussian people were raised to (p. 248)
an unprecedented pitch.[361]
[Footnote 360: It is to be observed that while
Stein was officially the author of this reform, the
substance of the changes introduced had been agreed
upon by the king and his advisers before Stein's
accession to office (October 4, 1807). The Edict of
Emancipation was promulgated October 9, 1807. It
made the abolition of serfdom final and absolute on
and after October 8, 1810.]
[Footnote 361: E. Meier, Reform der
Verwaltungsorganisation unter Stein und Hardenberg
(Leipzig, 1881); J. R. Seeley, Life and Times of
Stein, 3 vols. (Boston, 1879), Pt. III., Chaps.
3-4, Pt. V., Chaps. 1-3.]
*264. Obstacles to the Establishment of a Constitution.*--Such an epoch
of regeneration could not fail to be a favorable period for the growth
of liberal principles of government. In June, 1814, and again in May,
1815, King Frederick William promised, through the medium of a cabinet
order, to give consideration to the question of the establishment of a
constitution in which provision should be made not merely for the
estates of the provinces but also for a national diet. After the
Congress of Vienna the task of framing such a constitution was
actually taken in hand. But the time was not ripe. Liberalism had
gained headway as yet among only the professional classes, while the
highly influential body of ultra-conservative landholders were
unalterably opposed. Between the eastern provinces, still essentially
feudal in spirit, and the western ones, visibly affected by French
revolutionary ideas, there was, furthermore, meager community of
interest. So keen was the particularistic spirit that not infrequently
the various provinces of the kingdom were referred to in contemporary
documents as "nations." Among these provinces some retained the system
of estates which had prevailed throughout Germany since the Middle
Ages, but in some of those which had fallen under the control of
Napoleon the estates had been abolished, and in others they were in
abeyance. In a few they had never existed. Votes were taken in the
assemblages of the estates by orders, not by individuals, and the
function of the bodies rarely extended beyond the approving of
projects of taxation. Within the provinces there existed no
sub-structure of popular institutions capable of being made the basis
of a national parliamentary system.
Notwithstanding these deterring circumstances, it is not improbable
that some sort of constitution might have been established but for the
excesses of the more zealous Liberals, culminating in the murder of
the dramatist Kotzebue in 1819, whereby the king was thrown into an
attitude, first of apprehension, and finally of uncompromising
reaction. By assuming joint responsibility for the Carlsbad Decrees of
October 17, 1819, he surrendered completely to the régime of
"stability" which all the while had been urged upon him by Metternich.
June 11, 1821, he summoned a commission to organize a system of
provincial estates;[362] but at the same time the project of a national
constitution and a national diet was definitely abandoned. Under (p. 249)
repression Prussian liberalism languished, and throughout the
remainder of the reign, i.e., to 1840, the issue of constitutionalism
was not frequently raised. In Prussia, as in Austria, the widespread
revolutionary demonstrations of 1830 elicited little response.
[Footnote 362: The system was created by royal
patent June 5, 1823.]
*265. The Diet of 1847.*--Upon the accession of Frederick William IV.,
son of Frederick William III., in 1840, the hopes of the Liberals were
revived. The new sovereign was believed to be a man of advanced ideas.
To a degree he was such, as was manifested by his speedy reversal of
his father's narrow ecclesiastical policy, and by other enlightened
acts. But time demonstrated that his liberalism was not without
certain very definite limits. February 13, 1847, he went so far as to
summon a Vereinigter Landtag, or "united diet," of Prussia, comprising
all members of the existing eight provincial assemblies, and organized
in two chambers--a house of lords and a house containing the three
estates of the knights, burghers, and peasants. But the issue was
unhappy. As Metternich had predicted, the meeting of the Diet but
afforded opportunity for a forceful reassertion of constitutional
aspirations, and the assemblage refused to sanction loans upon which
the sovereign was bent until its representative character should have
been more completely recognized. The king, on his part, declared he
would never allow "to come between Almighty God in heaven and this
land a blotted parchment, to rule us with paragraphs, and to replace
the ancient, sacred bond of loyalty." The deadlock was absolute, and,
June 26, the Diet was dissolved.
*266. The Revolution of 1848.*--The dawn of constitutionalism was,
however, near. The fundamental law under which Prussia still is
governed was a product--one of the few which endured--of the
widespread revolutionary movement of 1848. Upon the arrival in Berlin
of the news of the overthrow of Louis Philippe (February 24) at Paris
and of the fall of Metternich (May 13) at Vienna, the Prussian
Liberals renewed with vigor their clamor for the establishment in
Prussia of a government of a constitutional type. The demand was
closely related to, yet was essentially distinct from, the
contemporary project for the inauguration of a new constitutional
German Empire. As was proved by the vagaries of the Frankfort
Parliament (May, 1848, to June, 1849), conditions were not yet ripe
for the creation of a closely-knit empire;[363] and one of the reasons
why this was true was that a necessary step toward that culmination
was only now about to be taken, i.e., the introduction of constitutional
government in the important kingdom of Prussia. Apprehensive lest (p. 250)
the scenes of violence reported from Paris should be re-enacted in his
own capital, Frederick William acquiesced in the demands of his
subjects in so far as to issue letters patent, May 13, 1848, convoking
a national assembly[364] for the consideration of a proposed
constitution. Every male citizen over twenty-five years of age was
given the right to participate in the choice of electors, by whom in
turn were chosen the members of this assembly. May 22, 1848, the
assembly met in Berlin and entered upon consideration of the sketch of
a fundamental law which the king laid before it. The meeting was
attended by disorders in the city, and the more radical deputies
further inflamed public feeling by persisting in the discussion of the
abolition of the nobility, and of a variety of other more or less
impracticable and revolutionary projects. The king took offense
because the assembly presumed to exercise constituent functions
independently and, after compelling a removal of the sittings to the
neighboring city of Brandenburg, he in disgust dissolved the body,
December 5, and promulgated of his own right the constitutional
charter which he had drawn.
[Footnote 363: See p. 198.]
[Footnote 364: Known technically as Versammlung zur
Vereinbarung der preussischen Verfassung.]
*267. Formation of the Constitution.*--At an earlier date it had been
promised that the constitution to be established should be "agreed
upon with an assembly of the nation's representatives freely chosen
and invested with full powers;" but it had been suggested to the king
that the way out of the existing difficulty lay in issuing a
constitutional instrument independently and subsequently allowing the
Landtag first elected under it to submit it to a legislative revision,
and this was the course of procedure which was adopted.[365] Elections
were held and, February 26, 1849, the chambers were assembled. Having
recognized formally the instrument of December 5, 1848, as the law of
the land, the two bodies addressed themselves forthwith to the task of
revising it. The result was disagreement and, in the end, the
dissolution of the lower house. The constitution of 1848 had been
accompanied by an electoral law establishing voting by secret ballot
and conferring upon all male citizens equal suffrage. Upon the
dissolution of 1849 there was promulgated by the king a thoroughgoing
modification of this democratic measure, whereby voting by ballot was
abolished and parliamentary electors were divided into three classes
whose voting power was determined by property qualifications or by (p. 251)
official and professional status. In other words, there was introduced
that peculiar three-class system which was already not unknown in the
Prussian municipalities, and which, in both national and city
elections, persists throughout the kingdom to the present day. In the
elections which were held in the summer of 1849 in accordance with
this system the democrats refused to participate. The upshot was that
the new chambers, convened August 7, 1849, proved tractable enough,
and by them the text of the constitution, after being discussed and
revised article by article, was at last accorded formal approval. On
the last day of January, 1850, the instrument was duly promulgated at
Charlottenburg.[366] By Austria, Russia, and other reactionary powers
persistent effort was made during the ensuing decade to influence the
king to rescind the concession which he had made. He refused, however,
to do so, and, with certain modifications, the constitution of 1850
remains the fundamental law of the Prussian kingdom to-day.[367]
[Footnote 365: The confusion of constitutional and
ordinary statutory law inherent in this arrangement
has influenced profoundly the thought of German
jurists.]
[Footnote 366: On the establishment of
constitutionalism in Prussia see (in addition to
works mentioned on p. 201) P. Matter, La Prusse et
la révolution de 1848, in _Revue Historique_,
Sept.-Oct., 1902; P. Devinat, Le mouvement
constitutionnel en Prusse de 1840 à 1847, ibid.,
Sept.-Oct. and Nov.-Dec., 1911; Klaczko,
L'agitation allemande et la Prusse, in _Revue des
Deux Mondes_, Dec., 1862, and Jan., 1863; C.
Bornhak, Preussische Staats-und Rechtsgeschichte
(Berlin, 1903); H. von Petersdorff, König Friedrich
Wilhelm IV. (Stuttgart, 1900); and H. G. Prutz,
Preussische Geschichte, 4 vols. to 1888 (Stuttgart,
1900-1902). For full bibliography see Cambridge
Modern History, XI., 893-898.]
[Footnote 367: As is true in governmental systems
generally, by no means all of the essential
features of the working constitution are to be
found in the formal documents, much less in the
written constitution alone. In Prussia ordinances,
legislative acts, and administrative procedure,
dating from both before and after 1850, have to be
taken into account continually if one would
understand the constitutional order in its
entirety.]
*268. Nature of the Constitution.*--The constitution of Prussia is
modelled upon that of Belgium. Provisions relating to the powers of
the crown, the competence of the chambers, and the functions of the
ministers are reproduced almost literally from the older instrument.
None the less, the two rest upon widely differing bases. The Belgian
fundamental law begins with the assertion that "all powers emanate
from the nation." That of Prussia voices no such sentiment, and the
governmental system for which it provides has as its cornerstone the
thoroughgoing supremacy of the crown.[368] The Liberals of the
mid-century period were by no means satisfied with it; and, sixty
years after, it stands out among the great constitutional documents of
the European world so conspicuous by reason of its disregard of
fundamental democratic principle as to justify completely the (p. 252)
charges of anachronism which reformers in Prussia and elsewhere are
in these days bringing against it. It provides for the responsibility
of ministers, without stipulating a means whereby that responsibility
may be enforced. There is maintained under it one of the most
antiquated and undemocratic electoral systems in Europe. And, as is
pointed out by Lowell, even where, on paper, it appears to be liberal,
it is sometimes much less so than its text would lead one to suppose.
It contains, for example, a bill of rights, which alone comprises no
fewer than forty of the one hundred eleven permanent articles of the
instrument.[369] In it are guaranteed the personal liberty of the
subject, the security of property, the inviolability of personal
correspondence, immunity from domiciliary visitation, freedom of the
press, toleration of religious sects, liberty of migration, and the
right of association and public meeting. But there is an almost total
lack of machinery by which effect can be given to some of the most
important provisions relating to these subjects. Some guarantees of
what would seem the most fundamental rights, as those of public
assemblage and of liberty of teaching, are reduced in practice to
empty phrases.[370]
[Footnote 368: Dupriez, Les Ministres, I., 350.]
[Footnote 369: Arts. 3-42. Robinson, Constitution
of the Kingdom of Prussia, 27-34.]
[Footnote 370: Lowell, Governments and Parties, I.,
286.]
The process of constitutional amendment in Prussia is easy. With the
approval of the king, an amendment may at any time be adopted by a
simple majority of the two legislative chambers, with the special
requirement only that an amendment, unlike a statute, must be voted
upon twice, with an interval of three weeks between the two votes.
During the first ten years of its existence the constitution was
amended no fewer than ten times. Of later amendments there have been
six, but none more recent than that of May 27, 1888. The Prussian
system of amendment by simple legislative process was incorporated, in
1867, in the fundamental law of the North German Confederation (except
that in the Bundesrath a two-thirds vote was required); and in 1871 it
was perpetuated in the constitution of the Empire.[371]
[Footnote 371: There is an annotated English
version of the Prussian constitution, edited by J.
H. Robinson, in the _Annals of the American Academy
of Political and Social Science_, Supplement,
Sept., 1894. The original text will be found in F.
Stoerk, Handbuch der deutschen Verfassungen
(Leipzig, 1884), 44-63; also, with elaborate notes,
in A. Arndt, Die Verfassungs-Urkunde für den
preussischen Staat nebst Erganzungs-und
Ausführungs-Gesetzen, mit Einleitung, Kommentar und
Sachregister (Berlin, 1889). The principal
treatises on the Prussian constitutional system are
H. Schulze, Das preussisches Staatsrecht, auf
Grundlage des deutschen Staatsrechtes (Leipzig,
1872-1874); ibid., Das Staatsrecht des Königreichs
Preussen, in Marquardsen's Handbuch (Freiburg,
1884); L. von Rönne, Das Staatsrecht der
preussischen Monarchie (Leipzig, 1881-1884); and H.
de Grais, Handbuch der Verfassung und Verwaltung in
Preussen und dem deutschen Reiche (11th ed.,
Berlin, 1896). A good brief account is that in A.
Lebon, Études sur l'Allemagne politique, Chap. 4.]
III. THE CROWN AND THE MINISTRY (p. 253)
*269. Status of the Crown.*--At the head of the state stands the king,
in whom is vested the executive, and a considerable share in the
legislative, power. The crown is hereditary in the male line of the
house of Hohenzollern, following the principle of primogeniture. An
heir to the throne is regarded as attaining his majority on the
completion of his eighteenth year. It has been pointed out that the
German Emperor, as such, has no civil list. He has no need of one, for
the reason that in the capacity of king of Prussia he is entitled to
one of the largest civil lists known to European governments. Since
the increase provided for by law of February 20, 1889, the
"Krondotations Rente," as it appears in the annual Prussian budget,
aggregates 15,719,296 marks; besides which the king enjoys the
revenues from a vast amount of private property, comprising castles,
forests, and estates in various parts of the realm. There are also
certain special funds the income from which is available for the needs
of the royal family.
*270. Powers.*--The powers of the crown are very comprehensive.[372] It
is perhaps not too much to say that they exceed those exercised by any
other European sovereign. The king is head of the army and of the
church, and in him are vested, directly or indirectly, all functions
of an executive and administrative character. All appointments to
offices of state are made by him immediately or under his authority.
The upper legislative chamber is recruited almost exclusively by royal
nomination. And all measures, before they become law, require the
king's assent; though, by reason of the sovereign's absolute control
of the upper chamber, no measure of which he disapproves can ever be
enacted by that body, so that there is never an occasion for the
exercise of the formal veto. To employ the language of a celebrated
German jurist, the king possesses "the whole and undivided power of
the state in all its plenitude. It would, therefore, be contrary to
the nature of the monarchical constitutional law of Germany to
enumerate all individual powers of the king.... His sovereign right
embraces, on the contrary, all branches of the government. Everything
which is decided or carried out in the state takes place in the name
of the king. He is the personified power of the state."[373] (p. 254)
Except in so far as the competence of the sovereign is expressly
limited or regulated by the constitution, it is to be regarded as
absolute.
[Footnote 372: They are enumerated in articles
45-52 of the constitution. Robinson, Constitution
of the Kingdom of Prussia, 36-37.]
[Footnote 373: Schulze, Preussisches Staatsrecht,
I., 158.]
*271. The Ministry: Composition and Status.*--The organization of the
executive--the creation of ministerial portfolios, the appointment of
ministers, and the delimitation of departmental functions--rests
absolutely with the king, save, of course, for the necessity of
procuring from the Landtag the requisite appropriations. Beginning in
the days of Stein with five, the number of ministries was gradually
increased until since 1878 there have been nine, as follows: Foreign
Affairs;[374] the Interior; Ecclesiastical, Educational, and Sanitary
Affairs; Commerce and Industry; Finance; War; Justice; Public Works;
and Agriculture, Public Domains, and Forests. Each ministry rests upon
an essentially independent basis and there has been little attempt to
reduce the group to the uniformity or symmetry of organization that
characterizes the ministries of France, Italy, and other continental
monarchies. Departmental heads, as well as subordinates, are appointed
with reference solely to their administrative efficiency, not, as in
parliamentary governments, in consideration of their politics or of
their status in the existing political situation. They need not be,
and usually are not, members of either of the legislative chambers.
[Footnote 374: The Minister of Foreign Affairs is
at the same time the Minister-President of Prussia
and the Chancellor of the Empire. On the functions
of the various ministries see Dupriez, Les
Ministres, I., 448-462.]
For it is essential to observe that in Prussia ministers are
responsible only to the sovereign, which means that the parliamentary
system, in the proper sense, does not exist. The constitution, it is
true, prescribes that every act of the king shall be countersigned by
a minister, who thereby assumes responsibility for it.[375] But there
is no machinery whereby this nominal responsibility can be made, in
practice, to mean anything. Ministers do not retire by reason of an
adverse vote in the Landtag; and, although upon vote of either
legislative chamber, they may be prosecuted for treason, bribery, or
violation of the constitution, no penalties are prescribed in the
event of conviction, so that the provision is of no practical
effect.[376] Every minister possesses the right to appear on the (p. 255)
floor of either chamber, and to be heard at any time when no member of
the house is actually speaking. In the exercise of this privilege the
minister is the immediate spokesman of the crown, a fact which is apt
to be apparent from the tenor of his utterances.
[Footnote 375: Art. 44.]
[Footnote 376: Art. 61. Robinson, Constitution of
the Kingdom of Prussia, 40. In the words of a
German jurist, "the anomaly continues to exist in
Prussia of ministerial responsibility solemnly
enunciated in the constitution, the character of
the responsibility, the accuser and the court
specified, and at the same time a complete lack of
any legal means by which the representatives of the
people can protect even the constitution itself
against the most flagrant violations and the most
dangerous attacks." Schulze, Preussisches
Staatsrecht, II., 694.]
*272. The Ministry: Organization and Workings.*--The Prussian ministry
exhibits little solidarity. There is a "president of the council of
ministers," who is invariably the Minister for Foreign Affairs and at
the same time the Chancellor of the Empire, but his functions are by
no means those of the corresponding dignitary in France and Italy.
Over his colleagues he possesses, as president, no substantial
authority whatsoever.[377] In the lack of responsibility to the
Landtag, there is no occasion for an attempt to hold the ministry
solidly together in the support of a single, consistent programme. The
ministers are severally controlled by, and responsible to, the crown,
and the views or policies of one need not at all be those of another.
At the same time, of course, in the interest of efficiency it is
desirable that there shall be a certain amount of unity and of
concerted action. To attain this there was established by Count
Hardenberg a Staats-Ministerium, or Ministry of State, which occupies
in the Prussian executive system a position somewhat similar to that
occupied in the French by the Council of Ministers.[378] The Ministry
of State is composed of the nine ministerial heads, together with the
Imperial secretaries of state for the Interior, Foreign Affairs, and
the Navy. It holds meetings at least as frequently as once a week for
the discussion of matters of common administrative interest, the
drafting of laws or of constitutional amendments, the supervision of
local administration, and, in emergencies, the promulgation of
ordinances which have the force of law until the ensuing session of
the Landtag. There are certain acts, as the proclaiming of a state of
siege, which may be performed only with the sanction of this body. The
fact remains, none the less, that, normally, the work of the several
departments is carried on independently and that the ministry exhibits
less cohesion than any other in a state of Prussia's size and
importance. It is to be observed that there is likewise a Staatsrath,
or Council of State (dating originally from 1604 and revived in (p. 256)
1817), composed of princes, high officials of state, ministers,
judges, and other persons of influence designated by the crown. It may
be consulted on legislative proposals, disputes as to the spheres of
the various ministries, and other important matters. In barrenness of
function, however, as in structure, it bears a close resemblance
to-day to the British Privy Council.[379]
[Footnote 377: The office of Chancellor was
discontinued with the death of Hardenberg and that
of Minister-President substituted. The Chancellor
possessed substantial authority over his
colleagues. Since 1871, the Minister-President has
been a Chancellor, but of the Empire, not of
Prussia.]
[Footnote 378: The Staats-Ministerium was called
into being, to replace the old Council of State, by
an ordinance of October 27, 1810. Its functions
were further elaborated in cabinet orders of June
3, 1814, and November 3, 1817. The constitution of
1850 preserved it and assigned it some new duties.]
[Footnote 379: On the organization and functions of
the Prussian ministry see Dupriez, Les Ministres,
I., 345-462; von Seydel, Preussisches Staatsrecht,
91-104; von Rönne, Das Staatsrecht der preussischen
Monarchie, 4th ed., III.; Schulze, Das preussische
Staatsrecht, II.]
*273. Subsidiary Executive Bodies.*--Two other executive organs possess
considerable importance. These are the Oberrechnungskammer, or Supreme
Chamber of Accounts, and the Volkswirthschaftsrath, or Economic
Council. The Oberrechnungskammer has existed continuously since 1714.
Its function is the oversight and revision of the finances of the
departments, the administration of the state debt, and the acquisition
and disposal of state property. Its president is appointed by the
crown, on nomination of the Staats-Ministerium. Its remaining members
are designated by the crown on nomination of its own president,
countersigned by the president of the Staats-Ministerium. All enjoy
the tenure and the immunities of judges, and the body collectively is
responsible, not to the Ministry of State, but to the crown
immediately. In status and function it resembles somewhat closely the
French Cour des Comptes. The same group of men, with additional
members appointed by the Bundesrath, serves as the Chamber of Accounts
of the Empire. The Volkswirthschaftsrath consists of seventy-five
members named by the king for a term of five years. Its business is to
give preliminary consideration to measures vitally affecting large
economic interests, to determine what should be Prussia's position in
the Bundesrath upon these measures, and to recommend to the crown
definite courses of action regarding them. Its function is purely
consultative.
CHAPTER XIII (p. 257)
THE PRUSSIAN LANDTAG--LOCAL GOVERNMENT
I. COMPOSITION OF THE LANDTAG
*274. The House of Lords: Law of 1853.*--Legislative authority in the
kingdom of Prussia is shared by the king with a national assembly, the
Landtag, composed of two chambers, of which the upper is known as the
Herrenhaus, or House of Lords, and the lower as the Abgeordnetenhaus,
or House of Representatives. Under the original provisions of the
constitution, the House of Lords was composed of (1) adult princes of
the royal family; (2) heads of Prussian houses deriving directly from
the earlier Empire; (3) heads of families designated by royal
ordinance, with regard to rights of primogeniture and lineal descent;
(4) 90 members chosen by the principal taxpayers of the kingdom; and
(5) 30 members elected by the municipal councils of the larger towns.
By law of May 7, 1853, this arrangement was set aside and in its stead
it was enacted that the chamber should be made up entirely of persons
appointed by the crown in heredity or for life; and, on the
authorization of this measure, there was promulgated, October 12,
1854, a royal ordinance by which the composition of the body was fixed
substantially as it is to-day. The act of 1853 forbids that the system
thus brought into operation be further modified, save with the assent
of the Landtag; but this does not alter the fact that the present
composition of the Prussian upper house is determined, not by the
constitution of the kingdom, but by royal ordinance authorized by
legislative enactment.
*275. The House of Lords To-day.*--The component elements of the House
of Lords to-day are: (1) princes of the royal family who are of age;
(2) scions of the Hohenzollern-Hechingen, Hohenzollern-Sigmaringen,
and sixteen other once sovereign families of Prussia; (3) heads of the
territorial nobility created by the king, and numbering some fifty
members; (4) a number of life peers, chosen by the king from among
wealthy landowners, great manufacturers, and men of renown; (5) eight
titled noblemen appointed by the king on the nomination of the
resident landowners of the eight older provinces of the kingdom; (6)
representatives of the universities, of religious bodies, and of towns
of over 50,000 inhabitants, presented by these various organizations
respectively, but appointed ultimately by the king; and (7) an (p. 258)
indefinite number of members, chosen by the king for life on any
ground whatsoever, and under no restriction except that peers must
have attained the age of thirty years.
The composition of the chamber is thus extremely complex. There are
members _ex-officio_, members by royal appointment, members by
hereditary right. But the appointing power of the crown is so
comprehensive that the body partakes largely of the character of a
royal creation. Its membership is recruited almost exclusively from
the rigidly conservative landowning aristocracy, so that in attitude
and policy it is apt to be in no degree representative of the mass of
the nation, at least of the industrial classes. As a rule, though not
invariably, it is ready to support cordially the measures of the
crown. In any event, through exercise of the unrestricted power of
creating peers, the crown is in a position at all times to control its
acts. The number of members varies, but is ordinarily about 300.[380]
[Footnote 380: Lebon, Études sur l'Allemagne
politique, 187-197.]
*276. The House of Representatives.*--The Abgeordnetenhaus, or House of
Representatives, consists of 443 members--362 for the old kingdom, 80
added in 1867 to represent the newly acquired provinces, and one added
in 1876 to represent Lauenburg. Representatives are elected for a
five-year term, and every Prussian is eligible who has completed his
thirtieth year, who has paid taxes to the state during as much as
three years, and whose civil rights have not been impaired by judicial
sentence. Every Prussian who has attained his twenty-fifth year, and
who is qualified to vote in the municipal elections of his place of
domicile, is entitled to participate in the choice of a deputy. At
first glance the Prussian franchise appears distinctly liberal. It is
so, however, only in the sense that comparatively few adult males are
excluded from the exercise of it. In its actual workings it is one of
the most undemocratic in Europe.
*277. The Electoral System.*--Representatives are chosen in electoral
districts, each of which returns from one to three members--as a rule,
two. There has been no general redistribution of seats since 1860
(although some changes were made in 1906), so that in many districts,
especially in the urban centers whose growth has fallen largely within
the past fifty years, the quota of representatives is grossly
disproportioned to population. Until 1906 the entire city of Berlin
returned but nine members, and its quota now is only twelve.[381] The
enfranchised inhabitants of the district do not, moreover, vote (p. 259)
for a representative directly. The essential characteristics of the
Prussian electoral system are, first, that the suffrage is indirect,
and, second, that it is unequal. The precise method by which a
representative is elected[382] may be indicated as follows: (1) each
circle, or district, is divided into a number of Urwahlbezirke, or
sub-districts; (2) in each Urwahlbezirk one Wahlman, or elector, is
allotted to every 250 inhabitants; (3) for the choosing of these
Wahlmänner the voters of the sub-district are divided into three
classes, arranged in such a fashion that the first class will be
composed of the payers of direct taxes, beginning with the largest
contributors, who collectively pay one-third of the tax-quota of the
sub-district, the second class will include the payers next in
importance who as a group pay the second third, and the last class
will comprise the remainder; (4) each of these classes chooses, by
absolute majority, one-third of the electors to which the Urwahlbezirk
is entitled; finally (5) all the electors thus chosen in the various
Urwahlbezirke of the district come together as an electoral college
and choose, by absolute majority, a representative to sit in the
Abgeordnetenhaus at Berlin.[383]
[Footnote 381: Prior to 1906 the Berlin
representatives were chosen in four electoral
districts, but in the year mentioned the city was
divided into twelve single-member constituencies.]
[Footnote 382: As stipulated in articles 69-75 of
the constitution. Robinson, The Constitution of the
Kingdom of Prussia, 42-44.]
[Footnote 383: In the event that, between
elections, a seat falls vacant, a new member is
chosen forthwith by this same body of Wahlmänner
without a fresh appeal to the original electorate
of the district.]
*278. Origins and Operation of the System.*--The principal features of
this unique system were devised as a compromise between a
thoroughgoing democracy based on universal suffrage and a government
exclusively by the landholding aristocracy. The three-class
arrangement originated in the Rhine Province where, by the local
government code of 1845, it was put in operation in the elections of
the municipalities. In the constitution of 1850 it was adopted for use
in the national elections, and in subsequent years it was extended to
municipal elections in virtually all parts of the kingdom, so that it
came to be a characteristic and well-nigh universal Prussian
institution. It need hardly be pointed out that the scheme throws the
bulk of political power, whether in municipality or in nation, into
the hands of the men of wealth. In not fewer than 2,214 Urwahlbezirke
a third of the direct taxes is paid by a single individual, who
therefore comprises alone the first electoral class; and in 1703
precincts the first class consists of but two persons. In most cases
the number of the least considerable taxpayers who in the aggregate
pay the last third of the tax-quota is relatively large. Taking the
kingdom as a whole, it was estimated in 1907 that approximately (p. 260)
three per cent of the electorate belonged to the first class, about
9.5 per cent to the second, and the remaining 87.5 to the third. In
the individual precinct, as in the nation at large, the little group
at the top, however, possesses precisely as much political weight as
the large group at the bottom, because it is entitled to choose an
equal number of Wahlmänner. The result is a segregation of classes
which, whatever its merits at certain points, is of very questionable
utility as a basis of government.
The effect politically is to give an enormous advantage to the
conservative and agrarian interests and to deprive the socialists and
other popular elements all but completely of representation. At the
elections of 1903 the Social Democrats put forth effort for the first
time in an organized way to win seats in the Landtag. Under the system
which has been described a total of 324,157 Conservative votes
sufficed to elect 143 representatives, but 314,149 Social Democratic
votes did not secure the return of a single member. In the Imperial
elections of the same year, conducted under a scheme of equal
suffrage, the popular party sent to the Reichstag eighty members. At
the Prussian elections of 1908 a Social Democratic vote which
comprised approximately twenty-four per cent of the total popular vote
yielded but seven members in a total of 443. So glaringly undemocratic
is the prevailing system that even that arch-aristocrat, Bismarck, was
upon one occasion moved to denounce the three-class arrangement as
"the most miserable and absurd election law that has ever been
formulated in any country."[384]
[Footnote 384: For a brief exposition of the
practical effects of the system, especially on
political parties, see Lowell, Governments and
Parties, I., 305-308. The system as it operates in
the cities is described in Munro, The Government of
European Cities, 128-135, and in R. C. Brooks, The
Three-Class System in Prussian Cities, in
_Municipal Affairs_, II., 396ff. Among special
treatises may be mentioned H. Nézard, L'Évolution
du suffrage universel en Prusse et dans l'Empire
allemand (Paris, 1905); I. Jastrow, Das
Dreiklassensystem (Berlin, 1894); R. von Gneist,
Die nationale Rechtsidee von den Ständen und das
preussische Dreiklassensystem (Berlin, 1904); and
G. Evert, Die Dreiklassenwahl in den preussischen
Stadt-und Landgemeinden (Berlin, 1901).]
II. THE MOVEMENT FOR ELECTORAL REFORM
*279. The Programme Formulated.*--Throughout more than a generation
there has been in Prussia persistent agitation in behalf of electoral
reform. In 1883, and again in 1886, the lower chamber debated, but
rejected, a project for the substitution of the secret ballot for the
existing _viva voce_ method of voting. In 1883 the Social Democratic
party proclaimed its purpose to abstain from voting until the (p. 261)
inequalities arising from "the most wretched of all electoral systems"
should have been removed. Gradually there was worked out a programme
of reform to which socialists, Liberals, and progressives of various
schools gave adherence, wholly or in part, comprising four principal
demands: (1) the abolition of discriminations against the small
taxpayer; (2) the introduction of the secret ballot; (3) the replacing
of indirect by direct elections; and (4) a redistribution of seats.
And these are to-day the objects chiefly sought by the reform
elements.
*280. The Efforts of 1906 and 1908.*--In 1906 a bill raising the number
of representatives from 433 to 443 and making provision for a slight
redistribution of seats was carried, but a Radical amendment providing
for direct and universal suffrage and the secret ballot was opposed
with vigor by the Government and failed of adoption. In January, 1908,
there were notable socialist demonstrations throughout the country in
behalf of the establishment of equal manhood suffrage. Prince von
Bülow, while admitting the existing system to be defective, opposed
the introduction in Prussia of the electoral system of the Empire,
alleging that it would not be compatible with the interests of the
state and maintaining that every sound reform of the franchise must
retain and secure the preponderance of the great mass of the middle
class, and therefore must aim at the establishment of an equitable
gradation in the weight of the various classes of votes. It was added
that the Government would consider whether this object might best be
attained by basing the franchise entirely upon the amount of taxes
paid by the voter, or by taking into account age, educational
attainments, or other qualifications. When the Radicals introduced in
the lower chamber a resolution declaring for equal manhood suffrage
the Clericals and the Poles supported it, but the Conservatives and
National Liberals of all shades stood by the Government, and the
resolution was overwhelmingly rejected. The elections of June, 1908,
at which, as has been pointed out, seven Social Democratic members
were returned, demonstrated that even under existing electoral
arrangements dissatisfaction could find some expression. The National
Liberals and the Free Conservatives, who had been outspoken in
opposition to the extension of the suffrage, lost, respectively,
twelve and four seats. When, however, the Radical resolution
reappeared it again was thrown out.
*281. The Project of 1910.*--By popular demonstrations in Berlin and in
other important towns throughout the kingdom, the Government was
brought to the conviction that it was not expedient to maintain too
long its hitherto inflexible attitude. In a speech from the (p. 262)
throne, January 11, 1910, the sovereign announced the early
introduction of a measure for electoral reform, and a month later it
became the unwelcome duty of the new Chancellor, von Bethman-Hollweg,
to lay the Government's project before the chambers. Instantly it was
evident, not only that the proposal had been prepared entirely under
bureaucratic direction, but that the real purpose of the Government
was to carry through the Landtag an electoral bill designed to appease
the reformers without yielding the essential features of the existing
system. The project provided, in brief: (1) that the tripartite system
be retained, though the quota of taxes admitting to the first class
should be reduced to a uniform level of five thousand marks (no weight
being given to payment beyond that amount), and voters of specified
degrees of education, or occupying certain official positions, or
having served a stipulated number of years in the army or navy, should
be assigned to the higher classes, with but incidental regard to their
tax contributions: (2) that _viva voce_ voting be retained; (3) that
the choice of electors be by districts rather than by Urwahlbezirke;
and (4) that direct voting be substituted for indirect. There was no
mention of redistribution, and the secret ballot was specifically
withheld. The rearrangement of classes did not touch the fundamental
difficulty, and the only demand of the reformers which was really met
was that for direct elections. In his speech in defense of the measure
the Chancellor frankly admitted that the Government was irrevocably
opposed to a suffrage system based on democratic principles.
The scheme was ridiculed by the liberal elements. In protest against
the nonchalance with which the door had been shut in their faces the
working classes in Berlin and elsewhere entered upon a fresh series of
demonstrations by reason of which the Government was embarrassed
through several weeks. In the Landtag the Conservative and Free
Conservative parties, comprising the Government majority, stood
solidly for the bill, in the conviction that if there must be change
at all those changes which the bill proposed would be less
objectionable than those which were being urged by the radicals. The
Centre wavered, while the National Liberals, the Poles, the Social
Democrats, and the Progressive People's Party stood firmly in
opposition. February 13 the bill was referred in the lower house to a
committee, by which it was reported so amended as to provide for the
secret ballot but not for direct elections. March 16, by a vote of 283
to 168, the measure in this amended form, was passed by the chamber,
all parties except the Conservatives and the Centre voting against it.
April 29 the bill was passed in the upper chamber, by a vote of 140 to
94, in the form in which originally it had been introduced. All (p. 263)
efforts on the part of the Government to bring the lower house to an
acceptance of the original measure proved fruitless, and the upshot
was that, May 27 following, the project was withdrawn from the
chambers. The overhauling of the antiquated electoral system in
Prussia, both national and municipal, remains a live issue, but
agreement upon a definite project of reform is apparently remote. The
problem is enormously complicated by the virile traditions of
aristocratic, landed privilege which permeate the inmost parts of the
Prussian political system. In respect to redistribution, too, a
fundamental obstacle lies in the consideration that such a step on the
part of Prussia would almost of necessity involve a similar one on the
part of the Empire. In both instances the insuperable objection, from
the point of view of the Government, arises from the vast acquisition
of political power which would accrue from such reform to the
socialists and other radical parties.[385]
[Footnote 385: P. Matter, La réforme électorale en
Prusse, in _Annales des Sciences Politiques_,
Sept., 1910; C. Brocard, La réforme électorale en
Prusse et les partis, in _Revue Politique et
Parlementaire_, Feb., 1912.]
III. ORGANIZATION AND FUNCTIONS OF THE LANDTAG
*282. Sessions and Privileges of Members.*--The maximum life of a
Landtag is five years; but the lower house may at any time be
dissolved by the crown. A dissolution must be followed by the election
of a new chamber within sixty days, and the ensuing session is
required to begin within three months. The power of dissolution is not
infrequently exercised, and there have been instances of the
dissolution of a newly elected chamber, by reason of its objectionable
political character, before it had been convened for so much as a
single sitting. According to law the Landtag must be convoked in
regular session every year, during the period between the beginning of
November and the middle of the following January.[386] It may be
called in extraordinary session at any time. Without its own consent,
it may not be adjourned for more than thirty days, or more than once
during a session. Save in the event of the necessity of making
provision for a regency, the chambers sit separately; but the two must
be convoked, opened, adjourned, and prorogued simultaneously.
[Footnote 386: Art. 76.]
Each chamber passes upon the qualifications of its members; each
elects it own presidents, vice-presidents, and secretaries; and each
regulates its own discipline and order of business. Sittings of both
chambers are public, save when, on proposal of the president or of ten
members, it is decided to close the doors. Members are regarded (p. 264)
as representatives of the population of the kingdom as a whole. They
may not be bound by any sort of instructions; nor may they be called
to account legally for votes cast, or for statements made, in the
fulfillment of their legislative functions. Unless taken in the act,
or within twenty-four hours thereafter, no member of either house may,
without the consent of that house, be arrested or submitted to
examination for any penal offense. Members of the lower house receive,
and must accept, travelling expenses and a daily allowance of fifteen
marks during sessions.
At the beginning of each sitting the House of Lords is divided into
five Abtheilungen, or sections, and the House of Representatives into
seven. In the lower house the division is made by lot; in the upper,
by the president. In both instances it is made once for an entire
session, not monthly as in France, or bi-monthly as in Italy. The
function of the Abtheilungen is to appoint committee members, and, in
the lower house, to make preliminary examination of election returns.
In each house there are eight standing committees. For the
consideration of particular measures special committees are
constituted as occasion demands.
*283. Powers.*--The Landtag is, of course, primarily a legislative
institution. But the powers of independent deliberation which it
exercises are distinctly inferior to those exercised by the British
House of Commons, by the French Chamber of Deputies, or by any one of
a half score of other European parliamentary bodies. This fact arises
from the relatively preponderating influence which is exerted by the
Government in its proceedings. In theory each chamber possesses the
right to initiate legislation; in practice, virtually all bills are
introduced by the Government, and the chambers content themselves with
discussion and the proposing of amendments. It not infrequently
happens that, as in the case of the Electoral Reform Bill of 1910, the
lower house so emasculates a measure as to compel the Government to
withdraw it. But, speaking broadly, it may be said that the
legislative acts of Prussia are projected and formulated by the crown
and the ministers and merely ratified by the Landtag. There is still
some question as to whether the stipulation that all laws require the
assent of the two houses covers, under every circumstance, the
appropriation of money. In practice, appropriations are regularly
voted in the chambers, and in fact it is required that the budget and
all fiscal measures shall be presented first to the lower house and
shall be accepted or rejected as a whole by the upper; but during the
years immediately preceding the Austrian war of 1866 the Government
asserted and exercised the power of collecting and expending the revenues
of the state on the basis of standing laws, thus virtually (p. 265)
suspending the legislative appropriating power, and the question has
never been finally settled by Prussian jurists as to whether such a
thing might not again be done.[387]
[Footnote 387: Lowell, Governments and Parties, I.,
298.]
On the side of administration the powers of the Landtag are but
nominal. Under provisions of the constitution each chamber has a right
to present memorials to the king; to refer to the ministers documents
addressed to it, and to demand explanations respecting complaints made
therein; and to appoint commissions for the investigation of subjects
for its own information. The right of interpellation is expressly
recognized. But, as has been pointed out, the ministers are not in
practice responsible to the legislative chambers, and neither they nor
the king himself can be compelled to give heed, unless they so desire,
to legislative protests, demands, or censure. Where a parliamentary
system does not exist, the influence of the legislative branch upon
matters of administration is likely to be confined to the simple
assertion of opinion.
IV. LOCAL GOVERNMENT: ORIGINS AND PRINCIPLES[388]
[Footnote 388: The judicial system of Prussia,
regulated in common with that of the other states
by Imperial law, is described in Chapter 11, pp.
241-244. Articles 86-97 of the Prussian
constitution deal with the subject of the
judiciary, but many of their provisions have been
rendered obsolete by Imperial statutes.]
*284. The Measures of Stein and Hardenberg.*--The origins of the local
governmental régime prevailing in the kingdom of Prussia to-day
antedate, to some extent, the nineteenth century, but in large part
they are to be traced to the period of the Stein-Hardenberg
ministries. By the memorable Municipal Edict (_Städt-Ordnung_) of
November 19, 1808, Stein set up a complete municipal system, with
burgomasters, executive boards, and town councils (all elective), and
swept away the oligarchy of the guilds, broadened the franchise, and
conferred upon the towns almost complete independence, even in the
matter of taxation. An edict of 1831 inaugurated a revival of the
right of the central authorities to supervise local taxation and
introduced a number of other changes, but, on the whole, the municipal
arrangements of the present day are based upon the edict of Stein.
More immediately, they rest upon an act of 1853, applied originally
only to the six eastern provinces of the kingdom, but eventually
extended to the others. Aside from its introduction of the three-class
electoral system, and a few other matters, this law follows closely
the measure of 1808 and but consolidates and extends pre-existing
arrangements.[389] Neither Stein nor Hardenberg touched the (p. 266)
constitution of the country communes, but the extension, during the
Napoleonic occupation, of the French communal system into all the
Prussian territories west of the Elbe prepared the way for the
essentially uniform system which was established by the Westphalian
and Rhineland Edicts of 1841 and 1845. Edicts of 1807 and 1811
abolished the aristocratic basis of the ancient circles (Kreise), and
after 1815 the circle as a unit of local government next above the
commune was extended to all the conquered or reconquered territories.
The revival of the old provincial organization was begun also in 1815,
when the kingdom was divided into ten provinces; and in the same year
there were established twenty-six government districts (Regierungsbezirke),
two or three within each province, each under the control of one of
the government boards (Regierungen) whose creation had been begun in
1808.[390]
[Footnote 389: The text of the law of 1853 is
printed in the appendix of A. W. Jebens, Die
Städtverordneten (Berlin, 1905).]
[Footnote 390: E. Meier, Die Reform der
Verwaltungsorganisation unter Stein und Hardenberg
(Leipzig, 1881).]
*285. The Reforms of Bismarck.*--Throughout the middle portion of the
nineteenth century the administrative system, modified but slightly by
legislative enactment, continued to present a curious combination of
elements which were popular and elements which were narrowly
bureaucratic and, in some instances, essentially feudal. Beginning in
1872, Bismarck addressed himself to the task of co-ordinating,
strengthening, and to a certain extent liberalizing, the local
institutions of the kingdom. The ends at which he aimed principally
were the abolition of conditions by which it was made possible for the
whole machinery of local government to be captured from time to time
by a single social class for its own benefit, and the establishment of
a system under which all classes of the population might be admitted
to participation in the management of purely local affairs. In the
course of the reform which was carried through numerous features of
English local institutions were copied with some closeness. In a
number of scholarly volumes appearing between 1863 and 1872 the genius
of these institutions had been convincingly expounded by the jurist
Rudolph Gneist, whose essential thesis was that the failure of
parliamentary government in Prussia and the success of it in Great
Britain was attributable to the dissimilarity of the local
governmental systems of the two countries;[391] and by these writings
the practical proposals with which Bismarck came forward were given
important theoretic basis. Neither Gneist nor Bismarck sympathized
with the ideals of democracy, but both believed that the local (p. 267)
administrative authorities should be made to include not only a
paid, expert bureaucracy but a considerable element of unpaid lay or
non-official persons, drawn, however, principally from the large
landowners and taxpayers. The obstacles to be overcome, arising from
public indifference, the opposition of the existing bureaucracy, the
apprehensions of the Conservatives, and sectional differences and
antipathies, were enormous, but by proceeding slowly and in a
conciliatory spirit the Government was able eventually to execute the
larger portion of its plans. The first enactments, for the circles in
1872 and for the provinces in 1875, were applied only to those
provinces which had formed the old monarchy, but during the ensuing
ten years similar measures were extended to the remainder of the
kingdom, and, finally, after the dismissal of Bismarck, the task was
rounded out by a great Landgemeinde-Ordnung issued for the seven
eastern provinces in 1891. By this series of enactments the
administrative methods and machinery of the kingdom were reduced to
substantially the character which they to-day possess.
[Footnote 391: The most important of Gneist's works
in this connection are: Geschichte des
self-government in England (1863); Verwaltung,
Justiz, Rechtsweg (1867); Die preussische
Kreis-Ordnung (1871); and Der Rechtsstaat (1872).]
*286. Principles of the Administrative System.*--Although the system is
still one of the most complicated in Europe, it is infinitely simpler
than once it was, and the bureaucratic forces in it, if still
predominant, have been subjected to a variety of important restraints.
The principles which underlie it have been summarized by an English
writer as follows: "The first is the careful distinction drawn between
those internal affairs in which the central government is thought to
be directly concerned, and those which are held to be primarily of
only local interest. The former group includes, besides the army, the
state taxes and domains, ecclesiastical affairs, police (in the wide
Prussian meaning of the term), and the supervision of local
authorities; whilst roads, poor relief, and a number of miscellaneous
matters are left to the localities. These two groups are kept
carefully separate, even when they are entrusted to the same
authority. Secondly, the work of the central government is
'deconcentrated,' that is, the country is divided into districts
(which may or may not be coincident with the areas of local
self-government), in each of which there is a delegation of the
central authority, doing its work, and thereby lessening the pressure
upon the departmental offices in Berlin. Something like this
deconcentration is found in the educational organization of France,
and also in the office of the Prefect, but it is far more elaborate,
and the machinery much more complex, in Prussia. Thirdly the
comparative independence of the executive from the deliberative
authority, and the predominance of the officials, which characterize
the central government of Prussia, repeat themselves throughout the
whole of local government. And, finally, in all except the (p. 268)
largest of the Prussian areas of local self-government, the executive
agents of the locality, elected by it, are also the representatives of
the central government; as such they are members of the bureaucracy
and controlled by it, and in consequence they naturally look to the
center for guidance and direction in regard to local affairs.
Therefore, whilst it would be inaccurate to say that local
self-government, as understood in England, does not exist in Prussia,
it is true that self-government there is weak, that it is not so much
the exercise of the will of the locality within limits prescribed (for
the protection of the whole community) by the central power, as the
exercise of the will of the latter by the locality. In fact, the
bureaucracy rules; and it is fortunate for Prussia that hitherto the
bureaucracy has remained intelligent and respective of new
ideas."[392]
[Footnote 392: Ashley, Local and Central
Government, 130-132.]
At the same time it is to be observed that, while the professional,
life-long holders of office continue to preponderate as in no other
important country of western Europe, the class of non-professionals is
large and constantly increasing. As a rule, the first class is
salaried, the second is not; the non-professionals being simply
citizens who, moved by considerations of a civic and social nature,
give their services without prospect of pecuniary reward. The
principle of the system is, as Ashley characterizes it, that of
government by experts, checked by lay criticism and the power of the
purse, and effectively controlled by the central authorities. And,
although the details of local governmental arrangements vary
appreciably from state to state, this principle, which has attained
its fullest realization in Prussia, may be said to underlie local
government throughout the Empire in general.
V. LOCAL GOVERNMENT: AREAS AND ORGANS
*287. The Province.*--Aside from the cities, which have their special
forms of government, the political units of Prussia, in the order of
their magnitude, are: (1) the Provinz, or province; (2) the
Regierungsbezirk, or district; (3) the Kreis, or circle; (4) the
Amtsbezirk, or court jurisdiction; and (5) the Gemeinde, or commune.
Of these, three--the first, third, and fifth--are spheres both of the
central administration and of local self-government; two--the second
and fourth--exist for administrative purposes solely. Of provinces
there are twelve: East Prussia, West Prussia, Brandenburg, Pomerania,
Silesia, Posen, Westphalia, Saxony, Hanover, the Rhine Province,
Schleswig-Holstein, and Hesse-Nassau.[393] Unlike the French and (p. 269)
Italian departments, the Prussian provinces are historical areas,
of widely varying extent and, in some instances, of not even wholly
continuous territory. Thus Hanover is, geographically, the kingdom
once united with the crown of Great Britain, Schleswig-Holstein
comprises the territories wrested from Denmark in 1864, Saxony is the
country taken from the kingdom of Saxony at the close of the
Napoleonic wars, and Posen represents Prussia's ultimate acquisition
from the Polish partitions of the eighteenth century.
[Footnote 393: For all practical purposes the city
of Berlin and the district of Hohenzollern form
each a province. If they be counted, the total is
fourteen.]
In the organization of the province the separation of functions
relating to the affairs of the kingdom (_Staatsgeschäfte_) from those
which relate only to matters of a local nature is carried out rigidly.
In the circle, as will appear, the two sets of functions are
discharged by the same body of officials; in the district, the
functions performed are wholly of a national, rather than a local,
character; but in the province there are not merely two sets of
functions but two entirely separate groups of officials.
*288. Provincial Organs of the Central Administration.*--For the
administration of affairs of general interest, such as police,
education, and religion, the organs within the province are (1) the
Oberpräsident, or chief president, appointed by the king to represent
the central government in the management of all such matters as
concern the entire province or reach beyond the jurisdiction of a
single Regierungsbezirk administration,[394] and (2) the
Provinzialrath, a provincial council consisting of, besides the
Oberpräsident or his representative as presiding officer, one
professional member appointed for an indefinite tenure by the Minister
of the Interior and five ordinary citizen members elected, usually for
a term of six years, by the provincial Ausschuss, or committee. The
Oberpräsident is the immediate agent of the ministry, as is the
prefect in France, though he is a more dignified and important
functionary than his French counterpart. None the less, by virtue of
the fact that most of the Oberpräsident's acts are valid only after
having been accorded the assent of a body the majority of whose
members are chosen within the province, the bureaucratic aspect of his
position is subjected to a highly important limitation.
[Footnote 394: Schulze, Das Staatsrecht des
Königreichs Preussen, 63.]
*289. Provincial Organs of Self-Government.*--By the side of this
official group stands another, quite independent of it, for the
control of affairs of purely local concern. Its organs comprise: (1)
the Provinzialausschuss, or provincial committee, consisting of from
seven to fourteen members elected for six years by the provincial (p. 270)
Landtag, not necessarily, but almost invariably, from its own
membership; (2) a Landeshauptmann or Landesdirektor, a salaried
executive official elected by the Landtag for six or twelve years and
confirmed by the crown; and (3) the Provinziallandtag, or provincial
assembly. The Landeshauptmann is the executive, the Provinzialausschuss
the consultative, organ of local self-administration; the
Provinziallandtag is the provincial legislature. Members of the
Landtag are elected for six years (one-half retiring every three
years) by the diets of the circles, and they comprise, as a rule,
local administrative officials of the circles, large landowners, and
other well-to-do persons. Sessions are convoked by the crown at least
every two years.[395] The Landtag's functions are comprehensive. They
include the supervision of charities, highways, and industry; the
voting of local taxes and the apportionment of them among the circles;
the enactment of local laws; the custody of provincial property; the
election of the Landeshauptmann and the members of the provincial
committee; and the giving of advice on provincial matters at the
request of the central government. The Landtag is in practice less
independent, however, than this enumeration of powers might seem to
imply. All of its legislation requires the assent of the king; most of
its fiscal arrangements must be submitted to one or more of the
ministers; and the body itself may be dissolved at any time by the
crown.
[Footnote 395: Towns of twenty-five thousand
inhabitants or more may, by ministerial decree, be
set off as separate circles. In such circles
Landtag members are chosen by the municipal
officials.]
*290. The Government District.*--Each province is divided into a number
of Regierungsbezirke, or districts, of which there are now thirty-five
in the kingdom.[396] Unlike the province, the district exists for
purposes of general administration only. It therefore has no organs of
self-government. Its Regierung, or "administration," consists of a
body of professional, salaried officials, appointed by the crown and
having at its head the Regierungspräsident, who is, on the whole, the
most important official in the Prussian local service. The subjects
that fall within the jurisdiction of the functionaries of the
district, including taxation, education, religion, forests, etc., are
very comprehensive, and the work of administration is carried on
chiefly through "colleges," or boards. For the management of police
and the supervision of local bodies there exists a Bezirksausschuss,
or district committee, composed of the Regierungspräsident, two (p. 271)
other persons appointed by the crown, and four members elected by the
Provinzialausschuss for six years. A very important function which
this body has possessed since 1883 is that of sitting, under the
presidency of one of its members appointed for his judicial
qualifications, as the administrative court of the district.[397]
[Footnote 396: The province of Schleswig-Holstein,
however, contains but a single district. The
largest number of districts in a province is six,
in Hanover.]
[Footnote 397: The immediate legal basis of the
organization of the district is the
Landesverwaltungsgesetz of 1883.]
*291. The Circle.*--In the Kreis, or circle, as in the province, there
exist two sharply distinguished sets of governmental functions, the
general and the local; but for the administration of both there is a
single hierarchy of officials. The number of circles within the
kingdom is about 490, with populations varying from 20,000 to 80,000.
Each includes all towns lying within it which have a population of
less than 25,000. A town of over 25,000 is likely to be created, by
ministerial order, a circle within itself, in which case the functions
of government are exercised by the municipal authorities.[398] The
essential organs of government within the Landkreise, or country
circles, are three: the Landrath, the Kreisausschuss, and the
Kreistag. The Landrath is appointed for life by the crown, on
nomination frequently by the Kreistag, or diet. He superintends all
administrative affairs, general and local, within the circle; fulfills
the functions of chief of police; presides over the Kreisausschuss and
Kreistag; and, in general, occupies within the circle the place
occupied within the province by the Oberpräsident. Associated with
him, and organized under his presidency, is the Kreisausschuss, or
circle committee, composed of six unofficial members elected by the
Kreistag for six years. In addition to its consultative functions, the
Kreisausschuss sits as an administrative court of lowest grade.
[Footnote 398: Approximately one hundred towns have
been so constituted.]
The Kreistag is the legislative body of the circle. Its members,
numbering at least twenty-five, are elected for a term of six years by
three Verbände, or colleges, the first being made up of the cities,
the second of the large rural taxpayers, the third of a complicated
group of rural interests in which the smaller taxpayers and delegates
of the communal assemblies preponderate.[399] The Kreistag is a body
of substantial importance. It chooses, directly or indirectly, all the
elective officials of the circle, of the district, and of the
province; it creates local officers and regulates their functions; it
enacts legislation of a local nature; and it votes the taxes required
for both its own and the provincial administration.
[Footnote 399: For a fuller statement of the
electoral system see Lowell, Governments and
Parties, I., 325.]
*292. The Commune.*--The smallest of Prussian governmental units (p. 272)
is the Gemeinde, or commune.[400] Of communes there are two distinct
types, the rural (Landgemeinde) and the urban (Stadtgemeinde). The
governments of the rural communes (some 36,000 in number) are so
varied that any general description of them is virtually impossible.
They rest largely upon local custom, though reduced at some points to
a reasonable uniformity under regulating statutes such as were enacted
for the communes of eight of the twelve provinces in the
Landgemeinde-ordnung of 1891.[401] There is invariably an elective
Schulze, or chief magistrate. He is assisted ordinarily by from two to
six aldermen (Schöffen) or councillors. And there is generally a
governing body (Gemeindevertretung), composed of elected representatives,
when there are as many as forty qualified electors,--otherwise
the people acting in the capacity of a primary assembly
(Gemeindeversammlung),--for the decision of matters relating to local
schools, churches, highways, and similar interests. It is to be
observed, however, that most of the rural communes are so small that
they have neither the financial resources nor the administrative
ability to maintain a government of much virility. Such action as is
taken within them is taken almost invariably with the approval of, and
under the guidance of, the authorities of the circle, principally the
Landrath.[402]
[Footnote 400: The Amtsbezirk is essentially a
judicial district. See p. 243. In the eastern
provinces it is utilized also for purposes of
police administration.]
[Footnote 401: For an annotated edition of this
important instrument see F. Keil, Die
Landgemeinde-ordnung (Leipzig, 1890).]
[Footnote 402: On Prussian local government see
Lowell, Governments and Parties, I., 308-333; F. J.
Goodnow, Comparative Administrative Law (2d ed.,
New York, 1903), I., 295-338; and Ashley, Local and
Central Government (London, 1906), 125-186,
263-287. Fuller accounts are contained in Schulze,
Das preussische Staatsrecht, I., 436-538; K.
Stengel, Organisation der preussischen Verwaltung,
2 vols. (Berlin, 1884); C. Bornhak, Preussisches
Staatsrecht, 3 vols. (Freiburg, 1888-1890), and Hue
de Grais, Handbuch der Verfassung und Verwaltung in
Preussen, etc. (17th ed., Berlin, 1906). Texts of
local government acts are printed in G. Anschutz,
Organisations-gesetze der innern Verwaltung in
Preussen (Berlin, 1897). The best description in
English of Prussian municipal government is that in
Munro, The Government of European Cities, 109-208.
A good brief sketch is Ashley, Local and Central
Government, 153-164. The best account of some
length in German is H. Kappleman, Die Verfassung
und Verwaltungsorganisation der preussischen
Städte, in Schriften des Vereins für Sozialpolitik
(Leipzig, 1905-1908), vols. 117-119. Mention may be
made of A. Shaw, Municipal Government in
Continental Europe (New York, 1895), Chaps. 5-6; E.
J. James, Municipal Administration in Germany
(Chicago, 1901); and Leclerc, La Vie municipale en
Prusse, in _Annales de l'École Libre des Sciences
Politiques_, Oct., 1888. For ample bibliography see
Munro, _op. cit._, 389-395.]
In their governmental arrangements the urban communes exhibit more
uniformity than do the rural, though occasionally among them there
is wide variation. The usual organs comprise (1) the Stadtrath, (p. 273)
an executive body consisting of a burgomaster and a number of
assistants, elected for six, nine, or twelve years, or even for life,
and (2) the Stadtverordnete, or municipal council, chosen for from
three to six years, as a rule by an electorate identical with that
which returns the members of the lower branch of the Prussian
Landtag.
CHAPTER XIV (p. 274)
THE MINOR GERMAN STATES--ALSACE-LORRAINE
*293. Essential Similarity of Political Institutions.*--The
preponderance of Prussia among the twenty-five states comprised within
the German Empire is such as to lend the governmental system of that
kingdom an interest and an importance which attaches to the political
arrangements of no one of the remaining members of the federation. No
description of German governments would be adequate, none the less,
which should ignore wholly the minor states. A number of these states,
especially Bavaria, Baden, Württemberg, and Saxony, are of
considerable size, and the populations which are governed within them
approximate, or exceed, the populations of certain wholly independent
European nations, as Norway, Denmark, Switzerland, Portugal, and
several of the states of the southeast. It would be unnecessary,
however, even were it possible, to describe in this place twenty-five
substantially independent German governmental systems. Despite no
inconsiderable variation, there are many fundamental features which
they, or the majority of them, possess in common. All save
three--Hamburg, Bremen, and Lübeck--are monarchies. All save
two--Mecklenburg-Schwerin and Mecklenburg-Strelitz--have written
constitutions[403] and elective legislative chambers. In every one of
the monarchies the total lack of anything in the nature of ministerial
responsibility to a parliamentary body leaves the way open for the
maintenance of vigorous and independent royal authority, and it is not
too much to say that in all of them, as is pre-eminently true in
Prussia, the principle of autocracy lies at the root of both the
organization and the methods of government. Local governmental
arrangements and systems of administration of justice have been
copied, in most instances, from Prussia. It will suffice to speak very
briefly, first of a few of the more important monarchies, and
subsequently of the city-state republics.
[Footnote 403: The texts of these constitutions, in
the form in which they existed in 1884, are printed
in Stoerk, Handbuch der deutschen Verfassungen.
Even in the Mecklenburgs there are certain written
instruments by which the curiously mediæval system
of government there prevailing is in a measure
regulated.]
I. THE MORE IMPORTANT MONARCHIES (p. 275)
*294. Bavaria: Crown and Ministry.*--After Prussia, the most important
of the German states, in point both of area and of population, is the
kingdom of Bavaria. The constitution at present in operation in
Bavaria was promulgated May 26, 1818, though it has undergone no
slight modification through the process of amendment since that
date.[404] The original instrument replaced a fundamental law of May,
1808, devised by the king of Bavaria in imitation of the constitution
given some months before by Napoleon to the kingdom of Westphalia; and
even the present frame of government bears unmistakable evidence of
French influence. The functions and prerogatives of king and ministers
are substantially what they are in Prussia.[405] In addition to the
Ministry of State, consisting of the seven heads of departments, there
is an advisory Staatsrath, or Council of State, comprising, besides
the ministers, one prince of the royal blood and eight other members.
In accordance with royal proclamation important acts of the government
require the countersignature of all of the ministers. This, of itself,
does not imply any larger measure of ministerial subordination than
exists elsewhere in German governments, but it is worth observing that
during a prolonged period, especially after 1869, there was persistent
effort on the part of the Clericals to inject into the Bavarian system
the principle of ministerial responsibility in the parliamentary sense
of the phrase, and that although the attempt was by no means wholly
successful, it is true that in Bavaria the ministers occupy in
practice a somewhat less independent position than in other German
monarchies. The device of interpellation, for example, not only exists
in theory; it means something, as elsewhere in Germany it does not, in
actual operation. If a minister will not answer an interpellation that
is addressed to him, he is obliged by law at least to give reasons for
his refusal.[406]
[Footnote 404: Among amendments the most notable
have been that of March 9, 1828, relating to the
composition of the upper legislative chamber; those
of June 4, 1848, and March 21, 1881, by which was
modified the composition of the lower house; and
that of April 8, 1906, whereby direct elections
were substituted for indirect.]
[Footnote 405: The crown is hereditary in the house
of Wittelbach, by which it was acquired as early as
1180. From 1886, the king, Otto I., being insane,
the powers of the sovereign were exercised by the
prince regent Luitpold, until his death December
12, 1912.]
[Footnote 406: Lowell, Governments and Parties, I.,
338.]
*295. The Bavarian Landtag.*--The Landtag of Bavaria consists of two
chambers. The upper, designated officially as the Kammer der Reichsrate
("chamber of the council of the Empire"), is composed of princes (p. 276)
of the royal family, crown dignitaries, high ecclesiastics, hereditary
nobles, and life members appointed by the crown--in all, some
eighty-five to ninety persons. The lower chamber, or Abgeordnetenkammer,
consists of 163 members. By law of 1881 the class system of voting in
Bavaria was replaced by an equal suffrage extended to all males paying
a direct tax. Elections continued to be indirect until 1906, when
provision was made for elections by direct and secret ballot.[407]
Deputies are chosen for a term of six years and are apportioned in
such a manner that, normally, there is one for every 38,000 people.
Every male inhabitant is entitled to vote who at the time of the
election has completed his twenty-fifth year, has been a Bavarian
citizen during at least one year, and has paid to the state a direct
tax during at least the same period. The Landtag must be summoned not
less frequently than once every three years.[408] The budget is made
up on a two-year basis, so that sessions are held, in point of fact,
biennially.
[Footnote 407: Grassman, Die bayerische
Landtagswahlgesetz vom 8 April, 1906, in Jahrbuch
des Oeffentlichen Rechts der Gegenwart, I., 242. A
law of April 15, 1908, introduced the principle of
proportional representation in Bavarian municipal
elections.]
[Footnote 408: M. von Seydel, Das Staatsrecht des
Königreichs Bayern, (Freiburg, 1888), in
Marquardsen's Handbuch; E. Junod, La Bavière et
l'Empire allemande, in _Annales de l'École Libre
des Sciences Politiques_, Apr. 15, 1892.]
*296. Saxony: Crown and Ministry.*--Third among the states of the Empire
in population, though fifth in area, is the kingdom of Saxony. The
present Saxon constitution was promulgated September 4, 1831, under
the influence of the revolutionary movements of 1830. By it a monarchy
governed under a mediæval system of estates was converted into a
monarchy governed, at least nominally, under a modern representative
régime. In point of fact, however, the inauguration of constitutionalism
tempered the actual authority of the monarch very slightly. The king is
still in every sense the supreme authority within the state.[409] He
appoints and dismisses ministers at will, issues ordinances with the
force of law, and exercises far-reaching control over the processes of
legislation. Upon the failure of the chambers to vote supplies which
are held to be essential, he may even collect and expend revenues for
a year on no authority apart from his own. For purposes of administrative
supervision there are ministers of War, Finance, Justice, Foreign
Affairs, the Interior, and Education, and the ministers collectively
comprise a Gesammt-Ministerium, or ministry of state. Measures of the
crown are countersigned by a minister; but there is no means by which
a minister may be forced out of office against the will of the (p. 277)
king by a hostile legislative chamber.
[Footnote 409: The crown is hereditary in the
Albertine line of the house of Wettin, with
reversion to the Ernestine line, of which the duke
of Saxe-Weimar is now the head. The present
sovereign is Frederick August III.]
*297. The Saxon Legislative Chambers.*--The Saxon legislature
(Standeversammlung) consists of two houses. The upper, designated
simply as the First Chamber, is a composite body consisting of
forty-six members, in addition to a variable number of adult princes
of the royal house. The membership comprises, principally, (1)
important prelates; (2) certain university officials; (3) proprietors
of great estates, twelve elected and ten appointed by the crown for
life: (4) the first magistrates of Dresden and Leipzig; (5) six
burgomasters of other cities, designated by the king; and (6) five
nobles named for life by free choice of the king. The lower house
consists of ninety-one deputies, of whom forty-three are elected by
the towns and forty-eight by the rural communes. At one time members
were chosen by direct secret ballot under a general and equal suffrage
based upon a small tax qualification. Fear of socialism led, however,
to the adoption, in 1896, of a new system under which the tax
qualification was retained, indirect elections were substituted for
direct and public voting for the secret ballot, and a three-class
scheme was brought into operation which threw political preponderance
into the hands of the well-to-do scarcely less effectively than does
the three-class arrangement in Prussia.
After prolonged agitation the reactionary measure of 1896 was replaced
by a comprehensive electoral law of May 5, 1909 by which direct and
secret voting was re-established and the interests of property were
sought to be safeguarded by a newly devised system of plural votes. As
the law now stands (1) all males who have attained the age of
twenty-five and who pay direct taxes are entitled to one vote; (2) men
owning two hectares of land, or paying a tax upon an annual income of
1,250, 1,400, or 1,600 marks, according, respectively, as such income
is drawn from land, public office, or general sources, and men who
have passed certain examinations, are entitled to two votes; (3)
voters paying taxes yearly, as above, upon an income of 1,600, 1,900,
or 2,200 marks, or who possess four hectares of land, or who as
teachers, engineers, artists, or writers earn an income of 1,900
marks, possess three votes; (4) persons paying a tax, as above, on an
income of 2,200, 2,500, or 2,800 marks, or owning eight hectares of
land, have four votes; and (5) every person belonging to the first,
second, or third of these classes is allotted an additional vote when
he attains the age of fifty, the total number of votes possessed by
one elector never exceeding four. Curiously enough, at the first
elections held under this law, in October, 1909, the socialists, (p. 278)
who previously were represented by but a single member, gained
twenty-five seats, or upwards of a third of the entire number. The
chambers must be summoned by the king at least once in two years. Both
may propose measures, but in practice leadership in the business of
legislation is left very largely to the king and ministry.[410]
[Footnote 410: O. Mayer, Das Staatsrecht des
Königreichs Sachsen (Tübingen, 1909).]
*298. Württemberg: Crown and Ministry.*--The constitution of the kingdom
of Württemberg was promulgated, following prolonged political
controversy, September 25, 1819. At the head of the state is the king,
whose powers are in some respects even larger than those belonging to
other German sovereigns.[411] It is required that all political acts,
except the bestowing of titles of nobility, shall be performed only
with the sanction in writing of a minister; but, by reason of the
king's absolute control of the ministry, this constitutes no invasion
of the crown's essential prerogative. Of ministers there are six.
These collectively comprise the Ministry of State, and they, together
with certain appointive councillors, likewise constitute the
Geheimerrath, or Privy Council, which the sovereign consults at
pleasure.
[Footnote 411: The reigning sovereign is William
II.]
*299. The Assembly of Estates: Proportional Representation.*--The
legislative body of Württemberg is known as the Standeversammlung, or
Assembly of Estates. The upper chamber,--the Standesherren, or House
of Lords,--consists of princes of the royal family; other princes,
under varying conditions; knights; ecclesiastical dignitaries; and
members appointed by the crown, in part according to stipulated
conditions and in part without reference to any necessary
consideration of birth, wealth, or religious affiliation. The
Abgeordnetenhaus, or House of Deputies, consists of ninety-two members
chosen for a term of six years, as follows: one from each of the
administrative divisions (Oberamtsbezirke); six from Stuttgart and one
from each of six other important towns; nine from the Neckar and Jagst
circle; and eight from the Black Forest and Danube circle. Election is
by direct and secret ballot, on a basis of universal suffrage for
males over twenty-five years of age. By constitutional amendment of
July 16, 1906, there was introduced a scheme of proportional
representation under which the six deputies of Stuttgart and the
seventeen of the Neckar and Jagst and the Black Forest and Danube
circles are distributed among the several political groups in
approximate proportion to the numerical strength attained by these
groups at the polls. This system, an innovation in Germany, was tested
in the elections of December, 1906, and January, 1907, and was by most
persons adjudged satisfactory.[412]
[Footnote 412: J. Fontaine, La représentation
proportionnelle en Württemberg, in _Revue Politique
et Parlementaire_, Jan., 1911; ibid., La
représentation proportionnelle en Württemberg
(Paris, 1909).]
The remaining sixty-nine representatives are chosen still in (p. 279)
single member districts. Prior to the amendment of 1906, the chamber
was made up of seventy members chosen popularly and of twenty-three who
sat as representatives of privileged or corporate interests--thirteen
chosen by the landowning nobility, nine dignitaries of the Protestant
and Catholic churches, together with the Chancellor of the University
of Tübingen.[413]
[Footnote 413: G. Combes de Lestrade, Monarchies de
l'Empire allemand, 181; L. Gaupp, Das Staatsrecht
des Königreichs Württemberg (Freiburg and Tübingen,
1884), in Marquardsen's Handbuch; W. Bazille, Das
Staats-und Verwaltungsrecht des Königreichs
Württemberg (Hanover, 1908), in Bibliothek des
Oeffentlichen Rechts der Gegenwart. The monograph
of Gaupp, revised by him in 1895 and by K. Göz in
1904, has been re-issued as essentially a new
volume by Göz (Tübingen, 1908).]
*300. The Government of Baden.*--In July, 1808, a constitutional edict
was promulgated in Baden in imitation of the fundamental law which
Napoleon in the previous year had bestowed upon the kingdom of
Westphalia. August 22, 1818, this instrument was replaced by the
constitution at present in operation. Executive power is vested in the
grand-duke, with the customary provision for ministerial
countersignature. Legislative power is shared by the monarch with a
Landstände of two houses. Under a liberalizing law of August 24, 1904,
the upper chamber consists of princes of the reigning family, nobles
occupying hereditary seats, members appointed for four years by the
grand-duke, and representatives of a variety of ecclesiastical,
educational, and other corporate interests. The lower house is
composed of seventy-three representatives elected for four years
(twenty-four by the towns and forty-nine by the rural districts) by
male citizens over twenty-five years of age. Direct election was
substituted for indirect in 1904. Half of the membership of the lower
chamber is renewed every two years. In Baden there has been rather
more progress than in the majority of German states toward liberal and
responsible government.[414]
[Footnote 414: Lowell, Governments and Parties, I.,
345; K. Schenkel, Das Staatsrecht des
Grossherzogthums Baden (Freiburg and Tübingen,
1884), in Marquardsen's Handbuch.]
II. THE LESSER MONARCHIES AND THE CITY REPUBLICS
*301. Monarchical Variations.*--With relatively unimportant exceptions,
the governments of the remaining seventeen German monarchies exhibit
features substantially similar to those of the governments that (p. 280)
have been described. In each of the states, except the two
grand-duchies of Mecklenburg-Schwerin and Mecklenburg-Strelitz, there
is a written constitution, promulgated, in most instances, during the
second or third quarter of the nineteenth century.[415] Executive
power in each is vested in the monarch; legislative power in the
monarch and a Landtag, or assembly. The assembly consists ordinarily
of a single chamber, varying in membership from twelve to forty-eight;
and in most instances the members are chosen, at least in part, on a
basis of manhood suffrage. In some states, as the principality of
Lippe, the three-class electoral system prevails; and elections are
still very commonly indirect. The trend toward liberalism is, however,
all but universal, and within recent years numbers of important
changes, e.g., the substitution of direct for indirect elections in
Oldenburg and in Saxe-Weimar in 1909, have been brought about. In the
curiously intertwined grand-duchies of Mecklenburg the common Landtag
remains a typically mediæval assemblage of estates, based, in the
main, on the tenure of land.[416]
[Footnote 415: The dates of the original
promulgation of constitutions at present in
operation are: Saxe-Weimar, 1816; Hesse, 1820;
Saxe-Meiningen, 1829; Saxe-Altenburg, 1832;
Brunswick, 1832; Lippe, 1836; Oldenburg, 1852;
Waldeck, 1852; Saxe-Coburg-Gotha, 1852; Reuss
Jüngerer Linie, 1852 and 1856;
Schwartzburg-Rudolstadt, 1854;
Schwartzburg-Sonderhausen, 1857; Anhalt, 1859;
Reuss Älterer Linie, 1867; and Schaumburg-Lippe,
1868.]
[Footnote 416: Repeated attempts to bring about a
modernization of the Mecklenburg constitutional
system have failed. Several times the liberal
elements in the Reichstag have carried a proposal
that to the Imperial constitution there should be
added a clause requiring that in every state of the
Empire there shall be an assembly representative of
the whole people. On the ground that such an
amendment would comprise an admission that the
constitutions of the states are subject to revision
at the hand of the Empire, the Bundesrath has
invariably rejected the proposal. In 1907 the
grand-duke of Mecklenburg-Schwerin inaugurated a
movement for political reform, and in 1908 there
was drafted a constitution providing for the
establishment of a Landtag whose members should be
chosen in part by the landed, industrial,
professional, and official classes and in part by
manhood suffrage. Late in 1909 the Ritterschaft
(i.e., the estate comprising owners of knights'
fees) rejected the proposal, as, indeed, it had
rejected similar ones on earlier occasions.]
*302. Hamburg.*--The three free cities of Hamburg, Bremen, and Lübeck
are survivals of the ancient Hanseatic League. All have republican
forms of government, differing in only minor details. The constitution
of Hamburg came into operation January 1, 1861, and was revised in
1879 and in 1906. The principal organs of government are the Senate
and the Bürgerschaft, or House of Burgesses. The Senate consists of
eighteen members elected for life by the House of Burgesses, but in
accordance with an indirect method so devised that the Senate itself
exercises a preponderating influence in the elections. A senator (p. 281)
is privileged to retire, if he so desires, at the end of a six-year
period, or at the age of seventy. Of the eighteen, half must have
studied finance or law, while of the remaining nine at least seven
must belong to the class of merchants. The House of Burgesses is
composed of 160 members, elected for six years by voters whose
qualifications are based upon property, taxpaying, or position. An
electoral law of March 5, 1906, introduced the principle of
proportional representation, but failed to break the dominance of the
well-to-do classes in the chamber. Half of the membership is renewed
triennially. The service is unpaid and, under ordinary circumstances,
compulsory.
The larger portion of the executive authority is vested in the Senate.
After the fashion of the prince of a monarchical state, this body
appoints officials, designates and instructs the delegate in the
Bundesrath, issues ordinances, and supervises administration.[417] One
senator is placed at the head of each of the nine executive
departments. In matters of legislation the powers of the Senate and of
the Bürgerschaft are concurrent. Both bodies possess the right of
legislative initiative, and all laws, treaties, and fiscal
arrangements must receive the assent of both. The lower chamber elects
and maintains a Bürgerausschuss, or Committee of the Burgesses,
consisting of twenty-five members, whose business it is to watch over
the proceedings of the Senate and the administration of the laws. The
sessions of both Senate and Bürgerschaft are irregular but frequent.
*303. Lübeck and Bremen.*--The government of Lübeck rests upon a
constitution proclaimed December 30, 1848, but revised in later years
upon a number of occasions. The system is essentially similar to that
in operation in Hamburg, the principal differences being that in
Lübeck the full membership of the Bürgerschaft (120) is elected by the
citizens directly and that the Bürgerausschuss, of thirty members,
performs larger and more independent functions. The constitution of
Bremen dates from March 5, 1849, but was revised in 1854, 1875, and
three times subsequently. As in Lübeck, the Bürgerschaft, of 150
members, is elected by all of the citizens, but under a class system
according to which citizens who have studied at a university return
fourteen members; the merchants, forty; the mechanics and
manufacturers, twenty; and all other citizens who have taken the
burgher oath, the remaining seventy-six. The Senate consists of
fourteen members.
[Footnote 417: The presiding officer of the Senate
is a burgomaster, chosen for one year by the
senators from their own number. The burgomaster as
such, however, possesses no administrative power.]
III. ALSACE-LORRAINE (p. 282)
*304. Original Problem of Organization.*--By the terms of the Peace of
Frankfort, May 10, 1871, France ceded to Germany the province of
Alsace and a portion of that of Lorraine--an aggregate of 5,605 square
miles of hotly disputed territory whose population, while in
considerable measure German, was none the less predominantly French.
The position assigned the newly acquired territory within the Empire
was anomalous. It was determined by two principal considerations:
first, the fact that the districts comprised conquered territory
inhabited by a discontented people and liable both to domestic
disorder and foreign invasion; and, second, the further fact that the
newly established Empire consisted of a federation of semi-autonomous
states, into which subordinate territory acquired by war could not
easily be made to fit. The annexed lands might conceivably have been
erected, in 1871, into the twenty-sixth state of the Empire; but in no
quarter was this policy so much as suggested. They might have been
incorporated with one of the existing states, or divided among two or
more of them; but this would have involved friction at a time when the
stability of the new régime was not yet assured. The only course that
to the statesmen and jurists of the day appeared feasible was to hold
the new territories as the joint property of the states, under the
sovereign control of the Imperial Government; and the arrangement hit
upon in the execution of this policy was perpetuated, with
modification only of administrative machinery, from 1871 until almost
the present day.
*305. The Imperial Basis of Government.*--Prior to the enactment of the
controverted Alsace-Lorraine Constitution Bill of 1911 Alsace-Lorraine
was not a member of the German federation, but was, on the contrary, a
mere dependency--a Reichsland, or Imperial territory. Beginning with a
virtual dictatorship on the part of the Emperor, established under act
of June 9, 1871, the governmental arrangements within the territory
passed through a number of stages of elaboration. In the main, the
organs of government employed until 1911, and a large proportion of
those still in operation, were created, or perpetuated, by the
constitutional statute of July 4, 1879. By this instrument the
sovereignty of the territories was vested specifically in the Empire;
the exercise of that sovereignty was vested in the Kaiser, acting
alone or in conjunction with the Bundesrath. The Kaiser was
represented personally at Strassburg, as he still is, by a
Statthalter, or governor-general, whose powers were such as the
Emperor might from time to time intrust to him. At Strassburg (p. 283)
also was a ministry, with a secretary of state at the head, and with
under-secretaries, appointed by the Kaiser, in charge of four
departments; likewise a council of state, which was a purely advisory
body made up of the secretary and under-secretaries, certain judicial
officials, and from eight to twelve members specially appointed by the
Kaiser for a term of three years.
*306. The Landesausschuss.*--Such privileges of self-government as were
possessed by the inhabitants of the territory arose from the peculiar
and complicated arrangements which were devised for legislation. In
1874 an Imperial decree called into being a Landesausschuss, or
Territorial Committee. This body consisted originally of thirty
members--ten elected in each of the three districts of Upper Alsace,
Lower Alsace, and Lorraine. Its function at the outset was merely to
give expert advice on subjects pertaining to local legislation and
taxation. By law of 1877, however, it was intrusted with power to
initiate legislation in matters pertaining solely to the territory.
Measures of any sort designed for Alsace-Lorraine exclusively were
enabled to be carried through by enactment in the Territorial
Committee, provided they received the assent of the Bundesrath and
were duly promulgated by the Emperor. The Committee was enlarged until
it consisted of fifty-eight members, thirty-four of whom were elected
by the assemblies of the three districts from their own membership,
four others being chosen by the communal councils of Strassburg, Metz,
Kolmar, and Mülhausen, and twenty elected by indirect suffrage from
the twenty-three circles into which the territories were divided.
*307. Legislative Processes.*--Several conditions, however, operated to
impose upon what might appear a fairly liberal system some very
serious limitations. In the first place, there was no possibility of
legislation which was wholly within the control of the inhabitants of
the territory. The laws applicable solely to Prussia are made
exclusively in Prussia, by Prussian authorities, and in like manner
those of every other one of the confederated states. But those of
Alsace-Lorraine, while they might be enacted in a provincial
legislative chamber, acquired no validity until they should have been
approved by the Empire through its agents, the Bundesrath and the
Kaiser. In the second place, the method of legislation which has been
mentioned did not occupy the field alone. With insignificant
exceptions, any measure which might be enacted in the fashion
described might be enacted in either of two other ways, in neither of
which did the inhabitants of the territory have any appreciable
influence. A measure might take the form of a simple decree of (p. 284)
the Kaiser with the consent of the Bundesrath and Reichstag; or, in
the case of an ordinance having the provisory force of law, it might
be promulgated by the Kaiser with the consent of the Bundesrath alone.
The fact that in practice the Territorial Committee ordinarily did
participate in the legislative process was largely offset by the
exceeding cumbersomeness and indirectness of the system. The normal
procedure in the making of a law for the territory involved at least
eight steps; (1) the _projet_ was drawn up by the Statthalter; (2) it
was approved by the Council of State at Strassburg; (3) it was
transmitted, through the Imperial Chancellor, to the Kaiser; (4) if he
approved, it was sent to Strassburg to receive the Statthalter's
countersignature; (5) it was laid before the Bundesrath, the members
of which, being but delegates, ascertained from their respective
sovereigns how they should vote; (6) if all had gone well, the
Territorial Committee, at Strassburg, passed the measure through the
usual three readings; (7) it was returned to the Bundesrath again to
be approved; and (8) it was promulgated by the Emperor--provided he
did not see fit to veto and withhold it, as he had an entire right to
do. Even if such roundabout law-making were to be considered in itself
satisfactory there remained the disquieting condition that the
Territorial Committee rested on no basis more substantial than a body
of Imperial decrees capable at any time of being altered, or even
revoked. Not merely was it altogether lacking in the independence of
action enjoyed by the diets of the federated states; its very
existence was precarious.
*308. The Movement for Autonomy.*--Throughout a prolonged period there
was in the territory insistent demand for the grant of a more
independent status, to involve the eventual placing of Alsace-Lorraine
on a footing of constitutional equality with Saxony, Bavaria, and the
other confederated states. Within very few years after the annexation
there sprang up, within the Territorial Committee first of all, a
group of "autonomists," led by the secretary of state Baron Zorn von
Bulach, who insisted in season and out upon statehood for the
conquered territory, and within a decade the campaign gained momentum
until it enlisted the support of men of all political faiths and
became the principal rallying issue of Alsatian sentiment and
enthusiasm. Until within recent years the tension of the international
situation was alone sufficient to restrain the Imperial Government
from according the demand favorable consideration. With the passing of
time the danger of international conflict in which Alsace-Lorraine
should be involved was, however, perceptibly diminished, and the way
was to this extent cleared for a readjustment of the territory's
anomalous status on the merits of the purely administrative and
constitutional questions involved.
The programme of the autonomists, as it finally assumed shape, (p. 285)
embraced four fundamental points: (1) the elevation of Alsace-Lorraine
to membership in the German Empire, with all the rights and immunities
commonly possessed by existing members; (2) the vesting of the
executive authority in an independent head of the state, whether a
king of a newly established line, a regent appointed for life, or even
a president of a republic; (3) the establishment within the state of a
full-fledged legislative body, with powers equivalent to those
exercised by the Landtags of the existing states; and (4) the
elimination of Kaiser, Bundesrath, and Reichstag from all legislation
which concerns Alsace-Lorraine exclusively. Taking their stand on the
situation as it was, and accepting the union with Germany with such
grace as they could muster and assuming that it is to be permanent,
the exponents of autonomy proposed to make the best of a state of
things not of their choosing.
*309. The Government Bill of 1910.*--Under pressure of persistent public
demand, the Imperial Government prepared an elaborate measure upon the
subject, which, after having been approved by the Bundesrath, was
submitted to the Reichstag, December 17, 1910. Although Chancellor von
Bethmann-Hollweg had declared unreservedly for reform, the
Government's proposals fell far short of the demands of the autonomist
leaders. The cardinal features of the Imperial programme, were, in
brief: (1) Alsace-Lorraine should remain a dependency of the Empire;
(2) sovereign authority therein should continue to be exercised by the
Kaiser, as the representative of the states, through his accustomed
agent, the Statthalter at Strassburg; (3) the legislative functions of
the Bundesrath and Reichstag in matters pertaining exclusively to
Alsace-Lorraine should be terminated; and (4) such legislation should
thereafter be enacted by a bicameral diet at Strassburg. The members
of the upper chamber of this diet, not to exceed thirty-six, were in
part to sit by _ex-officio_ right, but some were to be named by
chambers of commerce and other professional and business
organizations, and a maximum of one-half might be appointed by the
Emperor, on nomination of the Bundesrath. The sixty members of the
lower house were to be chosen by manhood suffrage, but electors over
thirty-five years of age were to have two votes, and those over
forty-five three.
*310. The Bill Amended and Adopted, 1911.*--By those whose object was
the procuring of statehood for Alsace-Lorraine, this plan was
pronounced inadmissible. It did not alter the legal status of the
territory; neither, it was alleged, did it give promise of increased
local independence in law-making or administration. Conservatives, on
the other hand, objected to the provision which was made for manhood
suffrage. After being debated in the Reichstag the measure was (p. 286)
referred to a special committee, by which amendments were reported
to the effect that the territory should be created a state of the
Empire and the Statthalter should be appointed for life. The second of
these amendments the Government refused positively to accept, but it
was agreed finally that the territory should be recognized as
substantially a state of the Empire, and, as such, should be allowed
three votes in the Bundesrath. Since 1879 the Statthalter had been
authorized to send to the Bundesrath four "commissioners" who might
speak when the subject under consideration touched the affairs of
Alsace-Lorraine, but might not vote. Since under the new arrangement
the three members representing Alsace-Lorraine were to be appointed
and instructed by the Statthalter, who is himself practically the
delegate of the king of Prussia, the Bundesrath insisted upon and
obtained the special stipulation (1) that the votes of Alsace-Lorraine
should not be counted in favor of the Prussian view of any question
except when Prussia should be able to procure a majority without such
votes and (2) that they should not be counted for or against any
proposal to amend the Imperial constitution. The revised bill was
passed in the Reichstag, May 26, 1911, and in accordance with a decree
of August 26 the new constitution was put in operation September 1.
*311. The Governmental System To-day.*--Supreme executive authority is
lodged, as before, in the Emperor. It is exercised, in the main, by
the Statthalter, who is appointed by, and holds office at the pleasure
of, the Emperor. In the Statthalter are vested all the rights and
privileges in Alsace-Lorraine that hitherto have been held and
exercised by the Imperial Chancellor. He appoints and instructs the
plenipotentiaries in the Bundesrath, and Imperial orders and decrees
have legal effect only when signed by him. All laws require the assent
of the Emperor and the two chambers of the diet, and the budget of the
year must be laid first before the lower chamber and must be accepted
or rejected in its entirety by the upper one. The Emperor has the
right to summon, to adjourn, and to dissolve the chambers
simultaneously. Members of the popular branch are elected by direct
and secret ballot and majority vote by all male German citizens
twenty-five years of age who have resided in Alsace-Lorraine at least
three years; except that a residence of one year qualifies teachers
and occupants of official posts. The plural voting proposal contained
in the Government bill of 1910 was abandoned. The first chamber
elected under the new system--that chosen in October, 1911--contained
twenty-five Centre members, eleven Socialists, ten members of the
National Alsace-Lorraine group,[418] eight Liberal Democrats, and (p. 287)
six Independents. The independent attitude promptly assumed by the
body elicited from the Emperor, in May, 1912, a threat that the new
constitution might be abrogated and Alsace-Lorraine incorporated with
Prussia. The incident provoked a storm of criticism, and, outside the
rabid Pan-German press, the Imperial pronouncement was commented upon
everywhere adversely.[419]
[Footnote 418: The party which had contended most
vigorously for Alsatian autonomy.]
[Footnote 419: On the organization of
Alsace-Lorraine prior to 1911 see Howard, The
German Empire, Chap. 10; Laband, Das Staatsrecht
des deutschen Reiches, §§ 67-69; P. Gerber, La
condition de l'Alsace-Lorraine dans l'Empire
allemand (Lille, 1906), and L'Administration en
Alsace-Lorraine, in _Revue du Droit Public_,
Oct.-Dec, 1909. On the problem of reform and the
legislation of 1911 see R. Henry, La question
d'Alsace-Lorraine, in _Questions Diplomatiques et
Coloniales_, Feb. 1 and March 16, 1904; P. Braun,
Alsace-Lorraine--La réforme de la constitution,
ibid., Nov. 16, 1905, and Jan. 1, 1906;
Alsace-Lorraine en 1908, ibid., March 1, 1909;
Alsace-Lorraine--les préludes d'une lutte
nationale, ibid., April 16, 1910; La constitution
d'Alsace-Lorraine, ibid., March 16, 1911; A.
Wetterlé, L'Autonomie de Alsace-Lorraine, in _Le
Correspondant_, Aug. 25, 1910, La nouvelle loi
constitutionnelle de l'Alsace-Lorraine, ibid., June
10, 1911, and Les élections en Alsace-Lorraine,
ibid., Nov. 25, 1911; Eccard, L'Autonomie de
l'Alsace-Lorraine, in _Revue Politique et
Parlementaire_, Nov. 10, 1910: G. Bruck, Die Reform
der Verfassung von Elsass Lothringen, in _Annalen
des deutschen Reichs_, 1911, I; and P. Heitz, La
loi constitutionnelle de l'Alsace-Lorraine du 31
mai, 1911, in _Revue du Droit Public_, July-Sept.,
1911, containing French translations of the
documents. See also _Annual Register_ for 1911,
328-332.]
PART III.--FRANCE (p. 289)
CHAPTER XV
CONSTITUTIONS SINCE 1789
I. A CENTURY OF POLITICAL INSTABILITY
Among European states of the first order there is but a single
republic. In Great Britain the conspicuous success with which monarchy
has been tempered with democracy has left the partisans of the
republican style of government slender ground upon which to stand.
Russia has as yet but partially emerged from a political status in
which monarchy is both natural and inevitable. Germany and Italy, in
days comparatively recent, achieved nationality through processes
absolutely conditioned upon monarchical leadership. And it is all but
inconceivable that the heterogeneous nationalities of Austria-Hungary
should thus long have been held together by any force less tangible
and commanding than the personality of a common sovereign. Although in
some of these instances the functions ordinarily associated with
monarchy are more nominal than actual, the fact remains that in no one
of the greater European states, save France, has it as yet been found
expedient, or possible, to dispense with royalty as an agency of
public authority.
*312. The Multiplicity of Constitutions.*--The chain of circumstances by
which the people of France have been brought to their present
republican form of government constitutes one of the most remarkable
chapters in the history of modern Europe. After centuries of
governmental centralization, under conditions which enabled monarchy
to do its best, and its worst, there came the gigantic disruption of
1789, inaugurating a series of constitutional changes by which was
imparted to the political history of the French nation in the
nineteenth century a more unsettled character than that exhibited by
the public economy of any other European state. France to-day is
governed under her eleventh constitution since the fall of the
Bastille. All but one of the eleven have been actually in operation,
during a longer or a shorter period. But, prior to the fundamental law
at present in effect, no one of these instruments attained its
twentieth year. Once having cut loose from her ancient moorings, the
nation became through many decades the plaything of every current (p. 290)
that swept the political sea. It is only within our own generation
that she appears definitely to have righted herself for a prolonged
and steady voyage. The constitutional system of the Third Republic is
a product, not of orderly evolution, but of disruption,
experimentation, compromise. It represents a precarious balance which
has been struck between those forces of radicalism and conservatism,
of progress and reaction, for whose eternal conflict France
pre-eminently has furnished a theatre since 1789. Its connection with
the remoter past is very much less direct and fundamental than is that
of the governmental system of England, Russia, Austria-Hungary, or the
Scandinavian states. At certain points, however, as will appear, this
connection is vital. And the relation of the constitution of 1871-1875
to the several instruments by which it was more immediately preceded
is essential to be observed, because this body of fundamental law
comprises but the latest in a series of devices through which France
since 1789 has sought orderliness and stability in public affairs.
Some of these devices were shaped under the preponderating influence
of radical democracy, some under that of monarchical reaction; but all
are of interest and importance. For the purpose in hand it will be
sufficient to review briefly the principal aspects of the several
constitutional systems whose devising or operation has contributed
with some directness to the political institutions and experience of
the France of to-day.
II. THE REVOLUTIONARY AND NAPOLEONIC ERA
*313. The Constitution of 1791.*--During the decade which elapsed
between the outbreak of the Revolution and the establishment of the
Consulate there were in actual operation in France two successive
constitutions: that of September 3, 1791, which was in effect
subverted by the uprising of August 10, 1792, and that of 5 Fructidor
of the Year III. (August 22, 1795), terminated by the _coup d'état_ of
18 Brumaire of the Year VIII. (November 9, 1799). The instrument of
1791, essentially a compilation of measures voted during the years
1789-1791, was prepared by a committee appointed by the National
Assembly, September 15, 1789.[420] It was shaped, in the main, by men
who were desirous of preserving the form while destroying the
substance of monarchy. At the head of the state was allowed to remain
the king, shorn, however, of many of his accustomed prerogatives and
obliged to exercise under stringent restraint the few that were left
him. "King of the French," he henceforth was to be, "by the grace of
God and the will of the nation." The legislative body (_Corps (p. 291)
législatif_) was made to consist of a single chamber whose 745
members, chosen for a two-year term according to a system of indirect
suffrage, were distributed among the eighty-three newly created
departments upon the three-fold basis of extent, population, and
contribution of direct taxes.[421] Only male citizens who had attained
the age of twenty-five, and whose annual payment of direct taxes was
the equivalent of three days' labor, were entitled to participate in
the choice of the electors, by whom, in turn, were chosen the
deputies. The powers of the legislative body were ample. In respect to
measures generally, the king possessed only a suspensive veto; that is
to say, any measure passed by three successive legislatures acquired,
without the royal sanction, the force of law. Fiscal measures might
not be vetoed at all. The king was given no power to prorogue or to
dissolve the legislative chamber, and without the assent of that body
no proclamation of war, and no treaty, was valid. To it the ministers
in charge of the six executive departments were made absolutely
responsible. In conformity with prevailing ideas of the sovereignty of
the people and the separation of powers, provision was made that all
judges should be elected popularly, as also all local administrative
authorities.[422]
[Footnote 420: A constitutional committee of five
had been appointed the previous July 14; but, its
recommendation proving unacceptable to the
Assembly, it had resigned, September 11.]
[Footnote 421: Of the whole number of deputies, 247
were apportioned according to departmental areas
and 249 according each to population and tax
quotas.]
[Footnote 422: The texts of all French
constitutions and fundamental laws since 1789 are
printed in several collections, of which the best
is L. Duguit et H. Monnier, Les constitutions et
les principales lois politiques de la France depuis
1789 (Paris, 1898). Other serviceable collections
are F. Hélie, Les constitutions de la France
(Paris, 1880) and E. Pierre, Organisation des
pouvoirs publics; recueil des lois
constitutionnelles et organiques (Paris, 1902). For
English versions see F. M. Anderson, The
Constitutions and other Select Documents
illustrative of the History of France, 1789-1907
(2d ed., Minneapolis, 1908). The various
constitutions are excellently summarized in M.
Block, Dictionnaire général de la politique, 2
vols. (Paris, 1884), I., 494-518. For the text of
the constitution of 1791 see Duguit et Monnier,
1-35; Hélie, 268-294; Anderson, 58-95. For summary,
Block, I., 494-497. Dupriez, Les Ministres, II.,
253-269; Cambridge Modern History, VIII., Chap. 7.]
*314. The Constitution of the Year I. (1793).*--The constitution of 1791
was in operation rather less than a twelvemonth. The _Corps
législatif_ elected under it, after precipitating war with Austria,
gave way before the rising demand for the abolition of monarchy,
called into being a constituent convention of 782 members, and voted
its own dissolution.[423] September 21, 1792, the Convention met and
decreed the abolition of the monarchy and the establishment of a
republic.[424] Mindful for the time of the purpose of its (p. 292)
creation, the new assembly appointed, October 11, a committee of nine
to which was intrusted the task of drafting a republican constitution.
February 15, 1793, the committee reported, and June 24 the Convention
adopted an ultra-republican frame of government, the principal
features of which were an executive council consisting of twenty-four
members chosen by the legislative body from candidates named by the
secondary electors of the departments; a unicameral _Corps législatif_
chosen indirectly by manhood suffrage for one year, with power to
enact "decrees," but only to propose "laws"; and an arrangement
whereby projected laws were to be communicated to primary assemblies
of citizens to be voted upon after the principle of the
referendum.[425]
[Footnote 423: The members of the Convention were
elected by manhood suffrage, one of the last acts
of the Legislative Body having been the repeal of
the tax qualification required by the constitution
of 1791.]
[Footnote 424: September 22 was reckoned the first
day of the Year I. of French liberty, and the
fundamental law of June 24, 1793, was known as the
constitution of the Year I. For an illuminating
sketch of the rise of the republic see H. A. L.
Fisher, The Republican Tradition in Europe (New
York, 1911), Chap. 4.]
[Footnote 425: Text in Duguit et Monnier, Les
Constitutions, 66-78; Hélie, Les Constitutions,
376-384; Anderson, Constitutions, 171-184. Summary
in Block, Dictionnaire Général, 497-498.]
*315. The Constitution of the Year III. (1795).*--By reason of the
intensity of party strife within the Convention, and the critical
condition of affairs generally, the constitution of 1793, although
duly ratified by the people, was never put in operation. On the basis
of a decree of December 4, 1793, the Convention maintained through
upwards of two years a revolutionary provisional government, and when,
finally, in October, 1795, the body passed out of existence, it left
behind it in the Constitution of the Year III. an instrument of
government essentially different from the proposed instrument of 1793.
The Constitution of the Year III. was framed under a hurried order of
the Convention by a committee of eleven. The Convention adopted the
committee's plan with but few modifications, and when the project was
submitted to a popular vote it was approved by the overwhelming
majority of 1,057,390 to 49,997. September 23, 1795, the new frame of
government was solemnly promulgated.
The instrument of 1795, like that of 1791, was introduced by a
Declaration of the Rights of Man and of the Citizen, in which were
stated succinctly the fundamental principles of the Revolution.
Legislative power was henceforth to be vested in two chambers
conjointly--a Council of Five Hundred and a Council of Elders--the
members of which should be chosen by the same electors, but under
differing conditions of eligibility. The term of members of both
chambers was fixed at three years, and one-third of the membership was
renewable annually. The franchise was broader than under the (p. 293)
constitution of 1791, being extended now to all citizens over
twenty-one years of age who were able to read and write and who
followed a trade or were liable to direct taxation; but the earlier
system of indirect election by means of electoral colleges was
retained. Upon the lower chamber alone was conferred the right of
initiating legislation. The Elders, whose number was fixed at 250,
might approve or reject, but were not permitted to amend, any measure
submitted to them. Executive power was vested in a Directory
consisting of five members chosen for a term of five years, one member
retiring annually. Directors were selected by the Council of Elders
from a double quota of nominees offered by the Council of Five
Hundred. Aside from its creation of a plural, republican executive,
the most notable feature of the constitution was its provision for the
establishment of a bicameral legislative system, until now generally
opposed by French reformers.[426]
[Footnote 426: For the text of the constitution of
1795 see Duguit et Monnier, Les Constitutions,
78-118; Hélie, Les Constitutions, 436-466;
Anderson, Constitutions, 212-254. Summary in Block,
Dictionnaire Général, 498-500. Cambridge Modern
History, VIII., Chap. 13; G. Dodu, Le
parlementarisme et les parlementaires sous la
Révolution, 1789-1799; origines du régime
représentatif en France (Paris, 1911); Fisher,
Republican Tradition in Europe, Chap. 5.]
*316. The Constitution of the Year VIII. (1799): Electoral System.*--The
constitution of the Year III. continued in operation from October,
1795, to Napoleon's _coup d'état_ of 18 Brumaire of the Year VIII.
(November 9, 1799). In the course of a month and a half following the
event mentioned there was drawn up a new fundamental law, prepared in
the first instance largely by Napoleon and Sieyès, put into final
shape by two commissions composed each of twenty-five members of the
old Councils, and subsequently ratified by popular vote.[427] Amended
from time to time by important organic enactments, the Constitution of
the Year VIII. (December 13, 1799) comprised the fundamental law under
which Napoleon ruled France until his abdication in 1814.
[Footnote 427: In favor of the new constitution
there were cast 3,011,007 votes; against it,
1,562.]
The new instrument, in ninety-five articles, was much briefer than the
one which it replaced,[428] but the scheme of government for which it
made provision was distinctly more complicated than that previously in
operation. In the main, the Napoleonic constitution dealt with three
subjects: the electoral system, the assemblies, and the executive.
Nominally there was established a system of thoroughgoing manhood (p. 294)
suffrage. But the conditions under which electoral powers were to be
exercised rendered the plan very much less democratic than on the
surface it appeared to be. The scheme was one devised by Sieyès under
the designation of "lists of notables." In each communal district
citizens twenty-one years of age and inscribed on the civil register
were authorized to choose one-tenth of their number to comprise a
"communal list." Those named on the communal list were to choose in
their department a tenth of their number, who formed a "departmental
list." And, similarly, those whose names appeared on the departmental
list were to choose a tenth of their number, who formed a "national
list." From these three lists in order were to be chosen, largely by
the Senate, the public officials of the districts, the departments,
and the nation. No electoral scheme has ever been devised which, while
grounded upon the principle of manhood suffrage, more effectually
withdraws from the people the actual choice of public officials, local
as well as national.[429]
[Footnote 428: The constitution of the Year III.,
containing 377 articles, is one of the lengthiest
documents of the sort on record.]
[Footnote 429: Under this system the primary
electors numbered about 5,000,000; the district
notables, 500,000; the departmental notables,
50,000; and the national list, 5,000.]
*317. Constitution of the Year VIII: Organs of Government.*--Of national
governmental bodies there were four. One was the Tribunate, consisting
of 100 members, one-fifth of whom were renewable every year. The
function of the Tribunate was to discuss, but not necessarily to vote
upon, legislative measures. A second was the _Corps législatif_, or
Legislative Body, of 300 members, one-fifth being renewed annually. To
this assembly was committed the power to vote upon, but not to debate,
legislative measures. A third was the Senate, consisting at the outset
of sixty life members, to be increased through a period of ten years
to eighty. The Senate was authorized to pass upon the constitutionality
of laws and to choose the Tribunes, the Legislators, and the Consuls
from the national list. Its own ranks were to be recruited by
co-optation from triple lists of candidates presented by the
Tribunate, the Legislative Body, and the First Consul. Finally, there
was the Council of State, whose organization was left purposely
indefinite. Its members were appointed by the First Consul, and their
business consisted principally in the preparation and advocacy of
legislative and administrative measures.
If under this scheme the legislative organs were weak, the executive
authority was notably strong. Powers of an executive character were
vested in three consuls, appointed by the Senate for ten years and
indefinitely eligible. Upon the First Consul was conferred power to
promulgate the laws, to appoint all civil and military officials, and
to do many other things of vital importance. Upon the second and (p. 295)
third consuls was bestowed simply a "consultative voice." Provision
was made for a ministry, and under the letter of the constitution no
act of the government was binding unless performed on the warrant of a
minister. But in point of fact the principle of irresponsibility
permeated the Napoleonic régime from the First Consul himself to the
lowliest functionary. The conferring upon Napoleon, in 1802, of the
consulship for life, and the conversion of the Consulate, in 1804,
into the Empire, but concentrated yet more fully in the hands of a
single man the whole body of governmental authority in France.[430]
[Footnote 430: The text of the constitution of the
Year VIII. is in Duguit et Monnier, Les
Constitutions, 118-129; Hélie, Les Constitutions,
577-585; and Anderson, Constitutions, 270-281.
Summary in Block, Dictionnaire Général, I.,
500-505. Cambridge Modern History, IX., Chap. 1.]
III. FROM THE RESTORATION TO THE REVOLUTION OF 1848
*318. The Constitutional Charter, 1814.*--May 3, 1814,--three weeks
after Napoleon's signature of the Act of Abdication,--the restored
Bourbon king, Louis XVIII., entered Paris. Already the Senate had
formulated a document, commonly known as the "Senatorial
Constitution," wherein was embraced a scheme for a liberalized Bourbon
monarchy.[431] Neither the instrument itself nor the authorship of it
was acceptable to the new sovereign, and by him the task of drafting a
constitution was given over to a commission consisting of three
representatives of the crown, nine senators, and nine members of the
Legislative Body. The task was accomplished with despatch. June 4 the
new instrument, under the name of the Constitutional Charter, was
adopted by the two chambers, and ten days later it was put in
operation. With some modification, principally in 1830, it remained
the fundamental law of France until the revolution of 1848.
[Footnote 431: Duguit et Monnier, Les
Constitutions, 179-182; Anderson, Constitutions,
446-450; Block, Dictionnaire Général, I., 505-506.]
The governmental system provided for in the Charter was in a number of
respects more liberal than that which had prevailed during the
dominance of Napoleon. At the head of the state stood the king,
inviolable in person, in whose hands were gathered the powers of
issuing ordinances, making appointments, declaring war, concluding
treaties, commanding the armies, and initiating all measures of
legislation. But there was established a bicameral legislature, by
which the king's ministers might be impeached, and without whose
assent no law might be enacted and no tax levied. The upper house, or
Chamber of Peers, was composed of a variable number of members named
by the crown in heredity or for life.[432] The lower, or Chamber (p. 296)
of Deputies, consisted of representatives elected in the departments
for a term of five years, one-fifth retiring annually.[433] Provision
was made for the annual assembling of the chambers; and although the
proposing of laws was vested exclusively in the crown, it was
stipulated that either house might petition the king to introduce a
measure relating to any specific subject. The Charter contained a
comprehensive enumeration and guarantee of the civil rights of French
citizens.[434]
[Footnote 432: By law of December 29, 1831, it was
stipulated that only life peers might thereafter be
appointed, and the king was required to take all
appointees from a prescribed list of dignitaries.
Duguit et Monnier, Les Constitutions, 231-232.]
[Footnote 433: A law of June 9, 1824, stipulated
that thereafter the Chamber of Deputies should be
elected integrally for a period of seven years.
Duguit et Monnier, Les Constitutions, 211.]
[Footnote 434: The text of the Charter of 1814 may
be found in Duguit et Monnier, Les Constitutions,
I., 183-190; Hélie, Les Constitutions, 884-890;
and, in English translation, in Anderson,
Constitutions, 457-465, and University of
Pennsylvania Translations and Reprints, I., No. 3.
Summary in Block, Dictionnaire Général, I.,
506-508. Cambridge Modern History, IX., Chap. 18.]
*319. The Electoral System.*--The Charter prescribed the
qualifications required of voters and of deputies, but did not define
the manner in which deputies should be chosen. The lack was supplied
by an election law enacted February 5, 1817. The system established
was that of _scrutin de liste_. Under it the electors--men of a
minimum age of thirty who paid each year a direct tax of at least
three hundred francs--were required to assemble in the principal town
of the department and there choose the full quota of deputies to which
the department was entitled. The system proved of distinct advantage
to the liberal elements, whose strength lay largely in the towns, and
in 1820 when the conservative forces procured control and inaugurated
a general reaction a measure was adopted, though only after heated
debate, by which the arrangement was completely altered. The
membership of the Chamber was increased from 258 to 430 and for the
principle of _scrutin de liste_ was substituted that of _scrutin
d'arrondissement_. Each arrondissement became a single-member district
and the electors were permitted to vote for one deputy only. In this
manner 258 of the members were chosen. The remaining 172 were elected
at the chief departmental towns by the voters of the department who
paid the most taxes, an arrangement under which some twelve thousand
of the wealthier electors became possessed of a double vote. Voting
was by ballot, but the elector was required to write out his ballot in
the presence of an appointee of the government and to place it in his
hands unfolded.[435]
[Footnote 435: Duguit et Monnier, Les
Constitutions, 206-209; Hélie, Les Constitutions,
934-936.]
*320. Liberalizing Changes in 1830-1831.*--Upon the enforced (p. 297)
abdication of Charles X. in 1830 a parliamentary commission prepared a
revision of the Charter, which, being adopted, was imposed upon the
new sovereign, Louis Philippe, and was continued in operation through
the period of the Orleanist monarchy. The preamble of the original
document, in which language had been employed which made it appear
that the Charter was a grant from the crown, was stricken out.
Suspension of the laws by the sovereign was expressly forbidden. Each
chamber was given the right to initiate legislation, the
responsibility of the ministers to the chambers was proclaimed, and
the sessions of the Peers, hitherto secret, were made public. The
integral renewal of the Deputies, established in 1824, was continued,
but the term of membership was restored to five years. The minimum age
of electors was reduced from thirty to twenty-five years, and of
deputies from forty to thirty. Subsequently, April 19, 1831, a law was
passed whereby the suffrage--so restricted at the close of the
Napoleonic régime that in a population of 29,000,000 there had been,
in 1814, not 100,000 voters--was appreciably broadened. The direct tax
qualification of three hundred francs was reduced to one of two
hundred, and, for certain professional classes, of one hundred. By
this modification the number of voters was doubled, though the
proportion of the enfranchised was still but one in one hundred fifty
of the total population, and it would be a mistake to regard the
government of the Orleanist period as in effect more democratic than
that by which it was preceded. At the most, it was a government by and
for the well-to-do middle class.[436]
[Footnote 436: For the act of the Chambers relative
to the modification of the Constitutional Charter
and to the accession of Louis Philippe, see Duguit
et Monnier, Les Constitutions, 213-218; Hélie, Les
Constitutions, 987-992; and Anderson,
Constitutions, 507-513. The electoral law of 1831
is in Duguit et Monnier, 219-230. Cambridge Modern
History, X., Chap. 15; G. Weill, La France sous la
monarchic constitutionnelle, 1814-1848 (new ed.,
Paris, 1912).]
IV. THE SECOND REPUBLIC AND THE SECOND EMPIRE
*321. The Republican Constitution of 1848.*--With the overthrow of the
Orleanist monarchy, in consequence of the uprising of February 24,
1848, France entered upon a period of aggravated political
unsettlement. Through upwards of five years the nation experimented
once more with republicanism, only at the end of that period to emerge
a monarchy, an empire, and the dominion of a Bonaparte. By the
provisional government which sprang from the revolution a republic was
proclaimed tentatively and the nation was called upon to elect, under
a system of direct manhood suffrage, an assembly to frame a constitution.
The elections--the first of their kind in the history of (p. 298)
France--were held April 23, 1848, and the National Constituent
Assembly, consisting of nine hundred members, eight hundred of whom
were moderate republicans, met May 4 in Paris. During the summer the
draft of a constitution prepared by a committee of eighteen, was duly
debated, and November 4 it was adopted by a vote of 739 to 30.
The Constitution of 1848 declared the Republic to be perpetual and the
people to be sovereign. It asserted, furthermore, that the separation
of powers is the first condition of a free government. In respect to
the organs of government it provided, in the first place, for a
legislative assembly consisting of a single chamber of 750
members[437] chosen integrally for three years, directly by secret
ballot on the principle of departmental _scrutin de liste_, and by
electors whose only necessary qualifications were those of age
(twenty-one years) and of non-impairment of civil rights.[438]
Executive powers were vested in a president of the Republic, elected
for a term of four years by direct and secret ballot, and by absolute
majority of all votes cast in France and Algeria. Under stipulated
conditions, e.g., if no candidate should receive an absolute majority
and at the same time a total of at least two million votes, the
president was required to be chosen by the Assembly from the five
candidates who had polled the largest votes. Save after a four-year
interval, the president was ineligible for re-election. Upon him were
bestowed large powers, including those of proposing laws, negotiating
and ratifying treaties with the consent of the Assembly, appointing
and dismissing ministers and other civil and military officers, and
disposing of the armed forces. With respect to the functions and
powers of the ministers the constitution was not explicit, and whether
the instrument might legitimately be interpreted to make provision for
a parliamentary system of government was one of the standing issues
throughout the days of its duration.[439]
[Footnote 437: Including representatives of Algeria
and the colonies.]
[Footnote 438: Electoral law of March 15, 1849.
Duguit et Monnier, Les Constitutions, 247-265.]
[Footnote 439: Dupriez, Les Ministres, II.,
308-312. The text of the Constitution of 1848 is in
Duguit et Monnier, Les Constitutions, 232-246;
Hélie, Les Constitutions, 1102-1113; and Anderson,
Constitutions, 522-537. Summary in Block,
Dictionnaire Général, I., 510-513. Cambridge Modern
History, XI., Chap. 5; V. Pierre, Histoire de la
république de 1848, 2 vols. (Paris, 1873-1878); P.
de la Gorce, Histoire de la deuxième république
française, 2 vols. (Paris, 1887); E. Spuller,
Histoire parlementaire de la deuxième république
(Paris, 1893); Fisher, Republican Tradition in
Europe, Chap. 8.]
*322. From Republic to Empire.*--December 10, 1848, Louis Napoleon,
nephew of the first Napoleon, was chosen president by an overwhelming
vote, and ten days later he assumed office. In May, 1849, an (p. 299)
Assembly was elected, two-thirds of whose members were thoroughgoing
monarchists; so that, as one writer has put it, both the president and
the majority of the Assembly were, by reason of their very being,
enemies of the constitution under which they had been elected.[440]
The new order, furthermore, failed completely to strike root
throughout the nation at large. In this state of things the collapse
of the Republic was but a question of time. By an electoral law of May
31, 1850, requiring of the elector a fixed residence of three years
instead of six months, the suffrage arrangements of 1849 were
subverted and the electorate was reduced by three millions, or
virtually one-third.[441] December 2, 1851, occurred a carefully
planned _coup d'état_, on which occasion the Assembly was dissolved,
the franchise law of 1849 was restored, and the people, gathered in
primary assemblies, were called upon to intrust to the President power
to revise the national constitution.[442] December 20, by a vote of
7,439,216 to 640,737, the people complied. Thereafter, though
continuing officially through another year, the Republic was in
reality dead. November 7, 1852, the veil was thrown off. A
_senatus-consulte_ decreed a re-establishment of the Empire,[443] and
by a plebiscite of eleven days later the people, by a vote of
7,824,189 to 253,145, sanctioned what had been done. December 2,
Napoleon III. was proclaimed Emperor of the French.
[Footnote 440: Hazen, Europe since 1815, 201.]
[Footnote 441: The text of this measure is in
Duguit et Monnier, Les Constitutions, 265-268, and
Hélie, Les Constitutions, 1149-1150. H. Laferrière,
La loi électorale du 31 mai 1850 (Paris, 1910).]
[Footnote 442: Anderson, Constitutions, 538-543.]
[Footnote 443: Duguit et Monnier, Les
Constitutions, 290-292; Anderson, Constitutions,
560-561.]
*323. The Imperial Constitution, 1852.*--Meanwhile, March 29, 1852,
there had been put in operation a constitution,[444] nominally
republican, but in reality strongly resembling that in force during
the later years of Napoleon I. The substitution, later in the year, of
an emperor for a president upon whom had been conferred a ten-year
term was but a matter of detail. A _senatus-consulte_ of December 25,
made all of the necessary adjustments, and the constitution of 1852,
with occasional modifications, remained the fundamental law of France
until the collapse of the Empire in 1870. Upon the emperor were
conferred very extended powers. His control of the administrative
system was made practically absolute. He commanded the army and navy,
decided upon war and peace, concluded treaties, and granted pardons.
He alone possessed the power of initiating legislation and of promulgating
the laws. To him alone were all ministers responsible, and of (p. 300)
such parliamentarism as had existed formerly there remained not a
vestige, Of legislative chambers there were two: a _Corps législatif_
of 251 members elected by direct manhood suffrage every six years, and
a Senate composed of cardinals, admirals, and other _ex-officio_
members, and of a variable number of members appointed for life by the
emperor. The powers of the Senate, exercised invariably in close
conjunction with the head of the state, were of some importance, but
those of the popular chamber were so restricted that the liberal
arrangements which existed respecting the suffrage afforded but the
appearance, not the reality, of democracy.[445]
[Footnote 444: Drawn up by a commission of five,
under date of January 14, 1852.]
[Footnote 445: The text of the constitution of 1852
is in Duguit et Monnier, Les Constitutions,
274-280; Hélie, Les Constitutions, 1167-1171;
Anderson, Constitutions, 543-549. Summary in Block,
Dictionnaire Général, I., 513-515. Cambridge Modern
History, XI., Chaps. 5, 10.]
*324. Constitutional Alterations, 1869-1870.*--Throughout upwards of
two decades the illusion of popular government was maintained as well
as might be. The country was prosperous and the government, if
illiberal, was on the whole enlightened. Discontent, none the less,
was not infrequently in evidence, and during especially the second
half of the reign the Emperor found it expedient more than once to
make some concession to public sentiment. In the later sixties he was
compelled to moderate the laws which dealt with the press and with
political meetings, and in 1869-1870 he was brought to the point of
approving a series of measures which gave promise of altering in an
important manner the entire governmental system. One was a
_senatus-consulte_ of September 8, 1869, whereby the sittings of the
Senate were made public, the Legislative Body was given the right to
elect all of its own officials, and the parliamentary system was
nominally re-established.[446] By reason of the fact, however, that
ministers were not permitted to be members of either the Legislative
Body or the Senate, and that they were declared still to be
responsible to the crown, the effects of the last-mentioned feature of
the reform were inconsiderable. By a _senatus-consulte_ of April 20,
1870, (approved by a plebiscite of May 8 following) there were adopted
still more important constitutional changes. In the first place, the
Senate, which hitherto had been virtually an Imperial council, was
erected into a legislative chamber co-ordinate with the Legislative
Body, and upon both houses was conferred the right of initiating
legislation. In the second place, the provision that the ministers
should be dependent solely upon the emperor was stricken from the
constitution, thus clearing the way for a more effective realization
of the parliamentary system of government. Finally, it was (p. 301)
stipulated that the constitution should thereafter be modified only
with the express approval of the people.[447] These reforms, however,
were belated. They came only after the popularity of the Emperor had
been strained to the breaking point, and by reason of the almost
immediate coming on of the war with Prussia there was scant
opportunity for the testing of their efficacy.
[Footnote 446: Text in Duguit et Monnier, Les
Constitutions, 307-308; Hélie, Les Constitutions,
1314-1315; and Anderson, Constitutions, 579-580.]
[Footnote 447: The text of the measure of April 20,
1870, is in Duguit et Monnier, Les Constitutions,
308-314; Hélie, Les Constitutions, 1315-1327; and
Anderson, Constitutions, 581-586. Cambridge Modern
History, XI., Chap. 17; H. Berton, L'évolution
constitutionnelle du second empire (Paris, 1900).
An important larger work is P. de la Gorce,
Histoire du second empire, 7 vols. (Paris,
1894-1905).]
V. THE ESTABLISHMENT OF THE THIRD REPUBLIC
*325. The National Assembly.*--The present French Republic was
instituted under circumstances which gave promise of even less
stability than had been exhibited by its predecessors of 1793 and
1848.[448] Proclaimed in the dismal days following the disaster at
Sedan, it owed its existence, at the outset, to the fact that, with
the capture of Napoleon III. by the Prussians and the utter collapse
of the Empire, there had arisen, as Thiers put it, "a vacancy of
power." The proclamation was issued September 4, 1870, when the war
with Prussia had been in progress but seven weeks.[449] During the
remaining five months of the contest the sovereign authority of France
was exercised by a Provisional Government of National Defense, with
General Trochu at its head, devised in haste to meet the emergency by
Gambetta, Favre, Ferry, and other former members of the Chamber of
Deputies. Upon the capitulation of Paris, January 28, 1871, elections
were ordered for a national assembly, the function of which was to
decide whether the war should be prolonged and what terms of peace
should be accepted at the hands of the victorious Germans. There was
no time in which to frame a new electoral system. Consequently the
electoral procedure of the Second Republic, as prescribed by the (p. 302)
law of March 15, 1849, was revived,[450] and by manhood suffrage
there was chosen, February 8, an assembly of 758 members,
representative of both France and the colonies. Meeting at Bordeaux,
February 12, this body, by unanimous vote, conferred upon the
historian and parliamentarian Thiers the title of "Chief of the
Executive Power," without fixed term, voted almost solidly for a
cessation of hostilities, and authorized Thiers to proceed with an
immediate negotiation of peace.
[Footnote 448: The best account of the beginnings
of the Third Republic is that in G. Hanotaux,
Histoire de la France contemporaine, 4 vols.
(Paris, 1903-1909), I. There is an English
translation of this important work by J. C. Tarver.
A recent book of value is A. Bertrand, Les origines
de la troisième république, 1871-1876 (Paris,
1911). Mention may be made also of E. Zevort,
Histoire de la troisième république, 4 vols.
(Paris, 1896-1901), I.; C. Duret, Histoire de
France de 1870 à 1873 (Paris, 1901); A. Callet, Les
origines de la troisième république (Paris, 1889);
F. Littré, L'établissement de la troisième
république (Paris, 1880); L. E. Benoit, Histoire de
quinze ans, 1870-1885 (Paris, 1886); F. T.
Marzials, Léon Gambetta (London, 1890); and P. B.
Ghensi, Gambetta: Life and Letters (New York,
1910). There is an interesting interpretation in
Fisher, Republican Tradition in Europe, Chap. 11.]
[Footnote 449: Duguit et Monnier, Les
Constitutions, cxvi.]
[Footnote 450: Most of the disqualifications for
voting which were enumerated in the law of 1849
were declared inapplicable in the present
election.]
*326. The Problem of a Permanent Government.*--Pending a diplomatic
adjustment, the Assembly was disposed to defer the establishment of a
permanent governmental system. But the problem could not long be kept
in the background. There were several possible solutions. A party of
Legitimists, i.e., adherents of the old Bourbon monarchy, was
resolved upon the establishment of a kingdom under the Count of
Chambord, grandson of the Charles X. who had been deposed at the
revolution of 1830. Similarly, a party of Orleanists was insistent
upon a restoration of the house of Orleans, overthrown in 1848, in the
person of the Count of Paris, a grandson of the citizen-king Louis
Philippe. A smaller group of those who, despite the discredit which
the house of Bonaparte had suffered in the war, remained loyal to the
Napoleonic tradition, was committed to a revival of the prostrate
empire of the captive Napoleon III. Finally, in Paris and some
portions of the outlying country there was uncompromising demand for
the definite establishment of a republic.[451] In the Assembly the
monarchists outnumbered the republicans five to two, and, although the
members had been chosen primarily for their opinions relative to peace
rather than to constitutional forms, the proportion throughout the
nation was probably about the same. The republican outlook, however,
was vastly improved by the fact that the monarchists, having nothing
in common save opposition to republicanism, were hopelessly disagreed
among themselves.[452]
[Footnote 451: G. Weill, Histoire du parti
républicain en France de 1814 à 1870 (Paris,
1900).]
[Footnote 452: Of pure Legitimists there were in
the Assembly about 150; of Bonapartists, not over
30; of Republicans, about 250. The remaining
members were Orleanists or men of indecisive
inclination. At no time was the full membership of
the Assembly in attendance.]
*327. The Rivet Law, 1871.*--As, from the drift of its proceedings, the
royalist character of the Assembly began to stand out in unmistakable
relief, there arose from republican quarters vigorous opposition to
the prolonged existence of the body. Even before the signing of the
Peace of Frankfort, May 10, 1871, there occurred a clash between the
Assembly and the radical Parisian populace, the upshot of which (p. 303)
was the bloody war of the Commune of April-May, 1871.[453] The
communards fought fundamentally against state centralization, whether
or not involving a revival of monarchy. The fate of republicanism was
not in any real measure bound up with their cause, so that after the
movement had been suppressed, with startling ruthlessness, by the
Government, the political future of the nation remained no less in
doubt than previously it had been. Thiers continued at the post of
Chief of the Executive, and the Assembly, clothed by its own
assumption with powers immeasurably in excess of those it had been
elected to exercise, and limited by no fixed term, gave not the
slightest indication of a purpose to terminate its career. Rather, the
body proceeded, August 31, 1871, to pass, by a vote of 491 to 94, the
Rivet law, whereby the existing régime was to be perpetuated
indefinitely.[454] By this measure unrestricted sovereignty, involving
the exercise of both constituent and legislative powers, was declared
by the Assembly to be vested in itself. Upon the Chief of the
Executive was conferred the title of President of the French Republic;
and it was stipulated that this official should thereafter be
responsible to the Assembly, and presumably removable by it. A
quasi-republic, with a crude parliamentary system of government,
thereafter existed _de facto_; but it had as yet absolutely no
constitutional basis.
[Footnote 453: In March the Assembly had
transferred its sittings from Bordeaux to
Versailles.]
[Footnote 454: Duguit et Monnier, Les
Constitutions, 315-316; Anderson, Constitutions,
604-606.]
*328. Failure of the Monarchist Programmes.*--This anomalous condition
of things lasted many months, during the course of which Thiers and
the Assembly served the nation admirably through the promotion of its
recovery from the ravages of war. More and more Thiers, who had begun
as a constitutional monarchist, came to believe in republicanism as
the style of government which would divide the French people least,
and late in 1872 he put himself unqualifiedly among the adherents of
the republican programme. Thereupon the monarchists, united for the
moment in the conviction that for the good of their several causes
Thiers must be deposed from his position of influence, brought about
in the Assembly a majority vote in opposition to him, and so induced
his resignation, May 24, 1873.[455] The opponents of republicanism now
felt that the hour had come for the termination of a governmental
régime which had by them been regarded all the while as purely (p. 304)
provisional. The monarchist Marshal MacMahon was made President, a
coalition ministry of monarchists under the Orleanist Duke of Broglie
was formed, and republicanism in press and politics was put under the
ban. Between the Legitimists and the Orleanists there was worked out
an ingenious compromise whereby the Bourbon Count of Chambord was to
be made king under the title of Henry V. and, he having no heirs, the
Orleanist Count of Paris was to be recognized as his successor. The
whole project was brought to naught, however, by the persistent
refusal of the Count of Chambord to give up the white flag, which for
centuries had been the standard of the Bourbon house. The Orleanists
held out for the tricolor; and thus, on what would appear to most
people a question of distinctly minor consequence, the survival of the
Republic was for the time determined.[456]
[Footnote 455: Anderson, Constitutions, 622-627; A.
Lefèvre Pontalis, L'Assemblée nationale et M.
Thiers, in _Le Correspondant_, Feb. 10, 1879; A.
Thiers, Notes et Souvenirs de 1870 à 1873 (Paris,
1903); J. Simon, Le gouvernement de M. Thiers
(Paris, 1878); E. de Marcère, L'Assemblée nationale
de 1871 (Paris, 1904).]
[Footnote 456: Marquis de Castallane, Le dernier
essai de restauration monarchique de 1873, in
_Nouvelle Revue_, Nov. 1, 1895.]
In the hope that eventually they might gain sufficient strength to
place their candidate on the throne without the co-operation of the
Legitimists, the Orleanists joined with the Bonapartists and the
republicans, November 20, 1873, in voting to fix the term of President
MacMahon definitely at seven years.[457] By the Orleanists it was
assumed that if within that period an opportunity should be presented
for the establishment of the Count of Paris upon the throne, the
President would clear the way by retiring. The opportunity, however,
never came, and the septennial period for the French presidency,
established thus by monarchists in their own interest, was destined to
pass into the permanent mechanism of a republican state.
[Footnote 457: Duguit et Monnier, Les
Constitutions, 319; Anderson, Constitutions, 630.]
VI. THE CONSTITUTION OF TO-DAY
*329. Circumstances of Formation.*--Meanwhile the way was opening for
France to acquire what for some years she had lacked completely, i.e.,
a constitution. May 19, 1873, the minister Dufaure, in behalf of
the Government, laid before the Assembly _projets_ of two organic
measures, both of which, in slightly amended form, passed in 1875 into
the permanent constitution of the Republic. May 24 occurred the
retirement of President Thiers, and likewise that of Dufaure, but in
the Assembly, the two proposed measures were none the less referred to
a commission of thirty. Consideration in committee was sluggish, and
the Assembly itself was not readily roused to action. During the
twelvemonth that followed several _projets_ were brought forward, and
there was desultory discussion, but no progress. In the summer of (p. 305)
1874 a new commission of thirty was elected and to it was intrusted
the task of studying and reporting upon all of the numerous
constitutional laws that had been suggested. The majority of this
commission, monarchist by inclination, contented itself with
proposing, in January, 1875, a law providing simply for the
continuance of the existing "septennate." Only after earnest effort,
and by the narrow vote of 353 to 352, were the republican forces in
the Assembly able to carry an amendment, proposed by the deputy
Wallon, in which was made definite provision for the election of the
President of the Republic, and therefore, by reasonable inference, for
the perpetuity of the Republic itself.[458]
[Footnote 458: Anderson, Constitutions, 633.]
Before the year 1875 was far advanced the Assembly threw off its
lethargy and for the first time in its history addressed itself
systematically to the drafting of a national constitution. To this
course it was impelled by the propaganda of Gambetta and other
republican leaders, by fear on the part of the Legitimists and
Orleanists that the existing inchoate situation would lead to a
Bonapartist revival, and by a new _modus operandi_ which was cleverly
arranged between the republicans and the Orleanists. Convinced that an
Orleanist monarchy was, at least for a time, an impossibility, and
preferring a republic to any alternative which had been suggested, the
Orleanist members of the Assembly gave their support in sufficient
numbers to the programme of the republicans to render it at last
possible to work out for the nation a conservatively republican
constitutional system.
*330. Texts and General Nature.*--Of the organic laws which comprise the
constitution of France to-day five which date from 1875 are of
principal importance: (1) that of February 24, on the Organization of
the Senate; (2) that of February 25,--the most important of all,--on
the Organization of the Public Powers; (3) that of July 16, on the
Relations of the Public Powers; (4) that of August 3, on the Election
of Senators; and (5) that of November 30, on the Election of Deputies.
Collectively, these measures are sometimes referred to as the
"constitution of 1875." Other and later constitutional enactments of
considerable importance include (1) the law of July 22, 1879, relating
to the seat of the Executive Power and of the two Chambers at Paris;
(2) the law of December 9, 1884, amending existing organic laws on the
Organization of the Senate and the Election of Senators; and (3) laws
of June 16, 1885, and February 13 and July 17, 1889, respecting the
Election of Deputies.[459]
[Footnote 459: The original texts of these
documents are printed in Duguit et Monnier, Les
Constitutions, 319-350, and Hélie, Les
Constitutions, 1348-1456. For English versions see
Dodd, Modern Constitutions, I., 286-319; C. F. A.
Currier, Constitutional and Organic Laws of France,
in _Annals of the American Academy of Political and
Social Science_, March, 1893, supplement; and
Anderson, Constitutions, 633-640. Albert Duc de
Broglie, Histoire et Politique: Étude sur la
constitution de 1875 (Paris, 1897); R. Saleilles,
The Development of the Present Constitution of
France, in _Annals of Amer. Academy_, July, 1895.]
Springing from the peculiar conditions which have been described, (p. 306)
the handiwork of a body in which only a minority felt the slightest
degree of enthusiasm for it, the constitution of the French Republic
is essentially unlike any instrument of government with which the
English-speaking world is familiar. It differs from the British in
having been put almost wholly into written form. It differs from the
American in that it consists, not of a single document, but of many,
and in that it emanated, not from a great constituent assembly,
charged with the specific task of formulating a governmental system,
but from a law-making body which in truth had never been formally
intrusted by the nation with even the powers of legislation proper,
and had merely arrogated to itself those functions of constitution-framing
which it chose to exercise.[460] It consists simply of organic laws,
enacted chiefly by the provisional Assembly of 1871-1875, but amended
and amplified to some extent by the national parliament in subsequent
years. Unlike the majority of constitutions that went before it in
France, it is not orderly in its arrangement or comprehensive in its
contents. It is devoid of anything in the nature of a bill of
rights,[461] and concerning the sovereignty of the people it has
nothing to say. Even in respect to many essential aspects of
governmental organization and practice it is mute. It contains no
provision respecting annual budgets, and it leaves untouched the
entire field of the judiciary. The instrument lays down only certain
broad lines of organization; the rest it leaves to be supplied through
the channels of ordinary legislation.
[Footnote 460: Among French writers upon
constitutional law there has been no small amount
of difference of opinion as to whether the National
Assembly is to be regarded as having been entitled
to the exercise of constituent powers. For a brief
affirmative argument see Duguit et Monnier, Les
Constitutions, cxvii. Cf. Dicey, Law of the
Constitution, 121, note.]
[Footnote 461: It is to be observed, however, that
many authorities agree with Professor Duguit in his
contention that although the individual rights
enumerated in the Declaration of Rights of 1789 are
passed without mention in the constitutional laws
of 1875, they are to be considered as lying at the
basis of the French governmental system to-day. Any
measure enacted by the national parliament in
contravention of them, says Professor Duguit, would
be unconstitutional. They are not mere dogmas or
theories, but rather positive laws, binding upon
not only the legislative chambers but upon the
constituent National Assembly. Traité de droit
constitutionnel (Paris, 1911), II., 13.]
*331. Amendment.*--It was the desire of all parties in 1875 that (p. 307)
the constitutional laws should be easy of amendment, and indeed most
men of the time expected the governmental system which was being
established to undergo, sooner or later, fundamental modification. The
process of amendment is stipulated in the law of February 25,
1875.[462] Amendments may be proposed by the President of the Republic
or by either of the chambers of Parliament. When, by a majority of
votes in each, the Senate and Chamber of Deputies declare a revision
of the constitutional laws necessary, the two chambers are required to
be convened in the character of a National Assembly, and amendments
are adopted by absolute majority of this composite body. Contrary to
earlier French practice, the exercise of constituent and of ordinary
legislative powers is thus lodged in the same body of men, the only
difference of procedure in the two instances arising from the
temporary amalgamation of the chambers for constituent purposes. The
sole limitation that has been imposed upon the revising powers of the
Assembly is contained in a clause adopted in an amendment of August
14, 1884, which forbids that the republican style of government be
made the subject of a proposed revision. In point of fact, amendments
have been few, although some, as that of December 9, 1884, modifying
the methods of electing senators and those of June 16, 1885, and
February 13 and July 17, 1889, re-establishing single districts for
the election of deputies and prohibiting multiple candidatures, have
been of a high degree of importance.
[Footnote 462: Art. 8. Dodd, Modern Constitutions,
I., 288.]
CHAPTER XVI (p. 308)
THE PRESIDENT, THE MINISTRY, AND PARLIAMENT
I. THE PRESIDENT
Under the French system of government functions of a purely executive
nature are vested in the President of the Republic and the Ministry,
assisted by a numerous and highly centralized body of administrative
officials. The presidency had its origin in the unsettled period
following the Prussian war when it was commonly believed that
monarchy, in one form or another, would eventually be re-established.
The title "President of the Republic" was created in 1871; but the
office as it exists to-day hardly antedates the election of Marshal
MacMahon in 1873. The character and functions of the presidency were
determined in no small measure by the circumstance that by those who
created the dignity it was intended merely to keep the French people
accustomed to visible personal supremacy, and so to make easier the
future transition to a monarchical system. Counting Thiers, the
Republic has had thus far nine presidents: Adolphe Thiers, 1871-1873;
Marshal MacMahon, 1873-1879; Jules Grévy, 1879-1887; F. Sadi-Carnot,
1887-1894; Casimir-Perier, June, 1894, to January, 1895; Félix Faure,
1895-1899; Émile Loubet, 1899-1906; Armand Fallières, 1906-1913; and
Raymond Poincaré elected early in 1913.
*332. Election and Qualifications.*--The President is chosen for seven
years by an electoral college consisting of the members of the Senate
and of the Chamber of Deputies, meeting at Versailles in National
Assembly. The choice is by absolute majority of the combined body. The
constitutional law of July 16, 1875, stipulates that one month, at
least, before the expiration of his term the President shall call
together the National Assembly for the election of a successor. In
default of such summons, the meeting takes place automatically on the
fifteenth day before the expiration; and in the event of the death or
resignation of the President the Chambers are required to assemble
immediately without summons.[463] There is no vice-president, nor (p. 309)
any law of succession, so that whenever the presidential office falls
vacant there must be a new election; and, at whatever time and under
whatever circumstance begun, the term of the newly elected President
is regularly seven years. As upon the occasion of the assassination of
Sadi-Carnot in 1894, a vacancy may arise wholly unexpectedly. Under
even the most normal conditions, however, the election of a President
in France is attended by no period of campaigning comparable with that
which attends a similar event in the United States. The Assembly
habitually selects a man who has long been a member, and has perhaps
served as president, of one or the other of the chambers, who has had
experience in committee work and, as a rule, in one or more
ministerial offices, and who, above all things, is not too aggressive
or domineering. An election is likely to be carried through all stages
within the space of forty-eight hours. The qualifications requisite
for election are extremely broad. Until 1884 any male citizen,
regardless of age, affiliation, or circumstance, was eligible. In the
year mentioned members of families that have reigned in France were
debarred, and this remains the only formal disqualification. A
President is eligible indefinitely for re-election.[464]
[Footnote 463: Art. 3. Dodd, Modern Constitutions,
I., 291.]
[Footnote 464: A. Tridon, France's Way of Choosing
a President, in _Review of Reviews_, Dec., 1912.]
*333. Privileges.*--The President is paid the sum of 1,200,000 francs a
year, half as salary, half to cover travelling expenses and the
outlays incumbent upon him as the official representative of the
nation. He resides in the Palais de l'Élysée, where he maintains in a
measure the state and ceremony that ordinarily are associated only
with monarchy. His dignity is safeguarded by special and effective
penalties for insult and libel. Like the President of the United
States, during his term of office he is exempt from the processes of
the ordinary courts; but, like his American counterpart, he may be
tried by the Senate, on articles of impeachment presented by the lower
legislative chamber. The President of the United States may be
impeached for "treason, bribery, and other high crimes and
misdemeanors"; the French President may be impeached for treason only.
On the other hand, whereas the penalty that may be imposed upon the
American President by the judgment of the Senate is confined to
removal from office and disqualification to hold office, the French
constitution fixes no limit to the penalty which may be visited upon a
President convicted of treason. So far as the law is concerned, he
might be condemned to death.
*334. Powers: Participation in Law-making.*--The President possesses
powers which are numerous and, on paper at least, formidable. A (p. 310)
first group pertains to the making of law. "The President of the
Republic," says the constitutional law of February 25, 1875, "shall
have the initiative of laws, concurrently with the members of the two
chambers. He shall promulgate the laws when they have been voted by
the two chambers; and he shall look after and secure their
execution."[465] The concurrent power of initiating legislation,
exercised through the Ministry, is something that is not possessed by
the American President, who can do no more than suggest and recommend
measures he deems desirable. The President of France, on the other
hand, possesses only a suspensive veto. He may remand a measure of
which he disapproves for fresh consideration by Parliament; but if it
is re-enacted, by even a simple majority, it is incumbent upon him to
promulgate it as law. If, however, the veto power is virtually
non-existent, the President possesses an important prerogative in the
right of issuing ordinances with the force of supplementary
legislation. These may be not merely executive orders in matters of
detail, such as are issued by the President of the United States, but
sweeping injunctions deemed essential to the enforcement of the laws
in general. The only limitation is that such ordinances must not
contravene the constitution or any enactment of the chambers. The
power is one which, rather curiously, rests upon no express
constitutional provision, but simply upon custom. The right which the
President possesses, with the consent of the Senate, to dissolve the
Chamber of Deputies before the expiration of its term, thereby
precipitating a general election, may also be made the means of
exercising considerable influence upon legislative processes and
achievements.
[Footnote 465: Art. 3. Dodd, Modern Constitutions,
I., 286.]
*335. Powers: Executive and Judicial.*--As the head of the national
administration, the President appoints to all civil and military
offices connected with the central government. His appointments do not
require ratification by the Senate, or by any other body. He may even
create, by decree, new offices. And his power of removal from office,
save in certain cases, is absolutely without restriction. Appointments
and removals, however, are in practice made through the Ministry, and
the President has no patronage at his immediate disposal other than
that of the posts in his own household. In respect to foreign affairs
the President's powers are more substantial. Like the American
President, he represents his country in the sending and receiving of
ambassadors, ministers, envoys, and consuls, and in the negotiation
and conclusion of treaties. Treaties affecting peace, commerce,
territorial possessions, finances, or the status of Frenchmen in
foreign countries, require the ratification of the chambers; others
call for no such action, and even a foreign alliance may be (p. 311)
concluded by the Executive working independently. On the military
side, the President is commander-in-chief of the armed forces of the
nation, military and naval. He may not declare war without the consent
of the chambers; but through the conduct of foreign affairs he may at
any time, very much as may the President of the United States, create
a situation by which war will be rendered inevitable. Finally, the
President is vested with the powers of pardon and reprieve, although
amnesty may be granted only by law.[466]
[Footnote 466: Dupriez, Les Ministres, II.,
358-372; J. Nadal, Attributions du président de la
république en France et aux États-Unis (Toulouse,
1909). For a brief American discussion of the same
subject see M. Smith, The French Presidency and the
American, in _Review of Reviews_, Feb., 1906. Cf.
A. Cohn, Why M. Fallières is an Ideal French
President, ibid., July, 1908.]
II. THE MINISTRY
*336. Importance in the Government.*--"There is," says an English writer
of the last generation, "no living functionary who occupies a more
pitiable position than a French President. The old kings of France
reigned and governed. The Constitutional King, according to M. Thiers,
reigns, but does not govern. The President of the United States
governs, but he does not reign. It has been reserved for the President
of the French Republic neither to reign nor yet to govern."[467] The
weakness of the French President's position arises specifically from
two clauses of the constitutional law of February 25, 1875. One of
them stipulates that "every act of the President of the Republic shall
be countersigned by a minister." The other provides that "the
ministers shall be collectively responsible to the chambers for the
general policy of the government, and individually for their personal
acts."[468] Under the operation of these principles the Ministry
becomes the real executive. Like the sovereign of Great Britain, the
President can do no wrong, because the acts that are officially his
are in reality performed by the ministers, who alone (save in the case
of treason) are responsible for them. Chosen by the members of
Parliament, the President belongs normally to the party group which is
at the time in the ascendant, and by it he is kept in tutelage. The
leaders of this group are the ministers, and, in a very large measure,
the President simply approves passively the policies of this body of
men and signs and promulgates the measures which it carries through
the chambers.
[Footnote 467: Henry Maine, Popular Government
(London, 1885), 250.]
[Footnote 468: Arts. 3 and 6. Dodd, Modern
Constitutions, I., 287.]
*337. Organization and Functions.*--Ministerial portfolios are created
by executive decree. Their number has been somewhat variable. In (p. 312)
1875 there were nine. In 1879 there was created a tenth. Between 1881
and 1887 there were eleven. To-day there are twelve, as follows: (1)
Interior; (2) Finance; (3) War; (4) Justice and Public Worship; (5)
Marine; (6) Colonies; (7) Public Instruction; (8) Foreign Affairs; (9)
Commerce; (10) Agriculture; (11) Public Works and Posts, Telegraphs,
and Telephones; and (12) Labor. Portfolios may be not only created but
rearranged by simple executive decree, though of course the necessary
financial provisions are conditioned upon the approval of the
chambers. The premier may occupy any one of the ministerial posts, or
even two of them at one time. He is named by the President, and he,
acting with the President, designates his colleagues and allots to
them their respective portfolios. Usually, though not necessarily, the
ministers are members of the Senate or of the Chamber of Deputies,
principally the latter.[469] Whether members or not, they have a right
to attend all sessions of both chambers and to take an especially
privileged part in debate. Ministers receive annual salaries of 60,000
francs and reside, as a rule, in the official mansions maintained for
the heads of the departments they control.
[Footnote 469: In earlier days the ministers of war
and of the marine were selected not infrequently
from outside Parliament, but this practice has been
discontinued.]
Collectively the ministers possess two sets of functions which are
essentially distinct. The one they fulfill as a "council"; the other
as a "cabinet." In the capacity of a council they exercise a general
supervision of the administration of the laws, to the end that there
may be efficiency and unity in the affairs of state. In the event of
the President's death, incapacitation, or resignation, the Council is
authorized to act as head of the state until the National Assembly
shall have chosen a successor. As a cabinet the ministers formulate
the fundamental policies of the Government and represent it in the
chambers. The Council is administrative and is expressly recognized by
law; the Cabinet is political and is not so recognized. In the
meetings of the Council the President of the Republic not only sits,
but presides; in those of the Cabinet he rarely even appears. Aside
from the President, however, the two bodies, in personnel, are
identical.[470]
[Footnote 470: Dupriez, Les ministres, II.,
332-357. A recent treatise of value is H. Noell,
L'Administration centrale; les ministères, leur
organisation, leur rôle (Paris, 1911). Mention may
be made of L. Rolland, Le Conseil d'État et les
réglements d'administration publique, in _Revue du
Droit Public_, April-June, 1911; J. Barthélemy, Les
sous-secrétaires d'état, ibid.; P. Ma,
L'organisation du Ministère des Colonies, in
_Questions Diplomatiques et Coloniales_, Sept. 1,
1910.]
*338. The Parliamentary System: Multiplicity of Parties.*--On paper
France has to-day a parliamentary system of government substantially
like that which prevails in Great Britain. The President's (p. 313)
authority is but nominal. The real executive consists of the ministers.
These ministers are responsible, collectively in general matters and
individually in particular ones, to the chambers, in reality to the
Chamber of Deputies. When defeated on any important proposition, they
resign as a body. Parliamentary government in France means, however,
in practice, something very different from what it means across the
Channel. The principal reason why this is so is to be found in the
totally different status of political parties in the two countries. In
Great Britain, while in later years small political groups have sprung
up to complicate the situation, the political life of the nation is
still confined very largely to the two great rival parties, which
oppose to each other a fairly united front, and between which there is
not likely to be anything like fusion or affiliation. In France, on
the contrary, there is a multiplicity of parties and no one of them is
likely ever to be in a position to dominate the Government alone. The
election of 1910 sent to the Chamber of Deputies representatives of no
fewer than nine distinct political groups. No ministry can be made up
with any hope of its being able to command a working majority in the
Chamber unless it represents in its membership a coalition of several
parties. A Government so constituted, however, is almost inevitably
vacillating and short-lived. It is unable to please all of the groups
and interests upon which it relies; it dares displease none; it ends
not infrequently by displeasing all.
*339. Frequency of Ministerial Changes.*--It is from this condition of
things that there arises the remarkable frequency with which
ministerial crises and ministerial changes take place in France. The
ministry of M. Poincaré, established in January, 1912, was the
forty-fifth in the history of French parliamentarism since 1875--a
period of but thirty-seven years. Between 1875 and 1900 but four years
elapsed without at least one change of ministry. Since 1900 changes
have been somewhat less frequent. The Waldeck-Rousseau ministry of
1899-1902--the longest-lived since 1875--endured virtually three
years; the Combes ministry of 1902-1905 lasted more than two years and
a half; and the Clemenceau ministry of 1906-1909 fell but little short
of two years and nine months. None the less, a total of nine
ministries within the space of thirteen years means an average of but
one year and a half to the ministry. It is but fair to say that the
ordinary "crisis" is not likely to involve a complete ministerial
change. Defeated in the Chamber, or unable to make progress, the
ministry as a body resigns; but, as a rule, many of the members are
immediately reappointed, with perhaps a change of portfolios. A certain
continuity arises also from the fact that the subordinate (p. 314)
officials in the various departments enjoy a reasonable fixity of
tenure. Nevertheless the most obvious feature of parliamentary
government as it exists to-day in France, and in other continental
countries, is its instability. Only where, as in England, there are
two great parties, each possessing solidarity and sufficient strength,
if returned to power, to support a homogeneous and sympathetic
ministry, can the more desirable results of the parliamentary system
be realized in full. There is as yet no evidence that such parties are
in France in process of development.[471]
[Footnote 471: A French scholar writes: "Power
cannot pass alternately, as in England and the
United States, from the party on one side over to
the party in opposition. This alternation, this
game of see-saw between two opposing parties, which
certain theorists have declared to be the
indispensable condition of every parliamentary
régime, does not exist, and has never existed, in
France. The reason why is simple. If the party of
the Right, hostile to the Republic, should come
into power, the temptation would be too strong for
them to maintain themselves there by establishing
an autocratic government, which would put an end to
the parliamentary régime, as in 1851. The electors
are conscious of this tendency of the
Conservatives, and will not run the risk of
entrusting the Republic to them. When they are
discontented with the Republicans in power, they
vote for other Republicans. Thus, new Republican
groups are being ceaselessly formed, while the old
ones fall to pieces." C. Seignobos, The Political
Parties of France, in _International Monthly_,
Aug., 1901, 155. On the French parliamentary system
see Dupriez, Les Ministres, II., 345-357, 373-461;
E. Pierre, Principes du droit politique électoral
et parlementaire en France (Paris, 1893).]
*340. Interpellation.*--The precariousness of the position occupied by
French ministries is enhanced by the parliamentary device of
interpellation. As in Great Britain, every member of the two chambers
possesses the right at any time to put to an executive head a direct
question concerning any affair of state which, without impropriety,
may be made the subject of open discussion. A minister may not,
however, be questioned without his consent, and the incident
ordinarily passes without debate. In France, however, any member may
direct at a minister an interpellation, designed not to obtain
information, but to put the Government on the defensive and to
precipitate a debate which may end in the overthrow of the ministry on
some mere technicality or other matter in itself of but slight
importance. The interpellation is a challenge. It is made the special
order for a day fixed by the chamber, and it almost invariably results
in a vote of confidence, or want of confidence, in the ministers. As
employed in France, the interpellation lends itself too readily to the
ends of sheer factiousness to be adjudged a valuable feature of
parliamentary procedure.[472]
[Footnote 472: Dupriez, Les Ministres, II.,
432-461. L. Gozzi, L'Interpellation à l'assemblée
rationale (Marseilles, 1909); J. Poudra and E.
Pierre, Traité pratique de droit parlementaire, 8
vols. (Versailles, 1878-1880), VII., Chap. 4.]
III. PARLIAMENT: SENATE AND CHAMBER OF DEPUTIES (p. 315)
*341. The Bicameral System.*--With the dissolution of the States General
in 1789, France definitely abandoned a parliamentary system based upon
the mediæval principle of orders or estates. Throughout upwards of a
hundred years, however, the scheme of parliamentary organization which
was to take the place of that which had been cast aside continued
uncertain. During the Revolution ultra-democratic reformers very
generally favored the maintenance of a national assembly of but a
single house, and it was not until the promulgation of the
constitution of 1795 that a frame of government including provision
for a legislature of two houses was brought into operation. The
bicameral system of 1795-1799 was succeeded by the anomalous
legislative régime of Napoleon, but under the Constitutional Charter
of 1814 the two-house principle was revived and continuously applied
through a period of thirty-four years. The legislative organ of the
Second Republic was a unicameral assembly, but an incident of the
transition to the Second Empire was the revival of a Senate, and
throughout the reign of Napoleon III. the legislative chambers were
nominally two in number, although it was not until 1870 that the
Senate as a legislative body was made co-ordinate with the _Corps
législatif_. On the whole, it can be affirmed that at the period when
the constitution of the Third Republic was given form, the political
experience of the nation had demonstrated the bicameral system to be
the most natural, the safest, and the most effective. The opening
stipulation of the Constitutional Law on the Organization of the
Public Powers, adopted February 25, 1875, was that the law-making
power of France should be exercised by a national parliament
consisting of (1) a Chamber of Deputies and (2) a Senate. The one, it
was determined, should rest upon a broadly democratic basis. The other
was planned, as is customary with second chambers, to stand somewhat
further removed from the immediate control of the voters of the
country. But the two were intended to exist fundamentally to enact
into law the will of the people, in whom the sovereignty of the French
nation is clearly lodged. And even the most casual survey of the
French governmental system as it operates to-day will impress the fact
that the structure and organization of the parliamentary body have
lent themselves to the usages of a democratic state in a measure even
exceeding that intended by the founders of the existing order.
*342. The Senate as Originally Established.*--Having determined that the
parliament should consist of two branches, the National Assembly, in
1875, faced the difficult problem of constituting an upper chamber (p. 316)
that should not be a mere replica of the lower, and yet should not
inject into a democratic constitutional system an incongruous element
of aristocracy. The device hit upon was a chamber, seats in which
should be wholly elective, yet not at the immediate disposal of the
people. By the constitutional law of February 24, 1875, it was
provided that the Senate should consist of three hundred members, of
whom two hundred twenty-five should be elected by the departments and
colonies and seventy-five by the National Assembly itself.[473] The
departments of the Seine and of the Nord were authorized to elect five
senators each, the others four, three, or two, as specified in the
law. The senators of the departments and of the colonies were to be
elected by an absolute majority and by _scrutin de liste_, by a
college meeting at the capital of the department or colony, composed
of the deputies and general councillors and of delegates elected, one
by each municipal council, from among the voters of the communes.
Senators chosen by the Assembly were to be elected by _scrutin de
liste_ and by an absolute majority of votes. No one should be chosen
who had not attained the age of forty years, and who was not in
enjoyment of full civil and political rights. The seventy-five elected
by the Assembly were to retain their seats for life, vacancies that
should arise being filled by the Senate itself. All other members were
to be elected for nine years, being renewed by thirds every three
years.
[Footnote 473: Dodd, Modern Constitutions, I.,
288.]
*343. The Senate: Composition and Election To-day.*--The system thus
devised continues, in the main, in effect at the present day. The
principal variations from it are those introduced in a constitutional
law of December 9, 1884, whereby it was provided (1) that the
co-optative method of election should be abolished, and that, while
present life members should retain their seats as long as they should
live, all vacancies thereafter arising from the decease of such
members should be filled within the departments in the regular manner,
and (2) that the electoral college of the department should be
broadened to include not merely one delegate from each municipal
council, but from one to twenty-four (thirty in the case of Paris),
according to the number of members in the council.[474] By the same
law members of families that have reigned in France were declared
ineligible; and by act of July 20, 1895, no one may become a member of
either branch of Parliament unless he has complied with the law
regarding military service.
[Footnote 474: Ibid., I., 310.]
Few of the life members survive to-day. When they shall have
disappeared, the French Senate will comprise a compact body of three
hundred men apportioned among the departments in approximate (p. 317)
accordance with population and chosen in all cases by bodies of
electors all of whom have themselves been elected directly by the
people. The present apportionment gives to the department of the Seine
ten members; to that of the Nord, eight; to others, five four, three,
and two apiece, down to the territory of Belfort and the three
departments of Algeria, and the colonies of Martinique, Guadeloupe,
Réunion, and the French West Indies, which return one each. From
having long been viewed by republicans with suspicion, the Senate has
come to be regarded by Frenchmen generally as perhaps the most perfect
work of the Republic.[475] In these days its membership is recruited
very largely from the Deputies, so that it includes not only many men
of distinction in letters and science but an unusual proportion of
experienced debaters and parliamentarians. A leading American
authority has said that it is "composed of as impressive a body of men
as can be found in any legislative chamber the world over."[476] The
sittings of the Senate, since 1879, have been held in the Palais du
Luxembourg, a splendid structure on the left bank of the Seine dating
from the early seventeenth century.[477]
[Footnote 475: J. C. Bracq, France under the
Republic (New York, 1910), 8.]
[Footnote 476: Lowell, Governments and Parties, I.,
22. But compare the view set forth in J. S. C.
Bodley, France, 2 vols. (London, 1898), I., 46-60.]
[Footnote 477: O. Pyfferoen, Du sénat en France et
dans les Pays-Bas (Brussels, 1892).]
*344. The Chamber of Deputies: Composition.*--The 597 members of the
lower legislative branch are chosen directly by the people, under
conditions regulated by a series of electoral measures, principally
the organic law of November 30, 1875.[478] The franchise is extended
to all male inhabitants who have attained the age of twenty-one, and
who are not convicts, bankrupts, under guardianship, or in active
military or naval service. Of educational or property qualifications
there are none. The only requirements are that the voter shall have
his name inscribed on the electoral lists and shall be able to prove a
residence of six months in the commune in which he proposes to cast
his ballot. The conditions of the franchise are prescribed by the
state; but the keeping and the annual revision of the electoral lists
devolves upon the commune, and the lists are identical for communal,
district, departmental, and national elections. The French
registration system is notably effective and, as compared with the
British, inexpensive.
[Footnote 478: Dodd, Modern Constitutions, I.,
302-308.]
*345. Electoral Unit and Parliamentary Candidacies.*--The electoral area
in France is the arrondissement, an administrative subdivision of (p. 318)
the department. Each arrondissement returns one deputy, unless its
population exceeds 100,000, in which case it is divided into
single-member constituencies, one for each 100,000 or remaining
fraction thereof. A fresh apportionment is made after each
quinquennial census, when to each of the eighty-six departments is
allotted a quota of representatives proportioned to population. The
present method of election, under which the individual elector votes
within his arrondissement or district for one deputy only, is known as
the _scrutin d'arrondissement_. Established in 1876, the _scrutin
d'arrondissement_ was employed until 1885, when, at the behest of
Gambetta, a change was made to a system under which deputies for an
entire department were voted for on a general ticket, as, for example,
presidential electors are voted for in an American state. This
system--the so-called _scrutin de liste_--was maintained in operation
only until 1889, when the _scrutin d'arrondissement_ was
re-established.[479]
[Footnote 479: Laws of June 16, 1885, and February
13, 1889; Dodd, Modern Constitutions, I., 316-318.]
The full membership of the Chamber is elected simultaneously, for a
four-year term, save in the event that the Chamber shall be sooner
dissolved. No nomination, or similar formality, is required of the
candidate. To be eligible, however, he must be a qualified voter and
as much as twenty-five years of age. By law of November 30, 1875,
state officials are forbidden to become candidates in districts where
their position might enable them to influence elections, and by act of
June 16, 1885, members of families who have ever reigned in France are
debarred. All that is required of a person who, possessing the
requisite legal qualifications, wishes to be a candidate is that five
days before the election he shall deposit with the prefect of the
department within which the polling is to take place a declaration,
witnessed by a mayor, of the name of the constituency in which he
proposes to seek election. Even this trifling formality was introduced
only by the Multiple Candidature Act of 1889, by which it is
stipulated that no person shall be a candidate in more than one
district. The French electorate is proverbially indifferent concerning
the exercise of the suffrage, but the methods of campaigning which
have become familiar in other countries are employed systematically,
and no small measure of popular interest is occasionally aroused.[480]
[Footnote 480: "During the electoral period,
circulars and platforms signed by the candidates,
electoral placards and manifestoes signed by one or
more voters, may, after being deposited with the
public prosecutor, be posted and distributed
without previous authorization." Organic Law of
November 30, 1875, Art. 3.]
*346. The Conduct of Parliamentary Elections.*--The electoral (p. 319)
process is simple and inexpensive. Voting is by secret ballot, and the
balloting lasts one day only. As a rule, the polling takes place in
the _mairie_, or municipal building, of the commune, under the
immediate supervision of an electoral bureau consisting of a president
(usually the mayor), four assessors, and a secretary. The state does
not provide ballot-papers, but one or more of the candidates may be
depended upon to supply the deficiency. The count is public and the
result is announced without delay. If it is found that no candidate
within the district has polled an absolute majority of the votes cast,
and at the same time a fourth of the number which the registered
voters of the district are legally capable of casting, a second
balloting (the so-called _ballottage_) is ordered for one week from
the ensuing Sunday. No one of the candidates voted for drops out of
the contest, unless by voluntary withdrawal; new candidates, at even
so late a day, may enter the race; and whoever, at the second
balloting, secures a simple plurality is declared elected. By
observers generally it is considered that the principle of the second
ballot, in the form in which it is applied in France, possesses no
very decisive value. Through a variety of agencies the central
government is accustomed to exert substantial influence in
parliamentary elections; but all of the more important political
groups have profited at one time or another by the practice, and there
is to-day a very general acquiescence in it, save on the part of
unsuccessful candidates whose prospects have been injured by it.
IV. THE PROBLEM OF ELECTORAL REFORM
*347. Scrutin de liste and scrutin d'arrondissement.*--Within recent
years there has arisen, especially among the Republicans and
Socialists, an insistent demand for a thoroughgoing reform of the
electoral process. Those who criticise the present system are far from
agreed as to precisely what would be more desirable, but, in general,
there are two preponderating programmes. One of these calls simply for
abandonment of the _scrutin d'arrondissement_ and a return to the
_scrutin de liste_. The other involves both a return to the _scrutin
de liste_ and the adoption of a scheme of proportional representation.
The arrondissement, many maintain, is too small to be made to serve
satisfactorily as an electoral unit. Within a sphere so restricted the
larger interests of the nation are in danger of being lost to view and
political life is prone to be reduced to a wearisome round of compromise,
demagogy, and trivialities. If, it is contended, all deputies (p. 320)
from a department were to be elected on a single ticket, the elector
would value his privilege more highly, the candidate would be in a
position to make a more dignified campaign, and issues which are
national in their scope would less frequently be obscured by questions
and interests of a petty and purely local character. Professor Duguit,
of the University of Bordeaux, who is one of the abler exponents of
this proposed reform, contends (1) that the scheme of _scrutin de
liste_ harmonizes better than does that of _scrutin d'arrondissement_
with the fundamental theory of representation in France, which is that
the deputies who go to Paris do so as representatives of the nation as
a whole, not of a single locality; (2) that the _scrutin d'arrondissement_
facilitates corruption through the temptation which it affords
candidates to make to voters promises of favors, appointments, and
decorations, and (3) that the prevailing system augments materially
the more or less questionable influence which the Government is able
to bring to bear in the election of deputies.[481] It does not appear
that in the period 1885-1889 when the _scrutin de liste_ was in
operation the very desirable ends now expected to be attained by a
restoration of it were realized; indeed the system lent itself more
readily to the menacing operations of the ambitious Boulanger than the
_scrutin d'arrondissement_ could possibly have done. It is but fair,
however, to observe that the trial of the system was very brief and
that it fell in a period of unusual political unsettlement.
[Footnote 481: L. Duguit, Traité de droit
constitutionnel, I., 375-376.]
*348. Proportional Representation.*--In the judgment of many reformers a
simple enlarging of the electoral unit, however desirable in itself,
would be by no means adequate to place the national parliament upon a
thoroughly satisfactory basis. There is in France a growing demand for
the adoption of some scheme whereby minorities within the several
departments shall become entitled to a proportionate voice in the
Chamber at Paris. And hence a second programme of reform is that which
calls not merely for the _scrutin de liste_, but also for proportional
representation. Within the past two decades the spread of the
proportional representation idea in Europe has been rapid. Beginning
in 1891, the device has been adopted by one after another of the Swiss
cantons, until now it is in use in some measure in upwards of half of
them. Since 1899 Belgium has employed it in the election of all
members of both chambers of her parliament. In 1906 it was adopted by
Finland and by the German state of Württemberg. In 1908 Denmark, in
which country the system has been employed in the election of members
of the upper chamber since 1867, extended its use to elections in (p. 321)
the municipalities.[482] In 1907 an act of the Swedish parliament
(confirmed after a general election in 1909) applied it to elections
for both legislative chambers, all parliamentary committees, and
provincial and town councils. In France there was organized in 1909,
under the leadership of M. Charles Benoist, a Proportional
Representation League by which there has been carried on in recent
years a very vigorous and promising propaganda. The principal
arguments employed by the advocates of the proposed reform are (1)
that the effect of its adoption would be greatly to increase the
aggregate vote cast in parliamentary elections, since electors
belonging to minority parties would be assured of actual
representation; (2) that it would no longer be possible, as is now
regularly the case, for the number of voters unrepresented by deputies
of their own political faith to be in excess of the number of electors
so represented;[483] and (3) that a parliament in which the various
parties are represented in proportion to their voting strength can be
depended upon to know and to execute the will of the nation with more
precision than can a legislative body elected after the principle of
the majority system.[484]
[Footnote 482: The first English-speaking state to
adopt the system was Tasmania, where, after being
in partial operation in 1896-1901, it was brought
fully into effect in 1907. By an electoral law of
1900 Japan adopted it for the election of the
members of her House of Commons. The plan was put
in operation in Cuba April 1, 1908, and was adopted
in Oregon by a referendum of June 1, 1908.]
[Footnote 483: It is the assertion of M. Benoist
that this situation has existed unbrokenly since
1881. An interesting fact cited is that the notable
Separation Law of 1905 was adopted in the Chamber
by the votes of 341 deputies who represented in the
aggregate but 2,647,315 electors in a national
total of 10,967,000.]
[Footnote 484: Duguit, _op. cit._, argues
forcefully in behalf of the proposed change. For
adverse views, cogently stated by an equally
eminent French authority, see A. Esmein, Droit
Constitutionnel (5th ed., Paris, 1911), 253.]
*349. The Government and Reform.*--During upwards of a decade the
successive ministries of France have been committed to the cause of
electoral reform. In March, 1907, a special committee of the Chamber
of Deputies (the _Commission du Suffrage Universel_), appointed to
consider the various bills which had been submitted upon the subject,
reported a scheme of proportional representation whereby it was
believed certain disadvantages inherent in the "list system" of
Belgium might be obviated. Elections were to be by _scrutin de liste_
and the elector was to be allowed to cast as many votes as there were
places to be filled and to concentrate as many of these votes as he
might choose upon a single candidate.[485] In November, 1909, the
Chamber of Deputies passed a resolution favoring the establishment (p. 322)
of both _scrutin de liste_ and proportional representation, but no law
upon the subject was enacted, and at the elections of April-May, 1910,
the preponderating issue was unquestionably that of electoral reform.
According to a tabulation undertaken by the Ministry of the Interior,
of the 597 deputies chosen at this time 94 had not declared themselves
on electoral reform; 35 were in favor of no change from the existing
system; 32 were in favor of a slightly modified _scrutin
d'arrondissement_; 64 were partisans of the _scrutin de liste_ pure
and simple; 272 were on record in favor of the _scrutin de liste_
combined with proportional representation; and 88 were known to be in
favor of electoral reform, though not committed to any particular
programme. The majority favoring change of some kind was thus notably
large.
[Footnote 485: The text of the proposed measure, in
English translation, will be found in J. H.
Humphreys, Proportional Representation (London,
1911), 382-385.]
*350. The Briand Programme.*--June 30, 1910, the Briand ministry brought
forward a plan which was intended as an alternative to the proposals
of the Universal Suffrage Committee. The essential features of it
were: (1) a return to _scrutin de liste_, with the department as the
electoral area, save that a department entitled to more than fifteen
deputies should, for electoral purposes, be divided, and one entitled
to fewer than four should be united with another; (2) an allotment of
one deputy to every 70,000 inhabitants, or major fraction thereof; (3)
the division of the total number of electors on the register within a
department by the number of deputies to which the department should be
entitled, the quotient to supply the means by which to determine the
number of deputies returned to the Chamber from each competing ticket;
(4) the determination of this number by a division of the foregoing
quotient into the average number of votes obtained by the candidates
on each competing ticket, thus introducing the element of proportional
representation; (5) the making up of tickets in each department from
candidates nominated by one hundred electors; (6) the restriction of
each elector to a vote for but a single ticket; and (7) an extension
of the life of the Chamber from four to six years, one-third of the
members to be chosen biennially. In the ministerial declaration
accompanying the announcement of this scheme Premier Briand declared
that the effect of the _scrutin d'arrondissement_ had been to narrow
the political horizon of the deputies; that the electoral area must be
broadened so that the interests of the nation may be made to
predominate over those of the district; and that, while in a democracy
the majority must rule, the Government was favorable to proportional
representation in so far as the adoption of that principle can prevent
the suppression of really important minorities.
*351. The Electoral Reform Bill of 1912.*--In February, 1911, while the
Briand Electoral Reform Bill was pending, there occurred a change (p. 323)
of ministries. The Monis government which succeeded maintained, during
its brief tenure (March-June, 1911), the sympathetic attitude which
had been exhibited by its predecessor, and at the beginning of the
period the _Commission du Suffrage Universel_ laid before the Chamber
the draft of a new bill whereby the details of the proportional plan
were brought back into closer accord with those of the Belgian system.
During the period of the Caillaux ministry (June, 1911, to January,
1912) there was continued discussion, but meager progress. The
Poincaré ministry, established at the beginning of 1912, declared that
the nation had expressed forcefully its desire for far-reaching reform
and promised that, in pursuance of the work already accomplished by
the parliamentary commission, it would take steps to carry a measure
of reform which should "secure a more exact representation for
political parties and lend those who are elected the freedom that is
required for the subordination of local interests in all cases to the
national interest." During the earlier months of 1912 consideration of
the subject was pressed in the Chamber and July 10 the whole of the
Government's Electoral Reform Bill was adopted by a vote of 339 to
217. At the date of writing (October, 1912) the measure is pending in
the Senate. The bill as passed in the Chamber comprises essentially
the Briand proposals of 1910.[486] Through the revival of _scrutin de
liste_, with a large department or a group of small ones as the electoral
area, and with the device of representation of minorities added, (p. 324)
the measure, in the event of its probable final enactment, will
largely transform the conditions under which the parliamentary
elections of to-day are conducted.
[Footnote 486: The most systematic account of the
electoral franchise in France since 1789 is A.
Tecklenburg, Die Entwickelung des Wahlrechts in
Frankreich seit 1789 (Tübingen, 1911). The French
electoral system is described at length in E.
Pierre, Code des élections politiques (Paris,
1893); Chaute-Grellet, Traité des élections, 2
vols. (Paris, 1897); M. Block, Dictionnaire de
l'administration française (5th ed., Paris, 1905),
I., 1208-1244. The literature of the subject of
electoral reform is very extensive. Mention may be
made of C. Benoist, Pour la réforme électorale
(Paris, 1908); J. L. Chardon, La réforme électorale
en France (Paris, 1910); J. L. Breton, La réforme
électorale (Paris, 1910); C. Francois, La
représentation des intérêts dans les corps élus
(Paris, 1900); F. Faure, La législature qui finit
et la réforme électorale, in _Revue Politique et
Parlementaire_, Dec. 10, 1909; Marion, Comment
faire la réforme électorale; ibid., Feb. 10 and
March 10, 1910; M. Deslanders, La réforme
électorale, ibid., July 10, 1910; A. Varenne, La
réforme électorale d'abord, ibid., Nov. 10, 1910;
G. Lachapelle, La discussion du projet de réforme
électorale, ibid., May 10, 1912; F. Faure, Le vote
de la réforme électorale, ibid., Aug. 10, 1912
(contains the text of the Electoral Law); L.
Milhac, Les partis politiques français dans leur
programme et devant le suffrage, in _Annales des
Sciences Politiques_, July 15, 1910; G. Scelle, La
représentation politique, in _Revue du Droit
Public_, July-Sept., 1911; L. Marin, Le vote
personnel, in _La Grande Revue_, March 25, 1911;
and G. Trouillot, La réforme électorale au Sénat,
ibid., Sept. 25, 1912. The text of the bill of 1912
is to be found also in _Revue du Droit Public_,
July-Sept., 1912. On the question of proportional
representation see G. Tronqual, La représentation
proportionnelle devant le parlement français
(Poitiers, 1910); F. Lépine, La représentation
proportionnelle et sa solution (Paris, 1911); N.
Saripolos, La démocratie et l'élection
proportionnelle (Paris, 1900); G. Lachapelle, La
représentation proportionnelle (Paris, 1910);
ibid., Représentation proportionnelle, in _Revue de
Paris_, Nov. 15, 1910; ibid., L'Application de la
représentation proportionnelle, in _Revue Politique
et Parlementaire_, Dec. 10, 1910. See also Anon.,
La sophistication du suffrage universel, in
_Annales des Sciences Politiques_, July, 1909, and
May, 1910; E. Zevort, La France sous le régime du
suffrage universel (Paris, 1894). The subject of
proportional representation in France is fully
discussed in a Report of the British Royal
Commission on Electoral Systems (1910). Report, Cd.
5,163; Evidence, Cd. 5,352.]
CHAPTER XVII (p. 325)
PARLIAMENTARY PROCEDURE--POLITICAL PARTIES
I. ORGANIZATION AND WORKINGS OF THE CHAMBERS
*352. Sessions.*--By the constitutional law of July 16, 1875, it is
required that the Chamber of Deputies and the Senate shall assemble
annually on the second Tuesday of January, unless convened at an
earlier date by the President of the Republic, and that they shall
continue in session through at least five months of each year. The
President may convene an extraordinary session, and is obligated to do
so if at any time during a recess an absolute majority of both
chambers request it. The President may adjourn the chambers, but not
more than twice during the same session, and never to exceed one
month. The sessions of the Deputies are held in the Palais Bourbon,
situated in the immediate neighborhood of a group of ministerial
buildings at the end of the Boulevard St. Germain, directly across the
Seine from the Place de la Concorde; those of the Senate, in the
Palais du Luxembourg. The sittings are by law required to be public,
though there is provision for occasional secret sessions. Since
January 1, 1907, deputies have received 15,000 francs a year
(increased by law of November, 1906, from 9,000); and they are
entitled, on payment of a nominal sum, to travel free on all French
railways. The emoluments of senators are identical with those of
deputies.
*353. Officers, Bureaus, and Committees.*--The presiding officer of the
Deputies is known as the president. He is elected by the Chamber and,
far from being a mere moderator, as is the Speaker of the British
House of Commons, he is ordinarily an aggressive party man, not
indisposed to quit the chair to participate in debate, and therefore
bearing an interesting resemblance to the Speaker of the American
House of Representatives. Besides the president, there are four
vice-presidents, eight secretaries, and three questors, all chosen by
the Chamber. The vice-presidents replace the president upon occasion;
the secretaries (of whom half must always be on duty when the Chamber
is in session) supervise the records of the meetings and count the
votes when there is a division; the questors have in charge the
Chamber's finances. Collectively, this group of sixteen officials
comprises what is known as the "bureau" of the Chamber. It manages (p. 326)
the business of the body during a session and, if need be, acts in its
name during a recess.
Every month during the course of a session the entire membership of
the Chamber is divided by lot into eleven other bureaus of equal size.
These bureaus meet from time to time separately to examine the
credentials of members, to give formal consideration to bills which
have not yet been referred to a committee, and, most important of all,
to select one of their number to serve on each of the committees of
the Chamber. In the case of very important committees, the bureaus may
be instructed by the Chamber to designate two members, or even three,
each. Thus, the Budget Committee contains three representatives of
each bureau. This committee and another constituted to audit the
accounts of the Government are created for a year. Others serve a
single month. Theoretically, indeed, every measure is referred to a
committee constituted specifically for the purpose; but practically
the consequence of such a procedure would be confusion so gross that
the greater committees, as those on labor, railways, and the army, are
allowed to acquire some substantial measure of permanence. Committee
positions are quite generally objects of barter on the part of party
groups and leaders.[487]
[Footnote 487: A. de la Berge, Les grands comités
parlementaires, in _Revue des Deux Mondes_, Dec. 1,
1889.]
*354. Procedure.*--Immediately upon assembling, each of the chambers
validates the elections of its own members, chooses its bureau of
president, vice-presidents, secretaries, and questors, and adopts its
own rules of procedure. At an early date the premier communicates
orally a "ministerial declaration," in which are outlined the policies
to which the Government is committed; and certain of the measures
therein proposed are likely to take precedence in the ensuing
deliberations. The hall in which each body sits is semi-circular, with
as many seats and desks as there are members to be accommodated. In
the centre stands a raised arm-chair for the use of the president, and
in front of it is a platform, or "tribune," which every member who
desires to speak is required to mount. On either side of the tribune
are stationed stenographers, whose reports of the proceedings are
printed each morning in the _Journal Officiel_. The first tier of
seats in the semi-circle, facing the tribune, is reserved for the
Government, i.e., the members of the ministry; behind are ranged the
remaining members of the Chamber, with the radicals on the president's
left and the conservatives on his right.
Of the bureaus into which, at the beginning of each month, the members
of each chamber are divided, there are, as has been said, eleven in
the Deputies; in the Senate there are nine. When a bill is (p. 327)
introduced it is referred first of all to these bureaus, each of which
designates one or more commissioners, who, acting together as a
committee, are expected to make a careful examination of the measure.
The report of this committee is printed and distributed, whereupon
general discussion begins in the chamber. Every measure must pass two
readings in each chamber, with an interval of five days, unless
otherwise ordered by a majority vote. A member wishing to take part in
the debate indicates his desire by inscribing his name on lists kept
by the secretaries. On the motion of any member, the closure may be
applied and a vote ordered. The division may be taken by a show of
hands, by rising, or by a ballot in which a white voting paper denotes
an affirmative, and a blue one a negative, vote. Voting by proxy, long
permitted, has been recently abolished. No decision is valid unless an
absolute majority of the members (151 in the Senate and 299 in the
Deputies) has participated in the vote. In the upper branch
proceedings are apt to be slow and dignified; in the lower they are
more animated, and not infrequently tempestuous. The duty of keeping
order at the sittings falls to the president. In aggravated cases he
is empowered, with the consent of a majority of the chamber, to
administer a reprimand carrying with it temporary exclusion from the
sessions.[488]
[Footnote 488: A. P. Usher, Procedure in the French
Chamber of Deputies, in _Political Science
Quarterly_, Sept., 1906; J. S. Crawford, A Day in
the Chamber of Deputies, in _Gunton's Magazine_,
Oct., 1901; M. R. Bonnard, Les modifications du
réglement de la Chambre des Députés, in _Revue du
Droit Public_, Oct.-Dec., 1911. The standard
treatise on French parliamentary procedure is J.
Poudra et E. Pierre, Traité pratique de droit
parlementaire, 8 vols. (Versailles, 1878-1880.)]
*355. Powers and Functions: the National Assembly.*--Speaking broadly,
the functions of the French chambers are three-fold--constituent,
elective, and legislative. The first two are required to be exercised
by the two houses conjointly. By the constitutional law of February
25, 1875, there is provided the only means whereby the constitution of
the Republic may be amended. "The chambers," it is stipulated, "shall
have the right by separate resolutions, taken in each by an absolute
majority of votes, either upon their own initiative or upon the
request of the President of the Republic, to declare a revision of the
constitutional laws necessary. After each of the two chambers shall
have come to this decision, they shall meet together in National
Assembly to proceed with the revision. The acts affecting revision of
the constitutional laws, in whole or in part, shall be passed by an
absolute majority of the members composing the National Assembly."[489]
The power of constitutional amendment is therefore vested absolutely
in the parliamentary chambers, under the requirement simply that (p. 328)
it be exercised in joint session. The only limitation that has been
imposed on parliamentary omnipotence in this direction is a clause
adopted in an amendment of August 13, 1884, to the effect that "the
republican form of government shall not be made the subject of a
proposed revision."[490] As in the British system, constituent and
legislative powers are lodged in the same body of men; and not merely
the powers of constitution-making, but the exclusive right to
pronounce upon the constitutionality or unconstitutionally of
legislation. The principal difference is that, whereas the British
Parliament exercises the sum total of its powers in an unvarying
manner, the French, when acting in its constituent capacity, follows a
specially designed procedure.
[Footnote 489: Art. 8. Dodd, Modern Constitutions,
I., 288.]
[Footnote 490: Art. 8. Dodd, Modern Constitutions,
I., 294.]
One other function the two chambers sitting conjointly possess, i.e.,
that of electing the President of the Republic. Under normal
conditions, the chambers are called together in National Assembly to
choose a President one month or more before the expiration of the
seven-year presidential term. In the event of vacancy by death, by
resignation, or by reason of any other unanticipated circumstance, the
meeting of the Assembly takes place forthwith, without summons.[491]
Election is by ballot, and by absolute majority of the members. All
meetings of the National Assembly are held, not in Paris, but in the
old royal palace at Versailles, which indeed was the sole seat of the
present republican government until 1879. No elective session may
exceed in length the five months allotted to an ordinary legislative
session.
[Footnote 491: Law of July 16, 1875, art. 3. Dodd,
Modern Constitutions, I., 291.]
*356. Legislation and Special Powers.*--The two chambers possess
concurrent powers in all that pertains to the initiation, the
enactment, and the amending of laws, save that money bills must be
introduced in and passed by the Chamber of Deputies before being
considered in the upper branch. Except for this limitation, measures
may be presented in either house, by the ministers in the name of the
President, or by private members. The vast fabric of Napoleonic law
which has survived to the present day in France has narrowed
perceptibly the range of legislative activity under the Republic.
During the first generation after 1871 few great statutes were
enacted, save those of a constitutional character. In our own day,
however, the phenomenal expansion of social and industrial
legislation, which has been a striking feature of the public life of
most European nations, has imparted a new vigor and productiveness to
French parliamentary activity.
Each of the chambers possesses certain functions peculiar to itself.
Aside from the initiation of money bills, the principal such function
of the Deputies is the bringing of charges of impeachment against (p. 329)
the President or ministers. The Senate possesses the exclusive power
to try cases of impeachment. It is given the right to assent or to
withhold its assent when the President proposes to dissolve the
Chamber of Deputies before the expiration of its term. And by decree
of the President, issued in the Council of Ministers, it may be
constituted a court of justice to try any person accused of attempts
upon the safety of the state.[492]
[Footnote 492: Y. Guyot, Relations between the
French Senate and Chamber of Deputies, in
_Contemporary Review_, Feb., 1910.]
II. POLITICAL PARTIES SINCE 1871
*357. Republicans and Conservatives.*--In its larger aspects the
alignment of political parties in France to-day dates from the middle
of the nineteenth century. In the National Assembly of 1848--the first
representative body elected in France by direct universal
suffrage--the line was sharply drawn between the republicans of the
Left, who wished to maintain the Republic and with it a liberal
measure of democracy, and the reactionaries of the Right, who began by
insisting upon a restoration of clerical privilege and bourgeois rule
and ended, in the days of the Legislative Assembly, by clamoring for a
restoration of monarchy itself. After the _coup d'état_ of 1851 both
groups were silenced, though even in the politically stagnant era of
the early Empire they did not lose altogether their identity. With the
revival, however, after 1860, of a vigorous political life the two
worked together, and with success, to accomplish the overthrow of the
personal government of Napoleon III. Upon the collapse of the Empire
in 1870 the original cleavage reappeared. The National Assembly
elected in 1871 was divided broadly into Republicans and Conservatives
(which name gradually replaced that of Reactionaries), and during the
five years covered by the life of this extremely important body these
two great groups struggled continuously over the supreme question of
the day, i.e., the style of government which should be adopted
permanently for France. Each of the groups comprised a variety of
elements. To the Republicans belonged the Radical Extreme Left of
Gambetta, the Left of Grévy, Freycînct, and Loubet, and the Centre
Left of Thiers and Jules Simon. To the Conservatives belonged the
Legitimate Extreme Right, an Orleanist Centre Right, and, eventually,
the Imperialists. Following the definite establishment, in 1875, of
the republican constitution, the lines by which these various elements
had been marked off grew less distinct, and Republicans and
Conservatives acquired in each case a more homogeneous character.
*358. Rise of the Radicals.*--After the first election under the (p. 330)
new constitution--that of 1876--the Senate remained in the control of
the Conservatives, but the Chamber of Deputies was found to contain a
Republican majority of more than two to one. From that day until the
present the Republican ascendancy in the lower house has been
maintained uninterruptedly; and since 1882 there has been likewise
always a Republican majority in the Senate. It is to be observed, of
course, that Republican control in both chambers has meant regularly
not the absolute dominance of a single compact party group, but the
preponderance of a coalition of two or more groups broadly to be
described as "republican." During the early eighties there sprang up a
flourishing group which, reviving the original programme of Gambetta,
assumed the name Radical, and in the elections of 1885 this group
acquired such a quota of seats in the Chamber (150) as to render it
impossible for the Republicans alone to retain control. Thereafter
there were three principal party groups--the Conservatives and the two
republican groups, the Republicans proper and the Radicals. No one of
the three being sufficiently strong to obtain a majority which would
enable it to rule alone, the politics of a long succession of years
turned upon the adoption of one or the other of two lines of
tactics--the coalition of the two republican divisions to the end that
they might rule as against a Conservative minority (the so-called
policy of "republican concentration"), and the allying of one of these
groups with the Right against the other Republican group (spoken of
commonly as a "pacification"). The first "concentration" ministry was
that of Brisson, formed in March, 1885; the first "pacification"
ministry was that of Rouvier, formed in 1887. In the middle of the
nineties some attempts were made to create and maintain homogeneous
ministries. The Bourgeois ministry of 1895-1896 was composed entirely
of Radicals and the Méline ministry of 1896-1898 of Moderate
Republicans. But at the elections of 1898 the Republican position in
the Chamber broke down and it was necessary to return, with the Dupuy
ministry, to the policy of concentration.
Meanwhile, in the early nineties, from the Conservative and Republican
extremes respectively had been detached two new party groups. From the
ranks of the Conservatives had sprung a body of Catholics who, under
papal injunction, had declared their purpose to rally to the support
of the Republicans; whence they acquired the designation of the
"Ralliés." And from the Radical party had broken off a body of
socialists of such consequence that in the elections of 1893 it
succeeded in carrying fifty seats.
*359. The Bloc.*--A new era in the history of French political (p. 331)
parties was marked by the elections of May, 1898. Some 250 seats, and
with them the effectual control of the Chamber, were acquired by the
Radicals, the Socialists, and an intermediary group of Radical-Socialists.
The Moderate Republicans, to whom had been given recently the name of
Progressives, were reduced to 200; while the Right retained but 100.
The Socialists alone polled nearly twenty per cent of the total
popular vote. The remarkable agitation by which the Dreyfus affair was
attended had the effect of consolidating further the parties of the
Left, and the _bloc_ which resulted not only has subsisted steadily
from that day to the present but has controlled very largely the
policies of the government. The first conspicuous leader and spokesman
of the coalition was Waldeck-Rousseau, premier from 1899 to 1902, and
its first great achievement was the separation of church and state,
accomplished through the means of the Law of Associations of July 1,
1901, the abrogation of the Concordat, December 9, 1905, and the law
of January 2, 1907, restricting further the privileges of the Roman
Catholic Church in France. A socialist now appeared for the first time
in the cabinet. At the elections of April, 1902, the policies of the
Government were vindicated by the return of 321 avowed "ministerialists"
and of but 268 representatives of the opposition.
*360. The Elections of 1906.*--June 3, 1902, the longest-lived ministry
since the Third Republic was established was brought to an end by the
voluntary retirement of Waldeck-Rousseau. The new premier, Combes, was
a member of the Radical party, and the anti-clerical, radical policies
of the preceding government were maintained throughout the ensuing two
and a half years, as also they were during the premiership of Rouvier
(1905-1906). In March, 1906, a new ministry, in which Clemenceau was
actual chief, was formed with the Radical Sarrien as premier, and at
the elections which came two months later the groups of the Left won
another signal victory. Prior to the balloting the majority in support
of the radical policy of the Government _bloc_ could muster in the
Chamber some 340 votes; afterwards, it could muster at least 400. The
Right retained its numerical strength (about 130), but the extreme
Left made decided gains at the expense of the moderates, or
Progressives. The number of Progressive seats, 120 prior to the
election, was reduced by half; while the aggregate of Socialist and
Radical-Socialist seats rose to 230. On all sides Moderate
Republicanism fell before the assaults of Socialism. At the same time
it was demonstrated unmistakably that the anti-clerical measures of
the recent governments were in substantial accord with the will (p. 332)
of the nation. October 25, 1906, Clemenceau assumed the premiership.
*361. The Elections of 1910.*--The Clemenceau ministry, which survived
until July, 1909, adopted a programme which was more frankly
socialistic than was that of any of its predecessors. It added to the
system of state-owned railways the Great Western Line; it inaugurated
a graduated income tax and put the measure in the way of enactment at
the hand of the Chamber; it carried fresh and more rigorous
legislation in hostility to clericalism; and, in general, it gave free
expression to the unquestionable trend of the France of to-day away
from the individualism of the Revolutionary period in the direction of
the ideals of collectivism. The Briand ministry by which it was
succeeded followed in the same lines, three of its members, indeed,
being active socialists. Prior to the elections of April-May, 1910,
there took place some readjustment of political forces, but, on the
whole, no change of large importance. The _bloc_, however, more than
once showed signs of breaking up, and the majority of the party groups
arrived at the electoral season devoid of harmony and paralyzed by
uncertainty of policy. The Radicals were divided upon the question of
the income-tax; the Socialists, upon the question of the party's
attitude toward trade-unions; and all parties, upon the issue of
proportional representation. That the voters were no less bewildered
than were the party leaders appeared from the fact that in 231
constituencies--almost an unprecedented number[493]--second ballotings
were required. With the issues so confused, the results could hardly
prove of large significance. The lines which separate party groups
to-day in France are not infrequently both ill-defined and shifting,
with the consequence that it is not possible to express party strength
by exact numbers, as may be done in the case of the parties of Great
Britain or of the United States. A deputy may even belong to two
groups at one time. The composition of the Chamber following the
elections of 1910 can be stated, therefore, only approximately.
Composing the Right were (1) the Right proper, 19; (2) the Action
Libérale Populaire--organized originally to combat the radicalism of
Waldeck-Rousseau, 34; (3) the Progressives, now to be identified with
the Right, 76--a total of 129. Identified with the Left were (1) the
Republicans, 73; (2) the Radicals, 112; and (3) the Radical-Socialists,
149--a total of 334. Comprising the Extreme Left were the Socialists
(Independent 30; Unified, 75), aggregating 105. Finally, of
Independents there were upwards of 20. The continued preponderance of
the Left was assured, although to prolong their mastery of the
situation the Radicals and Radical-Socialists fell under the (p. 333)
necessity of securing the support of either the Republicans or the
Independent Socialists.[494]
[Footnote 493: Absolutely so, save for the _scrutin
de liste_ election of 1885.]
[Footnote 494: The political history of the period
since the elections of 1910 has been remarkable by
reason chiefly of the absorption of public
attention by the issues of electoral reform and
labor legislation. Embarrassed by interpellations
with reference to its ecclesiastical policy, the
Briand ministry (reconstituted in November, 1910)
retired in February, 1911. The Monis government
which succeeded lacked coherence, as also did the
ministry of Caillaux (June, 1911 to January, 1912).
The cardinal achievement of the Poincaré ministry
has been the carrying of the Electoral Reform Bill
of 1912 in the lower chamber. See p. 323.]
*362. Changes since 1871.*--"The political history of France since the
beginning of the Republic," says a scholarly French observer,
"presents, instead of an alternation between two parties of opposing
programmes, like those of Belgium or England, a continual evolution
along one line, the constant growth of the strength of parties which
represent the democratic, anti-clerical tendency."[495] The
fundamental division of Conservative and Republican persists, but both
of these terms have long since lost their original definiteness of
meaning. The Conservatives have ceased, in large part, to be
"reactionaries." Few of them are even royalists, and the old
distinction of Legitimist, Orleanist, and Bonapartist has disappeared
entirely. The Right is essentially "republican," as is evidenced by
the further fact that the majority of its members in the Chamber are
Progressives, whose forerunners composed the real Republican party of
a generation ago. The Republican groups of to-day comprise simply
those numerous and formidable political elements which are _more_
republican--that is to say, more radical--than are the adherents of
the Right. Among themselves, however, they represent a very wide
gradation of radicalism.
[Footnote 495: C. Seignobos, The Political Parties
of France, in _International Monthly_, Aug., 1901,
155.]
*363. French Socialism.*--The history of socialism in France since 1871
has been stormy. During the seventies proselyting effort was directed
chiefly toward the influencing of the trade-unions to declare for
socialism. In 1879 the general trade-union congress at Marseilles took
the desired step, but in the congress of the following year at Havre
there arose a schism between the "collectivists" and the
"co-operatives" which in reality has never been healed. During the
eighties and nineties the process of disintegration continued, and
there came to be a half-dozen socialist parties, besides numerous
local groups of independents. During the years 1898-1901 continued
effort was made to bring the various socialist elements into some sort
of union, and in 1900 a national congress of all French socialist
parties and organizations was held at Paris. An incident of the (p. 334)
Dreyfus controversy was the elevation of an independent socialist,
Étienne Millerand, to a portfolio in the ministry of Waldeck-Rousseau,
and this event became the occasion of a new socialist breach. The
Parti Socialiste Français, led by the eloquent Jaurès, approved
Millerand's opportunism; the Parti Socialist de France opposed. In
1905, however, these two bodies were amalgamated in the Parti
Socialist of the present day, with a programme which calls for the
socializing of the means of production and exchange, i.e., the
transforming of the capitalistic organization of society into a
collectivist or communistic organization. The means by which the party
proposes to bring about the transformation is the industrial and
political organization of the working classes. In respect to its aim,
its ideals, and its means, the French Socialist party, while ready to
support the immediate reforms demanded by laboring people, is to a
greater degree than the German Social Democracy a party of class
struggle and revolution. In 1885, when the French socialists waged
their first campaign in a parliamentary election, the aggregate number
of socialist votes was but 30,000. By 1889 the number had been
increased to 120,000; by 1898 to 700,000; and by 1906 to 1,000,000. At
the election of 1910 the popular vote was increased by 200,000, and
the number of socialist deputies was raised to a total of 105. Within
recent years socialism, formerly confined almost wholly to the towns
and cities, has begun to take hold among the wage-earners, and even
the small proprietors, in the rural portions of the country.[496]
[Footnote 496: The best accounts in English of the
French parties and party system are Lowell,
Governments and Parties, I., Chap. 2; Bodley,
France, Book IV., Chaps. 1-8; and C. Seignobos, The
Political Parties of France, in _International
Monthly_, Aug., 1901. The last-mentioned is brief,
but excellent. A valuable work is P. Laffitte, Le
suffrage universel et la régime parlementaire (2d
ed., Paris, 1889). Among useful articles may be
mentioned: J. Méline, Les partis dans la
république, in _Revue Politique et Parlementaire_,
Jan., 1900; M. H. Doniol, Les idées politiques et
les partis en France durant le XIXe siècle, in
_Revue du Droit Public_, May-June, 1902; and A.
Charpentier, Radicaux et socialistes de 1902 à
1912, in _La Nouvelle Revue_, May 1, 1912. On
socialism in France see J. Peixotto, The French
Revolution and Modern French Socialism (New York,
1901); R. T. Ely, French and German Socialism in
Modern Times (New York, 1883); P. Louis, Histoire
du socialisme français (Paris, 1901); E. Villey,
Les périls de la démocratie française (Paris,
1910); and A. Fouillee, La démocratie politique et
sociale en France (Paris, 1910).]
CHAPTER XVIII (p. 335)
JUSTICE AND LOCAL GOVERNMENT
I. FRENCH LAW
The law of France is of highly composite origin. Its sources lie far
back in the Roman law, the canon law, and the Germanic law of the
Middle Ages. As late as 1789 there had been no attempt at a complete
codification of it. Under the operation of a succession of royal
ordinances, criminal law, civil and criminal procedure, and commercial
law, it is true, had been reduced by the opening of the Revolution to
a reasonable measure of uniformity. The civil law existed still,
however, in the form of "customs" (_coutumiers_), which varied widely
from province to province. A code of civil law which should be
established uniformly throughout the realm was very generally demanded
in the cahiers of 1789, and such a code was specifically promised in
the constitution of 1791.
*364. The Code Napoléon.*--Toward the work of codification some
beginnings were made by the first two Revolutionary assemblies, but
the development of a coherent plan began only with the Convention.[497]
In the period of the Consulate the task was continued and progress was
rapid. The governmental mechanism under the constitution of 1799 was
cumbersome enough, but it was not ill adapted to the prosecution of a
project of this particular character. To a special commission, appointed
by the First Consul, was intrusted the drafting of the codes, and the
ultimate decision of difficult or controverted questions fell to the
Council of State, over whose deliberations Napoleon not infrequently
presided in person. March 31, 1804,--less than two months before the
proclamation of the Empire,--the new _Code civil des Français_ was
promulgated in its entirety. September 3, 1807, the instrument was given
officially the name of the _Code Napoléon_. By a measure of 1818 the
original designation was restored; but a decree of March 27, 1852,
revived the Napoleonic nomenclature. Since September 4, 1870, the
instrument has been cited officially simply as the _Code Civil_. In
arrangement the Code resembles the Institutes of Justinian. In (p. 336)
content it represents a very successful combination of the two great
elements with which the framers had to deal, i.e., the ancient
heterogeneous law of the French provinces and the law which was
originated, or which was given shape, during the course of the
Revolution.
[Footnote 497: H. Cauvière, L'idée de codification
en France avant la rédaction du Code Civil (Paris,
1911).]
With the progress of time certain defects have appeared in the Code,
and since 1871 more than a hundred modifications, some important and
some otherwise, have been introduced in it. Upon the occasion of the
celebration, in 1904, of the centenary of its promulgation there was
created an extra-parliamentary commission charged with the task of
preparing a revision of the instrument.[498] In the main, the faults
to be corrected are those which have arisen inevitably from the growth
of new interests and the development of new conditions since 1804, in
respect, for example, to insurance and to labor. In Belgium the Code
Napoléon survives to this day, and the codes of Italy, Spain,
Portugal, Holland, and many of the Latin American states are modelled
upon it.
[Footnote 498: The task of revision has not yet
been accomplished. See La Code Civil, livre du
centenaire (Paris, 1904)--a volume of valuable
essays by French and foreign lawyers.]
*365. Other Codes.*--Aside from the Civil Code of 1804, containing an
aggregate of 2,281 articles, the larger part of the law of France
to-day is comprised in four great codes, all drawn up and promulgated
during the era of the Consulate and the Empire. These are: (1) the
Code of Civil Procedure, of 1,042 articles, in 1806; (2) the Code of
Commerce, of 648 articles, in 1807; (3) the Code of Criminal
Instruction, of 648 articles, in 1808; and (4) the Penal Code, of 484
articles, in 1810.[499] The last two codes were submitted to a general
revision in 1832, and various supplementary codes,--e.g., the Forest
Code, of 226 articles, in 1827,--have been promulgated. But the
modifications introduced since Napoleon's day have involved
principally mere details or the addition of subjects originally
omitted. No one of the codes represented at the time of its
promulgation a new body of law. On the contrary, all of them, and
especially the fundamental Civil Code of 1804, merely reduced existing
law to systematic, written form, introducing order and uniformity
where previously there had been diversity and even chaos. By the
process the law of France was given a measure of unity and precision
which it had never before possessed, with the disadvantage, however,
that it lost the flexibility and dynamic character that once had
belonged to it. Throughout the past hundred years the whole of France
has been a country of one written law--a law so comprehensive in (p. 337)
both principles and details that, until comparatively recently, there
has seemed to be small room or reason for its modification. The
history of French parliamentary assemblies has been affected
perceptibly by the narrowing of the field of legislation arising from
this circumstance.[500]
[Footnote 499: M. Leroy, Le centenaire du code
pénal, in _Revue de Paris_, Feb. 1, 1911.]
[Footnote 500: J. Brissaud, History of French
Private Law, trans. by R. Howell (Boston, 1912).]
II. THE COURTS
*366. The Ordinary Courts: Justice of the Peace.*--In French practice
the distinction which is drawn between private law and public law is
so sharp that there have been built up two hierarchies of courts--the
ordinary and the administrative--each of which maintains practically
exclusive jurisdiction within an independent field. The ordinary
courts comprise civil and criminal tribunals, together with certain
special tribunals, such as the _tribunaux de commerce_. At the bottom
stands the court of the justice of the peace (_juge de paix_) of the
canton. This tribunal was created by the first of the Revolutionary
assemblies and it has existed continuously to the present day. The
justice of the peace takes cognizance of disputes where the amount
involved does not exceed 600 francs, and of contraventions of law
punishable by a fine not exceeding fifteen francs or imprisonment not
beyond five days. In civil cases involving more than 300 francs, and
in criminal cases involving imprisonment or a fine exceeding five
francs, appeal lies to a higher tribunal.
*367. The Courts of First Instance.*--Next above the court of the
justice of the peace stands the _tribunal de première instance_, or
_tribunal d'arrondissement_. Of such courts there is, with a few
exceptions, one in each arrondissement or district. Each consists of a
president, at least one vice-president, and a variable number of
judges, three of whom form a court with full powers. To each is
attached a _procureur_, or public prosecutor. This tribunal takes
cognizance of all kinds of civil cases. In appeals from the justices
of the peace, actions relating to personal property to the value of
1500 francs, actions relating to land to the value of sixty francs per
year, and all cases of registration, there lies no appeal from its
decisions. The jurisdiction of the court in penal cases extends to all
offenses of the class known as _délits_ (misdemeanors), i.e., offenses
involving penalities which are heavier than those attached to the
contraventions dealt with by the justices of the peace, yet less
serious than those prescribed for crimes. When sitting as a criminal
court, the court of first instance is known as a _tribunal (p. 338)
correctionnel_, or "correctional court." All of its judgments in
criminal cases are subject to appeal.
*368. The Courts of Appeal and of Assize.*--Above the courts of first
instance are twenty-six _cours d'appel_, or courts of appeal, each of
which exercises jurisdiction within a territory comprising from one to
five departments. At the head of each is a president, and each
maintains an elaborate _parquet_, or permanent staff of officials, in
which are included several _procureurs-généraux_ and _avocats-généraux_.
For the transaction of business the court of appeal is divided into
chambers, or sections, each consisting of a president and four
_conseillers_, or judges. The primary function of the court is the
hearing of appeals, in both civil and criminal causes, from the courts
of first instance. Original jurisdiction is limited and incidental.
Closely related to the courts of appeal are the _cours d'assises_, or
courts of assize. These are not separate or permanent tribunals. Every
three months there is constituted in each department, ordinarily in
the chief town thereof, a court of assize consisting of a specially
designated member of the court of appeals within whose jurisdiction
the department lies and two other magistrates, who may be chosen
either from the remaining _conseillers_ of the court of appeals or
from the justices of the local court of first instance. The courts of
assize are occupied exclusively with serious offenses, such as in the
Penal Code are classified as crimes. In them, and in them only among
French tribunals, is the device of the jury regularly employed. A jury
consists of twelve men, whose verdict is rendered by simple majority.
As in Great Britain and some of the American states, the jurors
determine the fact but do not apply the law.
*369. The Court of Cassation.*--At the apex of the hierarchy of ordinary
tribunals is the Court of Cassation. This court sits at Paris, and in
all matters of ordinary private law it is the supreme tribunal of the
state. It consists of a first president, three sectional presidents,
and forty-five judges. Attached to it are a procurator-general and six
advocates-general. For working purposes it is divided into three
sections: the _Chambre des Requêtes_, or Court of Petitions, which
gives civil cases a preliminary hearing; the Civil Court, which gives
them a final consideration; and the Criminal Court, which disposes of
criminal cases on appeal. It is within the competence of the Court of
Cassation to review the decisions of any tribunal in France, save
those of an administrative character. It passes, not upon fact, but
upon the principles of law involved and upon the competence of the
court rendering the original decision. A decision which is overruled
is said to be _cassé_, i.e., annulled. The purpose of the Court of (p. 339)
Cassation is not alone to further the interests of justice, but also
to preserve the unity of French jurisprudence.
*370. Appointment and Tenure of Judges.*--All judges attached to the
ordinary tribunals are appointed by the President of the Republic, on
the recommendation, and under the responsibility, of the Minister of
Justice. With the exception of justices of the peace in France, and of
judges of all grades in Algeria and the colonies, tenure of judicial
office continues during good behavior; and, outside of the classes
mentioned, no judicial officer may be dismissed without the consent of
the Court of Cassation. There is, however, an age limit, varying with
the official grade, at which retirement is expected and virtually
required. Justices of the peace and Algerian and colonial judges maybe
dismissed by the President. Salaries range from 1,600 francs per year
in the case of the justice of the peace to 30,000 in that of the
President of the Court of Cassation.[501]
[Footnote 501: The best treatise upon the French
judicial system and upon proposed reforms of it is
J. Coumoul, Traité du pouvoir judiciaire; de son
rôle constitutionnel et de sa réforme organique (2d
ed., Paris, 1911). See Vicomte d'Avenel, La réforme
administrative--la justice, in _Revue des Deux
Mondes_, June 1, 1889; L. Irwell, The Judicial
System of France, _Green Bag_, Nov., 1902.]
*371. Administrative Law and Administrative Tribunals.*--Actions at law
arising out of the conduct of administration are brought, not in the
regular courts connected with the Ministry of Justice, but in special
administrative tribunals connected with the Ministry of the Interior.
Administrative courts exist for the application of administrative law,
and administrative law may be defined in brief as that body of legal
principles by which are determined the status and liabilities of
public officials, the rights and liabilities of private individuals in
their dealings with the official representatives of the state, and the
procedure by which these rights and liabilities may be enforced. The
idea underlying it is that the government, and every agent of the
government, possesses a body of rights, privileges, and prerogatives
which are sharply marked off from those of the private citizen, and
that the nature and extent of these rights and privileges are to be
determined on principles essentially distinct from those which govern
in the fixing of the rights and privileges of citizens in relation one
to another. This conception is foreign to the English-speaking world,
and neither Great Britain nor any nation of English origin possesses
more than here and there an accidental trace of administrative law.
Among continental European states, however, the maintenance of a body
of administrative legal principles--uncodified and flexible, but (p. 340)
fundamental--is all but universal. In some states, as Belgium, the
rules of administrative law are interpreted and enforced by the
ordinary courts; but in others, as in France, they are dealt with by
an entirely separate hierarchy of tribunals, made up of officials in
the service of the government and dismissable at any time by the head
of the state. "In France," as one writer puts it, "there is one law
for the citizen and another for the public official, and thus the
executive is really independent of the judiciary, for the government
has always a free hand, and can violate the law if it wants to do so
without having anything to fear from the ordinary courts."[502]
Although not without precedent in the Old Régime, the distinction
between ordinary and administrative law in France was first clearly
established by Napoleon in the constitution of 1799, and the system of
administrative courts erected under that instrument has survived in
large part to the present day.[503]
[Footnote 502: Lowell, Governments and Parties, I.,
58.]
[Footnote 503: It need hardly be explained that the
First Consul's intention was that the ordinary
judges should not be allowed to obstruct by their
decisions the policies of the government.]
*372. The Council of State.*--The most important of the administrative
tribunals is the _Conseil d'État_, or Council of State, a body which
once possessed large functions of an executive and legislative
character, but whose influence to-day arises almost exclusively from
its supreme administrative jurisdiction. The Council of State is
composed of 32 councillors _en service ordinaire_, 19 councillors _en
service extraordinaire_ (Government officials deputed to guard the
interests of the various executive departments), 32 _maîtres des
requêtes_, and 40 auditors. All members are appointed by, and
dismissable by, the President. For purposes of business the body is
divided into four sections, each corresponding to a group of two or
three ministerial departments, and a fifth section which deals more
directly with questions of administrative law. It is the function of
the Council to consider and make reply to all questions relating to
administrative affairs which the Government may lay before it; and in
all administrative cases at law it is the court of last resort. Below
it stands, in each department, a _conseil de préfecture_, or
prefectural council, which is the court of first instance in all
litigation arising out of the application of administrative law. A
specialized function of the prefectural council is the determining of
the validity of arrondissement and municipal elections.[504]
[Footnote 504: For an account of the administrative
law of France see A. V. Dicey, The Law of the
Constitution (7th ed., London, 1908), Chap. 12.
Important French works on the subject include H.
Barthélemy, Traité élémentaire de droit
administratif (5th ed., Paris, 1908); H. Chardon,
L'administration de la France, les fonctionnaires
(Paris, 1908); G. Jèze, Les principes généraux du
droit administratif (Paris, 1904); and J. L. Aucoc,
Conférences sur l'administration et le droit
administratif (3d ed., Paris, 1885). Mention may be
made also of E. J. Laferrière, Traité de la
jurisdiction administrative et des recours
contentieux (Paris, 1887-1888), and Varagnac, Le
Conseil d'État et les projets de réforme, in _Revue
des Deux Mondes_, Aug. 15, and Sept. 15, 1892.]
*373. Other Courts.*--Between the hierarchy of ordinary courts (p. 341)
and that of administrative tribunals stand a variety of courts of
special character--courts of commerce, courts of accounts, courts of
public instruction. There is a _Tribunal des Conflits_, or Court of
Conflicts, composed of the Minister of Justice, three members of the
Court of Cassation, three of the Council of State, and two elected by
these seven. Under the presidency of the Minister of Justice, it
determines, in the event of doubt or dispute, the competent
jurisdiction, ordinary or administrative, to be extended to a
particular case. Finally the fact may be recalled that to take
cognizance of attacks upon the safety of the state, as well as for the
trial of an impeachment proceeding, the Senate may be constituted a
high court of justice.
III. LOCAL GOVERNMENT: DEVELOPMENT SINCE 1789
*374. Stability of Local Institutions.*--Students of political science
are familiar with the fact that governmental systems are, as a rule,
less stable at the top than at the bottom. Local institutions,
embedded in the interests of the community and supported by the native
conservatism of the ordinary man, strike root deeply; the central,
national agencies of law-making and of administration are played upon
by larger, more unsettling forces, with the consequence of greatly
increased likelihood of change. Of this principle the history of
modern France affords notable illustration. Throughout a century of
the most remarkable instability in the organization of the central
government of the nation the scheme of local government which operates
at the present day has been preserved almost intact. The origins of
it, it is true, are to be traced to revolution. In most of its
essentials it was created by the National Assembly of 1789 and by
Napoleon, and it rose upon the wreckage of a system whose operation
had been extended through many centuries of Capetian and Bourbon rule.
Once established, however, it proved sufficiently workable to be
perpetuated under every one of the governmental régimes which, between
1800 and the present day, have filled their successive places in the
history of the nation.
*375. Local Government Under the Old Régime.*--Prior to the Revolution
the French administrative system was centralized and bureaucratic, but
heterogeneous and notoriously ineffective. The provinces had ceased
almost completely to be political units. In but few of them did (p. 342)
the ancient assembly of the estates survive, and nowhere did it
possess more than merely formal administrative powers. The "governments"
of later times, corresponding roughly to the provinces, had fallen
likewise into desuetude and the governors had become inactive
pensioners. Of political units possessing some vitality there were but
two--the _généralité_ and the commune. The _généralité_ was the
jurisdiction of a royal officer known as an _intendant_, to whom was
assigned the conduct of every kind of administrative business. The
number of _généralités_ in the kingdom varied from thirty to forty.
The commune was an irreducible local unit whose history was unbroken
from the era of Roman dominion in Gaul. Its constitution in the
eighteenth century was in appearance democratic. To the communal
assembly belonged all persons who were liable to the _taille_, and
this body elected communal officers, cared for communal property, and
regulated local affairs. In point of fact, however, the measure of
real independence which the assembly enjoyed was meager. The
_intendant_ dictated or controlled virtually its every act. Of true
local government it may be said that in pre-revolutionary France there
was little or none.[505]
[Footnote 505: A. Babeau, La ville sous l'ancien
régime (Paris, 1880); A. Luchaire, Les communes
françaises (Paris, 1890); H. Barthélemy, Traité de
droit administratif (5th ed., Paris, 1908); A.
Esmein, Histoire du droit français (8th ed., Paris,
1908).]
*376. The Reconstitution of 1789-1791.*--One of the earlier performances
of the National Assembly of 1789 was to sweep away relentlessly the
administrative system of the Old Régime and to substitute therefor an
order which was all but entirely new. The communes, to the number of
upwards of forty-four thousand, were retained. But the provinces and
the _généralités_ were abolished and in their places was erected a
system of departments, districts, and cantons. For historic boundary
lines, physical demarcations, and social cleavages only incidental
allowance was made. Eighty-three departments in all were created. In
each there were, on an average, six or seven districts, and in each of
these an average of eight or nine cantons. The cantons, in turn, were
made up of widely varying numbers of communes. The most striking
aspects of the system were its symmetry and its detachment from
history and tradition. Departments, districts, and cantons presented,
and were intended to present, a _tabula rasa_ upon which the
law-makers of France might impress any pattern whatsoever.
For the time being the ideal of democracy was predominant, and by the
measures of 1789, re-enforced by the constitution of 1791, the entire
administration of local affairs was transferred at a stroke from the
agents of the crown to the elected representatives of the new
governmental units. In the department was established an (p. 343)
administrative group consisting of thirty-six persons, elected for a
term of two years, and divided into an executive directory of nine and
a deliberative council of twenty-seven. In the district was
established a similar, but smaller, elective directory and council,
and in the commune provision was made for the election, under a
broadly democratic franchise, of a mayor and a council. The canton was
not employed for administrative purposes.[506]
[Footnote 506: For the text of the Décret sur les
Municipalités of December 14, 1789, see Hélie;
Constitutions, 59-72. An English version is in
Anderson, Constitutions, 24-33.]
*377. The Revival of Centralization, 1795-1800.*--Experience proved,
that in the direction both of democracy and of decentralization the
reformers had gone too far. With the re-establishment of order
following the close of the Revolution proper, in 1795, there was
revived the rule of official experts, together with the maintenance
over the local administrative organs of a highly centralized
supervision. The Constitution of the Year III. (1795), while
perpetuating the elective principle in respect to local officers,
replaced the commune by the canton as the basal administrative unit
and made provision in a variety of ways for the effective control of
local affairs by the national Directory.[507] Under the Napoleonic
régime, established in 1799-1800, the centralizing process was carried
yet further. The canton was reduced to the status of a judicial
district and the commune was restored as the basal administrative
unit;[508] but it was stipulated that the mayor, the _adjoints_, or
deputies, and the council of the commune should be no longer elective,
but should be appointed by the central government, directly or by its
departmental agents. By law of February 17, 1800, there was
established in each department a prefect, appointed by the First
Consul, responsible only to him, and endowed with functions scarcely
less comprehensive than, in the days of the Old Régime, had been those
exercised by the _intendant_. The general council of the department
was perpetuated, but its sixteen to twenty-four members were
henceforth to be named for a term of three years by the First Consul.
Each department, furthermore, was divided for administrative purposes
into _arrondissements_, within each, of which were established a
sub-prefect and a council of eleven members, likewise appointive. The
arrondissement represented substantially a revival of the district,
established by law of December 22, 1789, and extinguished by the
constitution of 1795. The sub-prefect served as a local deputy of the
prefect, and one of his principal duties was to assist in the (p. 344)
continuous and close supervision of the affairs of the communes within
his jurisdiction.[509]
[Footnote 507: Anderson, Constitutions, 233-236.
The canton, suppressed by law of June 26, 1793, was
now revived.]
[Footnote 508: The number of communes was reduced
at this time from 44,000 to 36,000.]
[Footnote 509: Anderson, Constitutions, 283-288. G.
Alix, Les origines du système administratif
français, in _Annales des Sciences Politiques_,
July-Nov., 1899.]
*378. From Napoleon to the Third Republic.*--The Napoleonic
administrative system--simple, symmetrical, bureaucratic, and
absolutely centralized--has persisted in France, in a large measure,
to the present day.[510] The most important modifications that have
been introduced in it are those which have arisen from a cautious
revival of the elective principle in the constitution of the various
local governmental bodies. The fall of Napoleon brought no change of
consequence, and none ensued until after the revolution of 1830. In
the days of the Orleanist monarchy, however, the rigor of the
Napoleonic system was in some measure relaxed. A law of 1831 made the
municipal council elective, one of 1833 did the same thing for the
councils of the department and the arrondissement, and both measures
established a fairly liberal arrangement in respect to the local
franchise. In 1838 the powers of the two councils were materially
increased.[511]
[Footnote 510: Its influence upon the
administrative systems of other countries--Belgium,
Italy, Spain, and even Greece, Japan, and various
Latin American states--has been profound. "Judged
by its qualities of permanence and by its influence
abroad, the law of 1800 is one of the best examples
of Bonaparte's creative statesmanship, taking rank
with the Code and with the Concordat among his
enduring non-military achievements. If, in the
nineteenth century, England has been the mother of
parliaments and has exercised a dominant influence
upon the evolution of national governments, France
has had an equally important rôle in moulding
systems of local administration among the nations."
Munro, Government of European Cities, 7.]
[Footnote 511: The texts of these acts are in
Hélie, Constitutions, 1019-1050.]
At the establishment, in 1848, of the Second Republic, the essentials
of the administrative system then prevailing were retained. It was
enacted merely that the various councils should be elected on a basis
of manhood suffrage, and that in communes of fewer than six thousand
inhabitants the council should be permitted to elect the mayor and the
deputies, while in the larger ones appointment should be made as
heretofore by the central authorities. With the conversion, in
1851-52, of the Second Republic into the Second Empire, this
decentralizing tendency suffered a distinct check. Throughout the
reign of Napoleon III. the communal council continued to be elected,
at least nominally, upon the principle of manhood suffrage; but so
thoroughgoing was the prefectorial supervision that there remained to
the councils very little of initiative or independence of action. Even
the privilege which the smaller communes possessed of choosing their
own mayors was speedily lost, while by a decree of March 25, 1852, the
powers of the prefect in communal affairs were substantially (p. 345)
extended. Many matters pertaining to departmental and communal
interests which this official had been accustomed to refer to the
authorities at Paris he was now authorized to dispose of at his own
discretion. Throughout the Second Empire the prefect, more truly than
ever before, was the pivot of the administrative system. Despite the
survival of elective councils in the departments, the arrondissements,
and the communes, local autonomy all but disappeared.
*379. Changes Under the Third Republic.*--Upon the establishment of the
Third Republic the Napoleonic system was discontinued in only some of
its more arbitrary aspects. The National Assembly of 1871 revived
tentatively the scheme laid down in the constitution of 1848, save
that once again the councils of smaller communes were authorized to
elect the mayors and deputies. Even at such a time of unsettlement,
when the liberal elements were insistent upon changes that were
fundamental, there was slender indication of any real desire on the
part of the French people for an essentially decentralized
administrative régime. At the most, the demand was but for the
autonomy of the commune, while the canton, arrondissement, and
department should continue to be administered by, and largely in the
interest of, the national government. By law of March 28, 1882, the
demand in behalf of the communes was met. Upon every commune, large
and small (except Paris), was conferred the privilege of choosing
freely its entire quota of administrative officials; and in the great
municipal code of April 5, 1884, drafted by a commission of nine
constituted in the previous year, this privilege, with others, was
specifically guaranteed.[512] Departments and arrondissements,
however, continued to be primarily spheres within which the general
government, acting through its own agents, brought home immediately to
the people the reality and comprehensiveness of its authority. And to
this day France presents the curious spectacle of a nation broadly
democratic in respect to its constitution and central government, yet
more closely bound by a hard and fast administrative régime than any
other principal state of western Europe.[513]
[Footnote 512: Text in J. Duvergier, Collection
complète des lois, décrets, ordonnances,
réglements, avis du conseil d'état (Paris,
1834-1907), LXXXIV., 99-148.]
[Footnote 513: On the French administrative system
two admirable general works are H. Barthélemy,
Traité de droit administratif (5th ed., Paris,
1908), and A. Esmein, Histoire du droit français
(8th ed., Paris, 1908). An older treatise of value
is E. Monnet, Histoire de l'administration
provinciale, départementale et communale en France
(Paris, 1885). Three works in which the subject is
dealt with in a comparative fashion are P. P.
Leroy-Beaulieu, Administration locale en France et
en Angleterre (Paris, 1872); P. W. L. Ashley, Local
and Central Government (London, 1906); and F. J.
Goodnow, Comparative Administrative Law (2d ed.,
New York, 1903). A study of some value is J. T.
Young, Administrative Centralization and
Decentralization in France, in _Annals of Amer.
Acad. of Political and Social Science_, Jan.,
1898.]
IV. LOCAL GOVERNMENT TO-DAY (p. 346)
*380. The Department: the Prefect.*--For administrative purposes, the
Republic is divided, first of all, into 86 departments, besides which
there is the "territory" of Belfort, a remnant of the department of
the Upper Rhine, most of which was acquired by Germany in 1871. Since
1881 the three departments of Algeria have been dealt with
substantially as if included within continental France.
At the head of each of the departments is a prefect, appointed and
removed nominally by the President of the Republic, but in reality by
the Minister of the Interior. The prefect, who is much the most
important of all local officials, is at the same time an agent of the
general government and the executive head of the department in the
administration of local affairs. As agent of the general government he
acts, in some instances, upon detailed instructions; in others, he
enjoys a wide range of discretion. His powers extend to virtually all
public matters affecting the department. He supervises the execution
of the laws; maintains a vigorous control over all administrative
officials of the department, upon occasion annulling their acts; gives
the authorities at Paris information and advice respecting the affairs
of the department; nominates to a variety of subordinate offices;
exercises an oversight of the communes, some of whose measures become
effective only after receiving his assent; and, in certain instances
indicated by law, acts as a judge. He is assisted by a secretary and a
_conseil de préfecture_, appointed by the President. This prefectorial
council, consisting of from three to nine members, advises the prefect
and, in certain cases, exercises jurisdiction as an administrative
tribunal. The prefect is essentially a political official. He owes his
appointment not infrequently to political considerations, and with the
fall of the ministry his tenure is apt to be terminated.
*381. The Department: the General Council.*--As executive head of the
department the prefect is required to work with a _conseil général_,
or representative assembly, elected by the inhabitants of the
department on a basis of manhood suffrage. This council comprises one
member chosen in each canton for a period of six years, half of the
number retiring every three years. The actual powers of the body are
not large. Aside from the apportioning of the direct taxes among the
arrondissements, they are restricted pretty generally to the
administration of highways, canals, schools, asylums, and similar
interests. Questions of a political nature or of a national (p. 347)
bearing are rigorously excluded from consideration. The council has
but two ordinary sessions a year--one extending through not more than
fifteen days, the other not more than a month. The longer begins
regularly in August and is devoted to the consideration of the budget.
During the intervals between sessions the council is represented by a
_commission départementale_, or permanent delegation, of from four to
seven members. Neither the council nor the delegation possesses any
considerable measure of control over the prefect. The council's acts
may be vetoed by the President of the Republic, and, except when the
national parliament is in session, the body may be dissolved by the
same power. The department is an essentially artificial political
unit. During the century and a quarter of its existence it has not
become--indeed has been prevented deliberately from becoming--a sphere
of forceful, independent governmental activity.[514]
[Footnote 514: An administrative reform which
appears not infrequently in current political
discussion in France is the grouping of the
departments into "regions" possessing a certain
community of character and interest. Each of a
score or more of regions might conceivably be made
to have an assembly of its own, and within each of
them one of the departmental prefects might be
given a certain superiority over his colleagues.
The principal purpose would be to offset somewhat
the nation's present excess of administrative
centralization. On this proposal see C. Beauquier,
Un projet de réforme administrative; l'organisation
régionale en France, in _Revue Politique et
Parlementaire_, Nov. 10, 1909. Cf. A. Brette, La
réforme des départements à propos d'une proposition
de loi, ibid. On the department as at present
constituted the monumental treatise is G. Bouffet
et L. Périer, Traité du départements 2 vols.
(Paris, 1894-1895). In M. Laferrière, Loi organique
départementale du 10 Août 1871 (Paris, 1871) is an
annotated copy of the organic statute of 1871. See
also G. Dethan, De l'organisation des conseils
généraux (Paris, 1889); A. Nectoux, Des
attributions des conseillers généraux (Paris,
1895); and P. Chardenet, Les élections
départementales (Paris, 1895). An excellent brief
statement will be found in M. Block, Dictionnaire
de l'administration française (5th ed., Paris and
Nancy, 1905), I., 933-948, 1101-1116.]
*382. The Arrondissement and the Canton.*--Next to the department stands
the arrondissement, or district, created originally in 1799. Within
the bounds of France there are to-day 362 of these districts. Except
those in the department of the Seine, and three containing the
capitals of departments elsewhere, each has in its chief town a
sub-prefect, who serves as a district representative of the prefect.
Every one has a _conseil d'arrondissement_, or arrondissement council,
consisting of at least nine members, elected by manhood suffrage for a
term of six years. But since the arrondissement has no corporate
personality, no property, and no budget, the council possesses but a
single function of importance, that, namely, of allotting among the
communes their quotas of the taxes assigned to the arrondissement by
the general council of the department. The arrondissement is, (p. 348)
however, the electoral district for the Chamber of Deputies, and also
normally the seat of a court of first instance.[515]
[Footnote 515: Block, Dictionnaire de
l'administration française, I., 256-260.]
The canton is an electoral and a judicial, but not strictly an
administrative, unit. It is the area from which are chosen the members
of both the departmental general council and the council of the
arrondissement, and it constitutes the jurisdiction of the justice of
the peace. The total number of cantons is 2,911. As a rule each
contains about a dozen communes, though a few of the larger communes
are so populous as to be divided into a number of cantons.
*383. The Commune.*--The most fundamental of the administrative
divisions of France, and the only one whose origins antedate the
Revolution, is the commune. The commune is at the same time a
territorial division and a corporate personality. "On the one hand,"
to employ the language of a recent writer, "it is a tract of territory
the precise limits of which were defined by the law of December 22,
1789, or by some subsequent law or decree; for by the law of 1789 all
local units which had a separate identity during the old régime were
authoritatively recognized as communes, and since that enactment there
have been a number of suppressions, divisions, consolidations, and
creations of communal units. On the other hand, the commune is an
agglomeration of citizens united by life in a common locality and
having a common interest in the communal property. A commune ranks as
a legal person: it may sue and be sued, may contract, acquire, or
convey property,--it may, in general, exercise all of the ordinary
rights of a corporation."[516]
[Footnote 516: Munro, Government of European
Cities, 15.]
Of communes there are, in all, under the territorial land survey of
1909, 36,229. In both size and population they vary enormously. Some
comprise but diminutive hamlets of two or three score people; others
comprise cities like Bordeaux, Lyons, and Marseilles, each with a
population in excess of a quarter of a million. At the last census
27,000 communes had a population of less than one thousand; 17,000, of
less than five hundred; 9,000, of less than three hundred; 137, of
less than fifty. On the other hand, 250 contained each a population of
more than ten thousand, and fourteen of more than one hundred
thousand. In area they vary all the way from a few acres to the
254,540 acres of the commune of Arles.[517]
[Footnote 517: A. Porche, La question des grandes
et des petits communes (Paris, 1900).]
*384. The Communal Council.*--Except Paris and Lyons, all communes are
organized and governed in the same manner. In each is a council, (p. 349)
whose members are elected by manhood suffrage and, normally, on the
principle of the _scrutin de liste_, for a term of four years. The
body is renewed integrally, on the first Sunday in May in every fourth
year. In communes whose population is under five hundred the number of
councillors is ten; in those whose population exceeds five hundred the
number is graduated on a basis such that a commune of sixty thousand
people has a council of thirty-six, which is the maximum. The council
holds annually four ordinary sessions--in February, May, August, and
November--besides which special meetings may be convoked at any time
by the prefect, the sub-prefect, or the mayor. Sessions are held in
the _mairie_, or municipal building, and are regularly open to the
public. Except the May session, during which the budget is considered,
a meeting may not be prolonged beyond fifteen days, save with the
consent of the sub-prefect. The normal maximum of the May sitting is
six weeks.
Speaking broadly, the functions of the council may be said to comprise
the administration of the purely local affairs of the commune and the
formulation and expression of local needs and demands. In the code of
1884 the powers of the body are defined with exceeding minuteness.
Some are purely advisory, to be exercised when the council is called
upon by the higher administrative authorities for an expression of
local interest or desire in respect to a particular question. Advice
thus tendered may or may not be heeded. Other powers involve the
initiation by the council of certain kinds of measures, which,
however, may be carried into effect only with the assent of the higher
authorities. Among the thirteen such measures which are enumerated in
the code the most important are those pertaining to the purchase,
sale, or other legal disposition of property belonging to the commune.
Finally, there is a group of powers--relating principally to the
various communal services, e.g., parks, fire-protection, etc.--which
are vested in the communal authorities (council and mayor)
independently. But the predominating fact is that even to-day the
autonomy of the commune is subject to numerous and important
limitations. Many communal measures become valid only upon receiving
the approval of the prefect, and virtually any one of them may be
suspended or annulled by that official. Some require the consent of
the departmental council, or even of the President of the Republic;
and by decree of the President the council itself may be dissolved at
any time.
*385. The Mayor and his Assistants.*--The executive head of the commune
is the _maire_, or mayor, who is elected by the municipal council, by
secret ballot, from its own membership, for a term of four years.
Associated with the mayor is, in communes of 2,500 inhabitants or
fewer, an _adjoint_, or assistant, similarly chosen. In communes (p. 350)
of 2,500 to 10,000 inhabitants there are two assistants, and in those
of over 10,000 there is an additional one for every 25,000 people in
excess of the figure named. Except in Lyons, however, where there are
seventeen, the number may not exceed twelve. The mayor plays the dual
rôle of executive head of the commune and representative (though not
the appointee) of the central government. The powers which he
exercises vary widely according to the size and importance of the
commune. But in general it may be said that he appoints to the
majority of municipal offices, publishes laws and decrees and issues
_arrêtés_, or ordinances, supervises finance, organizes and controls
the local police, executes measures for public health and safety,
safeguards the property interests of the commune, and represents the
commune in cases at law and on ceremonial occasions.
The functions of the mayoral office are in practice distributed by the
mayor among the assistants, to each of whom is assigned a specific
department, such as that of streets, of sanitation, or of
fire-protection. As a rule, the mayor reserves to himself the control
of police. For the acts of the assistants, however, the mayor is
directly responsible, and all acts, whether of the mayor or of the
assistants, which relate to the interests of the general government
are performed under the strictest surveillance of the prefectorial
authorities. The mayor may be suspended from office for a month by the
prefect, or for three months by the Minister of the Interior; and he
may be removed from office altogether by order of the President.
Despite the restrictions which are placed upon it, the commune remains
the true focus of local life in France.[518] Its activities, on a
sufficiently petty scale though they not infrequently are, run the (p. 351)
gamut of finance, commerce, industry, education, religion, and
politics. So strong is the communal spirit that public sentiment will
acquiesce but rarely in the suppression of a commune, or even in the
union of two or more diminutive ones; and, in truth, the code of 1884
recognized the fixity of communal identity by permitting changes of
communal boundaries to be undertaken by the departmental authorities
only after there shall have been held an _enquête_ and local
susceptibilities shall have been duly consulted. Save by special
decree of the President of the Republic, not even the name of a
commune may be altered.
[Footnote 518: Among general treatises on the
French commune may be mentioned M. Block,
Entretiens sur l'administration; la commune (Paris,
1884); L. Bequet, Traité de la commune (Paris,
1888); P. Andre and F. Marin, La loi sur
l'organisation municipale du 5 avril 1884 (Paris,
1884); and F. Grelot, Loi du 5 avril 1884 (Paris,
1889). The best and most recent extensive work is
L. Morgand, La loi municipale, 2 vols. (7th ed.,
Paris, 1907). The most convenient brief discussion
in French is in Block, Dictionnaire de
l'administration française, I., 738-852. In English
a good description is in A. Shaw, Municipal
Government in Continental Europe (New York, 1897),
and a fuller and more recent one in W. B. Munro,
The Government of European Cities, 1-108. On
municipal elections the best work is M. J.
Saint-Lager, Élections municipales (6th ed., Paris,
1904). Worthy of mention are Chardenet, Panhard,
and Gérard, Les élections municipales (Paris,
1896), and J. Dorlhac, De l'électorat politique:
étude sur la capacité électorale et les conditions
d'exercise du droit de vote (Paris, 1890). An
excellent study is P. Lavergne, Du pouvoir central
et des conseils municipaux, in _Revue Générale
d'Administration_, 1900. See also A. G. Desbats, Le
budget municipal (Paris, 1895); M. Peletant, De
l'organisation de la police (Dijon, 1899); and R.
Griffin, Les biens communaux en France (Paris,
1899). On the government of Paris the reader may be
referred to G. Artigues, Le régime municipal de la
ville de Paris (Paris, 1898), and M. Block,
L'Administration de la ville de Paris et du
département de la Seine (Paris, 1898). Excellent
bibliographies are printed in Munro, _op. cit._,
380-389, and in Block, Dictionnaire, I., 850-852.]
PART IV. ITALY (p. 353)
CHAPTER XIX
CONSTITUTIONAL DEVELOPMENT IN THE NINETEENTH CENTURY
I. THE ERA OF NAPOLEON
*386. Italy in the Later Eighteenth Century.*--The dominant forces in
the politics of Europe since the French Revolution have been the twin
principles of nationality and democracy; and nowhere have the fruits
of these principles been more strikingly in evidence than in the long
disrupted and misgoverned peninsula of Italy. The awakening of the
Italian people to a new consciousness of unity, strength, and
aspiration may be said to date from the Napoleonic invasion of 1796,
and the first phase of the _Risorgimento_, or "resurrection," may,
therefore, be regarded as coincident with the era of French
domination, i.e., 1796-1814. At the opening of this period two
non-Italian dynasties shared the dominion of much the larger portion
of Italy. To the Austrian Hapsburgs belonged the rich duchies of Milan
(including Mantua) and Tuscany, together with a preponderating
influence in Modena. To the Spanish Bourbons belonged the duchy of
Parma and the important kingdom of Naples, including Sicily. Of
independent states there were six--the kingdom of Sardinia (comprising
Piedmont, the island of Sardinia, and, nominally, Savoy and Nice),
where alone in all Italy there lingered some measure of native
political vitality; the Papal States; the petty monarchies of Lucca
and San Marino; and the two ancient republics of Venice and Genoa,
long since shorn of their empires, their maritime power, and their
economic and political importance. All but universally absolutism held
sway, and in most of the states, especially those of the south,
absolutism was synonymous with corruption and oppression.
*387. The Cisalpine Republic, 1797.*--During the two decades which
comprehended the public career of Napoleon it was the part of the
French to overturn completely the long existing political arrangement
of Italy, to abolish altogether the dominion of Austria and to
substitute therefor that of France, to plant in Italy a wholly new and
revolutionizing set of political and legal institutions, and, quite
unintentionally, to fan to a blaze a patriotic zeal which through (p. 354)
generations had smouldered almost unobserved. The beginning of these
transformations came directly in consequence of the brilliant
Napoleonic incursion of 1796. One by one, upon the advance of the
victorious French, were detached the princes who, under English and
Austrian tutelage, had been allied hitherto against France. The king
of Naples sought an armistice; the Pope made peace; at Arcole and
Rivoli the Austrian power was shattered. October 16, 1796, there was
proclaimed, with the approval of the conqueror, a Cispadane Republic,
including Modena, Reggio, Ferrara, and Bologna; and March 27, 1797,
there was promulgated for the new state a constitution which, after
having been adopted by representatives of the four districts, had been
ratified by a vote of the people. This constitution--the first in the
history of modern Italy--was modelled immediately upon the French
instrument of 1795. It provided for a legislative council of sixty
members, with exclusive power to propose measures, another of thirty
members, with power to approve or reject measures, and an executive
directory of three, elected by the legislative bodies.
In Lombardy a similar movement produced similar results. Through the
spring and early summer of 1797 four commissions, constituted by
Napoleon, worked out a constitution which likewise reproduced all of
the essential features of the French model, and, July 9, the
Transpadane Republic was inaugurated, with brilliant ceremony, at
Milan. Provision was made for a directory and for two legislative
councils consisting of one hundred sixty and eighty members
respectively; and the first directors, representatives, and other
officials were named by Napoleon. At the urgent solicitation of the
Cispadanes the two republics were united, July 15, and upon the
combined commonwealth was bestowed the name of the Cisalpine
Republic.[519] During the preceding May the venerable but helpless
Venetian republic had been crushed, and when, in the treaty of Campo
Formio, October 17, 1797, Austria was brought to the point of
recognizing the new Cisalpine state, she was compensated in some
degree by being awarded the larger part of the Venetian territories,
including the city of Venice.[520]
[Footnote 519: The Cisalpine constitution was
amended September 1, 1798, when there was
introduced in the republic the French system of
administrative divisions.]
[Footnote 520: E. Bonnal de Ganges, La chute d'une
république (Paris, 1885).]
*388. The Ligurian, Roman, and Parthenopæan Republics, 1797-1799.*--In
the meantime, in June, 1797, the ancient republic of Genoa had
undergone a remodelling. The ruling oligarchy, driven from power by
Napoleon, gave place to a democracy of a moderate type, the (p. 355)
legislative functions being intrusted to two popularly elected
chambers, while the executive power was vested in a doge and twelve
senators; and to the new commonwealth, French in all but name, was
given the designation of the Ligurian Republic. The Ligurian
constitution was accepted by the people December 2, 1797. During the
winter of 1797-1798 the French Directory, openly hostile to the
papacy, persistently encouraged the democratic party at Rome to
overthrow the temporal power and to set up an independent republic.
February 15, 1798, with the aid of French arms, the democrats secured
the upper hand, assembled in the Forum, declared for the restoration
of the Roman Republic, and elected as head of the state a body of
seven consuls. The aged pontiff, Pius VI., was maltreated and
eventually transported to France. For the new Tiberine, or Roman,
Republic was promulgated, March 20, 1798, a constitution providing for
the customary two councils--a Senate of thirty members and a Tribunate
of sixty--and a directory, christened a consulate, consisting of five
consuls elected by the councils. Within a twelvemonth thereafter
(January 23, 1799), following a clash of arms between the French and
the Neapolitan sovereign, Ferdinand IV., Naples was taken and the
southern kingdom was converted into the Parthenopæan Republic. A
constitution was there promulgated providing for a directory of five
members, a Senate of fifty, possessing exclusive right of legislative
initiative, and a Tribunate of one hundred twenty.[521]
[Footnote 521: For an interesting portrayal of the
workings of republican idealism in the Neapolitan
republic see Fisher, Republican Tradition in
Europe, 150-157.]
*389. Constitutional Revisions.*--During the absence of Napoleon on the
Egyptian expedition the armies of France suffered repeated reverses in
Italy, and by the end of 1799 all that had been gained for France
seemed to be, or about to be, lost. By the campaign which culminated
at Marengo (June 14, 1800), however, Napoleon not only clinched his
newly won position in France but brought Italy once more to his feet.
Under the terms of the treaty of Lunéville (February 9, 1801) Austria
recognized the reconstituted Cisalpine and Ligurian republics, while
Modena and Tuscany reverted to French control, and French ascendancy
elsewhere was securely established. September 21, 1802, Piedmont was
organized in six departments and incorporated in the French Republic.
During the winter of 1802-1803 the constitutions of the Cisalpine and
Ligurian republics were remodelled in the interest of that same
autocratic domination which already was fast ripening in France. In
each republic were established at first three bodies--an executive
_consulta_,[522] a legislature of 150 members, and a court--which
were chosen by three electoral colleges comprising (1) the (p. 356)
_possidenti_, or landed proprietors, (2) the _dotti_, or scholars and
ecclesiastics, and (3) the _commercianti_, or merchants and traders;
but the legislature could be overridden completely by the _consulta_,
and the _consulta_ was little more than the organ of Napoleon.
Incidentally, the Cisalpine Republic at this point was renamed the
Italian Republic. Within a twelvemonth the new constitutions, proving
too democratic, were revised in such a manner that for the legislative
body was substituted a senate of thirty members presided over by a
doge, in which were concentrated all political and administrative
powers.
[Footnote 522: An advisory council of state,
consisting of eight members.]
*390. The Kingdom of Italy (1805) and the Napoleonic Kingdom of Naples,
1807.*--The stipulation of the treaty of Lunéville to the effect that
the Italian republics should remain entirely independent of France was
all the while disregarded. Politically and commercially they were but
dependencies, and, following the proclamation of the French empire
(May 18, 1804), the fact was admitted openly. To Napoleon it seemed
incongruous that an emperor of the French should be a patron of
republics. How meager was the conqueror's concern for the political
liberty of the Italians had been demonstrated many times, never more
forcefully than in the cynical treatment which he accorded Venice. No
one knew better, furthermore, how ill-equipped were the Italians for
self-government. Gradually, therefore, there was framed a project for
the conversion of the Italian Republic into a kingdom which should be
tributary to France. Napoleon's desire was that his eldest brother,
Joseph, should occupy the throne of this kingdom. But Joseph, not
caring to jeopardize his chances of succession in France, demurred, as
did also the younger brother, Louis. The upshot was that by a
constitutional statute of March 17, 1805, the Emperor caused himself
to be called to the throne of Italy, and May 26 following, in the
cathedral at Milan, he placed upon his own head the iron crown of the
old Lombard kings. The sovereign's step-son, Eugène Beauharnais, was
designated regent. In June of the same year, in response to a petition
which Napoleon himself had instigated, the Ligurian Republic was
proclaimed an integral part of the French empire. The annexation of
Parma and Piacenza promptly followed.
Against the coalition of Great Britain, Russia, Austria, and Naples,
which was prompted immediately by the Ligurian annexation, Napoleon
was completely successful. By the treaty of Pressburg (December 26,
1806) Austria ceded to the Italian kingdom her portion of Venetia,
together with the provinces of Istria and Dalmatia.[523] Following a
vigorous campaign conducted by Joseph Bonaparte, the restored Bourbon
family was driven again from Naples, whereupon Joseph allowed (p. 357)
himself to be established there as king. In 1808 he was succeeded by
Napoleon's ambitious marshal and brother-in-law Murat. From Bayonne,
Joseph issued a constitution for his former subjects, providing for a
council of state of from twenty-six to thirty-six members and a single
legislative chamber of one hundred members, of whom eighty were to be
named by the king and twenty were to be chosen by electoral colleges.
Not until 1815, however, and then but during the space of a few weeks,
was this instrument actually in operation.
[Footnote 523: The incorporation of Dalmatia with
the kingdom of Italy was but temporary.]
*391. The End of French Dominance.*--Finally, there were brought under
complete control the papal territories. Following prolonged friction
with the Pope, Napoleon first of all (April 2, 1808) annexed to the
kingdom of Italy the papal march of Ancona and the duchies of Urbino,
Macerata, and Camerina, and then (by decrees of May 17, 1809, and
February 17, 1810) added to the French empire Rome itself and the
_Patrimonium Petri_. The Roman territory was divided into two
departments, and in them, as in all of the Italian provinces which
fell under Napoleon's rule, a thoroughgoing French system of law and
administration was established. To all of the tributary districts
alike were extended the Code Napoléon, and in them were organized
councils, courts, and agencies of control essentially analogous to
those which comprised the Napoleonic governmental régime in France. In
them, likewise, were undertaken public works, measures for public
education, and social reforms similar to those which in France
constituted the most permanent and the most beneficent aspects of the
Napoleonic domination. For the first time since the age of Justinian
the entire peninsula was brought under what was in fact, if not in
name, a single political system.
If the rise of French power in Italy had been brilliant, however, the
collapse of that power was speedy and complete. It followed hard upon
Napoleon's Russian campaign and the defeat at Leipzig. The final
surrender, consequent upon Napoleon's first abdication was made April
16, 1814, by the viceroy Beauharnais, whereupon the Austrians resumed
possession in the north, the Bourbons in the south, and the whole
problem of permanent adjustment was given over to the congress of the
powers at Vienna.[524]
[Footnote 524: For brief accounts of the Napoleonic
régime in Italy see Cambridge Modern History, IX.,
Chap. 14; B. King, A History of Italian Unity
(London, 1899), I., Chap. 1. Works of value dealing
with the subject include P. Gaffarel, Bonaparte et
les républiques italiennes, 1796-1799 (Paris,
1895); A. Dufourcq, Le régime jacobin en Italie,
1796-1799 (Paris, 1900); F. Lemmi, Le origini del
risorgimento italiano (Milan, 1906); G. Sabini, I
primi esperimenti costituzionali in Italia,
1797-1815 (Turin, 1911); and R. M. Johnston, The
Napoleonic Empire in Southern Italy, 2 vols.
(London, 1904). An older work is E. Ramondini,
L'Italia durante la dominazione francese (Naples,
1882).]
II. THE RESTORATION AND THE REVOLUTION OF 1848 (p. 358)
*392. Italy in 1815.*--By the Final Act of the Congress of Vienna, June
9, 1815, Italy was remanded to a status such that the name of the
peninsula could be characterized with aptness by Metternich as merely
a geographical expression. In essentials, though not in all respects,
there was a return to the situation of pre-Napoleonic times. When the
bargainings of the diplomats were concluded it was found that there
remained, in all, ten Italian states, as follows: the kingdom of
Sardinia, Lombardo-Venetia, Parma, Modena, Lucca, Tuscany, Monaco, San
Marino, the kingdom of Naples, and the States of the Church. To the
kingdom of Sardinia, reconstituted under Victor Emmanuel I., France
retroceded Nice and Savoy, and to it was added the former republic of
Genoa. Lombardo-Venetia, comprising the duchy of Milan and all of the
continental possessions of the former Venetian republic, including
Istria and Dalmatia, was given into the possession of Austria.[525]
Tuscany was restored to the grand-duke Ferdinand III. of
Hapsburg-Lorraine; the duchy of Modena, to Francis IV., son of the
archduke Ferdinand of Austria; Parma and Piacenza were assigned to
Maria Louisa, daughter of the Austrian emperor and wife of Napoleon;
the duchy of Lucca, to Maria Louisa of Bourbon-Parma. In the south,
Ferdinand IV. of Naples, restored to all of his former possessions,
was recognized under the new title of Ferdinand I. And, finally, Pope
Pius VII., long held semi-prisoner by Napoleon at Fontainebleau,
recovered the whole of the dominion which formerly had belonged to the
Holy See.
[Footnote 525: By decree of April 24, 1815, these
territories were erected into a kingdom under
Austrian control, though possessing a separate
administration.]
Respecting the entire arrangement two facts are obvious. The first is
that there was not, in the Italy of 1815, the semblance, even, of
national unity. The second is that the preponderance of Austria was
scarcely less thoroughgoing than in Napoleon's time had been that of
the French. Lombardo-Venetia Austria possessed outright; Tuscany,
Modena, and Parma were ruled by Austrian princes; Ferdinand of Naples
was an Austrian ally, and he had pledged himself not to introduce in
his possessions principles of government incompatible with those
employed by the Austrians in the north; while even Victor Emmanuel of
Sardinia--the only important native sovereign, aside from the Pope, in
the peninsula--was pledged to a perpetual Austrian alliance.[526]
[Footnote 526: W. R. Thayer, The Dawn of Italian
Independence, 2 vols. (Boston, 1893), I.,
116-178.]
*393. Foreshadowings of Unity.*--"Italy," wrote Napoleon some (p. 359)
time after his banishment to St. Helena, "isolated between her natural
limits, is destined to form a great and powerful nation. Italy _is_
one nation; unity of language, customs, and literature, must, within a
period more or less distant, unite her inhabitants under one sole
government. And, without the slightest doubt, Rome will be chosen by
the Italians as their capital."[527] At the time when this prophecy
was written the unification of Italy appeared, upon the surface, the
most improbable of events. It was, none the less, impending, and to it
Napoleon must be adjudged to have contributed in no unimportant
measure. In the words of a recent writer, "the brutalities of
Austria's white coats in the north, the unintelligent repression then
characteristic of the house of Savoy, the petty spite of the duke of
Modena, the mediæval obscurantism of pope and cardinals in the middle
of the peninsula, and the clownish excesses of Ferdinand in the south,
could not blot out from the minds of the Italians the recollection of
the benefits derived from the just laws, vigorous administration, and
enlightened aims of the great emperor. The hard but salutary training
which they had undergone at his hands had taught them that they were
the equals of the northern races both in the council chamber and on
the field of battle. It had further revealed to them that truth, which
once grasped can never be forgotten, that, despite differences of
climate, character, and speech, they were in all essentials a
nation."[528] It is not too much to say that Napoleon sowed the seed
of Italian unity.
[Footnote 527: M. Cesaresco, The Liberation of
Italy (London, 1895), 3.]
[Footnote 528: J. Holland Rose, in Encyclopædia
Britannica, 11th ed., XV., 48. See also Fisher, The
Republican Tradition in Europe, 158-159.]
*394. Attempted Revolution, 1820-1832.*--From 1815 to 1848 Austrian
influence, shaped largely by Metternich, was everywhere reactionary,
and during this prolonged period there was no government anywhere in
Italy that was not of the absolutist type. No one of the states had a
constitution, a parliament, or any vestige of popular political
procedure. In July, 1820, Ferdinand of Naples was compelled by a
revolutionary uprising to promulgate a constitution which was
identical with that forced in the same year upon Ferdinand VII. of
Spain. This ready-made instrument provided for a popularly elected
parliament of one chamber, upon which were conferred large powers; a
council of state composed of twenty-four members to advise the king;
an independent judiciary; and a parliamentary deputation of seven
members elected by the parliament, whose duty it was, in the event of
the dissolution of parliament, to safeguard the observance of the
constitution. In March, 1821, revolution broke out in Piedmont and,
after the mild-tempered king, Victor Emmanuel, had abdicated in (p. 360)
favor of his brother, Charles Albert, a temporary regent, the Prince
of Carignano, under pressure, conceded to the people a replica of the
Spanish fundamental law. In both Naples and Piedmont, however, the
failure of the progressives was complete. The reformers proved to be
lacking in unity of purpose, and when, under authorization of the
greater continental powers, Austria intervened, every gleam of
constitutionalism was promptly snuffed out. Similarly, in 1831-1832,
there was in Modena, Parma, and the Papal States, widespread
insurrection, and with rather more evidence of a growing national
spirit; but again, with Austrian assistance, the outbreaks were
suppressed.[529]
[Footnote 529: Cambridge Modern History, X., Chap.
4; Johnston, Napoleonic Empire in Southern Italy,
II., Chap. 4; Thayer, Dawn of Italian Independence,
I., 215-278.]
*395. The Revolution of 1848 and the New Constitutions.*--The turning
point came with the great year of revolution, 1848. During the
thirties and forties, by public agitation, by the organization of
Mazzini's "Young Italy," by the circulation of patriotic literature,
and in a variety of other ways, the ground was prepared systematically
for the _risorgimento_ upon which the patriots and the prophets had
set their hearts. In 1846 a liberal-minded pope, Pius IX., instituted
a series of reforms, and the example was followed forthwith by the
princes of Piedmont (Sardinia) and Tuscany. In January, 1848,
revolution broke out afresh in Naples and within a month Ferdinand II.
was obliged to yield to public demand for a constitution. The
instrument, promulgated February 10, provided for a legislative body
consisting of a chamber of peers, appointed by the king for life, and
a chamber of deputies, elected by the people. February 15 the
sovereign of Tuscany, Leopold II., granted to his subjects a
constitution of a similar character, making provision for a complete
representative system.
February 5 the municipality of Turin, voicing a demand in which many
of the nobility and high officials of state concurred, petitioned
Charles Albert of Piedmont for the grant of a constitution. Three days
subsequently, at the conclusion of a series of secret sessions of his
council, the sovereign announced that "of his free and entire will" he
believed the time to have come for an extension to his subjects of a
full-fledged representative system of government, and March 4 there
was promulgated a remarkable instrument--the _Statuto fondamentale del
Regno_, modelled on the amended French Charter of 1830--which, with
absolutely no modification of text, survives to the present day as the
constitution of the Italian kingdom.[530] March 14 there was (p. 361)
issued by the Pope an instrument known as the _Statuto fondamentale
del Governo temporale_, by which were constituted two legislative
bodies--a high council and a chamber of deputies--and a council of
state, composed of ten members and twenty-four advisors, to which was
committed the task of preparing measures. Bills passed by the
parliament were to be submitted to the Supreme Pontiff, who, after
their discussion in consistory, should extend to them, or withhold
from them, final approval. Before the year was far advanced the news
of the overthrow of Louis Philippe, of the uprising in Germany, and of
the fall of Metternich plunged the whole of Italy afresh in
insurrection. Under the pressure of popular demand the Pope and the
King of Naples sent troops to aid the northern states in the
liberation of the peninsula from Austrian despotism, and for a time,
under the leadership of the Piedmontese monarch, Charles Albert, all
Italy seemed united in a broadly nationalistic movement. July 10 a new
and extremely liberal constitution was adopted by a constituent
assembly in Naples, and, February 9, 1849, following a breach between
the Pope and the Roman parliament, the temporal power of the papacy
was once more swept away and Rome, under an appropriate constitution,
was proclaimed a republic.[531]
[Footnote 530: The nature of the governmental
system provided in this instrument will be
explained at length in the succeeding chapter.]
[Footnote 531: G. Garavani, La costituzione della
repubblica romana nel 1798 e nel 1849 (Fermo,
1910).]
*396. The Reaction.*--The reaction, however, was swift and seemingly all
but complete. At the earliest possible moment the king of Naples
withdrew from the war, revoked the constitution which he had granted,
and put the forces of liberalism to rout. With the assistance of
France, Austria, and Naples, the Pope extinguished the Roman republic
and re-established in all of its vigor the temporal power. By Austrian
arms one after another of the insurrectionary states in the north and
center was crushed, and Austrian influence in that quarter rose to its
former degree of ascendancy. Constitutionalism gave place to
absolutism, and the liberals, disheartened and disunited, were
everywhere driven to cover. Only in Piedmont, whose sovereign, after
the bitter defeat at Novara, had abdicated in favor of his son, Victor
Emmanuel II. (March 23, 1849), was there left any semblance of
political independence or civil liberty.[532]
[Footnote 532: Elaborate accounts of the revolution
of 1848 in Italy are contained in King, History of
Italian Unity, I., Chaps. 9-19, and Thayer, Dawn of
Italian Independence, II., Bks. 4-5. A good brief
account is Cambridge Modern History, XI., Chap. 4
(bibliography, pp. 908-913). A suggestive sketch is
Fisher, Republican Tradition in Europe, Chap. 9.]
III. THE ACHIEVEMENT OF UNIFICATION (p. 362)
*397. The Leadership of Piedmont.*--To all inducements to abrogate the
constitution which his father had granted Victor Emmanuel continued
deaf, and the logic of the situation began to point unmistakably to
Piedmont as the hope of the patriotic cause. After 1848 the building
of the Italian nation becomes, indeed, essentially the story of
Piedmontese organization, leadership, conquest, and expansion. Victor
Emmanuel, honest and liberal-minded, was not a statesman of the first
rank, but he had the wisdom to discern and to rely upon the
statesmanship of one of the most remarkable of ministers in the
history of modern Europe, Count Cavour. When, in 1850, Cavour entered
the Piedmontese ministry he was known already as an ardent advocate of
both constitutionalism and national unification, and after, in 1852,
he assumed the post of premier he was allowed virtually a free hand in
the prosecution of policies designed to contribute to a realization of
these ends. The original purpose of the king and of his minister was
to bring about the exclusion of Austrian influence from Italy and to
organize the various states of the peninsula into a confederacy under
the nominal leadership of the Pope, but under the real supremacy of
the sovereign of Piedmont. Ultimately the plan was so modified as to
contemplate nothing short of a unification of the entire country under
the control of a centralized, national, temporal government.
*398. The Annexations of 1859-1860.*--In 1855 Cavour signed an offensive
and defensive alliance with France, and in 1859 Piedmont, with the
connivance of her ally, precipitated war with Austria. According to an
understanding arrived at by Cavour and the Emperor Napoleon III. at
Plombières (June 20, 1858) Austria was to be expelled absolutely from
Italian soil; Lombardo-Venetia, the smaller duchies of the north, the
papal Legations, and perhaps the Marches, were to be annexed to
Piedmont, the whole to comprise a kingdom of Upper Italy; Umbria and
Tuscany were to be erected into a kingdom of Central Italy; the Pope
was to retain Rome and Ferdinand Naples; and the four states thus
constituted were to be formed into an Italian confederation. In the
contest which ensued the Austrians were roundly defeated, but their
only immediate loss was the ancient duchy of Lombardy. Despite
Napoleon's boast that he would free Italy to the Adriatic, Venetia was
retained yet seven years by the Hapsburgs. Under the terms of the
treaty of Zürich (November 10), in which were ratified the preliminaries
of Villafranca (July 11), Lombardy was annexed to Piedmont. Years (p. 363)
before (June 8, 1848) a Lombard plebiscite upon the question of such
annexation had brought out an affirmative vote of 561,002 to 681.[533]
[Footnote 533: King, History of Italian Unity, II.,
Chap. 27.]
The gain arising from the annexation of Lombardy was in a measure
counterbalanced by the cession of Savoy and Nice to France, in
conformity with an agreement entered into before the war. In point of
fact, none the less, the benefits which accrued to Piedmont from the
Austrian war were enormous. Aroused by the vigor and promise of
Piedmontese leadership, a large portion of central Italy broke into
revolt and declared for union with Victor Emmanuel's dominion. In
September, 1859, four assemblies, representing the grand-duchy of
Tuscany, the duchies of Modena and Parma, and the Romagna (the
northern portion of the Papal States), met at Florence, Modena, Parma,
and Bologna, respectively, and voted unanimously for incorporation
with Piedmont. During March, 1860, the alternatives of annexation and
independence were submitted to the choice of the inhabitants of each
of these districts, all males of age being privileged to vote, with
the result of an aggregate of 792,577 affirmative votes in a total of
807,502. Under authority conferred by the Piedmontese parliament the
king accepted the territories, the formal proclamation of the
incorporation of Parma, Modena, and the Romagna being dated March 18,
and that of the incorporation of Tuscany, March 22. Deputies were
elected forthwith to represent the annexed provinces, and April 2,
1860, the enlarged parliament was convened at Turin. Within the space
of a year the population of the kingdom had been more than doubled. It
was now 11,000,000, or approximately half of that of the peninsula.
*399. Further Annexations: the Kingdom of Italy, 1861.*--Meanwhile the
programme of Cavour and the king had been broadened to comprise a
thoroughgoing unification of the entire country. With amazing rapidity
the task was carried toward completion. Aided by Garibaldi and his
famous Thousand, the people of Sicily and Naples expelled their
Bourbon sovereign, and, at the plebiscite of October 21, 1860, they
declared, by a vote of 1,734,117 to 10,979, for annexation to
Piedmont. At the same time Umbria and the Marches were occupied by the
Piedmontese forces, leaving to the Pope nothing save the Eternal City
and a bit of territory immediately surrounding it. By votes of 97,040
to 380 and 133,077 to 1,212, respectively, these districts declared
for annexation, and, December 17, 1860, a royal decree announced their
final incorporation, together with that of Naples. January 27, 1861,
general elections were held, and, February 18, there was convened (p. 364)
at Turin a new and enlarged parliament by which, March 18, was
proclaimed the united Kingdom of Italy. Over the whole of the new
territories was extended the memorable _Statuto_ granted to Piedmont
by Charles Albert thirteen years before, and Victor Emmanuel II. was
acknowledged "by the grace of God and the will of the nation, King of
Italy."[534]
[Footnote 534: King, History of Italian Unity, II.,
Chaps. 29-32.]
*400. The Completion of Unification, 1866-1871.*--It remained but to
consolidate the kingdom and to accomplish the annexation of the two
Italian districts, Venetia and Rome, which were yet in foreign hands.
Venetia was acquired in direct consequence of Italy's alliance with
Prussia against Austria in 1866. A plebiscite of October 21-22, 1866,
following the enforced cession of Venetia by Austria, October 3,
yielded a vote of 647,246 to 47 for annexation. The union was
sanctioned by a decree of November 4, 1866, and ratified by a law of
July 18, 1867. The acquisition of Rome was made possible four years
later by the exigencies of the Franco-German war. The conviction had
been ripening that eventually Rome must be made the kingdom's capital,
and when, in 1870, there was withdrawn from the protection of the
papacy the garrison which France had maintained in Italy since 1849,
the opportunity was seized to follow up fruitless diplomacy with
military demonstrations. September 20 the troops of General Cadorna
forced an entrance of the city and the Pope was compelled to
capitulate. October 2 the people declared, by a vote of 133,681 to
1,507, for annexation; October 9 the annexation was proclaimed; and
December 31 it was ratified by act of parliament. The guarantees of
independence to be accorded the papacy were left to be determined in a
subsequent statute.[535] By an act of February 3, 1871, the capital of
the kingdom--already, in 1865, transferred from Turin to Florence--was
removed to Rome; and in the Eternal City, November 27 following, was
convened the eleventh parliament since the revolution of 1848, the
fourth since the proclamation of the kingdom of Italy, the first since
the completion of Italian unity.[536]
[Footnote 535: The resulting measure, the Law of
Papal Guarantees, was enacted May 13, 1871. See p.
388.]
[Footnote 536: For a brief account of the final
stages in the unification of Italy see Cambridge
Modern History, XI., Chaps. 14, 19. The best
presentation of the entire subject is that in the
two volumes of King, History of Italian Unity,
1814-1871. Other works of value are W. J. Stillman,
The Union of Italy, 1815-1895 (Cambridge, 1898); J.
Probyn, Italy, 1815-1890 (London, 1884); M.
Cesaresco, The Liberation of Italy (New York,
1894); P. Orsi, L'Italia moderna (Milan, 1901); F.
Bertolini, Storia d'Italia dal 1814 al 1878 (Milan,
1880-1881); and E. Sorin, Histoire de l'Italie
depuis 1815 jusqu'à la mort de V. Emm. (Paris,
1910). Among biographies mention may be made of G.
Godkin, Life of Victor Emmanuel II. (2d ed.,
London, 1880); M. Cesaresco, Cavour (London, 1898);
D. Zanichelli, Cavour (Florence, 1905); B. King,
Mazzini (London, 1902). A very valuable biography,
which indeed comprises virtually a history of the
period 1848-1861, is W. R. Thayer, Count Cavour, 2
vols. (Boston, 1911). The monumental Italian work
in the field is C. Tivaroni, Storia critica del
risorgimento italiano, 9 vols. (Turin, 1888-1897).
The principal documentary collection is N. Bianchi,
Storia documentata della diplomazia Europea in
Italia dall' anno 1814 all' anno 1861, 8 vols.
(Turin, 1865-1872). Invaluable are L. Chiala,
Lettere del Conte di Cavour, 7 vols. (Turin,
1883-1887), and D. Zanichelli, Scritti del Conte di
Cavour (Bologna, 1892). For full bibliography see
Cambridge Modern History, XI., 908-913.]
IV. THE CONSTITUTION (p. 365)
*401. The Statuto.*--The formal constitution of the kingdom of Italy
to-day is the _Statuto fondamentale del Regno_ granted March 4, 1848,
by Charles Albert to his Piedmontese subjects. To each of the
territories successively annexed to the Piedmontese kingdom this
instrument was promptly extended, on the basis of popular
ratifications, or plebiscites; and when, in 1861, the kingdom of
Piedmont was converted into the kingdom of Italy, the fundamental law,
modified in only minor respects, was continued in operation. The
_Statuto_ was granted originally as a royal charter, and its author
seems to have expected it to be final, at least until it should have
been replaced as a whole by some other instrument. At the same time,
there is little reason to doubt that from the outset there was
contemplated the possibility of amendment through the agencies of
ordinary legislation. In any case, there was put into the instrument
no stipulation whatsoever relating to its revision, and none has ever
been added. Upon a number of occasions since 1861 possible
modifications of the constitutional text have been suggested, and even
debated, but no one of them has been adopted. But this does not mean
that the constitutional system of Italy has stood all the while
unchanged. On the contrary, that system has exhibited remarkable
vitality, growth, and adaptive capacity. In Italy, as in other states
the constitution as it exists in writing is supplemented in numerous
important ways by unwritten custom, and Italian jurists are now
substantially agreed that custom is legitimately to be considered a
source of public law.
*402. Legislative Amendment.*--A more important matter, however, is the
extension and the readaptation of the constitution through
parliamentary enactment. In the earlier days of the kingdom there was
a disposition to observe rather carefully in practice the distinction
between functions and powers of a legislative, and those of a
constitutional, character. Gradually, however, the conviction grew
that the constitutional system of the nation might be modified (p. 366)
through the processes of ordinary legislation, and in Italy to-day the
theory of parliamentary omnipotence is scarcely less firmly entrenched
than it is in Great Britain. The parliamentary chambers have never
directly avowed a purpose to amend a single article of the _Statuto_,
but numerous measures which they have enacted have, with clear intent,
taken from the instrument at some points, have added to it at others,
and have changed both its spirit and its application. Care has been
exercised that such enactments shall be in harmony with the public
will, and in practice they are rarely brought to a final vote until
the country shall have been given an opportunity to pass upon them at
a general election. What has come to be the commonly accepted doctrine
was stated forcefully, in the session of July 23, 1881, by Crispi, as
follows: "I do not admit the intangibility of the _Statuto_. Statutes
are made to prevent governments from retrograding, not from advancing.
Before us there can be nothing but progress.... If we retain immutable
the fundamental law of the state, we desire immobility, and should
throw aside all advances which have thus far been made by the
constituted authorities. I understand that in the _Statuto_ of Charles
Albert nothing is said of revision, and this was prudent. But how
should this silence be interpreted? It should be interpreted in the
sense that it is not necessary to the Italian Constitution that a
constituent assembly should be expressly convoked, but that Parliament
in its usual manner of operation is always constituent and
constituted. Whenever public opinion has matured a reform, it is the
duty of Parliament to accept it, even though the reform may bring with
it the modification of an article of the _Statuto_."[537] It is in
accord with the principles here enunciated that--to mention but a few
illustrations--the law of December 6, 1865, regulating the
organization of the judiciary, the Law of Papal Guarantees of 1871,
and the measures of 1882 and 1895 overhauling and extending the
franchise, were placed upon the statute books.
[Footnote 537: Quoted by G. A. Ruiz, The Amendments
to the Italian Constitution, in _Annals of the
American Academy of Political and Social Science_,
Sept., 1895, 38.]
*403. Nature of the Constitution.*--The _Statuto_, in eighty-four
articles, is an instrument of considerable length. It deals,
successively, with the Crown, the rights and duties of citizens, the
Senate, the Chamber of Deputies, the Ministers, the Judiciary, and
matters of a miscellaneous character. The bill of rights contained in
Articles 24-32 guarantees to all inhabitants of the kingdom equality
before the law, liberty of person, inviolability of domicile and of
property, freedom of the press, exemption from non-parliamentary
taxation and, with qualifications, freedom of assembly. It is (p. 367)
constantly to be borne in mind, however, that, so overlaid is the
_Statuto_ with statutory enactments and with custom, that one cannot
apprehend adequately the working constitution of the kingdom to-day,
in respect to either general principles or specific governmental
organs, through an examination of this document alone. In the language
of an Italian publicist, the Italian constitution no longer consists
of the Statute of Charles Albert. This forms simply the beginning of a
new order of things. Many institutions have been transformed by laws,
decrees, usages, and neglect, whence the Italian constitution has
become cumulative, consisting of an organism of law grouped about a
primary kernel which is the _Statuto_.[538]
[Footnote 538: Ruiz, Amendments to the Italian
Constitution, _loc. cit._, 57. The text of the
_Statuto_ appears in P. Coglio e Malchiodi, Codice
Politico Amministrativo. Raccolta completa di tutte
le leggi e regolamenti concernenti la pubblica
amministrazione nei suoi rapporti politici e
amministrativi (6th ed., Florence, 1907), and in V.
Gioia, Le leggi di unificazione amministrativa
precedute dalla legge fondamentale del regno, 2
vols. (Palermo, 1879). It is printed also in
Lowell, Governments and Parties, II., 346-354.
There is a French version in F. R. Dareste, Les
constitutions modernes, 2 vols. (Paris, 1883) I.,
550-560. There is an English translation in Dodd,
Modern Constitutions, II., 5-16, and another, by S.
M. Lindsay and L. S. Rowe, in _Annals of the
American Academy of Political and Social Science_,
Nov., 1894. The Codice Politico Amministrativo
contains a good collection of statutes, ordinances,
and administrative regulations. The most
comprehensive work on Italian constitutional law
which has been written is F. Racioppi and I.
Brunelli, Commento allo statuto del regno, 3 vols.
(Turin, 1909). Among other treatises the following
are of principal value: G. Arangio Ruiz, Storia
costituzionale del regno di Italia, 1848-1898
(Florence, 1898); E. Brusa, Das Staatsrecht des
Königreichs Italien (Leipzig, 1892), in
Marquardsen's Handbuch; E. del Guerra,
L'Amministrazione pubblica in Italia (Florence,
1893); and, for briefer treatment, G. Mosca,
Appunti di diritto costituzionale (Milan, 1908) and
I. Tambaro, II diritto costituzionale italiano
(Milan, 1909).]
CHAPTER XX (p. 368)
THE ITALIAN GOVERNMENTAL SYSTEM
I. THE CROWN AND THE MINISTRY
*404. Status of the Sovereign.*--The constitutional system of Italy
comprises, according to the phraseology of the _Statuto_, a
"representative monarchical government." The throne is hereditary,
after the principle of the Salic Law; that is, it may be inherited
only by and through males. Elaborate provision is made for the
exercise of regal authority in the event of the minority or the
incapacity of the sovereign. During a minority (which terminates with
the close of the king's eighteenth year) the prince who stands next in
the order of succession, provided he be twenty-one years of age, is
authorized to act as regent. In the lack of male relatives the regency
devolves upon the queen-mother, and in default of a queen-mother the
regent is elected by the legislative chamber.[539] Upon ascending the
throne, the king is required to take an oath in the presence of the
legislative chambers faithfully to maintain and observe the
constitution of the realm. The monarch is declared to be sacred and
inviolable in his person, and there is settled upon him a civil list
of 16,050,000 lire, of which amount at present, however, the sum of
one million lire is repaid annually to the state. Since 1870 the royal
residence has been the Palazzo del Quirinale, a palace which for
generations, by reason of its elevated and healthful situation, was
much frequented by the popes.
[Footnote 539: Arts. 11-17. Dodd, Modern
Constitutions, II., 6.]
*405. Powers and Functions of the Crown.*--On paper, the powers of the
crown appear enormous; in reality they are much less considerable, as
is inevitably the fact wherever monarchy is tempered by
parliamentarism. In the king alone is vested, by the _Statuto_, the
executive power, and to him alone this power, in theory, still
belongs. The exercise of it, however, devolves almost wholly upon a
group of ministers, who are responsible, not to the crown, but to the
parliament. In no continental country has there been a more deliberate
or a more unreserved acceptance of the essential principles which
underlie the parliamentary system of Great Britain. No one of the (p. 369)
three sovereigns of united Italy has ever sought for an instant to
establish anything in the nature of personal government. The principle
that the ministry shall constitute the working executive, and that it
shall be continually responsible to the lower chamber of Parliament,
has been so long observed in practice that it is now regarded as an
inflexible law of the constitution. Under these limitations, however,
the king approves and promulgates the laws, grants pardons and
commutes sentences, declares war, commands all military and naval
forces, concludes treaties, issues ordinances, creates senators, and
makes appointments to all offices of state.[540] By the _Statuto_ it
is provided that treaties involving financial obligations or
alterations of the territory of the state shall be effective only
after receiving the sanction of the legislative chambers. In practice,
treaties of all kinds are submitted regularly for such approval, save
only such as comprise military conventions or foreign alliances. The
power of the veto exists, but it is in practice never used. Rarely
does the king attend the sessions of the cabinet, in which the
policies of the government are discussed and its measures formulated
and, save through the designation of the premier, in the event of a
cabinet crisis, and within the domain of foreign relations, the royal
power may be said to be brought to bear in direct manner upon the
affairs of state only incidentally. As head of the nation, however,
and visible token of its hard-won unification, the monarch fulfills a
distinctly useful function. The reigning family, and especially the
present sovereign, Victor Emmanuel III., is extremely popular
throughout the country; so that, although in Italy, as elsewhere among
European monarchies, there is an avowed republican element, there is
every indication that royalty will prove an enduring institution.
[Footnote 540: Arts. 5-8. Dodd, Modern
Constitutions, II., 5. Dupriez, Les Ministres, I.,
292-297.]
*406. The Ministry: Composition.*--From what has been said it follows
that the ministry in Italy, as in Great Britain and France,
constitutes the actual executive. Nominally it consists of heads of
departments, although occasionally a member is designated without
portfolio. Of departments there are at present eleven, as follows:
Foreign affairs; War; Marine; the Interior; Finance; the
Treasury;[541] Public Instruction; Public Works; Justice and
Ecclesiastical Affairs; Commerce, Industry, and Agriculture; and Posts
and Telegraphs. Ordinarily the premier, or "president of the council,"
occupies the portfolio of the Interior. He is named by the king, and
inasmuch as, by reason of the multiplicity of Italian political (p. 370)
parties, there is often no clearly distinguished "leader of the
opposition," such as all but invariably stands ready to assume office
in Great Britain, in the making of the appointment there is room for
the exercise of considerable discretion. All remaining members of the
ministry are designated by the crown, on nomination of the premier. In
accordance with the provisions of a law of February 12, 1888, each
minister is assisted by an under-secretary of state.
[Footnote 541: Separated from Finance in 1889.]
All ministers and under-secretaries possess the right to appear on the
floor of either of the legislative chambers, and to be heard upon
request; but no one of them is entitled to vote in either body unless
he is a member thereof.[542] To be eligible for appointment to a
portfolio or to an under-secretaryship it is not necessary that a man
be a member of either chamber; but if an appointee is not in
possession of such membership it is customary for him to seek the next
seat that falls vacant in the Deputies, unless in the meantime he
shall have been created a senator. In point of fact, the ministers are
selected regularly from among the members of Parliament, and
predominantly from the Chamber of Deputies. Only rarely has the
premiership devolved upon a senator. Ministers of war and of marine,
being chosen largely by reason of technical qualifications, are
frequently members of the Senate by special appointment.
[Footnote 542: Art. 66. Dodd, Modern Constitutions,
II., 13.]
*407. The Ministry: Organization and Functions.*--The internal
organization of the ministry--the interrelations of the several
departments and the relations sustained by each minister with the
premier--are regulated largely by a decree of March 28, 1867,
promulgated afresh, with minor modifications, August 25, 1876. Among
matters which are required to be brought before the ministerial
council are all projects of law which are to be submitted to the
chambers, all treaties, all conflicts of administrative jurisdiction,
all proposals relating to the status of the Church, petitions from the
chambers, and nominations of senators, diplomatic representatives, and
a wide range of administrative and judicial functionaries. By law
there is enumerated further an extended list of matters which must be
brought to the ministry's attention, though action thereupon is not
made compulsory; and the range of subjects which, upon the initiative
of the premier or that of other ministers, may be submitted for
consideration is left purposely without limit. It is the business of
the premier to convoke the ministers in council, to preside over their
deliberations, to maintain, in respect to both administrative methods
and political policy, as large a measure of ministerial uniformity and
solidarity as may be; and to require from time to time from his (p. 371)
colleagues full and explicit reports upon the affairs of each of
the several departments. By reason, however, of the multiplicity of
party groups in the chambers, the necessarily composite character
politically of every cabinet, and the generally unstable political
condition of the country, ministries rarely possess much real unity,
and in the administration of the public business they are likely to be
handicapped by internal friction. "The Italian ministry," says an able
French writer, "is manifestly unable to fulfill effectively the
three-fold purpose of a parliamentary cabinet. It exercises the
executive power in the name, and under the authority, of the king; but
it does not always know how to restrain Parliament within the bounds
of its proper control, and it is obliged to tolerate the interference
of deputies in the administration. Through the employment of the
initiative, and of influence upon the acts of Parliament, it is the
power which impels legislation; but not infrequently it is lacking in
the authority essential to push through the reforms which it has
undertaken, and the Chamber evades easily its control. It seeks to
maintain harmony between the two powers (executive and legislative);
but the repeated defeats which it suffers demonstrate to what a degree
its work is impeded by the disorganization of parties."[543] For all
of their acts the ministers are responsible directly to Parliament,
which means, in effect, to the Chamber of Deputies; and no law or
governmental measure may be put in operation until it has received the
signature of one or more of the ministerial group, by whom
responsibility for it is thereby explicitly assumed.
[Footnote 543: Dupriez, Les Ministres, I., 291.]
*408. The Promulgation of Ordinances.*--The administrative system of
Italy is modelled, in the main, upon that of France. In the effort to
achieve national homogeneity the founders of the kingdom indulged to
excess their propensity for centralization, with the consequence that
Italy has exhibited regularly an admixture of bureaucracy and
liberalism even more confounding than that which prevails in the
French Republic. In theory the administrative system is broadly
democratic and tolerant; in practice it not infrequently lends itself
to the employment of the most arbitrary devices. Abuse arises most
commonly from the powers vested in the administrative officials to
supplement legislation through the promulgation and enforcement of
ordinances. By the constitution it is stipulated that the Executive
shall "make decrees and regulations necessary for the execution of the
laws, without suspending their execution, or granting exemptions from
them."[544] This power, however, in practice, is stretched even
further than is the similar power of the Executive in France, and with
the result not infrequently of the creation of temporary law, or (p. 372)
even the virtual negation of parliamentary enactment. Parliament is
seldom disposed to stand very rigidly upon its rights; indeed, it
sometimes delegates expressly to the ministry the exercise of sweeping
legislative authority. The final text of the great electoral law of
1882, for example, was never considered in the chambers at all. After
debating the subject to their satisfaction, the two houses simply
committed to the Government the task of drawing up a permanent draft
of the measure and of promulgating it by executive decree. The same
procedure has been followed in other fundamental matters. And not
merely the ministers at Rome, but also the local administrative
agents, exercise with freedom the ordinance-making prerogative. "The
preference, indeed," as is observed by Lowell, "for administrative
regulations, which the government can change at any time, over rigid
statutes is deeply implanted in the Latin races, and seems to be
especially marked in Italy."[545]
[Footnote 544: Art. 6. Dodd, Modern Constitutions,
II., 5.]
[Footnote 545: Lowell, Governments and Parties, I.,
166. On the Italian executive see Dupriez, Les
Ministres, I., 281-329. An essay of value is M.
Caudel, Parlementarisme italien, in _Annales des
Sciences Politiques_, Sept., 1900.]
II. PARLIAMENT: THE SENATE
*409. Composition.*--Legislative power in Italy is vested conjointly in
the king and Parliament, the latter consisting of two houses--an
upper, the _Senato_, and a lower, _the Camera de' Deputati_. The
Senate is composed entirely of members appointed for life by the
crown. The body is no true sense a house of peers. Its seats are not
hereditary and its members represent not alone the great proprietors
of the country but a wide variety of public functionaries and men of
achievement. In the making of appointments the sovereign is restricted
by the necessity of taking all appointees from twenty-one stipulated
classes of citizens, and it is required that senators shall be of a
minimum age of forty years. The categories from which appointments are
made--including high ecclesiastics, ministers of state, ambassadors,
deputies of prolonged service, legal and administrative officials, men
who during as much as seven years have been members of the Royal
Academy of Sciences or of the Superior Council of Public
Instruction--may be reduced, broadly, to three: (1) high officials of
church and state; (2) persons of fame in science or literature, or who
by any kind of services or merit have brought distinction to the
country; and (3) persons who for at least three years have paid direct
property or business taxes to the amount of 3000 lire ($600). The
total number of members when the _Statuto_ was put in effect in 1848
was 78; the number in 1910 was 383. The last-mentioned number comprised
the president of the Chamber of Deputies, 147 ex-deputies of six (p. 373)
years' service (or men who had been elected to as many as three
parliaments), one minister of state, six secretaries of state, five
ambassadors, two envoys extraordinary, 23 officials of the courts of
cassation and of other tribunals, 33 military and naval officials,
eight councillors of state, 21 provincial functionaries, 41 members of
the Royal Academy of Sciences, three members of the Superior Council
of Public Instruction, two persons of distinguished services to the
country, 71 payers of direct taxes in the amount of 3,000 lire, and 19
other scattered representatives of several categories. The absence of
ecclesiastical dignitaries is to be accounted for by the rupture with
the Vatican. The last members of this class to be named were appointed
in 1866.
*410. Legislative Weakness.*--The prerogative of senatorial appointment
has been exercised upon several occasions for the specific purpose of
influencing the political complexion of the upper chamber. In 1886
forty-one appointments were made at one stroke; in 1890, seventy-five;
and in 1892, forty-two. The Senate guards jealously its right to
determine whether an appointee is properly to be considered as
belonging to any one of the twenty-one stipulated categories, and if
it decides that he is not thus eligible, he is refused a seat. But as
long as the sovereign keeps clearly within the enumerated classes, no
practical limitation can be placed upon his power of appointment.[546]
In practice, appointment by the king has meant regularly appointment
by the ministry commanding a majority in the lower chamber; and so
easy and so effective has proved the process of "swamping" that the
legislative independence of the Senate has been reduced almost to a
nullity. In general it may be said that the body exercises the
function of a revising, but no longer of an initiating or a checking,
chamber. During the period 1861-1910 the government presented in the
Chamber of Deputies a total of 7,569 legislative proposals, in the
Senate but 598; and the number of projects of law originated within
the Senate during this same period was but thirty-nine. In volume and
range of legislative activity the nominated senate of Italy is
distinctly inferior to the elected senate of France.[547]
[Footnote 546: Of 1,528 appointments made between
1848 and 1910 but 63 were refused confirmation by
the Senate.]
[Footnote 547: It is interesting to observe that,
in the interest of governmental stability and
permanence, Cavour favored the adoption of the
elective principle in Italy. For illustrations of
the weakness of the Italian Senate see C.
Morizot-Thibault, Des droits des chambres hautes ou
sénats en matière des lois de finance (Paris,
1891), 156-175.]
*411. Projected Reform.*--Within recent years there has arisen a
persistent demand for a reform of the Senate, to the end that the
body may be brought into closer touch with the people and be (p. 374)
restored to the position of a vigorous and useful second chamber. In
the spring of 1910 the subject was discussed at some length within the
Senate itself, and at the suggestion of the ministry a special
commission of nine members was created to study "the timeliness, the
method, and the extent" of the proposed reforms. December 5, 1910,
this commission brought in an elaborate report, written principally by
Senator Arcoleo, a leader among Italian authorities upon
constitutional law. After pointing out that among European nations the
reconstitution and modernization of upper chambers is a subject of
large current interest, the commission proposed a carefully considered
scheme for the popularizing and strengthening of the senatorial body.
The substance of the plan was, in brief; (1) that the chamber
henceforth should be composed of 350 members; (2) that the membership
should be divided into three categories, designated, respectively, as
officials, men of science and education, and men of political or
economic status; and (3) that members of the first category, not to
exceed 120, should be appointed, as are all members at present, by the
crown; but members of the other two should be elected by fifteen
special colleges so constituted that their membership would represent
actual and varied groups of interests throughout the nation. The
professors in the universities, for example, organized for the purpose
as an electoral college, should be authorized to choose a contingent
of thirty representatives. Other elements to be admitted to a definite
participation in the elections should include former deputies, larger
taxpayers, provincial and communal assemblies, chambers of commerce,
agricultural societies, and workingmen's associations. The primary
idea of those who propounded the scheme was that through its adoption
there would be established a more vital contact between the Senate and
the varied forces that contribute to the life of the nation than can
subsist under the existing order. Unfortunately, as many consider, the
Senate voted not to approve the commission's project. It contented
itself, rather, with a vote in favor of an enlargement of the classes
of citizens from which senators may be appointed by the king,
although, in February, 1911, it went so far as to request the ministry
to present new proposals, and, in particular, a proposal to vest in
the Senate the choice of its presiding officer. Toward a solution of
the problems involved there has been (to 1912) no further progress. It
is not improbable, however, that upon some such plan of modernization
as was prepared by the commission of 1910 agreement eventually will be
reached.[548]
[Footnote 548: E. Pagliano, Il Senato e la nomina
dei senatori (Rome, 1906); L. A. Magro, L'
aristocrazia e il Senato (Catania, 1909); I.
Tambaro, La réforme du Sénat italien, in _Revue du
Droit Public_, July-Sept., 1910, and Les débats sur
la réforme du Sénat italien, ibid., July-Sept.,
1911; M. Scelle, Réforme du Sénat italien, ibid.,
Oct.-Dec, 1911; Nazzareno, La riforma del Senato,
in _Rivista di Diritto Pubblica_, III., 171. The
report of the commission of 1910 is contained in
Per la riforma del Senato; relazione della
commissione (Rome, 1911).]
*412. Privileges and Powers.*--Within the Senate, as to-day (p. 375)
constituted, the president and vice-president are named by the king;
the secretaries are selected by the body from its own membership. The
privileges of members are defined minutely. Save by order of the
Senate itself, no senator may be arrested, unless apprehended in the
commission of an offense; and the Senate is constituted sole judge of
the alleged misdemeanors of its members--a curious duplication of an
ancient prerogative of the British House of Lords. Ministers are
responsible only to the lower house, and although there are instances
in which a minister has retired by reason of an adverse vote in the
Senate, in general it may be affirmed that the Senate's importance in
the parliamentary régime is distinctly subordinate. The two chambers
possess concurrent powers of legislation, except that all measures
imposing taxes or relating to the budget are required to be presented
first in the Deputies. By decree of the crown the Senate may be
constituted a High Court of Justice to try cases involving treason or
attempts upon the safety of the state, and to try ministers impeached
by the Chamber of Deputies. When acting in this capacity the body is a
tribunal of justice, not a political organization; but it is forbidden
to occupy itself with any judicial matters other than those for which
it was convened.[549]
[Footnote 549: Art. 36. Dodd, Modern Constitutions,
II., 10.]
III. THE CHAMBER OF DEPUTIES--PARLIAMENTARY PROCEDURE
*413. Composition: Franchise Law of 1882.*--The lower legislative
chamber is composed of 508 members chosen by the voters of the realm
under the provisions of the electoral law of March 28, 1895. In no
country of western Europe is the privilege of the franchise more
restricted than in Italy; yet progress toward a broadly democratic
scheme of suffrage has been steady and apparently as rapid as
conditions have warranted. The history of the franchise since the
establishment of the present kingdom falls into three periods,
delimited by the electoral laws of 1882 and 1895. Prior to 1882 the
franchise was, in the main, that established by the electoral law of
December 17, 1860, modified by amendments of July, 1875, and May,
1877. It was restricted to property-holders who were able to read and
write, who had attained the age of twenty-five, and who paid an annual
tax of at least forty lire. Under this system less than two and a (p. 376)
half per cent of the population possessed the right to vote.
In 1882, after prolonged consideration of the subject, the Government
carried through Parliament a series of measures--co-ordinated in the
royal decree of September 24--by which the property qualification was
reduced from forty lire to nineteen lire eighty centesimi and the age
limit was lowered to twenty-one years. The disqualification of
illiteracy was retained, and a premium was placed upon literacy by the
extension of the franchise, regardless of property, to all males over
twenty-one who had received a primary school education. There were
minor extensions in other directions. The net result of the law of
1882 was to raise the number of voters at a stroke from 627,838 to
2,049,461, about two-thirds of the new voters obtaining the franchise
by reason of their ability to meet the educational qualification.[550]
An incidental effect of the reform was to augment the political
influence of the cities, because in them the proportion of illiterates
was smaller than in the country districts. Small landed proprietors,
though of a more conservative temperament, and not infrequently of a
better economic status, than the urban artisans, were commonly unable
to fulfill the scholarship qualification.
[Footnote 550: Lowell, Governments and Parties, I.,
157.]
The law of 1882 provided for elections by general ticket, i.e., on the
principle of _scrutinio di lista_. An act of May 8, 1891, abolished
the general ticket and created a commission by which the country was
divided into 508 electoral districts, each entitled to choose one
deputy. By a law of June 28, 1892, there were introduced various
reforms in the control and supervision of elections, and by another of
July 11, 1894, new provisions were established for the revision of
electoral and registration lists. Finally, March 28, 1895, there was
promulgated an elaborate royal decree whereby the entire body of
electoral laws enacted since the establishment of constitutional
government, and at the time continuing in operation, was co-ordinated
afresh. The existing system was not altered fundamentally, although
the method of making up the voting-lists was changed, with the result
that the number of electors was somewhat diminished.
*414. The Franchise To-day.*--The Italian voter to-day must possess the
following qualifications: (1) Italian citizenship; (2) age of
twenty-one, or over; (3) ability to read and write; and (4) successful
passage of examinations in the subjects comprised in the course of
compulsory elementary education. The last-mentioned qualification is
not, however, required of officials, graduates of colleges, professional
men, persons who have served two years in the army, citizens who pay a
direct tax annually of not less than nineteen lire eighty (p. 377)
centesimi, those who pay an agricultural rental of 500 lire, those who
pay house rent of from 150 lire in communes of 2,500 people to 400
lire in communes of over 150,000, and certain less important classes.
So serious at all times has seemed the menace of illiteracy in Italy
that the establishment of manhood suffrage has but rarely been
proposed. Under the existing system the extension of education carries
with it automatically the expansion of the franchise, though the
obstacles to universal education are still so formidable that the
democratizing of the state proceeds but slowly.[551] In 1904 the
number of enrolled electors was 2,541,327--29 per cent of the male
population over twenty-one years of age, and 7.67 per cent of the total
population--exclusive of 26,056 electors temporarily disfranchised by
reason of being engaged in active military service. At the elections
of November, 1904, the number of qualified electors who voted was
1,593,886, or but 62.7 per cent of those who possessed the privilege.
The proportion of registered electors who actually vote is kept down
by the prosaic character of Italian electoral campaigns, by the
influence of the papal _Non Expedite_,[552] and, most of all, by the
habitual indifference of citizens, who, if the truth be told, for the
most part have never displayed an insatiable yearning for the
possession of the voting privilege. With the exception of the
Socialists, no party has a clear-cut, continuous programme; none, save
again the socialists, attempts systematically to arouse the voters at
election time.
[Footnote 551: King and Okey, Italy To-day, Chap.
12.]
[Footnote 552: See p. 400.]
*415. Electoral Reform.*--Notwithstanding these facts, there has been,
in recent years, a somewhat insistent demand for electoral reform. The
Luzzatti ministry fell, in March, 1911, primarily because a plan of
suffrage extension which it had proposed was not to be put in
operation before 1913. June 10, 1911, the Giolitti ministry which
succeeded laid before the Chamber the text of a measure which, if
adopted, would go far toward the establishment of universal male
suffrage. The proposal was that practically all male citizens over
thirty years of age, and all over twenty-one who have performed the
military service required by the state, should be given the privilege
of voting, irrespective of their ability to read and write. This
project, after being debated at length, was adopted in the Chamber of
Deputies early in 1912 by the enormous majority of 392 to 61. In the
event of its final enactment the existing electorate will be increased
from three millions to two and a half times that number and a general
overhauling of electoral methods and machinery will be rendered
necessary. The grounds upon which the change is urged are, first, (p. 378)
the example of other nations and, second, the political and economic
progress which Italy has achieved within the past generation. Serious
students doubt whether the time is ripe for so radical a step. One
half of the proposed electorate would be wholly illiterate.[553]
[Footnote 553: For the text of the Giolitti
proposals see _Il Seculo_, June 11, 1911. On
Italian electoral reform see A. Piebantoni, La
riforma della legge elettorale (Naples, 1909); G.
Bandini, La riforma elettorale con la
rappresentanza proporzionale nelle elezioni
politiche (Rome, 1910); G. Sabini, La riforma del
sistema elettorale in Italia (Turin, 1910);
Siotto-Pintor, Estensione del suffragio e
distribuzione della rappresentanza, in _Rivista di
Diritto Pubblico_, Dec., 1911, and Le riforma del
régime elettorale e le dottrine della
rappresentanza politica e dell' elettorato nel
secolo XX. (Rome, 1912).]
*416. Electoral Procedure.*--Save during the years 1882-91, when the
_scrutinio di lista_ was in operation, deputies have been chosen
uniformly from single-member districts. There are to-day 508 such
districts. No candidate is returned unless he not only polls a number
of votes in excess of one-sixth of the total number of enrolled
electors within the district, but has also an absolute majority of all
the votes cast. If, after balloting, it is found that no candidate
meets this requirement, a second ballot (_ballottaggio_) takes place
one week subsequently.[554] At each polling place the presiding
officer and "scrutineers" are chosen by the voters present. The method
of voting is simple. In the polling-booth stands a table, on which are
placed two square glass boxes, one empty, the other containing the
voting papers. As the list of enrolled electors is read
alphabetically, each man steps forward, receives a ballot paper, takes
it to an adjoining table and writes on it the name of the candidate
for whom he wishes to vote, folds the paper, and deposits it in the
box reserved for the purpose. After the list has been read through it
is the right of any voter who was not present to respond when his name
was called to cast his ballot in a similar manner. The polling hours
extend, as a rule, from 9 a.m. to 4 p.m.[555]
[Footnote 554: At the elections of March, 1909, in
75 of the 508 districts no candidate received an
adequate majority. In 57 of these districts the
candidate who, at the first ballot, had received
the largest number of votes was elected at the
second ballot. The political effect of the second
ballot is slight. At the election of 1900 there
were 77 second ballotings; at that of 1904, 39. A.
N. Holcombe, Direct Primaries and the Second
Ballot, in _Amer. Political Science Review_, Nov.,
1911; A. F. Locatelli, Considerazioni intorno all'
opportunità di abolire il ballottaggio, in _La
Riforma Sociale_, July-Aug., 1910.]
[Footnote 555: King and Okey, Italy To-day, 14.]
*417. Qualifications and Privileges of Members.*--A deputy is not
required to be a resident of the district from which he is chosen. He
must, however, be a citizen; must be at least thirty years of age;
must be in possession of full civil and political rights; and must not
belong to any of the classes or professions whose members are (p. 379)
debarred by law. All salaried government officials, all persons
receiving stipends from the state, and all persons ordained for the
priesthood or filling clerical office are disqualified outright.
Furthermore, while officers in the army and navy, ministers,
under-secretaries, and various other higher functionaries may be
elected, their number must never exceed forty, not including the
ministers and under-secretaries. Neither senators nor deputies receive
a salary or other compensation, a fact that undoubtedly accounts in
some measure for the uniformly slender attendance in the chambers.
Members are permitted, however, to travel free throughout Italy by
rail, or on steamers belonging to lines that have a government
contract containing a stipulation upon the subject. Measures providing
for the payment of members have been proposed from time to time, but
none have received the approval of the two chambers. A measure of the
sort introduced in 1882 by Francesco Crispi, when a deputy, was
rejected by the lower house. More recently, in the electoral bill
voted by the Chamber of Deputies in 1912 provision is made for the
payment of deputies; but at the time of writing final action upon this
project has not been taken. Deputies are elected nominally for a
five-year period, which is the maximum duration of a parliament. In
point of fact, a dissolution is practically certain to intervene
before the expiration of the full term, and the average interval
between elections is nearer three years than five. If for any reason a
deputy ceases to perform his duties, the electoral district that chose
him is called upon forthwith to elect a new representative.
*418. The Chambers: Organization.*--The constitution does not prescribe
definitely that the parliament shall be assembled annually. It
stipulates merely that the sessions of the two houses shall begin and
end at the same time, that a meeting of one house at a time when the
other is not in session is illegal, and that measures enacted under
such circumstances are void.[556] Custom and the necessities of
administration, however, render it incumbent upon the crown to convoke
the chambers in at least one session each year, unless, indeed, as has
sometimes happened, a session is so prolonged as to extend, with
occasional recesses, over an entire year, or even two years.
[Footnote 556: Art. 48. Dodd, Modern Constitutions,
II., 12.]
The president and vice-president of the Senate are designated by the
crown, but the president, vice-presidents, and secretaries of the
lower chamber are chosen by the chamber itself from among its own
members at the beginning of each session, for the entire session. The
president of the Deputies, although empowered to appoint certain
committees, such as those on rules and contested elections, is not (p. 380)
infrequently re-elected again and again without regard to party
affiliations, after the manner of the Speaker of the British House of
Commons. The membership of the Chamber of Deputies is divided into
nine _uffici_, or sections, and that of the Senate into five. A fresh
division, by lot, takes place every two months. The principal function
of the _uffici_ is the election of those committees for whose
constitution no other provision is made. In each chamber the most
important of all committees, that on the budget, is elected directly
by the chamber. In the Deputies certain other committees are elected
in the same way, while, as has been said, those on elections and on
rules are appointed by the president. But committees specially
constituted for the consideration of particular measures are made up
of members chosen from the various _uffici_, unless the chamber
prefers to designate some other method.
*419. The Chambers: Procedure.*--Each house frames its own rules of
procedure. By the constitution it is stipulated that the sessions
shall be public (with the provision that upon the written request of
ten members secret sessions may be held); that Italian shall be the
official language; that no session or vote of either house shall be
valid unless an absolute majority of the members is present; and that
neither house shall receive any deputation, or give hearings to
persons other than the legislative members, ministers, and
commissioners of the Government.[557] Except such as relate to
finance, bills on any subject may originate in either house, and at
the initiative of the Government or of private members, though in
practice all proposals of importance emanate from the Quirinal. The
ministers appear regularly on the floor of the two chambers, to
advocate the measures of the Government and to reply to inquiries. The
right of interpellation is not infrequently exercised, though the
debate and vote following a challenge of the ministry fall regularly
after an interval of some days, instead of at once, as in the French
system, thus guarding somewhat against precipitancy of action. A
measure which is passed in one house is transmitted to the other for
consideration. After enactment in both houses, it is presented to the
king for approval, which, in practice, is never withheld. A bill
rejected by the crown, or by either house, may not be reintroduced
during the same session. Votes are taken by rising and sitting, by
division, or by secret ballot. The third of these methods is
obligatory in all final votes on enactments, and on measures of a
personal character. It is specifically enjoined that deputies (p. 381)
shall represent the nation as a whole, and not the districts from
which they are chosen, and to this end no binding instructions may be
imposed upon them by the electors.[558] Except when taken in the
actual commission of an offense, deputies are exempt from arrest
during the continuance of a session, and they may not be proceeded
against in criminal matters without the previous consent of the
Chamber. Neither senators nor representatives may be called to account
for opinions expressed, or for votes cast, in the performance of their
official functions.
[Footnote 557: Arts. 52-54, 59, 62. Dodd, Modern
Constitutions, II., 12-13. In practice the
requirement of the presence of an absolute majority
of members is sometimes disregarded.]
[Footnote 558: Art. 41. Dodd, Modern Constitutions,
II., 11.]
IV. THE JUDICIARY
*420. General Aspects.*--The provisions of the _Statuto_ respecting the
administration of justice are brief and general. Justice, it is
declared, emanates from the king and is administered in his name by
the judges whom he appoints. These judges, after three years of
service, are irremovable. Proceedings of courts in civil cases and
hearings in criminal cases are required to be public. No one may be
withdrawn from his ordinary legal jurisdiction; and no modification
may be introduced in respect to courts, tribunals, or judges, save by
law.[559] On the basis of these principles there has been built up a
system of tribunals which differs in but few important respects from
the systems in operation in the other Latin countries of Europe. It
consists, in part, of courts which have been carried over from the
period preceding Italian unification and, in part, of courts which owe
their existence to legislation subsequent to 1861. The model upon
which the system has been developed is the judicial hierarchy of
France, and it differs from this system in little save the existence,
as will appear, of five largely independent courts of cassation
instead of one.
[Footnote 559: Arts. 68-73. Ibid., II., 14-15.]
*421. The Ordinary Courts.*--For purposes of justice the kingdom is
divided into 1,535 _mandamenti_,[560] 162 tribunal districts, and 20
appellate court districts. Within each _mandamento_ is a _pretura_, or
magistracy, which exercises jurisdiction in civil cases and in cases
of misdemeanors (_contravvenzioni_) and offenses (_delitte_)
punishable by imprisonment not exceeding three months, or banishment
not exceeding one year, or a fine not exceeding 1,000 lire. In (p. 382)
minor civil cases, involving sums not in excess of 100 lire,
jurisdiction is vested in justices of the peace (_giudici conciliatori_)
who likewise, upon request, act as arbitrators in cases involving any
amount. In each of thirteen of the largest towns there is a _pretura_
which exercises penal jurisdiction exclusively. Next above the
_pretori_ stand the penal courts, one in each of the 162 tribunal
districts. These exercise jurisdiction in the first instance in
offenses involving a maximum imprisonment of ten years or a fine of
more than 1,000 lire. To them appeal may be carried from the decisions
of the _pretori_. Closely associated are the courts of assize, which
possess original jurisdiction in cases involving a penalty of
imprisonment for life, or for a period longer than a minimum of five,
and a maximum of ten, years. Save when the Senate is constituted a
high court of justice, these tribunals have exclusive jurisdiction of
all press offenses and of all cases involving attacks upon the
security of the state. As a rule, the courts of assize make use of the
jury. From their decisions there is no appeal, save upon a point of
form, and appeal lies solely to the court of cassation at Rome. From
the penal tribunals appeal lies, in cases not dealt with by the assize
courts, to the twenty courts of appeal.
[Footnote 560: Prior to 1901 the administrative and
electoral _mandamenti_ and the _mandamenti
giudiziarii_ were identical geographically, and
there were 1,805 of them in the kingdom. By a law
of the year mentioned the judicial _mandamenti_
were reduced in number to 1,535.]
At the top of the system stand five largely independent courts of
cassation, located at the old capitals of Turin, Florence, Naples,
Palermo, and Rome. Each of these exercises, within its own territory,
final jurisdiction in all cases involving the ordinary civil law. The
court of cassation at Rome, it is true, has been given exclusive
jurisdiction in conflicts of competence between different courts,
conflicts between the courts and the administrative authorities, the
transfer of suits from one tribunal to another, writs of error in
criminal cases, and a variety of other special matters. But, aside
from this, the five tribunals are absolutely equal in function; there
is no appeal from one to another, and the decisions arrived at by one
do not constitute precedents which the others are obligated to
recognize. One of the most striking aspects, indeed, of the Italian
judicial system is its lack of centralization; though it should be
added that the centralizing principle which, since 1870, has dominated
so notably all other departments of the government has been gradually
winning its way in the judiciary.
*422. The Administrative Courts.*--In Italy, as in continental countries
generally, there is preserved a sharp distinction between public and
private law; but the separation of functions of the ordinary and the
administrative courts is much less clear-cut than in France and
elsewhere. In 1865, indeed, the surviving administrative courts of (p. 383)
the states which had been drawn into the kingdom, were abolished and
it was arranged that the ordinary courts should exercise unrestricted
jurisdiction in all criminal cases and in all civil cases in which, by
the decision of the Council of State, a civil or political right was
involved. The system worked poorly and by laws of June 2, 1889, and
May 1, 1890, a special section of the Council of State (composed of a
president and eight councillors named by the king) was set off to
serve as an administrative court, while at the same time an inferior
administrative jurisdiction was conferred upon the _giunta_ (prefect
and certain assistants) of the province. In practice to-day, when the
legality of acts committed by the administrative officials is called
in question, the ordinary courts exercise jurisdiction, if the
question is one of private _right_; if it is one merely of private
_interest_, it goes for decision to an administrative tribunal. In
most continental countries _all_ cases involving the legality of
official acts fall within the domain of the administrative
courts.[561]
[Footnote 561: There is a brief description of the
Italian judicial system in Lowell, Governments and
Parties, II., 170-178.]
V. LOCAL GOVERNMENT
*423. Historical Basis.*--In her ancient territorial divisions Italy had
once the basis of a natural and wholesomely decentralized system of
local government. Instead of availing themselves of it, however, the
founders of the present kingdom preferred to reduce the realm to a
_tabula rasa_ and to erect within it a wholly new and symmetrical
hierarchy of territorial divisions and governmental organs. By a great
statute of March 20, 1865, there was introduced in the kingdom a
system of provincial and communal organization, the essentials of
which were taken over in part from Belgium, but more largely from
France. The functions and relations of the various local agencies were
amplified and given substantially their present form in the law of
December 30, 1888, supplemented and amended by acts of July 7, 1889,
and July 11, 1894. So closely has the French model been adhered to
throughout that the resemblance between the two systems amounts almost
to duplication. The system of Italy calls, therefore, for no very
extended independent description.
The units of local government are four in number--the province, the
_circondaro_, the _mandamento_, and the commune. Of these, the first
and last alone possess vitality, distinct interests, and some measure
of autonomy; and throughout the entire series runs that same principle
of thoroughgoing centralization which is the pre-eminent characteristic
of the local governmental system of France. The _circondaro_, (p. 384)
corresponding to the French _arrondissement_, is essentially an
electoral division. Strictly, there are in the kingdom 197 _circondarii_;
but 87 districts comprising the province of Mantua and the eight
provinces of Venetia are, in all save name, _circondarii_ also. The
1806 _mandamenti_, or cantons, are but subdivisions of the provinces
for administrative purposes.
*424. The Province: Prefect and Council.*--There are in the kingdom 69
provinces, varying considerably in size but with an average population
of 450,000 to 500,000. The Italian province corresponds closely to the
French department. At its head is a prefect, appointed by the crown
and directly responsible to the Minister of the Interior. Like the
French prefect, the Italian is a political official, and the fact not
merely influences his appointment but affects greatly his conduct in
office. As representative and agent of the central government the
prefect publishes and executes the laws, supervises the provincial
administration, opens and closes sessions of the provincial council
and sanctions or vetoes the measures of that body, and safeguards in
general the interests of the Government in the province.
Within each province is a council of from 20 to 60 members, elected
for a period of six years on a franchise somewhat broader than that
which prevails in parliamentary elections. One-half of the membership
is renewed triennially. The council meets regularly once each year,
nominally for a month's session; but an extraordinary session may be
convened at any time by the prefect, by the deputation, or upon call
of one-third of the councillors. Aside from the voting of the
provincial budget, the powers of the council are relatively meager. In
part, e.g., in respect to the maintenance of highways, the control of
secondary and technical education, and a share in the supervision of
charity, they are obligatory; in part they are merely permissive. A
deputation, or commission, of from six to ten persons, elected by the
council from its own membership, represents the council in the
intervals between its sittings and carries on the work which it may
have in hand. The prefect is advised by a prefectorial council of
three members appointed by the Government, and he is further assisted
by a _giunta_ of six members, four of whom are elected by the
provincial council, the other two being drawn from the prefectorial
council. It is the business of the _giunta_ to assist the prefect and
sub-prefects in the supervision of local administration and to serve
as a tribunal for the trial of cases arising under the administrative
law. The prefect and the _giunta_ possess large, and to a considerable
degree, discretionary powers of control over the proceedings of the
council; and the prefect, representing as he does the central government
exclusively, can be called to account only by his superiors at (p. 385)
Rome.
*425. The Commune: Syndic and Council.*--As in France, the commune is
the least artificial and the most vigorous of the local governmental
units. In June, 1911, there were in Italy a total of 8,323 communes,
besides four boroughs in Sardinia not included in the communal
organization. Each commune has a council of from 15 to 80 members,
according to its population, elected for a period of six years,
one-half retiring every three years. The communal franchise is
appreciably broader than the parliamentary. It extends to all Italian
citizens twenty-one years of age who can read and write, provided they
are on the parliamentary list, or pay any direct annual contribution
to the commune, or comply with various other very easy conditions. The
council holds two regular sessions a year, though in the large towns
it, in point of fact, meets much more frequently. Between sittings its
work is carried on by a _giunta_, which serves as a committee to
execute the resolutions of the council and to draft its budget and
by-laws. The powers of the council are comprehensive. It is obligated
to maintain streets, roads, and markets; to provide for elementary
education; to make suitable arrangements for the relief of the poor,
the registration of births and deaths, and of electors; to establish
police regulations and prisons; and, under varying conditions, to
attend to a wide variety of other matters. The range of its optional
activities is almost boundless. The council may establish theatres,
found museums, subsidize public amusements, and, indeed, go to almost
any length in the regulation of local affairs and the expenditure of
local funds.[562]
[Footnote 562: For an arraignment of the
extravagance of the local governing authorities see
King and Okey, Italy To-day, 267.]
As its chief official, every commune has a _sindaco_, i.e., a syndic,
or mayor. Prior to 1896 the syndic was chosen by the communal council
from its own members, if the commune had more than 10,000 inhabitants,
or was the capital of a province or _circondaro_; otherwise he was
appointed from among the members of the council by the king. In the
great majority of communes the procedure was of the second type. Since
1896 the syndic has been chosen regularly in all communes by the
council, for a term of three years, together with a secretary, elected
in the first instance for two, but afterwards for periods of not less
than six, years. Despite the fact that the syndic is now elected
universally by the communal council, his position is not that
exclusively of executive head of the local community. Like the
prefect, he is a government official, who, save under very exceptional
circumstances, may be removed only with the prefect's permission. He
may not be called to account except by his superiors, or sued save (p. 386)
with the permission of the crown.[563]
[Footnote 563: For a brief account of local
government in Italy see King and Okey, Italy
To-day, Chap. 14. More extended treatment will be
found in E. del Guerra, L'Amministrazione pubblica
in Italia (Florence, 1893) and G. Greco, Il nuova
diritto amministrativo Italiano (Naples, 1896).]
CHAPTER XXI (p. 387)
STATE AND CHURCH--POLITICAL PARTIES
I. QUIRINAL AND VATICAN
Italy differs from other nations of importance in containing what is
essentially a state within a state. The capital of the kingdom is
likewise the capital of the Catholic world--the administrative seat of
a government which is not only absolutely independent of the
government of the Italian nation but is in no small degree
antagonistic to it. It need hardly be remarked that the consequences
of this anomalous situation affect profoundly the practical operations
of government, and especially the crystallization and programmes of
political parties, in the peninsula.
*426. Termination of the Temporal Power.*--One goal toward which the
founders of the kingdom directed their efforts was the realization of
the ideal of Cavour, "a free church in a free state." A thoroughgoing
application of this principle proved impracticable, but such progress
has been made toward it as to constitute, for Italy, a veritable
revolution. On the 20th of September, 1870, the armed forces of King
Victor Emmanuel crossed the bounds of the petty papal dominion about
Rome, entered the city, and by a few sharp strokes beat down all
forcible opposition to the sovereignty of the united Italian nation.
Pope Pius IX. refused absolutely to acquiesce in the loss of his
temporal dominion, but he was powerless to prevent it. His sole hope
of indemnity lay in a possible intervention of the Catholic powers in
his behalf--a hope which by Prussia's defeat of France and the
downfall of the Emperor Napoleon III. was rendered extremely
unsubstantial. The possibility of intervention was, however,
sufficiently considerable to occasion real apprehension on the part of
Victor Emmanuel and of those attached to the interests of the young
nation. In part to avert complications abroad, as well as with an
honest purpose to adjust a difficult situation, the Government made
haste to devise what it considered a fair, safe, and honorable
settlement of its relations with the papal authority. The result was
the fundamental statute known as the Law of the Papal Guarantees,
enacted March 21, 1871, after a heated parliamentary contest (p. 388)
lasting upwards of two months, and promulgated under date of May 13
following.[564]
[Footnote 564: Text in Coglio e Malchiodi, Codice
Politico Amministrativo. An English version is
printed in Dodd, Modern Constitutions, II., 16-21.]
*427. The Law of Papal Guarantees, 1871: Papal Prerogatives.*--This
important measure, which remains to this day unchanged, falls into two
principal parts. The first is concerned with the prerogatives of the
Supreme Pontiff and of the Holy See; the second regulates the legal
relations of church and state within the kingdom. In a series of
thirteen articles there is enumerated a sum total of papal privileges
which constitutes the Vatican an essentially sovereign and independent
power. First of all, the Pope is declared sacred and inviolable, and
any offense against his person is made punishable with the same
penalty as a similar offense against the person of the king. In the
second place, the Italian Government "grants to the Supreme Pontiff,
within the kingdom, sovereign honors, and guarantees to him the
pre-eminence customarily accorded to him by Catholic sovereigns."[565]
Diplomatic agents accredited to him, and envoys whom he may send to
foreign states, are entitled to all the prerogatives and immunities
which international law accords to diplomatic agents generally. In
lieu of the revenues which were cut off by the loss of the temporal
dominion there is settled upon the Pope a permanent income to be paid
from the treasury of the state. For the uses of the Holy See--the
preservation and custody of the apostolic palaces, compensation and
pensions for guards and attachés, the keeping of the Vatican museums
and library, and any other needful purposes--there is reserved the sum
of 3,225,000 lire ($645,000) annually, to be "entered in the great
book of the public debt as a perpetual and inalienable income of the
Holy See."[566] The obligation thus assumed by the state may never be
repudiated, nor may the amount stipulated be reduced. Permanent
possession, furthermore, of the Vatican and Lateran palaces, with all
buildings, museums, libraries, gardens, and lands appertaining thereto
(including the church of St. Peter's), together with the villa at
Castel Gandolfo, is expressly guaranteed, and it is stipulated, not
only that these properties shall be exempt from all taxation and
charges and from seizure for public purposes, but that, except with
papal permission, no public official or agent in the performance of
his public duties shall so much as enter the papal palaces or grounds,
or any place where there may be in session at any time a conclave or
ecumenical council. During a vacancy of the pontifical chair no
judicial or political functionary may, on any pretext, invade the (p. 389)
personal liberty of the cardinals, and the Government engages
specifically to see to it that conclaves and ecumenical councils shall
not be molested by external disorder.
[Footnote 565: Art. 3. Dodd, Modern Constitutions,
II., 16.]
[Footnote 566: Art. 4. Ibid., 17.]
*428. Papal Freedom in the Exercise of Spiritual Functions.*--In the
exercises of spiritual functions the independence of the Holy See is
fully secured. The Pope may correspond freely with the bishops and
with "the whole Catholic world," without interference from the
Government.[567] Papers, documents, books, and registers deposited in
pontifical offices or in congregations of an exclusively spiritual
character are exempt from all legal processes of visit, search, or
sequestration, and ecclesiastics may not be called to account by the
civil authorities for taking part officially in the promulgation of
any act pertaining to the spiritual ministry of the Holy See. To
facilitate the administration of papal affairs the right is granted of
maintaining separate postal and telegraph offices, of transmitting
sealed packages of correspondence under the papal stamp, either
directly or through the Italian post, and of sending couriers who,
within the kingdom, are placed on an equal footing with emissaries of
foreign governments.
[Footnote 567: Art. 12. Dodd, Modern Constitutions,
II., 19.]
*429. Legal Relations of Church and State.*--The regulations by which
the relations of church and state are governed more specifically begin
with the abolition of all restrictions upon the right of members of
the Catholic clergy to assemble for ecclesiastical purposes. With
provisional exceptions, the _exequatur_, the _placet_, and all other
forms of civil authorization of spiritual measures are done away.[568]
The state yields its ancient right of nominating to bishoprics, and
the bishops themselves are no longer required to take oath of fidelity
to the king. In matters of spiritual discipline it is stipulated that
there shall be no appeal to the civil courts from the decisions of the
ecclesiastical authorities. If, however, any ecclesiastical decision
or act contravenes a law of the state, subverts public order, or
encroaches upon the rights of individuals, it is, _ipso facto_, of no
effect; and in respect to these things the state is constituted sole
judge. The Church, in short, is granted a very large measure of
freedom and of autonomy; but at the same time it is not so far
privileged as to be removed beyond the pale of the public law. If its
measures constitute offenses, they are subject to the provisions of
the ordinary criminal code.[569]
[Footnote 568: On the Government's use of the
_exequatur_ since 1871 see King and Okey, Italy
To-day, 253.]
[Footnote 569: By act of July 12, 1871, articles
268-270 of the Italian penal code were so modified
as to render ecclesiastics liable to imprisonment
of from six months to five years, and to fines of
from one thousand to three thousand lire, for
spoken or written attacks upon the state, or for
the incitement of disorder.]
*430. Papal Opposition to the Existing System.*--The arrangements (p. 390)
thus comprised in the Law of Guarantees have never received the
sanction of the papacy. They rest exclusively upon the authority of
the state. Pope Pius IX., flatly refusing to accept them, issued, May
15, 1871, an encyclical to the bishops of the Church repudiating the
Law and calling upon Catholic princes everywhere to co-operate in the
restoration of the temporal power. The call was unheeded, and the Pope
fell back upon the obstructionist policy of maintaining absolutely no
relations, with the Italian kingdom. His successor, Leo XIII.,
preserved essentially the same attitude, and, although many times it
has been intimated that the present Pope, Pius X., is more disposed to
a conciliatory policy, it still is true that the only recognition
which is accorded the Quirinal by the Vatican is of a purely passive
and involuntary character. The Pope persists in regarding himself as
"the prisoner of the Vatican." He will not so much as set foot outside
the petty domain which has been assigned to him, because his doing so
might be construed as a virtual recognition of the legality of the
authority of the kingdom within the Eternal City. Not a penny of the
annuity whose payment to the Holy See was stipulated in 1871 has been
touched. By the Italian Government the annuity itself has been made
subject to quinquennial prescription, so that in the event of a
recognition of the Law at any time by the papacy not more than a
five-year quota, with interest, could be collected.
As to the measure of fidelity with which the Government has fulfilled
the obligations which it assumed under the Law, there is, naturally, a
wide divergence of opinion. The authors of what is probably the most
authoritative book on Italy written from a detached and impartial
point of view say that "on the whole, one is bound to conclude that
the Government has stretched the Law of Guarantees in its own
interest, but that the brevity and incompleteness of the Law is
chiefly responsible for the difficulty in construing it."[570]
Undoubtedly it may be affirmed that the spirit of the Law has been
observed with consistency, though the exigencies of temporal interest
have compelled not infrequently the non-observance of the letter. So
long as the Vatican persists in holding rigidly aloof from
co-operation in the arrangement the Law obviously cannot be executed
with the spontaneity and completeness that were intended by its
framers. The situation is unfortunate, alike for state and church, and
subversive of the best interests of the Italian people.[571]
[Footnote 570: King and Okey, Italy To-day, 255.]
[Footnote 571: For a brief discussion of the
subject of church and state in Italy see King and
Okey, Italy To-day, Chaps. 2 and 13. A useful book
is R. de Cesare, Roma e lo stato del papa dal
ritorno di Pio IX., 2 vols. (Rome, 1907), of which
there is an abridged translation by H. Zimmern, The
Last Days of Papal Rome, 1850-1870 (Boston, 1909).
Mention may be made of M. Pernot, La politique de
Pie X. (Paris, 1910); A. Brunialto, Lo stato e la
chiesa in Italia (Turin, 1892); G. Barzellotti,
L'Italia e il papato, in _Nuova Antologia_, March
1, 1904; and F. Nielsen, The History of the Papacy
in the Nineteenth Century (London, 1906).]
II. PARTIES AND MINISTRIES, 1861-1896 (p. 391)
*431. Party Beginnings: the Conservative Ascendancy, 1861-1876.*--In
Italy, as in France, political parties are numerous and their
constituencies and programmes are subject to rapid and bewildering
fluctuation. In the earliest days of the kingdom party lines were not
sharply drawn. In the parliament elected in January, 1861, the
supporters of Cavour numbered 407, while the strength of the
opposition was but 36. After the death of Cavour, however, June 6,
1861, the cleavage which already had begun to mark off the Radicals,
or Left, from the Conservatives, or Right, was accentuated, and the
Left grew rapidly in numbers and in influence. During the period
between 1861 and 1870 the two parties differed principally upon the
question of the completion of Italian unity, the Conservatives
favoring a policy of caution and delay, the Radicals urging that the
issue be forced at the earliest opportunity. With the exception of
brief intervals in 1862 and 1867, when the Radicals, under Rattazzi,
gained the upper hand, the government during the period indicated was
administered by the Conservative ministries of Ricasoli (the successor
of Cavour), Minghetti, La Marmora, Menabrea, and Lanza. Each of the
Rattazzi ministries had as one of its principal incidents an invasion
of the papal territory by Garibaldi, and each fell primarily because
of the fear of the nation that its continuance in power would mean war
with France. The unification of the peninsula was left to be
accomplished by the Conservatives.
After 1870 the dominance of the Conservatives was prolonged to 1876.
The Lanza government, whose most distinguished member was the finance
minister Sella, lasted until July 10, 1873, and the second ministry of
Minghetti, given distinction by the able foreign minister
Visconti-Venosta, filled out the period to March 18, 1876. Upon these
two ministries devolved the enormous task of organizing more fully the
governmental system of the kingdom, and especially of bringing order
out of chaos in the national finances. The work was effectively
performed, but when it had been completed the nation was more than
ready to drive the Conservatives from office. The Conservative
administration had been honest and efficient, but it had been rigid
and at times harsh. It had set itself squarely against the democracy
of Garibaldi, Crispi, and Depretis; it had sought to retain the (p. 392)
important offices of state in the hands of its own immediate
adherents; and in the execution of its fiscal measures it had been
exacting, and even ruthless. March 18, 1876, the Minghetti government
found itself lacking a majority in the Chamber, whereupon it retired
and was replaced by a Radical ministry under the premiership of
Depretis, successor of Rattazzi in the leadership of the Left. A
national election which followed, in November, yielded the new
Government the overwhelming parliamentary majority of 421 to 87.
*432. The Rule of the Radicals, 1876-1896.*--Prior to their accession to
power the Radical leaders had criticised so sharply the fiscal and
administrative policies of their opponents that they were expected by
many persons to overturn completely the existing order of the state.
As all but invariably happens under such circumstances, however, when
the "outs" became the "ins" their point of view, and consequently
their purposes, underwent a remarkable transformation. In almost every
essential the policies, and even the methods, of the Conservatives
were perpetuated, and the importance of the political overturn of 1876
arises, not from any shift which took place from one style of
government to another, but from its effects upon the composition and
alignment of the parties themselves. During its fifteen-year
ascendancy the Right had exhibited again and again a glaring lack of
coherence; yet its unity was in reality considerably more substantial
than was that of the Left. So long as the Radicals occupied the
position of opponents of the Government they were able, indeed, to
present a seemingly solid front. But when it fell to them to organize
ministries, to frame and enact measures, and to conduct the
administration, the fact appeared instantly that they had neither a
constructive programme nor a unified leadership. The upshot was that
upon its advent to power the Left promptly fell apart into the several
groups of which it was composed, and never thereafter was there
substantial co-operation among these groups, save at rare intervals
when co-operation was necessary to prevent the return to office of the
Conservatives.
*433. The Depretis Ministries, 1876-1887.*--That portion of the party
which first acquired ascendancy was the more moderate, under the
leadership of Depretis. Its programme may be said to have embraced the
extension of the franchise, the enforcement of the rights of the state
in relation to the Church, the incompatibility of a parliamentary
mandate with the holding of public office, the maintenance of the
military and naval policy instituted by the Conservatives, and,
eventually, fiscal reform, though the amelioration of taxation was
given no such prominence as the nation had been led to expect. (p. 393)
Save for the brief intervals occupied by the two Cairoli ministries of
1878 and 1879-1881, Depretis continued in the office of premier from
1876 until his death, in the summer of 1887. Again and again during
this period the personnel of the ministry was changed. Ministers who
made themselves unpopular were replaced by new ones,[572] and so
complete became the lack of dividing principles between the parties
that in 1883 there was established a Depretis cabinet which
represented a coalition of the moderate Left and the Right.[573] The
coalition, however, proved ill-advised, and when, July 27, 1887,
Depretis died he left behind him a government which represented rather
a fusion of the moderate and radical wings of the Left. By reason of
the disintegrated condition of parties Depretis had been able to
override habitually the fundamental principles of parliamentarism and
to maintain through many years a government which lived from hand to
mouth on petty manoeuvers. The franchise, it is true, had been
broadened by the law of 1882, and some of the more odious taxes, e.g.,
the much complained of grist tax, had been abolished. But electoral
corruption had been condoned, if not encouraged; the civil service had
been degraded to a mere machine of the ministerial majority; and the
nation had been led to embark upon highly questionable policies of
colonial expansion, alliance with Germany and Austria, and protective
tariffs.
[Footnote 572: This partial renewal of a ministry,
known in Italy as a _rimpasto_, was, and still is,
rendered easy by the average ministry's lack of
political solidarity.]
[Footnote 573: This coalition policy--the so-called
_transformismo_--did not originate with Depretis.
As early as 1873 a portion of the Right under
Minghetti, by joining the Left, had overturned the
Lanza-Sella cabinet; and in 1876 Minghetti himself
had fallen a victim to a similar defection of
Conservative deputies.]
*434. The First Crispi, First Rudini, and First Giolitti Ministries,
1887-1893.*--The successor of Depretis was Crispi, in reality the only
man of first-rate statesmanship in the ranks of the Left. To him it
fell to tide the nation safely over the crises attendant upon the
death (January 9, 1878) of King Victor Emmanuel II. and that (February
7 following) of Pope Pius IX. The personality of Crispi was very much
more forceful than was that of Depretis and the grasp which he secured
upon the political situation rendered his position little short of
that of a dictator. The elections of 1876 had reduced to impotence the
old Right as a party of opposition, and although prior to Crispi's
ministry there had been some recovery, the Left continued in all but
uncontested power. In the elections of November, 1890, the Government
was accorded an overwhelming majority. None the less, largely by
reason of his uncontrollable temper, Crispi allowed himself, at the
end of January, 1891, to be forced by the Conservatives into a (p. 394)
position such that the only course open to him was to resign.
There followed a transitional period during which the chaos of party
groups was made more than ever apparent. The Rudini ministry, composed
of representatives of both the Right and the Left, survived little
more than a year. May 5, 1892, the formation of a ministry was
intrusted by King Humbert to Giolitti, a Piedmontese deputy and at one
time minister of finance in the Crispi cabinet. The product was a
ministry supported by the groups of the Centre and the Left, but
opposed by those of the Right and of the Extreme Left. Parliament was
dissolved and during the ensuing November were held national elections
in which, by exercise of the grossest sort of official pressure, the
Government was able to win a substantial victory. The period covered
by Giolitti's ministry--marked by a cringing foreign policy, an almost
utter breakdown of the national finances, and the scandals of 1893 in
connection with the management of state banks, especially the Banca
Romana--may well be regarded as the most unfortunate in Italian
history since the completion of national unity. The revelations made,
November 23, 1893, by a committee appointed by Parliament to
investigate the bank scandals were of such a character that the
Giolitti ministry retired from office, November 24, without so much as
challenging a vote of confidence. After prolonged delay a new ministry
was made up, December 10, by Crispi, whose return to power was
dictated by the conviction of the nation that no one else was
qualified to deal with a situation so desperate.
*435. The Second Crispi Ministry, 1893-1896.*--The second Crispi
ministry extended from December, 1893, to March, 1896. Politically,
the period was one of extreme unsettlement. Supported by the Centre
and the Left, substantially as Giolitti had been, the Government
suppressed disorder, effected economies, and entered upon an ambitious
attempt at colonial aggrandizement in East Africa. But it was opposed
by the Extreme Left, a large portion of the Right, and the adherents
of Giolitti, so that its position was always precarious. In December,
1894, Giolitti produced papers purporting to show that Crispi himself
had been implicated in the bank irregularities. The effort to bring
about the premier's fall failed, although there ensued a veritable war
between the cabinet and the chambers, in the course of which even the
appearance of parliamentary government was abandoned. In the elections
of May, 1895, the Government was victorious, and it was only by reason
of public indignation arising from the failure of the Eritrean
enterprise that, finally, March 5, 1896, Crispi and his colleagues
surrendered office.
III. THE ERA OF COMPOSITE MINISTRIES, 1896-1912 (p. 395)
During the period which was terminated by the retirement of Crispi the
successive ministries, while occasionally including representatives of
more than a single political group, exhibited normally a considerable
degree of solidarity. After 1896 there set in, however, an epoch
during which the growing multiplicity of parties bore fruit in
cabinets of amazingly composite character. In the place of the fairly
substantial Conservative and Radical parties of the seventies stood
now upwards of half a score of contending factions, some durable, some
but transitory. No government could survive a month save by the
support of an affiliation of a number of these groups. But such
affiliations were, in the nature of things, artificial and
provisional, and ministerial stability became what it remains to-day,
a thing universally desired but rarely enjoyed.
*436. The Second Rudini and the Pelloux Ministries, 1896-1900.*--To
General Ricotti-Magnani was committed, at Crispi's fall in 1896, the
task of forming a new ministry. After some delay the premiership was
bestowed upon Rudini, now leader of the Right. The new Government,
constructed to attract the support of both the Right and the Extreme
Left, took as its principal object the elimination of Crispi from the
arena of politics. In time its foreign policy was strengthened
appreciably by the return of Visconti-Venosta, after twenty years, to
the foreign office, but home affairs were administered in a grossly
inefficient manner. Bound by a secret understanding with Cavalotti,
the leader of the Extreme Left, Rudini was obliged to submit
habitually to radical dictation, and the elections of 1899, conducted
specifically to crush the adherents of Crispi, threw open yet wider
the door of opportunity for the Socialists, the Republicans, and the
radical elements generally. The Rudini ministry survived until June
18, 1898, when it was overthrown in consequence of riots occasioned in
southern Italy by a rise in the price of bread.
June 29, 1898, a ministry was made up by General Pelloux which was
essentially colorless politically and whose immediate programme
consisted solely in the passage of a public safety measure originated
during the preceding ministry. When, in June, 1900, the Government
dissolved parliament and appealed to the country the result was
another appreciable increase of power on the part of the radicals. In
the new chamber the extremists--Radicals, Republicans, and
Socialists--numbered nearly 100, or double their former strength. The
Pelloux government forthwith retired, and a Liberal ministry was
constituted (June 24, 1900) under Saracco, president of the (p. 396)
Senate. Five weeks later, upon the assassination of King Humbert,
occurred the accession of the present sovereign, Victor Emmanuel III.
*437. The Saracco and Zanardelli Ministries, 1900-1903.*--The Saracco
ministry, formed as a cabinet of pacification, was overthrown February
7, 1901, in consequence of its hesitating attitude towards a dock
strike at Genoa. It was succeeded by a ministry containing Giolitti
(in the portfolio of the interior) and presided over by Zanardelli,
long a leader of the extremer wing of the Radicals. The members of the
new Government were drawn from several groups. Three were of
Zanardelli's following, three were adherents of Giolitti, three
belonged to the Right, one was a Crispian, and two were Independents.
Such was their forced reliance, however, upon the support of the
Extreme Left that the formation of this cabinet served as an impetus
to a notable advance on the part of the extremer groups, especially
the Socialists.
*438. Giolitti, Fortis, and Sonnino, 1903-1909.*--In October, 1903,
Premier Zanardelli retired, by reason of ill-health, and the cabinet
was reconstituted under Giolitti. Aside from the premier, its most
distinguished members were Tittoni, minister of foreign affairs, and
Luzzatti, minister of finance. The position of the new Government was
insecure, and although the elections of November, 1904, resulted in
the return of a substantial ministerial majority, the cabinet,
realizing that it really lacked the support of the country, resigned
in March, 1905. A new and colorless ministry, that of Fortis, lasted
less than a year, i.e., until February 2, 1906. The coalition cabinet
of Sonnino proved even less long-lived. The well-known statesmanship
of Sonnino, together with the fact that men of ability, such as
Luzzatti and Guicciardini, were placed in charge of various
portfolios, afforded ground for the hope that there might ensue an
increased measure of parliamentary stability. But the hope was vain
and, May 17, 1906, the ministry abandoned office. Curiously enough,
the much desired stability was realized under a new Giolitti
government, composed, as all Italian governments in these days must
be, of representatives of a number of political groups. In part by
reason of the shrewdness of the premier and his colleagues, in part by
reason of sheer circumstance, the Giolitti cabinet maintained steadily
its position until December 2, 1909, although, as need hardly be
observed, during these three and a half years there were numerous
changes in the tenure of individual portfolios.
*439. Second Sonnino and Luzzatti Ministries, 1909-1911.*--Upon the
retirement of Giolitti there was constituted a second Sonnino
ministry, composed of elements drawn from all of the moderate groups
from the Liberal Right to the Democratic Left. The programme which it
announced included electoral reform, the improvement of primary (p. 397)
education, measures for the encouragement of agriculture,
reorganization of local taxation, reduction of the period of military
service to two years, and a multiplicity of other ambitious projects.
Scarcely more fortunate, however, was the second Sonnino government
than had been the first, and, in the midst of the turmoil attending
the debates upon a Shipping Conventions bill, the premier and his
colleagues felt themselves forced to retire, March 21, 1910.
Giolitti refused to attempt the formation of another ministry, and the
task devolved upon the former minister of finance, Luzzatti. In the
new cabinet the premier and one other member represented the Liberal
element of the Right; one member represented the Centre; three were
adherents of Giolitti; two were Radicals; one was a Socialist; and two
professed independence of all groups. Whatever of advantage might be
supposed to accrue from a government which was broadly representative
could legitimately be expected from this combination; although the
composite character of the ministry, it was well enough understood,
must of necessity operate to the detriment of the Government's unity
and influence. The programme which the Luzzatti ministry announced was
no less ambitious than that put forward by its predecessor. Included
in it were the establishment of proportional representation, the
extension of the suffrage, measures to remedy unemployment and other
industrial ills, compulsory insurance for agricultural laborers,
resistance to clerical intrigue and the prevention of anti-clerical
provocations, and the usual pledge to maintain the Triple Alliance.
*440. Giolitti and the Left, 1911-.*--The life of the Luzzatti
government covered barely a twelvemonth. March 29, 1911, Giolitti
returned to the premiership, signalizing his restoration to power by
avowing in the Chamber a programme of policies which, for the time at
least, elicited the support of all of the more important party groups.
The composition of the new government differed but slightly from that
of the former one, but the fact was undisguised that Giolitti relied
for support principally upon the more radical elements of the nation,
and that, furthermore, he did so with the full assent of the king. A
striking evidence of this was the invitation which was extended the
socialist leader Bissolati to assume a post in the ministry. Certain
obstacles arose which prevented acceptance of the offered position,
but when the Government's programme was being given shape Bissolati
was called repeatedly into counsel, and it is understood that the
ministry's pronouncement in behalf of universal suffrage and the
reduction of military and naval expenditures was inspired immediately
by socialist influence. Socialism in Italy, it may be observed, is not
entirely anti-monarchical, as it is in France and Spain; on the (p. 398)
contrary, it tends constantly to subordinate political to social
questions and ends. Bissolati is himself an exponent of the
evolutionary type of socialism, as is Briand in France. The first vote
of confidence accorded the Giolitti government was participated in by
the Giolitti Liberals, the Democratic Left, the Radicals, and a
section of the Socialists--by, in short, a general coalition of the
Left. The shift of political gravity toward the Left, of which the
vote was symptomatic, is the most fundamental aspect of the political
situation in Italy to-day, even as it is in that of France. During
more than a generation the grouping of parties and factions has been
such as to preclude the formation of a compact and disciplined
majority able and willing to grapple with the great social questions
which successive ministries have inscribed in their programmes. But it
seems not impossible that a working _entente_ among the groups of the
Left may in time produce the legislative stability requisite for
systematic and fruitful legislation.
IV. PHASES OF PARTY POLITICS
*441. Lack of a Conservative Party: Effects.*--"From the beginning,"
says an Italian writer, "the constitution of our parties has been
determined, not at all by great historical or political
considerations, but by considerations of a purely personal nature, and
this aspect has been accentuated more and more as we have progressed
in constitutional development. The natural conditions surrounding the
birth and growth of the new nation did not permit the formation of a
true conservative party which could stand in opposition to a liberal
party. The liberal party, therefore, occupying the entire field,
divided empirically into groups, denominated not less empirically
Right and Left, in accordance with simple distinctions of degrees and
forms, and perchance also of personal disposition."[574]
[Footnote 574: Cardon, Del governo nella monarchia
costituzionale, 125.]
The preponderating facts, in short, relative to political parties in
Italy are two: (1) the absence of any genuine conservative party such
as in virtually every other European state plays a rôle of greater or
lesser importance, and (2) the splitting of the liberal forces, which
elsewhere are bound to co-operate against the conservatives, into a
number of factional groups, dominated largely by factional leaders,
and unwilling to unite save in occasional coalitions for momentary
advantage. The lack of a genuine conservative party is to be explained
largely by the anomalous situation which has existed since 1870 in
respect to church and state. Until late years that important element,
the clericals, which normally would have constituted, as does its
counterpart in France, the backbone of a conservative party has (p. 399)
persisted in the purely passive policy of abstention from national
politics. In the evolution of party groupings it has had no part, and
in Parliament it has been totally unrepresented. Until recently all
active party groups were essentially "liberal," and rarely did any one
of them put forward a programme which served to impart to it any vital
distinction from its rivals. Each was little more than a faction,
united by personal ties, fluctuating in membership and in leadership,
fighting with such means as for the moment appeared dependable for the
perquisites of office. Of broadly national political issues there were
none, just as indeed there were no truly national parties.
*442. The Groups of the Extreme Left.*--More recently there has begun to
be a certain development in the direction of national parties and of
stable party programmes. This is coming about primarily through the
growth of the Extreme Left, and especially of the Socialists. Although
the effects are as yet scarcely perceptible, so that the politics of
the country exhibit still all of the changeableness, ineffectiveness,
and chaos characteristic of the group system, the development of the
_partiti populari_ which compose collectively the Extreme Left, i.e.,
the Republicans, the Radicals, and the Socialists, is an interesting
political phenomenon.[575] The Republicans are not numerous or well
organized. Quite impotent between 1870 and 1890, they gained no little
ground during the struggle against Crispi; but the rise of socialism
has weakened them, and the party may now be said to be distinctly in
decline. To employ the expressive phrase of the Italians, the
Republicans are but _quattro noci in un sacco_, four nuts rattling in
a bag. The Radicals are stronger, and their outlook is much more
promising. They are monarchists who are dissatisfied with the
misgovernment of the older parties, but who distrust socialism. They
draw especially from the artisans and lower middle class, and are
strongest in Lombardy, Venetia, and Tuscany.
[Footnote 575: For an exposition of party
conditions during the past decade see A. Labrioli,
Storia di dieci anni, 1899-1909 (Milan, 1910).]
*443. The Rise of Socialism.*--In not a few respects the master fact of
Italian politics to-day is the remarkable growth of the Socialist
party. The origins of the socialist movement in Italy may be traced to
the Congress of Rimini in 1872, but during a considerable period
Italian socialism was scarcely distinguishable from Bakuninian
anarchism, and it was not before 1890 that the line between the two
was drawn with precision. In 1891 was founded the collectivist journal
_Critica Sociale_, and in the same year was held the first Italian
congress which was distinctively socialist. In 1892 came the final
break with the anarchists, and since this date socialism in Italy (p. 400)
has differed in no essential particulars from its counterpart in
other countries. Between 1891 and 1893 the new party was allied with
the Right, but Crispi's relentless policy of repression in 1894 had
the effect of driving gradually the radical groups, Republicans,
Radicals, and Socialists, into co-operation, and it is to this period
that the origins of the present coalition of the groups of the Extreme
Left are to be traced. During the years 1895-1900 the Socialists
assumed definitely the position of the advanced wing of a great
parliamentary party, with a very definite programme of political and
social reform. This "minimum programme," as it was gradually given
shape, came to comprise as its most essential features the
establishment of universal suffrage for adults of both sexes, the
payment of deputies and members of local councils, the enactment of a
more humane penal code, the replacing of the standing army by a
national militia, improved factory legislation, compulsory insurance
against sickness, the reform of laws regulating the relations of
landlords and tenants, the nationalization of railways and mines, the
extension of compulsory education, the abolition of duties on food,
and the enactment of a progressive income tax and succession duty. The
widespread dissatisfaction of Italians with the older parties, the
practical character of the socialist programme, and the comparatively
able leadership of the socialist forces have combined to give
socialism an enormous growth within the past fifteen years. In 1895
the party polled 60,000 votes and returned to the Chamber of Deputies
12 members. In 1897 it polled 108,000 votes and returned 16 members.
Thereafter the quota of seats carried at successive elections rose as
follows: 1900, 33; 1904, 26; 1906, 42; and 1909, 43.
*444. The Catholics and Politics: the Non Expedit.*--Aside from the
growth of socialism, the most important development in recent Italian
politics has been the changed attitude of the Holy See with respect to
the participation of Catholics in political affairs. The term
"Catholic" in Italy has a variety of significations. From one point of
view it denotes the great mass of the people--97.1 per cent in
1910--who are not Protestants, Greeks, Jews, or adherents of any faith
other than the Roman. In another sense it denotes that very much
smaller portion of the people who regularly and faithfully observe
Catholic precepts of worship. Finally, it denotes also the still
smaller body of men who yield the Pope implicit obedience in all
matters, civil as well as ecclesiastical, and who, with papal
sanction, are beginning to constitute an organized force in politics.
After it had become manifest that the Holy See might not hope for
assistance from the Catholic powers in the recovery of its temporal
possessions and of its accustomed independence, there was worked (p. 401)
out gradually at the Vatican a policy under which pressure was to be
brought to bear upon the Italian state from within. This policy
comprised abstention from participation in national political life on
the part of as many citizens as could be induced to admit the right of
the papal government to control their civic conduct. In protest
against the alleged usurpations of secular power Pope Pius IX.
promulgated, in 1883, the memorable decree _Non Expedit_, by which it
was declared "inexpedient" that Catholics should vote at parliamentary
elections. Leo XIII. maintained a similar attitude; and in 1895 he
went a step further by expressly forbidding what hitherto had been
pronounced simply inexpedient.
At no time, before or after Pope Leo's decree of prohibition, was the
policy of abstention widely enforced, and very many Catholics, both in
and out of Italy, warmly opposed it. The stricture was applied only to
parliamentary, not to municipal, elections; yet in the two the
percentages of the enfranchised citizens who appeared at the polls
continued to be not very unequal, and there is every reason to believe
that the meagerness of these percentages has been attributable at all
times to the habitual indifference of the Italian electorate rather
than to the restraining effects of the papal veto. None the less, in
the strongly Catholic province of Bergamo and in some other quarters,
the papal regulations, by common admission, have cut deeply into what
otherwise would have been the normal parliamentary vote.
*445. Relaxation of the Papal Ban.*--In the elections of 1904 many
Catholics who hitherto had abstained from voting joined with the
Government's supporters at the polls in an effort to check the growing
influence of the more radical political groups, justifying their
conduct by the conviction that the combatting of socialism is a
fundamental Catholic obligation. Pope Leo XIII. was ready to admit the
force of the argument, and in June of the following year there was
issued an encyclical which made it the duty of Catholics everywhere,
Italy included, to share in the maintenance of social order, and
permitted, and even enjoined, that they take part in political
contests in defense of social order whenever and wherever it was
obviously menaced. At the same time, such participation must be, not
indiscriminate, but disciplined. It must be carried on under the
direction of the ecclesiastical hierarchy, and with the express
approval of the Vatican. Theoretically, and as a general rule, the
_Non Expedit_ remains. But where the rigid application of the law
would open the way for the triumph of the enemies of society and of
religion (as, from the papal point of view, socialists inevitably are)
the rule, upon request of the bishop and sanction by the Holy See, is
to be waived. A corollary of this new policy is that, under (p. 402)
certain circumstances, Catholics not merely vote but may stand for
parliamentary seats. By the encyclical it is prescribed that such
candidacies shall be permitted only where absolutely necessary to
prevent the election of an avowed adversary of the Church, only where
there is a real chance of success, and only with the approbation of
the proper hierarchical authorities; and even then the candidate shall
seek office not _as_ a Catholic, but _although_ a Catholic.[576]
[Footnote 576: The idea is expressed in the phrase
_cattolici deputati, si, deputati cattolici, no_.]
The partial lifting of the _Non Expedit_ has had two obvious effects.
In the first place, it has stimulated considerably the political
activities of the Catholics. In the elections of 1906 and 1909 the
number of Catholic voters and of Catholic candidates was larger than
ever before, and in the Chamber of Deputies the group of clerical
members gives promise of attaining some real importance. A second result
has been, on the other hand, a quickening of the anti-clerical spirit,
with a perceptible strengthening of the radical-republican-socialist
_bloc_. By providing the Left with a solidifying issue it may yet
prove that the papacy has rendered unwittingly a service to the very
elements against whom it has authorized its adherents to wage
relentless war.[577]
[Footnote 577: Eufrasio, Il Non Expedit, in _Nuova
Antologia_, Sept. 1, 1904.]
*446. The Election of 1909.*--In respect to the parliamentary strength
of the several party groups the elections of the past decade have
produced occasional changes of consequence, but the situation to-day
is not widely different from what it was at the opening of the
century. In the Chamber elected in 1900 the Extreme Left obtained, in
all, 107 seats. In 1904 the total fell to 77. In 1906, however, the
Radicals secured 44, the Socialists 42, and the Republicans 23--an
aggregate of 109; and following the elections of March 7 and 14, 1909,
the quotas were, respectively, 37, 43, and 23, aggregating 103. The
falling-off in 1904 is to be explained principally by the activity of
the Catholics in the elections of that year, and the recovery in 1906
by the fact that, sobered by their reverses, the Socialists had
abandoned in the meantime the extremer phases of their revolutionary
propaganda. The elections of 1909 were precipitated by Giolitti's
dissolution of the Chamber, February 6, in consequence largely of the
dissatisfaction of the nation with the ministry's conciliatory
attitude toward Austria-Hungary following the annexation by that power
of the territories of Bosnia and Herzegovina. Despite the excitement
by which it was preceded, however, the campaign was a listless one.
The foreign situation as an issue was soon forgotten, and no
preponderating national question rose to assume its place. The (p. 403)
Left made the most of the opportunity to increase its parliamentary
strength, and the Catholics were more than ever active. The two
forces, however, in a measure offset each other, and the mass of the
nation, unreached by either, returned the customary overwhelming
Governmental majority. When various electoral contests had been
decided the quota of seats retained by each of the party groups in the
Chamber was found to be as follows: Radicals, 37; Socialists, 43;
Republicans, 23; Catholics, 16; Constitutional Opposition (separated
from the Government upon no vital matter of principle), 42; and
Ministerialists, or supporters of the Government, 346. These
supporters of the Government include men of varied political opinions,
but collectively they correspond approximately to the elements which
in other countries are apt to be designated Liberals, Progressives, or
Moderates.[578]
[Footnote 578: The political parties of Italy are
described briefly in Lowell, Governments and
Parties, II., Chap. 4, and at more length in King
and Okey, Italy To-day, Chaps. 1-3. Special works
of importance upon the subject include M.
Minghetti, I partiti politici e la ingerenza loro
nella giustizia e nell' amministrazione (2d ed.,
Bologna, 1881); P. Penciolelli, Le gouvernement
parlementaire et la lutte des partis en Italie
(Paris, 1911); and S. Sighele, Il nazionalismo e i
partiti politici (Milan, 1911). Of value are R.
Bonfadini, I partiti parlamentari, in _Nuova
Antologia_, Feb. 15, 1894, and A. Torresin,
Statistica delle elezioni generali politiche, in
_La Riforma Sociale_, Aug. 15, 1900. A useful
biography is W. J. Stillman, Francesco Crispi
(London, 1899), and an invaluable repository of
information is M. Prichard-Agnetti (trans.), The
Memoirs of Francesco Crispi, 2 vols. (New York,
1912). On the parties of the Extreme Left the
following may profitably be consulted: F. S. Nitti,
Il partito radicale (Turin and Rome, 1907); P.
Villari, Scritti sulla questione sociale in Italia
(Florence, 1902); R. Bonghi, Gli ultimi fatti
parlamentari, in _Nuova Antologia_, Jan. 1, 1895;
G. Alessio, Partiti e programmi, ibid., Oct. 16,
1900; G. Louis-Jaray, Le socialisme municipal en
Italie, in _Annales des Sciences Politiques_, May,
1904; R. Meynadier, Les partis d'extrême gauche et
la monarchie en Italie, in _Questions Diplomatiques
et Coloniales_, April 1, 1908; F. Magri, Riformisti
e rivoluzionari nel partito socialista italiano, in
_Rassegna Nazionale_, Nov. 16, 1906, and April 1,
1907; R. Soldi, Le varie correnti nel partito
socialista italiano, in _Giornale degli
Economisti_, June, 1903. On recent Italian
elections see G. Gidel, Les élections générales
italiennes de novembre 1904, in _Annales des
Sciences Politiques_, Jan., 1905; P.
Quentin-Bauchart, Les élections italiennes de mars
1909, ibid., July, 1909.]
PART V.--SWITZERLAND (p. 405)
CHAPTER XXII
THE CONSTITUTIONAL SYSTEM--THE CANTONS
I. THE CONFEDERATION AND ITS CONSTITUTION
Among the governments of contemporary Europe that of the federal
republic of Switzerland is unique; and the constitutional experiments
which have been, and are being, undertaken by the Swiss people give
the nation an importance for the student of politics altogether out of
proportion to its size and population. Nowhere in our day have been
put to the test in more thoroughgoing fashion the principles of
federalism, of a plural executive, of proportional representation, of
the initiative and the referendum, and, it may be said, of radical
democracy in general. The results attained within a sphere so
restricted, and under conditions of race, religion, and historical
tradition so unusual, may or may not be accepted as evidence of the
universal practicability of these principles. At the least, they are
of acknowledged interest.
*447. The Confederation in the Eighteenth Century.*--In the form in
which it exists to-day the Swiss Confederation is a product of the
middle and later nineteenth century. The origins of it, however, are
to be traced to a very much remoter period. Beginning with the
alliance of the three forest cantons of Uri, Schwyz, and Unterwalden
in 1291,[579] the Confederation was built up through the gradual creation
of new cantons, the splitting of old ones, the reorganization of (p. 406)
dependent territories, and the development of a federal governmental
system, superimposed upon the constitutional arrangements of the
affiliated states. In 1789, when the French Directory, at the
instigation of Napoleon, took it upon itself to revolutionize
Switzerland, the Confederation consisted of thirteen cantons.[580]
With it were associated certain _Zugewandte Orte_, or allied
districts, some of which eventually were erected into cantons,
together with a number of _Gemeine Vogteien_, or subject territories.
The Confederation comprised simply a _Staatenbund_, or league of
essentially autonomous states. Its only organ of common action was a
diet, in which each canton had a right to one vote. Save in matters of
a purely advisory nature, the powers of this diet were meager indeed.
Of the cantons, some were moderately democratic; others were highly
aristocratic. The political institutions of all were, in large
measure, such as had survived from the Middle Ages.
[Footnote 579: For an English version of the
Perpetual League of 1291 see Vincent, Government in
Switzerland, 285-288. The best account in English
of the origins of the Confederation is contained in
W. D. McCrackan, The Rise of the Swiss Republic (2d
ed., New York, 1901). Important are A. Rilliet, Les
origines de la confédération suisse (Geneva, 1868);
P. Vauchier, Les commencements de la confédération
suisse (Lausanne, 1891); W. Oechsli, Die Anfange
der schweizerischen Eidgenossenschaft (Zürich,
1891). Of the last-mentioned excellent work there
is a French translation, under the title Les
origines de la confédération suisse (Bern, 1891).
The origins of the Swiss Confederation were
described in a scientific manner for the first time
in the works of J. E. Kopp: Urkunden zur Geschichte
der eidgenössischen Bünde (Leipzig and Berlin,
1835), and Geschichte der eidgenössischen Bünde
(Leipzig and Berlin, 1845-1852). The texts of all
of the Swiss alliances to 1513 are printed in J.
von Ah, Die Bundesbriefe der alten Eidgenossen
(Einsiedeln, 1891).]
[Footnote 580: Lucerne joined the alliance in 1332;
Zürich in 1351; Glarus and Zug in 1352; Bern in
1353; Freiburg and Solothurn in 1481; Basel and
Schaffhausen in 1501; and Appenzell in 1513. "Swiss
history is largely the history of the drawing
together of bits of each of the Imperial kingdoms
(Germany, Italy, and Burgundy) for common defense
against a common foe--the Hapsburgs; and, when this
family have secured to themselves the permanent
possession of the Empire, the Swiss league little
by little wins its independence of the Empire,
practically in 1499, formally in 1648. Originally a
member of the Empire, the Confederation becomes
first an ally, then merely a friend." Encyclopedia
Britannica, 11th ed., XXVI., 246.]
*448. The Helvetic Republic.*--The result of the French intervention of
1798 was that, almost instantly, the loosely organized Swiss
confederation was converted into a centralized republic, tributary to
France, and under a constitution which was substantially a
reproduction of the French instrument of 1795. Under the terms of this
constitution the territories of the Confederation were split up into
twenty-three administrative districts, corresponding in but rare
instances to the earlier cantons,[581] a uniform Swiss citizenship was
established, a common suffrage was introduced, freedom of speech and
of the press was guaranteed, and unity was provided for in the
coinage, the postal service, and the penal law. A government of ample
powers was set up, with its seat at Lucerne, its organs comprising a
Grand Council of deputies elected indirectly in the cantons in
proportion to population, a Senate of four delegates from each canton
(together with retiring members of the Directory), and an Executive
Directory of five members, with whom were associated, for (p. 407)
administrative purposes, four appointed heads of departments. The
French intervention was ruthless and the governmental order thrust
upon the Swiss had no root in national tradition or interest. The
episode served, however, to break the shackles of mediævalism and thus
to contribute to the eventual establishment of a modernized
nationality. July 2, 1802, following a series of grave civil
disturbances, the constitution of 1798 was superseded by a new but
similar instrument, which was imposed by force despite an adverse
popular vote.[582]
[Footnote 581: To these districts, however, the
name canton was applied; and, indeed, this was the
first occasion upon which the name was employed
officially in Switzerland.]
[Footnote 582: McCrackan, Rise of the Swiss
Republic, 295-312; A. von Tillier, Geschichte der
helvetischen Republik, 3 vols. (Bern, 1843); Muret,
L'Invasion de la Suisse en 1798 (Lausanne,
1881-1884); L. Marsauche, La confédération
helvétique (Neuchâtel, 1890).]
*449. The Act of Mediation, 1803.*--Under the circumstances reaction was
inevitable, and the triumph of the "federalists" came more speedily
than might have been expected. In deference to preponderating
sentiment in the territories, Napoleon, February 19, 1803, promulgated
the memorable Act of Mediation, whereby he authorized the
re-establishment of a political system that was essentially
federal.[583] Once again there was set up a loose confederation, under
a constitution which, however, provided for a central government that
was distinctly more substantial than that which had prevailed prior to
1798. The right, for example, to make war and to conclude treaties,
withdrawn entirely from the individual cantons, was conferred
specifically upon the federal Diet. To the thirteen original cantons
were added six new ones--Aargau, Thurgau, Vaud, Ticino, and the
Grisons (St. Gall and Graubünden)--the first four formed from
districts which under the old régime had occupied the status of
subordinate territory, the last two having been formerly "allied
states." In the Diet six cantons (Bern, Zürich, Vaud, Aargau, St.
Gall, and Graubünden) which had a population in excess of 100,000 were
given each two votes. All others retained a right to but one. The
executive authority of the Confederation was vested by turns in the
six cantons of Bern, Freiburg, Lucerne, Zürich, Basel and Solothurn,
the "directorial" canton being known as the _Vorort_, and its chief
magistrate as the _Landammann_, of the Confederation. The principle of
centralization was in large part abandoned; but the equality of civil
rights which the French had introduced was not allowed by Napoleon to
be molested. It may be observed further that by the accession of the
newly created cantons, containing large bodies of people who spoke
French, Italian, and Romansch, the league ceased to be so (p. 408)
predominantly German as theretofore it had been.[584]
[Footnote 583: It is in this instrument that the
Confederation was for the first time designated
officially as "Switzerland."]
[Footnote 584: Cambridge Modern History, IX., Chap.
4 (bibliography, pp. 805-807). The best general
work on the period 1798-1813 is W. Oechsli,
Geschichte der Schweiz im XIX. Jahrhundert
(Leipzig, 1903), I.]
*450. The Pact of 1815 and the Revival of Particularism.*--The Act of
Mediation, on the whole not unacceptable to the majority of the Swiss
people, save in that it had been imposed by a foreign power, continued
in operation until 1813. During the decade Switzerland was essentially
tributary to France. With the fall of Napoleon the situation was
altered, and December 29, 1813, fourteen of the cantons, through their
representatives assembled at Zürich, declared the instrument to be no
longer in effect. Led by Bern, eight of the older cantons determined
upon a return to the system in operation prior to 1798, involving the
reduction of the six most recently created cantons to their former
inferior status. Inspired by the Tsar Alexander I., however, the
majority of the Allies refused to approve this programme, and, after
the Congress of Vienna had arranged for the admission to the
confederacy of the three allied districts of Valais, Geneva, and
Neuchâtel, there was worked out, by the Swiss themselves, a
constitution known as the "Federal Pact," which was formally approved
by the twenty-two cantons at Zürich, August 7, 1815.[585]
[Footnote 585: This statement needs to be qualified
by the observation that the half-canton Nidwalden
approved the constitution August 30, and only when
compelled by force to do so.]
By this instrument the ties which bound the federation together were
still further relaxed. The cantons regained almost the measure of
independence which they had possessed prior to the French
intervention. The Diet was maintained, on the basis now of one vote
for each canton, regardless of size or population.[586] It possessed
some powers,--for example, that of declaring war or peace, with the
consent of three-fourths of the cantons,--but there were virtually no
means by which the body could enforce the decrees which it enacted.
The executive authority of the Confederation was vested in the
governments of the three cantons of Zürich, Lucerne, and Bern, which,
it was stipulated, should serve in rotation, each during a period of
two years. Practically all of the guarantees of common citizenship,
religious toleration, and individual liberty which the French had
introduced were rescinded, and during the decade following 1815 the
trend in most of the more important cantons was not only particularistic
but also distinctly reactionary. The smaller and poorer ones (p. 409)
retained largely their democratic institutions, especially their
Landesgemeinden, or primary assemblies, but it was only after 1830,
and in some measure under the stimulus of the revolutionary movements
of that year, that the majority of the cantonal governments underwent
that regeneration in respect to the suffrage and the status of the
individual which lay behind the transforming movements of 1848.[587]
[Footnote 586: Three of the cantons--Unterwalden,
Basel, and Appenzell--were divided into
half-cantons, each with a government of its own;
but each possessed only half a vote in the Diet.]
[Footnote 587: B. Van Muyden, La suisse sous le
pacte de 1815, 2 vols. (Lausanne and Paris,
1890-1892); A. von Tillier, Geschichte der
Eidgenossenschaft während der sogen.
Restaurationsepoche, 1814-1830, 3 vols. (Bern and
Zürich, 1848-1850); ibid., Geschichte der
Eidgenossenschaft während der Zeit des
sogeheissenen Fortschritts, 1830-1846, 3 vols.
(Bern, 1854-1855).]
*451. Attempted Constitutional Revision: the Sonderbund.*--The period
between 1830 and 1848 was marked by not fewer than thirty revisions of
cantonal constitutions, all in the direction of broader
democracy.[588] The purposes of the liberal leaders of the day,
however, extended beyond the democratization of the individual
cantons. The thing at which they aimed ultimately was the
establishment, through the strengthening of the Confederation, of a
more effective nationality. On motion of the canton of Thurgau, a
committee was authorized in 1832 to draft a revision of the Pact. The
instrument which resulted preserved the federal character of the
nation, but provided for a permanent federal executive, a federal
court of justice, and the centralization of the customs, postal
service, coinage, and military instruction. By a narrow majority this
project, in 1833, was defeated. It was too radical to be acceptable to
the conservatives, and not sufficiently so to please the advanced
liberals.
[Footnote 588: McCracken, Rise of the Swiss
Republic, 325-330.]
The obstacles to be overcome--native conservatism, intercantonal
jealousy, and ecclesiastical heterogeneity--were tremendous. More than
once the Confederation seemed on the point of disruption. In
September, 1843, the seven Catholic cantons[589] entered into an
alliance, known as the Sonderbund, for the purpose of defending their
peculiar interests, and especially of circumventing any reorganization
of the confederacy which should involve the lessening of Catholic
privilege; and, in December, 1845, this affiliation was converted into
an armed league. In July, 1847, the Diet, in session at Bern, decreed
the dissolution of the Sonderbund; but the recalcitrant cantons
refused to abandon the course upon which they had entered, and it was
only after an eighteen-day armed conflict that the obstructive league
was suppressed.[590]
[Footnote 589: Lucerne, Uri, Schwyz, Unterwalden,
Zug, Freiburg, and the Valais.]
[Footnote 590: A. Stern, Zur Geschichte des
Sonderbundes, in _Historische Zeitschrift_, 1879;
W. B. Duffield, The War of the Sonderbund, in
_English Historical Review_, Oct., 1895; and P.
Matter, Le Sonderbund, in _Annales de l'École Libre
des Sciences Politiques_, Jan. 15, 1896.]
*452. The Constitution of 1848 and the Revision of 1874.*--The war (p. 410)
was worth while, because the crisis which it precipitated afforded
the liberals an opportunity to bring about the adoption of a wholly
new constitution. For a time the outlook was darkened by the
possibility of foreign intervention, but by the outbreak of the
revolution of 1848 at Paris that danger was effectually removed. The
upshot was that, through the agency of a committee of fourteen,
constituted, in fact, February 17, 1848--one week prior to the
overthrow of Louis Philippe--the nationalists proceeded to incorporate
freely the reforms they desired in a constitutional _projet_, and this
instrument the Diet forthwith revised slightly and placed before the
people for acceptance. By a vote of 15-1/2 cantons (with a population
of 1,900,000) to 6-1/2 (with a population of 290,000), the new
constitution was approved.
The adoption of the constitution of 1848, ensuring a modified revival
of the governmental régime of 1798-1803, comprised a distinct victory
for the Radical, or Centralist, party. During the two decades which
followed this party maintained complete control of the federal
government, and in 1872 it brought forward the draft of a new
constitution whose centralizing tendencies were still more pronounced.
By popular vote this proffered constitution was rejected. Another
draft, however, was prepared and, April 19, 1874, by a vote of 14-1/2
cantons against 7-1/2, it was adopted. The popular vote was 340,149 to
198,013. Amended subsequently upon a large number of occasions,[591]
the instrument of 1874 is the fundamental law of the Swiss
Confederation to-day, although it is essential to observe that it
represents only a revision of the constitution of 1848. As a recent
writer has said, "the one region on the continent to which the storms
of 1848 brought immediate advantage was Switzerland, for to them it
owes its transformation into a well-organized federal state."[592]
[Footnote 591: For the methods of constitutional
amendment see p. 431.]
[Footnote 592: W. Oechsli, in Cambridge Modern
History, XI., 234. A brief survey of the
constitutional history of Switzerland from 1848 to
1874 is contained in Chap. 8 of the volume
mentioned (bibliography, pp. 914-918). Two
excellent works are C. Hilty, Les constitutions
fédérales de la confédération suisse; exposé
historique (Neuchâtel, 1891), and T. Curti,
Geschichte der Schweiz im XIX. Jahrhundert
(Neuchâtel, 1902). A fairly satisfactory book is L.
Hug and R. Stead, Switzerland (New York, 1889). The
text of the constitution may be found in S. Kaiser
and J. Strickler, Geschichte und Texte der
Bundesverfassungen der schweizerischen
Eidgenossenschaft von der helvetischen
Staatsumwälzung bis zur Gegenwart (Bern, 1901), and
in Lowell, Governments and Parties, II., 405-431.
English versions are printed in Dodd, Modern
Constitutions, II., 257-290; McCrackan, Rise of the
Swiss Republic, 373-403; Vincent, Government in
Switzerland, 289-332; and Old South Leaflets,
General Series, No. 18. The texts of all federal
constitutions after 1798 are included in the work
of Kaiser and Strickler. A good collection of
recent documents is P. Wolf, Die schweizerische
Bundesgesetzgebung (2d ed., Basel, 1905-1908). The
principal treatises on the Swiss constitutional
system are J. J. Blumer, Handbuch des
schweizerischen Bundesstaatsrechtes (2d ed.,
Schaffhausen, 1877-1887); J. Schollenberger,
Bundesverfassung der schweizerischen
Eidgenossenschaft (Berlin, 1905); ibid., Das
Bundesstaatsrecht der Schweiz Geschichte und System
(Berlin, 1902); and W. Burckhardt, Kommentar der
Schweiz; Bundesverfassung vom 29 Mai 1874 (Bern,
1905). Two excellent briefer treatises are N. Droz,
Instruction civique (Lausanne, 1884) and A. von
Orelli, Das Staatsrecht der schweizerischen
Eidgenossenschaft (Freiburg, 1885), in
Marquardsen's Handbuch. The best treatise in
English upon the Swiss governmental system is J. M.
Vincent, Government in Switzerland (New York,
1900). Older works include B. Moses, The Federal
Government of Switzerland (Oakland, 1889); F. Adams
and C. Cunningham, The Swiss Confederation (London,
1889); and B. Winchester, The Swiss Republic
(Philadelphia, 1891). Mention should be made of A.
B. Hart, Introduction to the Study of Federal
Government (Boston, 1891); also of an exposition of
Swiss federalism in Dicey, Law of the Constitution,
7th ed., 517-529.]
II. THE NATION AND THE STATES (p. 411)
*453. Dominance of the Federal Principle.*--In its preamble the Swiss
constitution proclaims its object to be "to confirm the alliance of
the Confederation and to maintain and to promote the unity, strength,
and honor of the Swiss nation;" and in its second article it affirms
that it is the purpose of the Confederation "to secure the
independence of the country against foreign nations, to maintain peace
and order within, to protect the liberty and the rights of the
confederates, and to foster their common welfare."[593] The use of the
term "nation" (which, curiously, nowhere occurs in the constitution of
the United States) might seem to imply a considerably larger measure
of centralization than in fact exists. For although the effect of the
constitution of 1848 was to convert a loosely organized league into a
firmly constructed state--to transform, as the Germans would say, a
_Staatenbund_ into a _Bundesstaat_--the measure of consolidation
attained fell, and still falls, somewhat short of that which has been
realized in the United States, and even in Germany. There are in the
Confederation twenty-two cantons, of which three (Unterwalden, Basel,
and Appenzell) have split into half-cantons; so that there are really
twenty-five political units, each with its own government, its own
laws, and its own political conditions. In territorial extent these
cantons vary all the way from 2,773 to 14 square miles, and in
population, from 642,744 to 13,796;[594] and the primary fact of (p. 412)
the Swiss governmental system is the remarkable measure of political
independence which these divisions, small as well as large, possess.
[Footnote 593: Dodd, Modern Constitutions, II.,
257.]
[Footnote 594: The total area of the Confederation
is approximately 16,000 square miles; the total
population, according to the census of December 1,
1910, is 3,741,971.]
*454. The Sovereignty of the Cantons.*--In the United States there was
throughout a prolonged period a fundamental difference of opinion
relative to the sovereignty of the individual states composing the
Union. The Constitution contains no explicit affirmation upon the
subject, and views maintained by nationalists and state right's
advocates alike have always been determined of necessity by
interpretation of history and of public law. In Switzerland, on the
contrary, there is, upon the main issue, no room for doubt. "The
cantons are sovereign," asserts the constitution, "so far as their
sovereignty is not limited by the federal constitution; and, as such,
they exercise all the rights which are not delegated to the federal
government."[595] As in the United States, the federal government is
restricted to the exercise of powers that are delegated, while the
federated states are free to exercise any that are not delegated
exclusively to the nation, nor prohibited to the states. In the Swiss
constitution, however, the delimitation of powers, especially those of
a legislative character, is so much more minute than in the American
instrument that comparatively little room is left for difference of
opinion as to what is and what is not "delegated."[596]
[Footnote 595: Art. 3. Dodd, Modern Constitutions,
II., 257.]
[Footnote 596: In the form in which it now exists
the Swiss constitution is one of the most
comprehensive instruments of the kind in existence.
Aside from various temporary provisions, it
contains, in all, 123 articles, some of
considerable length. As is true of the German
constitution, there is in it much that ordinarily
has no place in the fundamental law of a nation. A
curious illustration is afforded by an amendment of
1893 to the effect that "the killing of animals
without benumbing before the drawing of blood is
forbidden; this provision applies to every method
of slaughter and to every species of animals." Art.
25. Dodd, Modern Constitutions, II., 263. The
adoption of this amendment was an expression of
antisemitic prejudice.]
*455. Federal Control of the Cantons.*--After the analogy of the United
States, where the nation guarantees to each of the states a republican
form of government, the Swiss Confederation guarantees to the cantons
their territory, their sovereignty (within the limits fixed by the
fundamental law), their constitutions, the liberty and rights of their
people, and the privileges and powers which the people have conferred
upon those in authority. The cantons are empowered, and indeed
required, to call upon the Confederation for the guaranty of their
constitutions, and it is stipulated that such guaranty shall be
accorded in all instances where it can be shown that the constitution
in question contains nothing contrary to the provisions of the (p. 413)
federal constitution, that it assures the exercise of political rights
according to republican forms, that it has been ratified by the
people, and that it may be amended at any time by a majority of the
citizens.[597] A cantonal constitution which has not been accorded the
assent of the two houses of the federal assembly is inoperative; and
the same thing is true of even the minutest amendment. The control of
the federal government over the constitutional systems of the states
is thus more immediate, if not more effective, than in the United
States, where, after a state has been once admitted to the Union, the
federal power can reach its constitutional arrangements only through
the agency of the courts. Finally, in the event of insurrection the
government of the Confederation possesses a right to intervene in the
affairs of a canton, with or without a request for such intervention
by the constituted cantonal authorities. This right was exercised very
effectively upon the occasion of the Ticino disorders of 1889-1890.
[Footnote 597: Arts. 5 and 6. Dodd, Modern
Constitutions, II., 258.]
Like the American states, but unlike the German, the Swiss cantons
enjoy a complete equality of status and of rights. They are forbidden
to enter into alliances or treaties of a political nature among
themselves, though they are permitted to conclude intercantonal
conventions upon legislative, administrative, and judicial subjects,
provided such conventions, upon inspection by the federal officials,
are found to be devoid of stipulations contrary to the federal
constitution or inimical to the rights of any canton. In the event of
disputes between cantons, the questions at issue are required to be
submitted to the federal government for decision, and the individual
canton must refrain absolutely from the use of violence, and even from
military preparation.
*456. Powers Vested Exclusively in the Confederation.*--Within the text
of the constitution the division of powers between the federal and the
cantonal governments is minute, though far from systematic. The
clearest conception of the existing arrangements may perhaps be had by
observing that provision is made for three principal categories of
powers: (1) those that the Confederation has an exclusive right to
exercise, some being merely permissive, others obligatory; (2) those
which the Confederation is required, or allowed, to exercise in
concurrence with the cantons; and (3) those which are not permitted to
be exercised at all.
Of powers committed absolutely to the Confederation, the most
important are those of declaring war, making peace, and concluding
alliances and treaties with foreign powers, especially treaties
relating to tariffs and commerce.[598] The Confederation is (p. 414)
forbidden to maintain a standing army, and no canton, without federal
permission, may maintain a force numbering more than three hundred
men. None the less, by law of 1907, every male Swiss citizen between
the ages of twenty and forty-eight is liable to military service, and
the constitution vests not only the sole right of declaring war but
also the organization and control of the national forces in the
Confederation.[599] The neutralized status with which, by international
agreement, Switzerland has been vested renders a war in which the
nation should be involved, other, at any rate, than a civil contest,
extremely improbable.[600] Within the domain of international
relations, the cantons retain the right to conclude treaties with
foreign powers respecting border and police relations and the
administration of public property. All remaining phases of diplomatic
intercourse are confided exclusively to the Confederation. Other
functions vested in the federal authorities alone include the control
of the postal service and of telegraphs; the coining of money and the
maintenance of a monetary system; the issue of bank notes and of other
forms of paper money; the fixing of standards of weights and measures;
the maintenance of a monopoly of the manufacture and sale of
gunpowder; and the enactment of supplementary legislation relating to
domicile and citizenship.
[Footnote 598: Art. 8. Dodd, Modern Constitutions,
II., 258.]
[Footnote 599: Arts. 15-23. Ibid., II., 260-262.]
[Footnote 600: McCrackan, Rise of the Swiss
Republic, 354-363; Payen, La neutralisation de la
Suisse, in _Annales de l'École Libre des Sciences
Politiques_, Oct. 15, 1892.]
*457. Concurrent Powers and Powers Denied the Confederation.*--Among
powers which are intrusted to the Confederation, to be exercised in
more or less close conjunction with the cantonal governments, are: (1)
the making of provision for public education, the cantons maintaining
a system of compulsory primary instruction, the Confederation
subsidizing educational establishments of higher rank;[601] (2) the
regulation of child labor, industrial conditions, emigration, and
insurance; (3) the maintenance of highways; (4) the regulation of the
press; and (5) the preservation of public order and of peace between
members of different religious organizations.
[Footnote 601: Art. 27. Dodd, Modern Constitutions,
II., 263.]
Several explicit prohibitions rest upon the authorities of both
Confederation and cantons. No treaties may be concluded whereby it is
agreed to furnish troops to other countries. No canton may expel from
its own territory one of its citizens, or deprive him of his rights.
No person may be compelled to become a member of a religious society,
to receive religious instruction, to perform any religious act, or to incur
penalty of any sort by reason of his religious opinions.[602] No (p. 415)
death penalty may be pronounced for a political offense. The
prohibitions, in short, which the constitution imposes upon federal
and cantonal authorities comprise essentially a bill of rights,
comparable with any to be found in a contemporary European
constitution.
[Footnote 602: Art. 49. Dodd, Modern Constitutions,
II., 271-272.]
*458. General Aspects.*--The fundamental thing to be observed is that
under the Swiss constitution, as under the German, the legislative
powers of the federal government are comprehensive, while the
executive authority, and especially the executive machinery, is
meager. The Confederation has power to legislate upon many
subjects--military service, the construction and operation of
railroads, education, labor, taxation, monopolies, insurance,
commerce, coinage, banking, citizenship, civil rights, bankruptcy,
criminal law, and numerous other things. In respect to taxation the
federal government possesses less power than does that of Germany, and
distinctly less than does that of the United States, for this power is
confined to the single field of customs legislation;[603] but in
virtually every other direction the legislative competence of the
Swiss central authorities is more extended. It is worth observing,
furthermore, that the centralizing tendency since 1874 has found
expression in a number of constitutional amendments whose effect has
been materially to enlarge the domain covered by federal legislation.
Among these may be mentioned the amendment of July 11, 1897, granting
the Confederation power to enact laws concerning the traffic in food
products, that of November 13, 1898, extending the federal legislative
power over the domain of civil and criminal law, that of July 5, 1908,
conferring upon the Confederation power to enact uniform regulations
respecting the arts and trades (thus bringing substantially the entire
domain of industrial legislation within the province of the
Confederation), and that of October 25, 1908, placing the utilization
of water-power under the supervision of the central authorities.
[Footnote 603: "The customs system shall be within
the control of the Confederation. The Confederation
may levy export and import duties." Art. 28. Dodd,
Modern Constitutions, II., 263. The constitution
stipulates further that imports of materials
essential for the manufactures and agriculture of
the country, and of necessaries of life in general,
shall be taxed as low as possible; also that export
taxes shall be kept at a minimum. Art. 42
prescribes that the expenditures of the
Confederation shall be met from the income from
federal property, the proceeds of the postal and
telegraph services, the proceeds of the powder
monopoly, half of the gross receipts from the tax
on military exemptions levied by the cantons, the
proceeds of the federal customs, and, finally, in
case of necessity, contributions levied upon the
cantons in proportion to their wealth and taxable
resources. Dodd, II., 269.]
Within the domain of administrative functions, the principle is (p. 416)
rather that of committing to the federal agencies a minimum of
authority. Beyond the management of foreign relations, the
administration of the customs, the postal, and the telegraph services,
and of the alcohol and powder monopolies, and the control of the
arsenals and of the army when in the field, the federal government
exercises directly but inconsiderable executive authority. It is only
in relation to the cantonal governments that its powers of an
administrative nature are large; and even there they are only
supervisory. In a number of highly important matters the constitution
leaves to the canton the right to make and enforce law, at the same
time committing to the Confederation the right to inspect, and even to
enforce, the execution of such measures. Thus it is stipulated that
the cantons shall provide for primary instruction which shall be
compulsory, non-sectarian, and free; and that "the Confederation shall
take the necessary measures against such cantons as do not fulfill
these duties."[604] Not only, therefore, does the federal government
enforce federal law, through its own officials or through those of the
canton; it supervises the enactment and enforcement of measures which
the constitution enjoins upon the cantons.[605]
[Footnote 604: Art. 27. Dodd, Modern Constitutions,
II., 263.]
[Footnote 605: A. Souriac, L'évolution de la
juridiction fédérale en Suisse (Paris, 1909).]
III. CANTONAL LEGISLATION: THE REFERENDUM AND THE INITIATIVE
*459. Variation of Cantonal Institutions.*--In its fundamental features
the federal government of Switzerland represents largely an adaptation
of the political principles and organs most commonly prevailing within
the individual cantons; from which it follows that an understanding of
the mechanism of the federation is conditioned upon an acquaintance
with that of the canton.[606] Anything, however, in the nature of a
description which will apply to the governmental systems of all of the
twenty-five cantons and half-cantons is impossible. Variation among
them, in both structure and procedure, is at least as common and as
wide as among the governments of the American commonwealths. Each
canton has its own constitution, and the Confederation is bound to
guarantee the maintenance of this instrument regardless of the
provisions which it may contain, provided only, as has been pointed
out, that there is in it nothing that is contrary to the federal (p. 417)
constitution, that it establishes a republican system of government,
and that it has been ratified by the people and may be amended upon
demand of a majority. The constitutions of the cantons are amended
easily and frequently; but while it may be affirmed that, in
consequence of their flexibility, they tend toward more rather than
toward less uniformity, the diversity that survives among them still
proclaims strikingly their separatist origin and character.
[Footnote 606: On the governments of the cantons
the principal general works are J. Schollenberger,
Grundriss der Staats-und Verwaltungsrechts der
schweizerischen Kantone, 3 vols. (Zürich,
1898-1900), and J. Dubs, Das öffentliche Recht der
schweizerischen Eidgenossenschaft (Zürich,
1877-1878), I. Brief accounts will be found in
Vincent, the Government of Switzerland, Chaps.
1-12.]
The point at which the governments of the cantons differ most widely
is in respect to arrangements for the exercise of the functions of
legislation. Taking the nature of the legislative process as a basis
of division, there may be said to be two classes of cantonal
governments. One comprises those in which the ultimate public powers
are vested in a Landesgemeinde, or primary assembly of citizens; the
other, those in which such powers have been committed to a body of
elected representatives. The second class, as will appear, falls again
into two groups, i.e., those in which the employment of the
referendum is obligatory and those in which it is merely optional.
*460. The Landesgemeinde.*--Prior to the French intervention of 1798
there were in the Confederation no fewer than eleven cantons whose
government was of the Landesgemeinde type. To-day there are but six
cantons and half-cantons--those, namely, of Uri, Glarus, the two
Unterwaldens, and the two Appenzells. Under varying circumstances, but
principally by reason of the increasingly unwieldy character of the
Landesgemeinde as population has grown, the rest have gone over to the
representative system. All of those in which the institution survives
are small in area and are situated in the more sparsely populated
mountain districts where conditions of living are primitive and where
there is little occasion for governmental elaborateness.[607]
[Footnote 607: The area of Zug is 92 square miles;
of Glarus, 267; of the Unterwaldens, 295; of the
Appenzells, 162. The longest dimension of any one
of these cantons is but thirty miles, and the
distance to be traversed by the citizen who wishes
to attend the Landesgemeinde of his canton rarely
exceeds ten miles. It was once the fashion to
represent the Swiss Landesgemeinde as a direct
survival of the primitive Germanic popular
assembly. For the classic statement of this view
see Freeman, Growth of the English Constitution,
Chap. 1. There is, however, every reason to believe
that between the two institutions there is no
historical connection.]
Nominally, the Landesgemeinde is an assembly composed of all male
citizens of the canton who have attained their majority. Actually, it
is a gathering of those who are able, or disposed, to be present. The
assembly meets regularly once a year, in April or May, at a centrally
located place within the canton, and usually in an open meadow. When
necessity arises, there may be convened a special session. With the
men come ordinarily the women and children, and the occasion (p. 418)
partakes of the character of a picturesque, even if solemn and
ceremonious, holiday. Under the presidency of the Landammann, or chief
executive of the canton, the assembly passes with despatch upon
whatsoever proposals may be laid before it by the Landrath, or Greater
Council. In the larger assemblies there is no privilege of debate.
Measures are simply adopted or rejected. In the smaller gatherings,
however, it is still possible to preserve some restricted privilege of
discussion. Unless a secret ballot is specifically demanded, voting is
by show of hands. Theoretically, any citizen possesses the right to
initiate propositions. In practice, however, virtually all measures
emanate from the Greater Council, and if the private citizen wishes to
bring forward a proposal he will be expected to do so by suggesting it
to the Council rather than by introducing it personally in the
assembly. The competence of the Landesgemeinde varies somewhat from
canton to canton, but in all cases it is very comprehensive. The
assembly authorizes the revision of the constitution, enacts all laws,
levies direct taxes, grants public privileges, establishes offices,
and elects all executive and judicial officials of the canton.
Directly or indirectly, it discharges, indeed, all of the fundamental
functions of government. It is the sovereign organ of a democracy as
thoroughgoing as any the world has ever known.[608]
[Footnote 608: H. D. Lloyd, A Sovereign People (New
York, 1907), Chap. 4.]
*461. The Greater Council.*--In every canton, whether or not of the
Landesgemeinde type, there is a popularly elected representative body,
the Greater Council, which performs a larger or smaller service in the
process of legislation. This body is variously known as the Grosser
Rath, the Landrath, and the Kantonsrath. In the cantons that maintain
the Landesgemeinde the functions of the Greater Council are
subsidiary. It chooses minor officials, audits accounts, and passes
unimportant ordinances; but its principal business is the preparation
of measures for the consideration of the Landesgemeinde. In the
cantons, however, in which the Landesgemeinde does not exist, the
Greater Council is a more important institution, for there it
comprises the only law-making body which is ever brought together at
one time or place. Where there exists the obligatory referendum, i.e.,
where all legislative measures are submitted to a direct popular
vote, the decisions of the Council are but provisional. But where the
referendum is optional the Council acquires in many matters the
substance of final authority.
Members of the Council are elected regularly in districts by direct
popular vote. The size of constituencies varies from 188 people in
Obwalden and 250 in Inner Appenzell to 1,500 in St. Gall and Zürich
and 2,500 in Bern. The electors include all males who have (p. 419)
completed their twentieth year and who are in possession of full civil
rights. The term of members varies from one to six years, but is
generally three or four. There are, as a rule, two meetings annually,
in some cantons a larger number. Beginning with the canton of Ticino
in 1891, there has been introduced into the governmental systems of
several cantons and of the two cities of Bern and Basel the principle
of proportional representation. The details vary, but the general
principle is that each political party shall be entitled to seats in
the Greater Council in the closest practicable proportion that the
party vote bears to the entire vote cast within the canton. Those
cantons where this principle is in operation are laid out in
districts, each of which is entitled to two or more representatives,
and the individual elector, while forbidden to cast more than one vote
for a given candidate, casts a number of votes corresponding to the
number of seats to be filled.[609]
[Footnote 609: For an excellent account of the
introduction of proportional representation in the
canton of Ticino see J. Galland, La démocratie
tessinoise et la représentation proportionnelle
(Grenoble, 1909). The canton in which the principle
has been adopted most recently is St. Gall. In
1893, 1901, and 1906 it was there rejected by the
people, but at the referendum of February, 1912, it
was approved, and in the following November the
cantonal legislature formally adopted it. For a
brief exposition of the workings of the system see
Vincent, Government in Switzerland, Chap. 4. An
important study of the subject is E. Klöti, Die
Proportionalwahl in der Schweiz; Geschichte,
Darstellung und Kritik (Bern, 1901). On the
proposed introduction of proportional
representation in the federal government see p.
433.]
*462. The Referendum: Origins and Operation.*--The most interesting if
not the most characteristic, of Swiss political institutions is the
referendum. The origins of the referendum in Switzerland may be traced
to a period at least as early as the sixteenth century. The principle
was applied first of all in the complicated governments of two
territories--the Grisons and the Valais--which have since become
cantons but which at the time mentioned were districts merely
affiliated with the Confederation. In the later sixteenth century
there were traces of the same principle in Bern and in Zürich. And, in
truth, the political arrangements of the early Confederation involved
the employment of a device which at least closely resembled the
referendum. Delegates sent by the cantons to the Diet were
commissioned only _ad audiendum et referendum_; that is to say, they
were authorized, not to agree finally to proposals, but simply to hear
them and to refer them to the cantonal governments for ultimate
decision.
In its present form, however, the Swiss referendum originated in the
canton of St. Gall in 1830. It is distinctively a nineteenth century
creation and is to be regarded as a product of the political
philosophy of Rousseau, the fundamental tenet of which was that (p. 420)
laws ought to be enacted, not through representatives, but by the
people directly.[610] The principle of the referendum may be applied
in two essentially distinct directions, i.e., to constitutions and
constitutional amendments and to ordinary laws. The referendum as
applied to constitutional instruments exists to-day in every one of
the Swiss cantons.[611] It is in no sense, however, peculiar to
Switzerland. The same principle obtains in several English-speaking
countries, as well as upon occasion elsewhere. The referendum as
applied to ordinary laws, on the other hand, is distinctively Swiss.
In our own day it is being brought into use in certain of the American
commonwealths and elsewhere, but it is Swiss in origin and spirit.
Inaugurated in part to supply the need created by a defective system
of representation and in part in deference to advanced democratic
theory, the referendum for ordinary laws exists to-day in every canton
of Switzerland save only that of Freiburg. In some cantons the
referendum is obligatory, in others it is "facultative," or optional.
Where the referendum is obligatory every legislative measure must be
referred to popular vote; where it is optional, a measure is referred
only upon demand of a specified number or proportion of voters. A
petition calling for a referendum must be presented to the executive
council of the canton, as a rule, within thirty days after the
enactment of the measure upon which it is proposed that a vote be
taken. The number of signers required to make the petition effective
varies from 500 in Zug to 6,000 in St. Gall. Likewise, the proportion
of voters which is competent to reject a measure is variable. In some
cantons a majority of all enfranchised citizens is required; in
others, a simple majority of those actually voting upon the
proposition in hand. In the event of popular rejection of a measure
which the cantonal legislature has passed, the executive council gives
the proper notice to the legislature, which thereupon pronounces the
measure void.[612]
[Footnote 610: Lowell, Governments and Parties,
II., 243.]
[Footnote 611: It will be observed, of course, that
in the cantons which maintain a Landesgemeinde
there is no occasion for the employment of the
referendum upon either constitutional or
legislative questions. The people there act
directly and necessarily upon every important
proposition.]
[Footnote 612: Important treatises on the Swiss
referendum are T. Curti, Geschichte der
schweizerischen Volksgesetzgebung (Zürich, 1885);
ibid., Die Volksabstimmung in der schweizerischen
Gesetzgebung (Zürich, 1886). A French version of
the former work, by J. Ronjat, has appeared under
the title Le référendum: histoire de la législation
populaire en Suisse (Paris, 1905). Of large value
is Curti, Die Resultate des schweizerischen
Referendums (2d ed., Bern, 1911). An older account
is J. A. Herzog, Das Referendum in der Schweiz
(Berlin, 1885). An excellent book is S. Duploige,
Le référendum en Suisse (Brussels, 1892), of which
there is an English translation, by C. P.
Trevelyan, under the title The Referendum in
Switzerland (London, 1898). Of value also are
Stüssi, Referendum und Initiative in den
Schweizerkantonen (Zürich, 1894), and J. Signorel,
Étude de législation comparée sur le référendum
législatif (Paris, 1896). Mention may be made of J.
Delpech, Quelques observations à propos du
référendum et des Landesgemeinde suisse, in _Revue
du Droit Public_, April-June, 1906.]
*463. The Initiative.*--The complement of the referendum is the (p. 421)
initiative. Through the exercise of the one the people may prevent the
taking effect of a law or a constitutional amendment to which they
object. Through the exercise of the other they may not merely bring
desired measures to the attention of the legislature; they may secure
the enactment of such measures despite the indifference or opposition
of the legislative body. In current political discussion, and in their
actual operation, the two are likely to be closely associated. They
are, however, quite distinct, as is illustrated by the fact that the
earliest adoptions of the initiative in Switzerland occurred in
cantons (Vaud in 1845 and Aargau in 1852) in which as yet the
referendum did not exist. Among the Swiss cantons the right of popular
legislative initiative is now all but universal. It has been
established in all of the cantons save Freiburg, Lucerne, and Valais.
As a rule, measures may be proposed by the same proportion of voters
as is competent to overthrow a measure referred from the legislature;
and any measure proposed by the requisite number of voters must be
taken under consideration by the legislature within a specified
period. If the legislature desires to prepare a counter-project to be
submitted to the voters along with the popularly initiated
proposition, it may do so. But the original proposal must, in any
case, go before the people, accompanied by the legislature's opinion
upon it; and their verdict is decisive.[613]
[Footnote 613: A. Keller, Das Volksinitiativrecht
nach den schweizerischen Kantonsverfassungen
(Zürich, 1889).]
IV. THE CANTONAL EXECUTIVE AND JUDICIARY
*464. The Council of State.*--Executive authority within the canton is
vested regularly in an administrative council, variously designated as
a Regierungsrath, a Standeskommission, or a Conseil d'État. The
Council of State (employing this phrase to designate each body of the
kind, however named) consists of from five to thirteen members,
serving for from one to five years. In more than half of the cantons
the members are chosen by popular vote; in the rest, they are elected
by the Greater Council, or legislature. By the Council of State (in a
few instances by the legislature) is chosen a chairman, or president,
known in the German cantons as the Landammann.[614] The office of
Landammann is one of dignity and honor, at least locally, but it (p. 422)
is not one of large authority. The Landammann is the chief spokesman
of the canton, but legally his status is scarcely superior to that of
his fellow councillors. The functions of the Council embrace the
execution of the laws, the preservation of order, the drawing up of
fiscal statements, the drafting of proposed legislation, the rendering
of decisions in cases on appeal, and, in general, the safeguarding of
the interests of the canton. For purposes of convenience the functions
of the Council are divided among departments, to each of which one of
the councillors is assigned. All acts, however, are performed in the
name of the Council as a whole. In those cantons which have
full-fledged legislative chambers councillors may attend sessions and
speak, though as a rule they may not vote.
[Footnote 614: In the Landesgemeinde cantons the
Landammann is elected by the primary assembly.]
*465. Local Administration.*--For purposes of administration all
cantons, save a few of the smaller ones, are divided into districts
(187 in the aggregate), at the head of each of which is placed a
prefect or Bezirksammann. This official, whether chosen by the Council
of State, by the Greater Council, or even by the people of the
district, is in every sense a representative of the cantonal
government. Sometimes he is assisted by a Bezirksrath, or district
council; frequently he is not. In Schwyz there is a Bezirksgemeinde,
or popular assembly, in each of the six districts, but this is wholly
exceptional.
Each canton is built up of communes, or Gemeinden, and these communes,
3,164 in number, comprise the most deeply rooted political units of
the country. Legally, each is composed of all male Swiss citizens over
twenty years of age resident within the communal bounds during a
period of at least three months. The meeting of these persons is known
as the Gemeindeversammlung, or the assemblée générale. By it are
chosen an executive council (the Gemeinderath or conseil municipal)
and a mayor (Gemeindepräsident). A principle adhered to by the
cantonal governments generally is that in the work of local
administration the largest possible use shall be made of the mayors of
towns, the headmen of villages, and other minor local dignitaries.[615]
[Footnote 615: Vincent, Government in Switzerland,
Chap. 10; Adams and Cunningham, The Swiss
Confederation, Chap. 8; Lloyd, A Sovereign People,
Chap. 3.]
*466. Justice.*--Each canton has a judicial system which is essentially
complete within itself. Judges are elected by the people. The
hierarchy of civil tribunals--the Vermittler, or justice of the peace,
the Bezirksgericht, or district court, and the Kantonsgericht--is
paralleled by a hierarchy of courts for the trial of criminal cases, a
special committee or chamber of the Kantonsgericht serving as the
criminal court of last resort. Only in few and wholly exceptional
instances may appeal be carried from a cantonal to a federal tribunal.
CHAPTER XXIII (p. 423)
THE FEDERAL GOVERNMENT
I. THE EXECUTIVE
*467. The Federal Council: the President.*--At the framing of the Swiss
constitution, as at that of the American, there arose the question of
a single or a plural executive. In the United States the disadvantages
assumed to be inherent in an executive which should consist of a
number of persons who were neither individually responsible nor likely
to be altogether harmonious determined a decision in favor of a single
president. In Switzerland, on the other hand, the cantonal tradition
of a collegiate executive, combined with an exaggerated fear of the
concentration of power, determined resort to the other alternative.
There is a president of the Swiss Confederation. But, as will appear,
his status is altogether different from that of the President of the
United States, and likewise from that of the President of France. The
Swiss executive consists rather of a Bundesrath, or Federal Council,
in which the President is little more than chairman.
"The supreme directive and executive authority of the Confederation,"
says the constitution, "shall be exercised by a Federal Council,
composed of seven members."[616] The members of the Federal Council
are elected by the Federal Assembly, i.e., the National Council and
the Council of the States in joint session, from among all citizens
eligible to the National Council, or popular legislative body, with
the condition simply that not more than one member may be chosen from
the same canton. Nominally, the term of members is three years;
practically, it is variable, for whenever the National Council is
dissolved prior to the expiration of its triennial period the new
Assembly proceeds forthwith to choose a new Federal Council. Two
officials, designated respectively as President of the Confederation
and Vice-President of the Federal Council, are elected annually by the
Assembly from among the seven members of the Council. A retiring
president may not be elected president or vice-president for the
succeeding year; nor may any member occupy the vice-presidency during
two consecutive years. By custom the vice-president regularly (p. 424)
succeeds to the presidency. The function of the President, as such, is
simply that of presiding over the deliberations of the Council. He has
no more power than any one of his six colleagues. Like each of them,
he assumes personal direction of some one of the principal executive
departments.[617] The only peculiarity of his status is that he
performs the ceremonial duties connected with the titular headship of
the state and draws a salary of 13,500 francs instead of the 12,000
drawn by each of the other councillors. He is in no sense a "chief
executive."
[Footnote 616: Art. 95. Dodd, Modern Constitutions,
II., 281.]
[Footnote 617: No longer, as prior to 1888,
necessarily that of foreign affairs.]
*468. The Executive Departments.*--The business of the Council is
divided among the seven departments of Foreign Affairs, Interior,
Justice and Police, Military Affairs, Imposts and Finance, Posts and
Railways, and Commerce, Industry, and Agriculture. Each department is
presided over by a member of the Council, and to each is assigned from
time to time, by the President, such subjects for consideration as
properly fall within its domain. It is stipulated by the constitution,
however, that this distribution shall be made for the purpose only of
facilitating the examination and despatch of business. All decisions
are required to emanate from the Council as a body.[618] Ordinarily a
councillor remains at the head of a department through a considerable
number of years,[619] and it may be added that, by reason of an
increase in the aggregate volume of governmental business, the
departmental head enjoys to-day a larger measure of independence than
formerly. A quorum of the Council consists of four members, and no
member may absent himself from a session without excuse. Except in
elections, voting is _viva voce_, and an abstract of proceedings is
published regularly in the official gazette of the Republic.
[Footnote 618: Art. 103. Dodd, Modern
Constitutions, II., 284. For a synopsis of the law
of July 8, 1887, whereby an apportionment of
functions was made among the various departments
see Dupriez, Les Ministres, II., 239-246.]
[Footnote 619: Members of the Council are
re-elected, almost as a matter of course, as long
as they are willing to serve. Between 1848 and 1893
the average period of service exceeded ten years.
Lowell, Governments and Parties, II., 203.]
*469. Actual Character of the Council.*--The Federal Council, although
at certain points resembling a cabinet, is not a cabinet, and no such
thing as cabinet government, or a parliamentary system, can be said to
exist in Switzerland. The Council does, it is true, prepare measures
and lay them before the Assembly. Its members even appear on the floor
of the two chambers and defend these measures. But the councillors are
not, and may not be, members of the Assembly; they do not, of
necessity, represent a common political party, faith, or programme,
they are not necessarily agreed among themselves upon the merits or
demerits of a particular legislative proposal; and if overruled by (p. 425)
a majority of the Assembly they do not so much as think of retiring
from office, for each member has been elected by a separate ballot for
a fixed term.[620] In other words, the Council is essentially what
Swiss writers have themselves denominated it, i.e., an executive
committee of the Federal Assembly. It possesses a large measure of
solidarity, but only for the purposes of routine business. Quite
superior to it in every way--so much so that even its most ordinary
administrative measures may be set aside--is the Assembly, as against
which the Council possesses not a shred of constitutional prerogative.
In the Assembly is vested ultimate authority, and in the event of a
clash of policies what the Assembly orders the Council performs.
Between the executive and the legislative branches of the government
the relation is quite as close as it is in a parliamentary system, but
the relation is of a totally different sort.[621]
[Footnote 620: The resignation, in 1891, of M.
Welti, a member of the Council since 1867, by
reason of the fact that the people rejected his
project for the governmental purchase of railway
shares occasioned general consternation.]
[Footnote 621: For interesting observations upon
the advantages and disadvantages of the Swiss
system see Lowell, Governments and Parties, II.,
204-208. See also Vincent, Government in
Switzerland, Chap. 16; Dupriez, Les Ministres, II.,
188-203.]
*470. The Council's Functions.*--The functions of the Council are at the
same time executive, legislative, and judicial. On the executive side
it is the duty of the body to "execute the laws and resolutions of the
Confederation and the judgments of the Federal Court"; to watch over
the external interests of the Confederation and to conduct foreign
relations; to safeguard the welfare, external and internal, of the
state; to make such appointments as are not intrusted to any other
agency; to administer the finances of the Confederation, introduce the
budget, and submit accounts of receipts and expenses; to supervise the
conduct of all officers and employees of the Confederation; to enforce
the observance of the federal constitution and the guaranty of the
cantonal constitutions; and to manage the federal military
establishment. In respect to legislation it is made the duty of the
Council to introduce bills or resolutions into the Federal Assembly
and to give its opinion upon the proposals submitted to it by the
chambers or by the cantons; also to submit to the Assembly at each
regular session an account of its own administration, together with a
report upon the internal conditions and the foreign relations of the
state.[622] The Council possesses no veto upon the Assembly's
measures. The judicial functions of the Council are such as arise from
the fact that there are in Switzerland no administrative courts, (p. 426)
so that the varied kinds of administrative cases which have been
withheld from the jurisdiction of the Federal Tribunal are in practice
dealt with directly by the Federal Council, with appeal, as a rule, to
the Assembly.[623]
[Footnote 622: Art. 102. Dodd, Modern
Constitutions, II., 282-284; Dupriez, Les
Ministres, II., 218-225.]
[Footnote 623: Art. 113. Dodd, Modern
Constitutions, II., 286. The nature and functions
of the Swiss executive are treated briefly in
Vincent, Government in Switzerland, Chap. 17, and
Adams and Cunningham, The Swiss Confederation,
Chap. 4. An excellent account is that in Dupriez,
Les Ministres, II., 182-246. Of value are Blumer
and Morel, Handbuch des schweizerischen
Bundesstaatsrechts, III., 34-92, and Dubs, Le droit
public de la confédération suisse, II., 77-105.]
II. LEGISLATION: THE FEDERAL ASSEMBLY
With specific reservation of the sovereign rights of the people and of
the cantons, the constitution vests the exercise of the supreme
authority of the Confederation in the Bundesversammlung, or Federal
Assembly. Unlike the cantonal legislatures, the Federal Assembly
consists of two houses--a Nationalrath, or National Council, and a
Ständerath, or Council of the States.[624] The one comprises
essentially a house of representatives; the other, a senate. The
adoption, in the constitution of 1848, of the hitherto untried
bicameral principle came about as a compromise between conflicting
demands of the same sort that were voiced in the Philadelphia
convention of 1787--the demand, that is, of the smaller federated
units for an equality of political power and that of the larger ones
for a proportioning of such power to population.
[Footnote 624: In French, the Conseil National and
the Conseil des États.]
*471. The National Council: Composition and Organization.*--The National
Council is composed of deputies chosen at a general election, for a
term of three years, by direct manhood suffrage. The constitution
stipulates that there shall be one representative for every 20,000
inhabitants, or major fraction thereof, and a reapportionment is made
consequent upon each decennial census. The electoral districts are so
laid out that no one comprises portions of different cantons; but they
are of varying sizes and are entitled to unequal numbers of
representatives, according to their population. Within the district
all representatives, if there are more than one, are chosen on a
general ticket, and the individual elector has a right to vote for a
number of candidates equal to the number of seats to be filled. The
quota of representatives falling to the various cantons under this
arrangement varies from one in Uri and in Zug to twenty-two in Zürich
and twenty-nine in Bern. Every canton and each of the six half-cantons
is entitled to at least one deputy. The total number in 1911 was 189.
The electorate consists of all male Swiss who have attained their (p. 427)
twentieth year and who are in possession of the franchise within
their respective cantons. The establishment of electoral districts, as
well as the regulation of the conduct of federal elections, has been
accomplished, under provision of the constitution, by federal statute.
Voting is in all cases by secret ballot, and elections take place
always on the same day (the last Sunday in October) throughout the
entire country. An absolute majority of the votes cast is necessary
for election, save that, following two unsuccessful attempts to
procure such a majority within a district, at the third trial a simple
plurality is sufficient. Except that no member of the clergy may be
chosen, every citizen in possession of the federal franchise is
eligible to a seat in the National Council.[625] Members receive a
small salary, which is proportioned to days of actual attendance and
paid out of the federal treasury.
[Footnote 625: This denial of clerical eligibility
was inspired by fear of Catholic influences.]
At each regular or extraordinary session the National Council chooses
from among its members a president, a vice-president, and four
tellers, under the provision, however, that a member who during a
regular session has held the office of president is ineligible either
as president or vice-president at the ensuing regular session, and
that the same member may not be vice-president during two consecutive
regular sessions. In all elections within the National Council the
president participates as any other member; in legislative matters he
possesses a vote only in the event of a tie. The president,
vice-president, and tellers together comprise the "bureau" of the
Council, by which most of the committees are nominated, votes are
counted, and routine business is transacted.[626]
[Footnote 626: Arts. 72-79. Dodd, Modern
Constitutions, II., 277-278.]
*472. The Council of the States: Composition and
Status.*--Superficially, the Swiss Council of the States resembles the
American Senate, and it is commonly understood that the framers of the
constitution of 1848 created the institution not merely by reason of
an inevitable tendency to perpetuate in some measure the purely
federal features of the old Diet, but also in consequence of a
deliberate purpose to set up a legislative body which should fulfill
essentially those complementary and restraining functions which in the
United States were assigned to the upper chamber. In point of fact,
however, the Swiss Council has little in common with its American
counterpart. It consists of forty-four members, two chosen within each
canton; and to this extent it indeed resembles the Senate. The manner
of election and the qualifications of members, however, as well as
tenure of office and the arrangements made for remuneration, are not
regulated, as are similar matters in the United States, by the (p. 428)
constitution, or by federal authority, but, on the contrary, are left
entirely to be determined by the individual cantons. The consequence
is a total lack of uniformity in these highly important matters. In
some cantons members are elected by popular vote; in others, by the
legislative assembly. In some they are chosen for one year; in others,
for two; in still others, for three. The consequence is that the
Council is commonly lacking in compactness and morale. More serious
still is the fact that the functions of the upper chamber are in all
respects identical with those of the lower. The American Senate has
power and character of its own, quite apart from that of the House of
Representatives; the Swiss Council has nothing of the kind. Its
organization, even, is an almost exact replica of that of the lower
chamber.[627] In the earlier days of the present constitutional system
the Council enjoyed high prestige and influence; but by reason of the
conditions that have been described the body in time fell into
decline. Able and ambitious statesmen have preferred usually to be
identified with the lower house. The upper chamber possesses large
powers--powers nominally co-ordinate with those of the lower one--and
it has acted not infrequently with sufficient independence to defeat
measures advocated by the National Council. But, without being the
feeble upper chamber that is commonly associated with a parliamentary
system of government, it is yet essentially lacking in the initiative
and independence of a true senate.[628]
[Footnote 627: "Neither the president nor the
vice-president may be chosen at any session from
the canton from which the president for the
preceding session was chosen; and the
vice-presidency may not be held during two
successive regular sessions by representatives of
the same canton." Art. 82.]
[Footnote 628: Arts. 80-83. Dodd, Modern
Constitutions, II., 278.]
*473. Powers of the National Assembly.*--In the constitution it is
stipulated that the National Council and the Council of the States
shall have the right to consider all subjects placed within the
competence of the Confederation and not assigned to any other federal
authority.[629] The range of this competence is enormous. There are,
in the first place, certain functions which the two houses perform
while sitting jointly under the direction of the president of the
National Council. These are electoral and judicial in character and
comprise (1) the election of the Federal Council, or executive
committee of the Confederation, the federal judges, the chancellor,[630]
and the generals of the federal army; (2) the granting of pardons; (p. 429)
and (3) the adjustment of jurisdictional conflicts between different
branches of the federal governmental system.
[Footnote 629: Art. 84. Ibid., II., 278.]
[Footnote 630: The principal duty of the chancellor
is the keeping of the minutes of the National
Council. A vice-chancellor, appointed by the
Federal Council, performs a similar function in the
Council of States, under responsibility to the
chancellor.]
Much more extensive are the powers which the houses, sitting
separately, exercise concurrently. The constitution requires that the
councils be assembled at least once annually. In practice, they meet
in June and December of each year, regular sessions extending as a
rule through four or five weeks. At the request of either one-fourth
of the members of the National Council or of five cantons an
extraordinary session must be held, and there is a probability of one
such session each year, ordinarily in March. The powers assigned the
chambers to be exercised in their concurrent capacities may be
classified variously. The more important are: (1) the enactment of
laws and ordinances upon the organization and election of federal
authorities and upon all subjects which by the constitution are placed
within the federal competence; (2) the conduct of foreign relations,
particularly the concluding of treaties and alliances with foreign
powers, the supervision of conventions entered into by the cantons (in
the event that the Federal Council, or any canton, protests against
such cantonal arrangements), the declaring of war and the concluding
of peace, and the taking of measures for the safety, independence, and
neutrality of the Confederation; (3) the control of the federal army;
(4) the adoption of the annual budget, the authorizing of federal
loans, and the auditing of public accounts; (5) the taking of measures
for the enforcement of the provisions of the federal constitution, for
the carrying out of the guaranty of the cantonal constitutions, for
the fulfillment of federal obligations, and for the supervision of the
federal administration and of the federal courts; and (6) the revision
of the federal constitution.[631] It will be perceived that the powers
exercised by the chambers are principally legislative, but also in no
small degree executive and judicial; that, as has already been
emphasized, the two councils comprise the real directive agency of the
Confederation.
[Footnote 631: Art. 85, §§ 1-14. Dodd, Modern
Constitutions, II., 278-279.]
*474. The Assembly's Procedure.*--Federal laws, decrees, and resolutions
are passed only by agreement of the two councils. Any measure may
originate in either house and may be introduced by any member. There
are committees upon various subjects, but bills are referred to them
only by special vote. Committee members are chosen by the chamber directly
or by the chamber's "bureau," as the chamber itself may determine. In
each house a majority constitutes a quorum for the transaction of
business, and measures are passed by a simple majority. Sittings, (p. 430)
as a rule, are public. It is expressly forbidden that members shall
receive from their constituents, or from the cantonal governments,
instructions respecting the manner in which they shall vote.[632]
[Footnote 632: For a brief account of the procedure
of the chambers see Vincent, Government in
Switzerland, 181-187.]
III. LEGISLATION: THE REFERENDUM AND THE INITIATIVE
From the domain of cantonal legislative procedure there has been
carried over into federal law-making the fundamental principle of the
referendum. The federal referendum exists to-day in two forms, i.e.,
the optional and the obligatory. The one appeared for the first time
in the revised constitution of 1874 and is applicable exclusively to
projects of ordinary legislation. The other was established by the
constitution of 1848 and is applicable solely to proposed amendments
of that instrument.
*475. The Optional Referendum: Laws and Resolutions.*--After a law which
has been enacted by the Federal Assembly has been published it enters
regularly upon a probationary period of ninety days during which,
under stipulated conditions, it may be referred directly to the people
for ratification or rejection. The only exceptions are afforded by
those measures which, by declaration of the councils, are of a private
rather than a general character, and those which are "urgent." Such
acts take effect at once. But all others are suspended until there
shall have been adequate opportunity for the carrying through of a
referendum. At any time within the ninety-day period a referendum may
be demanded, either by the people directly or by the cantonal
governments. Petitions signed by as many as 30,000 voters, or adopted
by the legislatures of as many as eight cantons, render it obligatory
upon the Federal Council to arrange for the submission of a measure to
a referendum within four weeks after the announcement of the demand
has been made. The method of the referendum is carefully prescribed by
federal legislation. Every citizen in possession of unimpaired civil
rights is entitled to vote, and the voting takes place under the
supervision of the authorities of the commune and of the canton. If in
a majority of the cantons a preponderance of votes is cast in favor of
the measure in hand, the Federal Council proclaims the fact and the
measure goes at once into operation. An adverse majority, on the other
hand, renders the measure null. In the event that no referendum is
demanded, the measure, of course, goes automatically into effect at
the expiration of the ninety-day period. Since its introduction (p. 431)
into the federal constitution the principle of the legislative
referendum has been brought to bear upon a not inconsiderable number
of legislative projects. The proportion, indeed, of laws falling
within the range of the system which have been subjected to the
popular vote, while varying widely from time to time, has been not far
from ten per cent; and of the measures actually voted upon several of
importance have been rejected. In all instances the demand has arisen
directly from citizen petitioners, not from the cantonal
governments.[633]
[Footnote 633: On the operation of the optional
referendum see Lowell, Governments and Parties,
II., 252-261. "From 1874 till 1908 the Federal
Assembly passed 261 bills and resolutions which
could constitutionally be subjected to the
referendum. Thirty of these 261 were actually voted
on by the people, who ratified eleven and rejected
nineteen of them. The effect of the federal
optional legislative referendum was, then, to hold
up a little more than seven per cent of the
statutory output of the Federal Assembly." W. E.
Rappard, in _American Political Science Review_,
Aug., 1912, 357. On the most recent exercise of the
federal referendum (the adoption, February 4, 1912,
of a national Accident and Sickness Insurance bill)
see M. Turmann, Le référendum suisse du 4
février--la loi fédérale sur l'assurance-maladie et
l'assurance accident, in _Le Correspondant_, Feb.
10, 1912. This particular referendum was called for
by 75,000 voters. The measure submitted was
approved by a vote of 287,566 to 241,416, on a poll
of 63.04 per cent of the registered electorate.]
*476. The Obligatory Referendum: Constitutional Amendments.*--In its
application to laws and resolutions the referendum is optional; in
application to constitutional amendments it is obligatory. Revision of
the Swiss constitution may be accomplished at any time, in whole or in
part, and in a variety of modes. In the event that the legislative
councils are able to agree upon a scheme of revision they vote the
adoption of the proposed amendment precisely as if it were an ordinary
statute, and it is thereupon submitted to the people for acceptance or
rejection. If, however, the two houses disagree upon the question of a
total revision, or if as many as 50,000 voters make demand for a total
revision, there must be put to the people the preliminary question as
to whether there shall be a revision at all. If the will of the
majority is affirmative, new legislative councils must be elected, and
to them falls the obligation of executing the popular mandate.
When the question is one of but partial revision the procedure is
somewhat different. Partial revision may be instituted either by the
councils or by petition of 50,000 voters. When a popular petition is
presented there are four possible courses of action: (1) if the
project is presented in general terms and the councils are in
agreement upon it, they reduce the proposal to specific form and
submit it to the people; (2) if the councils are not in agreement (p. 432)
upon the project they put to the people the preliminary question of
whether an amendment of the general type proposed is desirable, and if
the vote is affirmative they proceed with the revision; (3) if the
petition is presented in a form that is specific and final and the
councils are in agreement upon it, the project is submitted forthwith
to the people; and (4) if the councils are not in agreement upon a
specific project so advanced, they may prepare a project of their own,
or recommend the rejection of the proposed amendment, and they may
submit their counter-project or their recommendation at the same time
that the initiative petition is presented to the people.[634] In no
case may an amendment be put into effect until it has received the
assent of a majority of those voting thereon in a majority of the
cantons. Of seventeen constitutional amendments submitted by the
Federal Assembly between 1874 and 1908 twelve were ratified and five
were rejected.
[Footnote 634: Arts. 118-123. Dodd, Modern
Constitutions, II., 287-289.]
*477. The Popular Initiative.*--The right of popular initiative in the
revision of the constitution was established by an amendment of July
5, 1891, through the united efforts of all the anti-Radical parties
and groups. The purpose underlying the amendment was to break the
monopoly long enjoyed by the Radicals by placing within the hands of
any fifty thousand citizens the power to compel the federal government
to take under consideration proposed modifications of the
constitution, to prepare projects relating to them, and to submit
these projects to the ultimate decision of the people. When the system
was established many persons seriously feared that the way had been
thrown open for frequent, needless, and revolutionary change, by which
the stability of the state would be impaired. Such apprehension,
however, has been proved groundless. During a score of years only nine
popularly-initiated amendments have been voted upon, and only three
have been incorporated in the fundamental law. One of the three,
adopted in 1893, prohibited the Jewish method of slaughtering animals,
and was purely a product of the antisemitic movement. The other two
were adopted in 1908. One authorized for the first time legislation by
the federal authorities upon subjects relating to the trades and
professions; the other prohibited the manufacture and sale of
absinthe. A number of other more or less sweeping amendments, it is
true, have been proposed, but all alike have failed of adoption. Thus,
in 1894, perished a socialistic scheme whereby the state was to
obligate itself to provide employment for every able-bodied man, and
in the same year, a project to pay over to the cantons a bonus of two
francs per capita from the rapidly increasing returns of the (p. 433)
customs duties.[635] Similarly, in 1900, failed two interesting
projected reforms relating to the federal electoral system. One of
these provided for the introduction, in the various cantons, of the
principle of proportional representation in the election of members of
the National Council. The other provided for the election of the
members of the Federal Council, not, as at present, by the General
Assembly, but by direct popular vote, the whole mass of electors
voting, not by cantons, but as one national constituency. In June,
1900, both of these electoral proposals were rejected by the
legislative chambers, and in the ensuing November the people ratified
the rejection. In 1903, there was defeated in the same way a proposal
to base representation in the National Council, not upon the total
population of the country, but upon the Swiss population alone. In
1909-10 the proportional representation project was revived, but with
a negative result.[636]
[Footnote 635: C. Borgeaud, Le plébiscite du 4
novembre 1894, in _Revue du Droit Public_,
Nov.-Dec., 1894. The adverse votes were decisive,
i.e., 308,289 to 75,880 and 347,401 to 145,362
respectively.]
[Footnote 636: The introduction of proportional
representation in Switzerland is advocated
especially by the Socialists and the Clericals, to
whom principally would accrue the benefits of the
system. The Liberals are favorable to the
principle, though they prefer to postpone the
issue. The Radicals are solidly opposed. At the
referendum of 1900 the project was rejected by
11-1/2 to 10-1/2 cantons, and by a popular majority
of 75,000; at that of October 23, 1910, it was
approved by 12 to 10 cantons, but was rejected
popularly by a majority of less than 25,000
(265,194 negative, 240,305 affirmative). Rather
curiously, the defeat arose largely from the
defection of the Catholic canton of Freiburg, which
in 1900 was favorable by a vote of 13,000 to 3,800.
The canton's vote in 1910 was for rejection, by
11,200 to 3,900. By those best acquainted with the
situation this astonishing reversal is explained by
the influence which is exercised in the canton
to-day by M. Python, a dictator who opposes any
innovation whereby his own controlling position
would be menaced. Not unnaturally, the friends of
the project (and in 1910 all parties save the
Radicals gave it their support) regard the outcome
in 1910 as a certain forecast of eventual victory.
In nine of the cantonal governments, beginning with
that of Ticino in 1891, the principle has been
already put in operation. In truth, the defeat of
1910 was followed promptly by a triumph in the
important canton of St. Gall, where the
proportional system was adopted for the first time,
February 5, 1911, for elections of the cantonal
council. See E. Secretan, Suisse, in _Revue
Politique et Parlementaire_, Feb., 1911; G. Daneo,
La rappresentanza proporzionale nella Svizzera, in
_Nuova Antologia_, Sept. 16, 1910.]
Among reforms that have been much discussed in recent years has been
the extension of the initiative and of the obligatory referendum to
all federal legislation. Both apply as yet only to constitutional
amendments. In 1906 the Federal Council went so far as to submit to
the legislative councils a proposal intended to meet the first of
these ends. The purport of the proposal was that fifty thousand
voters, or eight cantons, should have the right at any time to (p. 434)
demand the passage, modification, or repeal of any sort of federal
law or federal decree. In December, 1906, the project was debated in
the National Council; after which it was referred to the Federal
Council for further consideration. The proposal is still pending, but
its eventual adoption is probable.[637]
[Footnote 637: Dodd, Modern Constitutions, II.,
280-281. For references on the initiative and the
referendum see p. 420. A very satisfactory
appraisal of the operation of these principles in
Switzerland may be found in Lloyd, A Sovereign
People, chaps. 14-15. See also W. E. Rappard, The
Initiative and the Referendum in Switzerland, in
_American Political Science Review_, Aug., 1912.]
IV. POLITICAL PARTIES
*478. Centralism vs. Federalism.*--Until the middle of the nineteenth
century the most fundamental of political questions in modern
Switzerland was that of centralization, and the most enduring of
political cleavages among the people was that which marked off the
"centralists" from the "federalists." There was a time when the
annihilation of the cantons and the establishment of a thoroughly
consolidated state was not only openly advocated but confidently
predicted. With the establishment, however, of the reasonable
compromise embodied in the constitution of 1848 the issue of
centralization dropped pretty much into the background. There
continued to be, and still are, "centralizers;" but the term has come
long since to denote merely men who, with due regard for the
susceptibilities of the cantons, direct their influence habitually to
the strengthening of the central agencies of government.
The constitution of 1848 was the work of a combination of centralist
elements which acquired the general designation of Radicals. Opposed
to the Radicals were the federalist Moderates. Between 1848 and 1874
controlling influence was maintained steadily by the Radicals,
although during the decade 1850-1860 there was a fusion of parties in
consequence of which there existed through many years an extremely
intricate political situation. Gradually there emerged a three-fold
party grouping, which has survived uninterruptedly from the era of the
constitutional revision of 1874 until our own day. The three parties,
as aligned now through more than a generation in the National Council,
are: (1) the Right, or Clericals; (2) the Left, or Radicals; and (3)
the Centre, or Liberals. To these, in very recent times, must be added
a small but growing group of the Extreme Left, comprising
ultra-democrats and socialists.
*479. The Parties of To-day.*--The basis of segregation of the Right is
primarily religious. The party is thoroughly clerical, and it has for
its fundamental object the defense of the Catholic church and the (p. 435)
interests of the Catholic population. In the Catholic cantons it
occupies the field almost alone, and everywhere it is the most compact
and zealous of the parties, although even it is not without a certain
amount of division of opinion and of policy. The Left, or Radical
party, has always represented a combination of widely varied shades of
radicalism and democracy. Its greatest strength lies in the
predominantly Protestant cantons, and it is distinctly anti-clerical.
Large portions of the party have ceased long since to be really
radical, although on one side there is an imperceptible shading off
into the ranks of the advanced democrats and socialists. Through many
years the party has been lacking notoriously in cohesion. Between the
Conservative Right and the Radical Left stands the Centre, or the
Liberal group, lacking most notably of all in unity, but preserving
the traditional Swiss principles of personal freedom in defiance of
the tendency of the state in the direction of paternalism. The
Liberals are not strong numerically, but they comprise men of wealth
and influence (largely conservative Protestants), and in the shaping
of economic policies, in which they are interested principally, they
sometimes exercise a powerful influence. During the years immediately
following the constitutional revision of 1874 no one of these three
parties possessed in the Federal Assembly a clear majority, with the
consequence that the Centre was able to maintain a balance between the
other two. Gradually, however, the Radicals regained their former
ascendancy, and in subsequent years their preponderance, in especially
the lower chamber, has tended steadily to be increased.
*480. Party Stability and Strength.*--Concerning the political parties
of Switzerland two or three things are worthy of special observation.
The first is the remarkable stability which these parties, despite
their obvious lack of cohesion, exhibit from the point of view both of
party identity and of party strength. Except the Socialists, who have
ceased to vote and act with the Radicals, there has sprung into
existence not one new political party since 1874. Numerous and varied
as have been the political issues of these four decades, no one of
them has given rise to a new party grouping. And, save for the gradual
augmentation of Radical strength to which allusion has been made,
there has been in this period no noteworthy change in the relative
strength of the party groups. Sudden fluctuations, such as in other
countries are common, are in Switzerland quite unknown. The reasons
are varied and not wholly clear, but among them seem to be the brevity
of national legislative sessions, the lack of federal patronage
whereby party zeal may be whetted, the indirect method of electing the
Federal Council, and the essentially non-partisan character of the (p. 436)
referendum.[638] Party strength in the National Council following the
election of 1878 was: Clericals, 35; Liberals, 31; Radicals, 69. After
the election of 1881 it was: Clericals, 36; Liberals, 26; and
Radicals, 83. In these proportions the six triennial elections between
1884 and 1902 produced no important change, although in 1890 the
Socialists broke somewhat into the balance by winning six seats. After
the census of 1900 the number of members of the Council was raised
from 147 to 167, and the results of the election of 1902 were as
follows: Clericals, 35; Liberals, 25; Radicals, 97; Socialists, 9; and
Independents, 1. In 1905 the Radicals, who hitherto had co-operated
with the Socialists in many constituencies, broke with them upon the
question of military policy, with the result that the Socialist
contingent in the Council was cut to two. In 1908 and 1911 the
Socialists made, however, some recovery; so that, on the whole, the
party situation in the Council remains to-day very nearly what it was
ten years ago. By popular suffrage the Radicals are continued
uninterruptedly in control, although the people do not hesitate again
and again to reject measures framed by Radical administrators and
law-makers and submitted to the vote of the nation.
[Footnote 638: Upon this subject, especially the
effects of the referendum upon political parties,
see Lowell, Governments and Parties, II., 314-332.]
*481. The Inactivity of Parties.*--A second important fact respecting
the parties of Switzerland is their all but total lack of organization
and machinery. Parties are little more than groups of people who hold
similar views upon public questions. Of office-seekers there are few,
and of professional politicians fewer still. Elections are not
infrequently uncontested, and only at rare intervals do they serve to
awaken any considerable public enthusiasm. There are no campaign
managers and funds, no platforms, no national committees, no elaborate
systems of caucuses or conventions. Candidates for seats in the
National Council are nominated by political gatherings in the several
districts, but the proceedings are frequently of an all but purely
non-partisan character. Political congresses are held occasionally,
and a few political associations exist, but their activities are
limited and comparatively unimportant. So far as there is party vigor
at all, it is expended principally upon local issues and contests
within the cantons.
Finally, it must be observed that the Swiss government is not a
government by party at all. The Federal Council regularly includes
members of more than one party, and there is no attempt to preserve in
the body a homogeneous partisan character. Even in the legislative
councils considerations of party are but incidental. Upon by no means
all public issues are party lines drawn, and where they are drawn (p. 437)
there is seldom that compactness and discipline of party to which
legislative assemblies in other nations are accustomed. An evidence of
the secondary importance of party demarcation is afforded by the fact
that, instead of being arranged in groups according to party
affiliations, the members of the National Council are so placed, as a
rule, that all of the deputies of a canton occupy contiguous seats.
The Federal Council, being elected by the Federal Assembly, is
practically certain to reflect the preponderating political complexion
of that body. But, in the entire absence of the parliamentary system,
there is no essential reason why politically the executive and
legislative organs should be in accord.[639]
[Footnote 639: On Swiss political parties see
Lowell, Governments and Parties, II., Chap. 13;
Adams and Cunningham, The Swiss Confederation,
Chap. 7.]
V. THE JUDICIARY
*482. The Federal Court: Civil Jurisdiction.*--In respect to
organization, the Swiss federal judiciary is very simple; in respect
to functions, it is extremely complex. It comprises but a single
tribunal, the Bundesgericht, or Federal Court. The court, created
originally in 1848, consists to-day of sixteen judges and nine
alternates, all chosen by the Federal Assembly for a term of six
years. Any citizen eligible to the National Council may be elected to
the Federal Court, but it is incumbent upon the Assembly to take care
that all of the three officially recognized languages--German, French,
and Italian--are represented. The president and vice-president of the
court are designated by the Assembly, for a two years' term, but the
court is authorized to organize its own secretariat and to appoint the
officials thereof. Judges are forbidden to sit in either house of the
federal legislature, to occupy any other office, or to engage in any
alien pursuit or profession. Their yearly salary is 12,000 francs. The
seat of the Court is Lausanne, in the French province of Vaud.
The jurisdiction of the Federal Court extends not only to ordinary
civil and criminal cases but also to cases arising under public law.
The competence of the tribunal in civil cases is very considerable. It
extends to all suits between the Confederation and the cantons;
between the Confederation and corporations or individuals, when such
corporations or individuals appear as plaintiffs, and when the amount
involved exceeds 3,000 francs; between cantons; and between cantons
and corporations or individuals, upon request of the parties, and when
the amount involved exceeds 3,000 francs. The constitution authorizes
the Confederation to enlarge, by legislation, the competence of (p. 438)
the Court,[640] and from time to time a variety of specific fields of
civil jurisdiction have been opened to it, such as those of
transportation and bankruptcy. In addition to original jurisdiction in
all matters that have been named, the Court is required by the
constitution to exercise appellate jurisdiction in cases carried on
appeal, by mutual consent of the parties, from the cantonal courts.
For the adjudication of civil cases the Court divides itself into two
chambers of seven members each, presided over respectively by the
president and vice-president.
[Footnote 640: Art. 114. Dodd, Modern
Constitutions, II., 287.]
*483. Criminal and Public Law Jurisdiction.*--The tribunal's criminal
jurisdiction is less extensive. It covers, in the main, cases of high
treason against the Confederation, crimes and misdemeanors against the
law of nations, political crimes and misdemeanors of such seriousness
as to occasion armed federal intervention, and charges against
officers appointed by a federal authority, when such authority makes
application to the Federal Court. In cases falling within any one of
these categories the Court is required to employ a jury to decide
questions of fact. With the consent of the Federal Assembly, criminal
cases of other kinds may be referred to the Federal Court by the
cantonal governments. For the trial of criminal cases the Court is
divided each year into four chambers, each of three members, save the
fourth and highest, the Kassationshof, or Court of Appeals, which has
five. The Confederation is divided into three Assizenbezirke, or
assize districts, and from time to time one of the criminal chambers
sits in each.
Within the domain of public law the Court is given cognizance of
conflicts of jurisdiction between federal and cantonal authorities,
conflicts between cantons when arising out of questions of public law,
complaints of violation of the constitutional rights of citizens, and
complaints of individuals by reason of the violation of concordates or
treaties. In actual operation, the range of powers which would appear
thus to be conferred is much restricted by a clause which declares
that "conflicts of administrative jurisdiction are reserved, and are
to be settled in a manner prescribed by federal legislation."[641]
Legislation in pursuance of this clause has withdrawn from the
jurisdiction of the Court a long list of possible subjects of
litigation. Like European courts generally, the Swiss Federal Court
possesses no power to determine the constitutionality of law, federal
or cantonal. On the contrary, it is obligated to apply all law, by
whatever proper authority enacted.[642]
[Footnote 641: Art. 112. Ibid., II., 286.]
[Footnote 642: On the Swiss federal judiciary see
Vincent, Government in Switzerland, Chap. 15; Adams
and Cunningham, The Swiss Confederation, Chap. 5.]
*484. The Civil Code.*--In 1898 the nation, through the means of (p. 439)
a referendum, adopted the principle of the unification of all cantonal
legal systems, civil and criminal, in a set of federal codes. Through
more than a decade the task has been in progress, drafts being
prepared by experts and submitted from time to time for criticism to
special commissions and to public opinion. Early in 1908 the Assembly
adopted an elaborate Civil Code which in this way had been worked out,
and January 1, 1912, this monumental body of law was put in operation.
By it many long established practices within the individual cantons
were abolished or modified; but the humane and progressive character
of the Code won for it such a measure of public approval that there
was not even demand that the instrument be submitted to a referendum.
PART VI--AUSTRIA-HUNGARY (p. 441)
CHAPTER XXIV
AUSTRIA-HUNGARY PRIOR TO THE AUSGLEICH
*485. The Dual Monarchy.*--The dual monarchy Austria-Hungary, comprising
a sixteenth of the area, and containing an eighth of the population,
of all Europe, is an anomaly among nations. It consists, strictly, of
two sovereign states, each of which has a governmental system all but
complete within itself. One of these is known officially as "The
Kingdoms and Lands represented in the Reichsrath," but more familiarly
as Cisleithania, or the Empire of Austria. The other, officially
designated as "The Lands of St. Stephen's Crown," is commonly called
Transleithania, or the Kingdom of Hungary. By certain historical and
political ties the two are bound together under the official name of
the Österreichisch-ungarische Monarchie, or Austro-Hungarian
Monarchy.[643] In the one the common sovereign is Emperor; in the
other, Apostolic King.
[Footnote 643: This designation was first employed
in a diploma of the Emperor Francis Joseph I.,
November 14, 1868 (see p. 459).]
"If," says a modern writer, "France has been a laboratory for
political experiments, Austria-Hungary is a museum of political
curiosities, but it contains nothing so extraordinary as the relation
between Austria and Hungary themselves."[644] In its present form this
relation rests upon the memorable Ausgleich, or Compromise, of 1867.
The historical phases of it, however, may be traced to a period as
remote as the first half of the sixteenth century, when, in 1526,
after the Hungarians had suffered overwhelming defeat by the Turks at
the Battle of Mohács, a Hapsburg prince, the later Emperor Ferdinand
I., assumed, upon election by the Hungarian diet, the throne of the
demoralized eastern kingdom.[645] Until the eighteenth century the
union of the two monarchies was always precarious, much of the time
practically non-existent. Set in the midst of a whirlpool of races and
political powers, the ancient Hungarian state, recovered from its days
of disaster, struggled unremittingly to preserve its identity, and
even to regain its independence, as against the overshadowing (p. 442)
Imperial authority of which Austria was the seat. The effort was
fairly successful and as late as the Napoleonic period Hungary, while
bound to her western neighbor by a personal union through the crown,
maintained not only her essential autonomy but even the constitutional
style of government which had been hers since at least the early
portion of the thirteenth century. A rapid sketch of the earlier
political development of the two states seems a necessary introduction
to an examination of the institutions, joint and separate, which
to-day enter into the texture of their governmental organization.
[Footnote 644: Lowell, Governments and Parties,
II., 177.]
[Footnote 645: See p. 448.]
I. AUSTRIAN POLITICAL DEVELOPMENT TO 1815
*486. Origins.*--The original Austria was a mark, or border county,
lying along the south bank of the Danube, east of the river Enns, and
founded by Charlemagne as a bulwark of the Frankish kingdom against
the Slavs. During the ninth century the territory was overrun
successively by the Moravians and the Magyars, or Hungarians, and all
traces of Frankish occupation were swept away. At the middle of the
tenth century, however, following Otto the Great's signal triumph over
the Hungarians on the Lech in 955, the mark was reconstituted; and
from that point the development of modern Austria is to be traced
continuously. The name Österreich, i.e., "eastern empire" or
"dominion," appears in a charter as early as 996.
The first notable period of Austrian history was that covered by the
rule of the house of Babenberg. The government of the mark was
intrusted by the Emperor Otto II. to Leopold of Babenberg in 976, and
from that date to the extinction of the family in 1246 the energies of
the Babenbergs were absorbed principally in the enlargement of the
boundaries of their dominion and in the consolidation of its
administration. In 1156 the mark was raised by King Frederick I. to
the dignity of a duchy, and such were the privileges conferred upon it
that the duke's only obligation consisted in the attending of any
Imperial diet which should be held in Bavaria and the sending of a
contingent to the Imperial army for such campaigns as should be
undertaken in countries adjoining the duchy.
*487. The Establishment of Hapsburg Dominion, 1276.*--In 1251--five
years after the death of the last Babenberg--the estates of the duchy
elected as duke Ottakar, son of Wenceslaus I., king of Bohemia. In
1276, however, Duke Ottakar was compelled to yield his three dominions
of Austria, Styria, and Carinthia to Rudolph of Hapsburg, who, in 1273,
upon the breaking of the Interregnum, had become German king and
emperor; and at this point began in Austria the rule of the (p. 443)
illustrious Hapsburg dynasty of which the present Emperor Francis
Joseph is a representative. Under the adroit management of Rudolph the
center of gravity of Hapsburg power was shifted permanently from the
Rhine to the Danube, and throughout the remainder of the Middle Ages
the history of Austria is a story largely of the varying fortunes of
the Hapsburg interests. In 1453 the duchy was raised to the rank of an
archduchy, and later in the century the Emperor Maximilian I.
entertained plans for the establishment of an Austrian electorate, or
even an Austrian kingdom. These plans were not carried into execution,
but the Austrian lands were constituted one of the Imperial circles
which were created in 1512, and in 1518 representatives of the various
Austrian Landtage, or diets, were gathered for the first time in
national assembly at Innsbrück.
*488. Austro-Hungarian Consolidation.*--In 1519 Maximilian I. was
succeeded in the archduchy of Austria, as well as in the Imperial
office, by his grandson Charles of Spain, known thenceforth as the
Emperor Charles V. To his brother Ferdinand, however. Charles resigned
the whole of his Austrian possessions, and to Austrian affairs he gave
throughout his reign but scant attention. Ferdinand, in turn, devoted
himself principally to warfare with the Turks and to an attempt to
secure the sovereignty of Hungary. His efforts met with a measure of
success and there resulted that affiliation of Austria and Hungary
which, though varying greatly from period to period in strength and in
effect, has been maintained to the present day. During a century
succeeding Ferdinand's accession to the Imperial throne in 1556, the
affairs of Austria were inextricably intertwined with those of the
Empire, and it was only with the virtual disintegration of the Empire
in consequence of the Thirty Years' War that the Hapsburg sovereigns
fell back upon the policy of devoting themselves more immediately to
the interests of their Austrian dominion.
The fruits of this policy were manifest during the long reign of
Leopold I., who ruled in Austria from 1655 to 1705 and was likewise
emperor during the last forty-eight years of this period. At the close
of a prolonged series of Turkish wars, the Peace of Karlowitz, January
26, 1699, added definitely to the Austrian dominion Slavonia,
Transylvania, and all Hungary save the banat of Temesvár, and thus
completed the edifice of the Austrian monarchy.[646] The period was
likewise one of internal consolidation. The Diet continued to be (p. 444)
summoned from time to time, but the powers of the crown were augmented
enormously, and it is to these years that scholars have traced the
origins of that thoroughgoing bureaucratic régime which, assuming more
definite form under Maria Theresa, continued unimpaired until the
revolution of 1848. It was in the same period that the Austrian
standing army was established.
[Footnote 646: At the diet of Pressburg, in
1687-1688, the Hungarian crown had been declared
hereditary in the house of Hapsburg, and the
Austrian heir, Joseph, had been crowned hereditary
king. In 1697 Transylvania was united to the
Hungarian monarchy. The banat of Temesvár was
acquired by the Hapsburgs in 1718. The term "banat"
denotes a border district, or march.]
*489. Development of Autocracy Under Maria Theresa, 1740-1780.*--The
principal threads in Austrian history in the eighteenth century are
the foreign entanglements, including the war of the Spanish
Succession, the war of the Austrian Succession, and the Seven Years'
War, and the internal measures, of reform and otherwise, undertaken by
the successive sovereigns, especially Maria Theresa (1740-1780) and
Joseph II. (1780-1790). For Austria the net result of the wars was the
loss of territory and also of influence, among the states of the
Empire, if not among those of all Europe. On the side of internal
affairs it may be observed simply that Maria Theresa became virtually
the founder of the unified Austrian state, and that, in social
conditions generally, the reign of this sovereign marks more largely
than that of any other the transition in the Hapsburg dominions from
mediæval to modern times. Unlike her doctrinaire son and successor,
Joseph, Maria Theresa was of an eminently practical turn of mind. She
introduced innovations, but she clothed them with the vestments of
ancient institutions. She made the government more than ever
autocratic, but she did not interfere with the nominal privileges of
the old estates. In Hungary the constitution was left untouched, but
during the forty years of the reign the Diet was assembled only four
times, and government was, in effect, by royal decree. Joseph II.
assumed the throne in 1780 bent primarily upon a policy of "reform
from above." Utterly unacquainted with the actual condition of his
dominions and unappreciative of the difficulties inherent in their
administration, the new sovereign set about the sweeping away of the
entire existing order and the substituting of a governmental scheme
which was logical enough, to be sure, but entirely impracticable. The
attempt, as was inevitable, failed utterly.
*490. Austria and France, 1789-1815.*--Leopold II. inherited, in 1790, a
dominion substantially as it was at the death of Maria Theresa. Prior
to his accession Leopold had acquired a reputation for liberalism, but
apprehension aroused by the revolution in France was of itself
sufficient to turn him promptly into the traditional paths of Austrian
autocracy. His reign was brief (1790-1792), but that of his son and
successor, Francis II., which continued through the revolutionary
epoch, was essentially a continuation of it, and from first to (p. 445)
last there was maintained with complete success that relentless
policy of "stability" so conspicuously associated later with the name
of Metternich. Hardly any portion of Europe was less affected by the
ideas and transformations of the Revolution than was Austria.
Having resisted by every means at her disposal, including resort to
arms, the progress of revolution, Austria set herself firmly,
likewise, in opposition to the ambitions of Napoleon. Of the many
consequences of the prolonged combat between Napoleon and the Hapsburg
power, one only need be mentioned here. August 11, 1804, Francis II.,
archduke of Austria and emperor of the Holy Roman Empire, assumed the
name and title of Francis I., emperor of Austria. To the taking of
this step the Hapsburg monarch was influenced in part by Napoleon's
assumption, three months previously, of the title of emperor of the
French, and in part by anticipation that the Holy Roman Empire would
soon be subverted completely by the conqueror. The apprehension proved
well-founded. Within two years it was made known definitely that the
Napoleonic plan of international readjustment involved as one of its
principal features the termination, once for all, of an institution
which, as Voltaire had already said, was "no longer holy, Roman, or an
empire." August 6, 1806, the title and functions of Holy Roman Emperor
were relinquished formally by the Austrian monarch. The Austrian
imperial title of to-day, dates, however, from 1804.
II. HUNGARIAN POLITICAL DEVELOPMENT TO 1815
*491. Beginnings.*--According to accounts which are but indifferently
reliable, the Magyars, or Hungarians, lately come as invaders from
Asia, made their first appearance in the land which now bears their
name in the year 895. Certain it is that during the first half of the
tenth century they terrorized repeatedly the populations of Germany
and France, until, in 955, their signal defeat at the Lechfeld by the
German king (the later Emperor Otto I.) checked effectually their
onslaughts and re-enforced the disposition already in evidence among
them to take on a settled mode of life. In the second half of the
tenth century they occupied definitely the valleys of the Danube and
the Theiss, wedging apart, as do their descendants to this day, the
Slavs of the north and those of the Balkan regions.
*492. Institutional Growth Under Stephen I., 997-1038.*--The principal
formative period in the history of the Hungarian nation is the long
reign of Stephen I., or, as he is more commonly known, St. Stephen.
In this reign were established firmly both the Hungarian state and (p. 446)
the Hungarian church; and in the organization of both Stephen
exhibited a measure of capacity which entitles him to high rank among
the constructive statesmen of mediæval Europe. Under his predecessor
the court had accepted Roman Christianity, but during his reign the
nation itself was Christianized and the machinery of the Church was
for the first time put effectively in operation. In the year 1001 Pope
Sylvester II. accorded formal recognition to Magyar nationality by
bestowing upon Prince Stephen a kingly crown, and to this day the
joint sovereign of Austria-Hungary is inducted into office as
Hungarian monarch with the identical crown which Pope Sylvester
transmitted to the missionary-king nine centuries ago. In the
elaboration of a governmental system King Stephen and the advisers
whom he gathered from foreign lands had virtually a free field. The
nation possessed a traditional right to elect its sovereign and to
gather in public assembly, and these privileges were left untouched.
None the less, the system that was set up was based upon a conception
of royal power unimpaired by those feudal relationships by which in
western countries monarchy was being reduced to its lowest estate. The
old Magyar tribal system was abolished and as a basis of
administration there was adopted the Frankish system of counties. The
central and western portions of the country, being more settled, were
divided into forty-six counties, at the head of each of which was
placed a count, or lord-lieutenant (_föispán_), appointed by the crown
and authorized in turn to designate his subordinates, the castellan
(_várnagy_), the chief captain (_hadnagy_), and the hundredor
(_százados_). This transplantation of institutions is a matter of
permanent importance, for, as will appear, the county is still the
basal unit of the Hungarian administrative system.
*493. The Golden Bull, 1222.*--During the century and a half which
followed the reign of Stephen the consolidation of the kingdom,
despite frequent conflicts with the Eastern Empire, was continued. The
court took on something of the brilliancy of the Byzantine model, and
in the later twelfth century King Béla III. inaugurated a policy--that
of crowning as successor the sovereign's eldest son while yet the
sovereign lived--by which were introduced in effect the twin
principles of heredity and primogeniture. In 1222 King Andrew II.
(1204-1235) promulgated a famous instrument, the _Bulla Aurea_, or
Golden Bull, which has been likened many times to the Great Charter
conceded to his barons by King John of England seven years earlier.
The precise purport of the Golden Bull is somewhat doubtful. By some
the instrument has been understood to have comprised a virtual
surrender on the part of the crown in the interest of a class of (p. 447)
insolent and self-seeking nobles with which the country was cursed. By
others it has been interpreted as a measure designed to strengthen the
crown by winning the support of the mass of the lesser nobles against
the few greater ones.[647] The exemption of all nobles from taxation
was confirmed; all were exempted likewise from arbitrary arrest and
punishment. On the other hand, it was forbidden expressly that the
titles and holdings of lords-lieutenant should become hereditary. The
most reasonable conclusion is that the instrument represents a
compromise designed to afford a working arrangement in a period of
unusual stress between crown and nobility. Although the document was
amplified in 1231 and its guarantees were placed under the special
guardianship of the Church, it does not appear that its positive
effects in the period immediately following were pronounced. The
Golden Bull, none the less, has ever been regarded as the foundation
of Hungarian constitutional liberty. As such, it was confirmed
specifically in the coronation oath of every Hapsburg sovereign from
the sixteenth to the eighteenth century.
[Footnote 647: J. Andrássy, Development of
Hungarian Constitutional Liberty (London, 1908),
93.]
*494. Three Centuries of Constitutional Unsettlement.*--The last century
of the Árpád dynasty, which was ended in 1308, was a period of
depression and of revolution. The weakness of the later Árpáds, the
ruin wrought by the Tatar invasion of 1241-1242, the infiltration of
feudalism, and perennial civil discord subverted the splendid
monarchical establishment of King Stephen and brought the country into
virtual subjection to a small body of avaricious nobles. The Árpáds
were succeeded by two Angevin princes from the kingdom of
Naples--Charles I. (1310-1342) and Louis I. (1342-1382)--under whom
notable progress was made toward the rehabilitation of the royal
power. Yet in the midst of their reforms appeared the first
foreshadowings of that great Turkish onslaught by which eventually the
independent Hungarian monarchy was destined to be annihilated
completely. The long reign of Sigismund (1387-1437) was occupied
almost wholly in resistance to the Ottoman advance. So urgent did this
sovereign deem the pushing of military preparations that he fell into
the custom of summoning the Diet once, and not infrequently twice, a
year, and this body acquired rapidly a bulk of legislative and fiscal
authority which never before had been accorded it. Persons entitled to
membership were regularly the nobles and higher clergy. But in 1397
the free and royal towns were invited to send deputies, and this
privilege seems to have been given statutory confirmation. By the
ripening of the Hungarian feudal system, however, and the (p. 448)
struggles for the throne which followed the death of King Albert V.
(1439), much that was accomplished by Sigismund and his diets was
undone. Ultimately, measures of vigilance were renewed under John
Hunyadi,--by voice of the Diet "governor" of Hungary, 1446-1456,--and,
under his son King Matthias I. (1458-1490). During the last-mentioned
reign fifteen diets are known to have been held, and no fewer than 450
statutes to have been enacted. The Hungarian common law was codified
afresh and the entire governmental system overhauled. But again
succeeded a period, from the accession of Wladislaus II. to the battle
of Mohács, during which turbulence reigned supreme and national spirit
all but disappeared.
*496. The Establishment of Austrian Dominion.*--In 1526 the long
expected blow fell. Under the Sultan Suleiman the Magnificent the
Turks invaded the Hungarian kingdom and at the battle of Mohács,
August 28, put to rout the entire Hungarian army. The invading hosts
chose to return almost instantly to Constantinople, but when they
withdrew they left one-quarter of the Hungarian dominion in utter
desolation. It was at this point, as has been stated, that the
Hapsburg rulers of Austria first acquired the throne of Hungary. The
death of King Louis at Mohács was followed by the election of John
Zapolya as king. But the archduke Ferdinand, whose wife, Anne, was a
sister of Louis, laid claim to the throne and, in November, 1527,
contrived to procure an election thereto at the hand of the Diet. In
1529 the deposed Zapolya was reinstated at Buda by the Sultan. The
upshot was civil war, which was terminated in 1538 by a treaty under
whose terms the kingdom was divided between the two claimants. Zapolya
retained approximately two-thirds of the country, while to Ferdinand
was conceded the remaining portion, comprising Croatia-Slavonia and
the five westernmost counties. The government which Zapolya maintained
at Buda had rather the better claim to be considered the continuation
of the old Hungarian monarchy; but from 1527 onwards some portion of
Hungary, and eventually the whole, was attached regularly to the
Hapsburg crown.
In 1540 Zapolya died and the Diet at Buda elected as king his infant
son John Sigismund. On the basis of earlier pledges Ferdinand laid
claim to Zapolya's possessions, but the Sultan intervened and in 1547
there was worked out a three-fold division of the kingdom, on the
principle of _uti possedetis_, under which thirty-five counties
(including Croatia and Slavonia) were assigned to Ferdinand,
Transylvania and sixteen adjacent counties were retained by John
Sigismund, while the remaining portions of the kingdom were annexed to
the dominions of the Sultan. With frequent modifications in detail,
this three-fold division persisted through the next century and a (p. 449)
half. The period was marked by frequent wars, by political confusion,
and by the assumption on the part of the Hapsburg sovereigns of an
increasingly autocratic attitude in relation to their Hungarian
dependencies. It was brought to a close by the Peace of Karlowitz,
January 26, 1699, whereby the Hapsburg dynasty acquired dominion over
the whole of Hungary, except the banat of Tamesvár, which was acquired
nineteen years later.
*496. Austrian Encroachment: the Pragmatic Sanction.*--The immediate
effect of the termination of the Turkish wars was to enhance yet
further the despotism of the Hapsburgs in Hungary. In 1687 the Emperor
Leopold I. induced a rump diet at Pressburg to abrogate that clause of
the Golden Bull which authorized armed resistance to unconstitutional
acts of the sovereign, and likewise to declare the Hungarian crown
hereditary in the house of Hapsburg. After upwards of seven hundred
years of existence, the elective Hungarian monarchy was brought thus
to an end. In 1715 King Charles III.[648] persuaded the Diet to
consent to the establishment of a standing army, recruited and
supported under regulation of the Diet but controlled by the Austrian
council of war. By the diet of 1722 there was established a Hungarian
court of chancery at Vienna and the government of Hungary was
committed to a stadtholder at Pressburg who was made independent of
the Diet and responsible to the sovereign alone. The diet of 1722
likewise accepted formally the Pragmatic Sanction of 1713 by which the
Emperor Charles settled the succession to his hereditary dominions, in
default of male heirs, upon his daughter Maria Theresa and her
heirs;[649] and in measures promulgated during the succeeding year the
Emperor entered into a fresh compact with his Hungarian subjects which
continued the basis of Hapsburg-Hungarian relations until 1848. On the
one hand, Hungary was declared inseparable from the Hapsburg
dominions, so long as there should be a legal heir; on the other, the
crown was sworn to preserve the Hungarian constitution intact, with
all the rights, privileges, laws, and customs of the kingdom. The net
result of all of these measures, none the less, was to impair
perceptibly the original autonomy of the Hungarian state.
[Footnote 648: Charles VI. as emperor.]
[Footnote 649: The Pragmatic Sanction was accepted
at different dates by the various diets of the
Austro-Hungarian lands: in 1713 by Croatia, and
from 1720 to 1724 by the other diets. It was
finally proclaimed a fundamental law in 1724.]
*497. The Later Eighteenth Century.*--Maria Theresa cherished a genuine
interest in Hungarian affairs and was deeply solicitous concerning the
welfare of her Hungarian subjects. It was never her intent, however,
to encourage Hungarian self-government. The constitution of the (p. 450)
kingdom was not subverted; it was simply ignored. The Diet was
summoned but seldom, and after 1764 not at all. Reforms were
introduced, especially in connection with education, but through the
medium of royal decrees alone. Joseph II. continued nominally the
policy of enlightened despotism, but in so tactless a manner that most
of his projects were brought to nought. Approaching the problem of
Hungarian administration with his accustomed idealism, he undertook
deliberately to sweep away not only the constitution of the kingdom
but the whole body of Hungarian institutions and traditions. He
refused even to be crowned king of Hungary or to recognize in any
manner the established status of the country. His purpose was clearly
to build of Austria and Hungary one consolidated and absolute state--a
purpose which, it need hardly be remarked, failed of realization. The
statesmanship of Leopold II. averted the impending revolt. The
constitution was restored, the ancient liberties of the kingdom were
confirmed, and it was agreed that the Diet should be assembled
regularly every three years. Through a quarter of a century the
principal interest of Leopold's successor, Francis II. (1792-1835),[650]
was the waging of war upon revolutionary France and upon Napoleon, and
during this period circumstances conspired to cement more firmly the
relations between the Hapsburg monarchy and the Hungarian people. In
Hungary, as in Austria, the time was one of political stagnation.
Prior to 1811 the Diet was several times convened, but never for any
purpose other than that of obtaining war subsidies.
[Footnote 650: As emperor of Austria, Francis I.
(1804-1835).]
III. THE ERA OF METTERNICH
In the thoroughgoing reaction which set in with the Congress of Vienna
it fell to Austria to play the principal rôle. This was in part
because the dominions of the Hapsburgs had emerged from the
revolutionary epoch virtually unscathed, but rather more by reason of
the remarkable position occupied during the period 1815-1848 by
Emperor Francis I.'s minister and mentor, Prince Metternich. Easily
the most commanding personality in Europe, Metternich was at the same
time the moving spirit in international affairs and the autocrat of
Austro-Hungarian politics. Within both spheres he was, as he declared
himself to be, "the man of the _status quo_." Innovation he abhorred;
immobility he glorified. The settlement at Vienna he regarded as
essentially his own handiwork, and all that that settlement involved
he proposed to safeguard relentlessly. Throughout a full generation he
contrived, with consummate skill, to dam the stream of liberalism in
more than half of Europe.
*498. Condition of the Monarchy in 1815.*--In the dominions of the (p. 451)
Hapsburgs the situation was peculiarly such as to render all change,
from the point of view of Metternich, revolutionary and ruinous. In
respect to territory and prestige Austria emerged from the Napoleonic
wars with a distinctly improved status. But the internal condition of
the monarchy, now as ever, imparted a forbidding aspect to any policy
or movement which should give promise of unsettling in the minutest
degree the delicate, haphazard balance that had been arrived at among
the multiplicity of races, religions, and interests represented in the
Emperor's dominions. In the west were the duchies, essentially German,
which comprised the ancestral possessions of the Hapsburg dynasty; in
the north was Bohemia, comprising, besides Bohemia proper, Silesia,
and Moravia, and containing a population largely Czech; to the south
lay the lately acquired Italian kingdom of Lombardo-Venetia; to the
east lay the kingdom of Hungary, including the kingdom of Croatia and
the principality of Transylvania, with a population preponderantly
Slavic but dominated politically by the Magyars. Several of these
component states retained privileges which were peculiar to themselves
and were bound to the Hapsburg monarchy by ties that were at best
precarious. And the differences everywhere of race, religion,
language, tradition, and interest were such as to create for the
Vienna Government a seemingly impossible task.
So decadent and ineffective was the Austrian administrative system
when Metternich entered, in 1809, upon his ministry that not even he
could have supposed that change would not eventually have to come.
Change, however, he dreaded, because when change begins it is not
possible to foresee how far it will go, or to control altogether the
course it shall follow. Change, therefore, Metternich resisted by
every available means, putting off at least as long as might be the
evil day. The spirit of liberalism, once disseminated throughout the
conglomerate Empire, might be expected to prompt the various
nationalities to demand constitutions; constitutions would mean
autonomy; and autonomy might well mean the end of the Empire itself.
Austria entered upon the post-Napoleonic period handicapped by the
fact that the principle upon which Europe during the nineteenth
century was to solve many of her problems--the principle of
nationality--contained for her nought but the menace of
disintegration. Conservatism, as one writer has put it, was imposed
upon the Empire by the very conditions of its being.
*499. Metternich's System: the Rise of Liberalism.*--The key to Austrian
history during the period 1815--1848 is, then, the maxim of the
Emperor Francis, "Govern and change nothing." In Hungary government
was nominally constitutional; elsewhere it was frankly absolute. (p. 452)
The diets of the component parts of the Empire were not abolished, nor
were the estates of the several Austrian provinces. But, constituted
as they generally were on an aristocratic basis and convened but
irregularly and for brief periods, their existence was a source
neither of embarrassment to the Government nor of benefit to the
people. "I also have my Estates," declared the Emperor upon one
occasion. "I have maintained their constitution, and do not worry
them; but if they go too far I snap my fingers at them or send them
home." The Diet of Hungary was not once convened during the years
1812-1825. On the side of administration Metternich did propose that
the various executive departments, hitherto gathered under no common
management nor correlated in any degree whatsoever, should be brought
under the supervision of a single minister. But not even this project
was carried out effectively. Throughout the period the central
government continued cumbersome, disjointed, and inefficient.
With every passing decade the difficulties of the Government were
augmented. Despite a most extraordinary censorship of education and of
the press, western liberalism crept slowly into the Empire and the
spirit of disaffection laid hold of increasing numbers of people. The
revolutions of 1820 passed without eliciting response; those of 1830
occasioned but a ripple. But during the decade 1830-1840, and
especially after 1840, the growth of liberalism was rapid. In 1835 the
aged Francis I. was succeeded by Ferdinand I., but as the new
sovereign was mentally incapacitated the dominance of Metternich
continued unimpaired.[651] In Bohemia, Hungary, and elsewhere there
were revivals of racial enthusiasm and of nationalistic aspirations
which grew increasingly ominous. The Hungarian diet of 1844
substituted as the official language of the chambers Magyar for Latin,
and during the forties there was built up, under the leadership of
Louis Kossuth and Francis Deák, a flourishing Liberal party, whose aim
was the re-establishment of the autonomy of the kingdom and the
thoroughgoing reform of the government. By 1847-1848 this party was
insisting strenuously upon the adoption of its "Ten Points," in which
were included a responsible ministry, the abolition of serfdom,
equality of citizens before the law, complete religious liberty,
fuller representation in the Diet, taxation of the nobles, and (p. 453)
control by the Diet of all public expenditures.[652]
[Footnote 651: Technically the control of the
government was vested in a small group of
dignitaries known as the Staatskonferenz, or State
Conference. The nominal president of this body was
the Archduke Louis, representing the crown; but the
actual direction of its proceedings fell to
Metternich. H. von Sybel, Die Österreichische
Staatskonferenz von 1836, in _Historische
Zeitschrift_, 1877.]
[Footnote 652: On Austria during the period of
Metternich see Cambridge Modern History, X., Chap.
11, XI., Chap. 3; Lavisse et Rambaud, Histoire
Générale, X., Chap. 17; A. Stern, Geschichte
Europas (Berlin, 1904-1911), I., Chap. 3; A.
Springer, Geschichte Österreichs seit dem Wiener
Frieden 1809 (Leipzig, 1863), I., 275-322; H.
Meynert, Kaiser Franz I. (Vienna, 1872).]
IV. THE REVOLUTION OF 1848
*500. The Fall of Metternich.*--The crash came in 1848. Under the
electrifying effect of the news of the fall of Louis Philippe at Paris
(February 24), and of the eloquent fulminations of Kossuth, translated
into German and scattered broadcast in the Austrian capital, there
broke out at Vienna, March 12-13, an insurrection which instantly got
quite beyond the Government's power to control. Hard fighting took
place between the troops and the populace, and an infuriated mob,
breaking into the royal palace, called with an insistence that would
not be denied for the dismissal of Metternich. Recognizing the
uselessness of resistance, the minister placed in the hands of the
Emperor his resignation and, effecting an escape from the city, made
his way out of the country and eventually to England. March 15 there
was issued a hurriedly devised Imperial proclamation, designed to
appease the populace, in which was promised the convocation of an
assembly with a view to the drafting of a national constitution.
*501. Hungary: the March Laws.*--On the same day the Diet of Hungary,
impelled by the oratory of Kossuth, began the enactment of an
elaborate series of measures--the so-called March Laws--by which was
carried rapidly toward completion a programme of modernization which,
in the teeth of Austrian opposition, had been during some years under
way. The March Laws fell into two principal categories. The first
dealt with the internal government of the kingdom, the second with the
relations which henceforth were to subsist between Hungary and the
Austrian Empire. For the ancient aristocratic machinery of the
monarchy was substituted a modern constitutional system of government,
with a diet whose lower chamber, of 337 members, was to be elected by
all Hungarians of the age of twenty who possessed property to the
value of approximately $150. Meetings of this diet were to be annual
and were to be held, no longer at Pressburg, near the Austrian border,
but at the interior city of Budapest, the logical capital of the
kingdom. Taxation was extended to all classes; feudal servitudes and
titles payable by the peasantry were abolished; trial by jury,
religious liberty, and freedom of the press were guaranteed. In the
second place, it was stipulated that henceforth Hungary should (p. 454)
have an entirely separate and a responsible ministry, thus ensuring
the essential autonomy of the kingdom. The sole tie remaining between
the two monarchies was to be the person of the sovereign. Impelled by
the force of circumstances, the Government at Vienna designated Count
Louis Batthyány premier of the first responsible Hungarian ministry
and, April 10, accorded reluctant assent to the March Laws. These
statutes, though later subverted, became thenceforth the _Grundrechte_
of the Hungarian people.
*502. The Austrian Constitution of 1848.*--In the meantime, the
Austrians were pressing their demand for constitutionalism. The
framing of the instrument which had been promised was intrusted by the
Emperor to the ministers, and early in April there was submitted to an
informal gathering of thirty notables representing various portions of
the Empire a draft based upon the Belgium constitution of 1831. This
instrument was given some consideration in several of the provincial
diets, but was never submitted, as it had been promised in the
manifesto of March 15 it should be, to the Imperial Diet, or to any
sort of national assembly. Instead it was promulgated, April 25, on
the sole authority of the Emperor. The territories to which it was
made applicable comprised the whole of the Emperor's dominions, save
Hungary and the other Transleithanian lands and the Italian
dependencies. By it the Empire was declared an indissoluble
constitutional monarchy, and to all citizens were extended full rights
of civil and religious liberty. There was instituted a Reichstag, or
general diet, to consist of an upper house of princes of the royal
family and nominees of the landlords, and a lower of 383 members, to
be elected according to a system to be devised by the Reichstag
itself. All ministers were to be responsible to this diet. July 22
there was convened at Vienna the first assembly of the new type, and
the organization of constitutional government was put definitely under
way.
*503. The Reaction.*--Recovery, however, on the part of the forces of
reaction was rapid. In Hungary the same sort of nationalistic feeling
that had inspired the Magyars to assert their rights as against
Austria inspired the Serbs, the Croats, and the Roumanians to demand
from the Magyar Government a recognition of their several traditions
and interests. The purpose of the Magyars, however, was to maintain
absolutely their own ascendancy in the kingdom, and every demand on
the part of the subject nationalities met only with contemptuous
refusal. Dissatisfaction bred dissension, and dissension broke
speedily into civil war. With consummate skill the situation was
exploited by the Vienna Government, while at the same time the armies
of Radetzky and Windischgrätz were stamping out every trace of (p. 455)
insurrection in Lombardo-Venetia, in Bohemia, and eventually in Vienna
itself. December 2, 1848, the easy-going, incompetent Emperor
Ferdinand was induced by the reactionaries to abdicate. His brother,
Francis Charles, the heir-presumptive, renounced his claim to the
throne, and the crown devolved upon the late Emperor's youthful
nephew, Francis Joseph I., whose phenomenally prolonged reign has
continued to the present day. Under the guidance of Schwarzenberg, who
now became the dominating figure in Austrian politics, the Hungarian
March Laws were abrogated and preparations were set on foot to reduce
Hungary, as other portions of the Imperial dominions had been reduced,
by force of arms. Pronouncing Francis Joseph a usurper, the Magyars
rose _en masse_ in defense of their constitution and of the deposed
Ferdinand. In the conflict which ensued they were compelled to fight
not only the Austrians but also their rebellious Roumanian, Croatian,
and Slavonian subjects, and their chances of success were from the
outset slender. In a moment of exultation, April 14, 1849, the Diet at
Budapest went so far as to declare Hungary an independent nation and
to elect Kossuth to the presidency of a supposititious republic. The
only effect, however, was to impart to the contest an international
character. Upon appeal from Francis Joseph, Tsar Nicholas I.
intervened in behalf of the "legitimate" Austrian power; whereupon the
Hungarians, seeking in vain for allies, were overcome by the weight of
the odds against them, and by the middle of August, 1849, the war was
ended.
*504. Restoration of Autocracy.*--In Austria and Hungary alike the
reaction was complete. In the Empire there had been promulgated, March
4, 1849, a revised constitution; but at no time had it been intended
by the sovereign or by those who surrounded him that constitutionalism
should be established upon a permanent basis, and during 1850-1851 one
step after another was taken in the direction of the revival of
autocracy. December 31, 1851, "in the name of the unity of the Empire
and of monarchical principles," the constitution was revoked by
Imperial patent. At a stroke all of the peoples of the Empire were
deprived of their representative rights. Yet so incompletely had the
liberal régime struck root that its passing occasioned scarcely a
murmur. Except that the abolition of feudal obligations was permanent,
the Empire settled back into a status which was almost precisely that
of the age of Metternich. Vienna became once more the seat of a
government whose fundamental objects may be summarized as (1) to
Germanize the Magyars and Slavs, (2) to restrain all agitation in
behalf of constitutionalism; and (3) to prevent freedom of thought and
the establishment of a free press. Hungary, by reason of her (p. 456)
rebellion, was considered to have forfeited utterly the fundamental
rights which for centuries had been more or less grudgingly conceded
her. She not only lost every vestige of her constitutional system, her
diet, her county assemblies, her local self-government; large
territories were stripped from her, and she was herself cut into five
districts, each to be administered separately, largely by German
officials from Vienna. So far as possible, all traces of her historic
nationality were obliterated.[653]
[Footnote 653: Brief accounts of the revolution of
1848-1849 in Austria-Hungary will be found in
Cambridge Modern History, XI., Chaps. 6-7
(bibliography, pp. 887-893), and Lavisse et
Rambaud, Histoire Générale, XI., Chap. 4. The most
important treatise is H. Friedjung, Österreich von
1848 bis 1860 (2d ed., Stuttgart and Berlin, 1908),
the first volume of which covers the period
1848-1851. There is a serviceable account in L.
Leger, History of Austria-Hungary from the
Beginning to the Year 1878, trans. by B. Hill
(London, 1889), Chaps. 30-33. Older accounts in
English include W. H. Stiles, Austria in 1848-9
(New York, 1852), and W. Coxe, History of the House
of Austria (3d ed., London, 1907). The Hungarian
phases of the subject are admirably presented in L.
Eisenmann, Le compromis austro-hongroise (Paris,
1904).]
V. THE REVIVAL OF CONSTITUTIONALISM: THE AUSGLEICH
*505. Constitutional Experiments, 1860-1861.*--The decade 1850-1860 was
in Austria-Hungary a period of political and intellectual torpor.
Embarrassed by fiscal difficulties and by international complications,
the Government at Vienna struggled with desperation to maintain the
_status quo_ as against the numerous forces that would have overthrown
it. For a time the effort was successful, but toward the close of the
decade a swift decline of Imperial prestige compelled the adoption of
a more conciliatory policy. The Crimean War cost the Empire both
allies and friends, and the disasters of the Italian campaigns of 1859
added to the seriousness of the Imperial position. By 1860 both the
Emperor and his principal minister, Goluchowski, were prepared to
undertake in all sincerity a reformation of the illiberal and
unpopular governmental system. To this end the Emperor called
together, March 5, 1860, representatives of the various provinces and
instructed them, in conjunction with the Reichsrath, or Imperial
Council, to take under consideration plans for the reorganization of
the Empire. The majority of this "reinforced Reichsrath" recommended
the establishment permanently of a broadly national Reichsrath, or
Imperial assembly, together with the reconstitution of the old
provincial diets. The upshot was the promulgation, October 20, 1860,
of a "permanent and irrevocable" diploma in which the Emperor made
known his intention thereafter to share all powers of legislation and
finance with the diets of the various portions of the Empire, and (p. 457)
with a central Reichsrath at Vienna, the latter to be made up of
members chosen by the Emperor from triple lists of nominees presented
by the provincial diets.
In Hungary this programme was received with favor by the conservative
magnates, but the Liberals, led by Deák, refused absolutely to approve
it, save on the condition that the constitutional régime of the
kingdom, abrogated in 1849, should be regarded as completely restored.
At Vienna there had been no intention that the proposed innovation
should entail such consequences, and within four months of its
promulgation the diploma of 1860 was superseded by a patent of
February 26, 1861, whereby the terms demanded by the Deák party were
specifically denied. In this patent--the handiwork principally of
Anton von Schmerling, Goluchowski's successor in the office of
Minister of the Interior--was elaborated further the plan of the new
Reichsrath. Two chambers there were to be--an upper, or House of
Lords, to be made up of members appointed by the Emperor in
consideration of birth, station, or merits and a lower, or House of
Representatives, to consist of 343 members (Hungary sending 85 and
Bohemia 54), to be chosen by the provincial diets from their own
membership. Sessions of the body were to be annual. The new instrument
differed fundamentally from the old, not simply in that it substituted
a bicameral for a unicameral parliamentary body, but also in that it
diverted from the local diets to the Reichsrath a wide range of
powers, being designed, indeed, specifically to facilitate the
centralization of governmental authority.
*506. The Hungarian Opposition.*--By reason chiefly of the refusal of
the Deák party to accept for Hungary anything short of the autonomy
which had been enjoyed prior to 1849, the new scheme of government was
for a time only partially successful. In one after another of the
component parts of the Empire the provincial diets were called back to
life, and the Reichsrath itself was started upon its career. But the
Hungarians held aloof. The position which they assumed was that
Hungary had always been a separate nation; that the union with Austria
lay only through the person of the monarch, who, indeed, in Hungary
was king only after he should have sworn to uphold the ancient laws of
Hungary and should have been crowned in Hungary with the iron crown of
St. Stephen; that no change in these ancient laws and practices could
legally be effected by the emperor-king alone; that the constitution
of 1861 was inadequate, not only because it had been "granted" and
might as easily be revoked, but because it covered both Austria and
Hungary; reduced Hungary to the position of a mere province, and was
not at all identical with the Hungarian fundamental law abrogated in
1849. April 6, 1861, the Hungarian Diet was assembled for the first
time since the termination of the revolution of 1848, and the (p. 458)
patent of the preceding February 26 was laid forthwith before it.
After four months of heated debate the body refused definitely to
accept the instrument and, on the contrary, adopted unanimously an
address drawn up by Deák calling upon the Vienna authorities to
restore the political and territorial integrity of the Hungarian
kingdom. The sovereign's reply was a dissolution of the Diet, August
21, and a levy of taxes by military execution. Hungary, in turn,
refused to be represented in the Reichsrath, or in any way to
recognize the new order.
*507. Influences toward Conciliation.*--Through four years the deadlock
continued. During the period Hungary, regarded by the authorities at
Vienna as having forfeited the last vestige of right to her ancient
constitution, was kept perpetually in a stage of siege. As time went
by, however, it was made increasingly apparent that the surrender by
which concord might be restored would have to be made in the main by
Austria, and at last the Emperor was brought to a point where he was
willing, by an effectual recognition of Hungarian nationality, to
supply the indispensable condition of reconciliation. In June, 1865,
the sovereign paid a visit to the Hungarian capital, where he was
received with unexpected enthusiasm, and September 20 the patent of
1861, which the Hungarians had refused to allow to be put into
execution, was suspended. For the moment the whole of the Hapsburg
dominion reverted to a state of absolutism; but negotiations were set
on foot looking toward a revival of constitutionalism under such
conditions that the demands of the Hungarians might be brought into
harmony with the larger interests of the Empire. Proceedings were
interrupted, in 1866, by the Austro-Prussian war, but in 1867 they
were pushed to a conclusion. In anticipation of the international
outbreak which came in June, 1866, Deák had reworked a programme of
conciliation drawn up in the spring of 1865, holding it in readiness
to be employed as a basis of negotiation in the event of an Austrian
triumph, as an ultimatum in the event of an Austrian defeat. The
Austrians, as it proved, were defeated swiftly and decisively, and by
this development the Hungarians, as Deák had hoped would be the case,
were given an enormously advantageous position. Humiliated by her
expulsion from a confederation which she had been accustomed to
dominate, Austria, after the Peace of Prague (August 20, 1866), was no
longer in a position to defy the wishes of her disaffected sister
state. On the contrary, the necessity of the consolidation of her
resources was never more apparent.
*508. The Compromise Effected, 1867.*--July 3 occurred the disaster at
Sadowa. July 15 the Emperor summoned Deák to Vienna and put to (p. 459)
him directly the question, What does Hungary want? Two days later he
accorded provisional assent to the fundamentals of the Deák _projet_
and designated as premier of the first parliamentary ministry of
Hungary Count Julius Andrássy. The working out of the precise
settlement between the two states fell principally to two men--Deák,
representing the Hungarian Liberals, and Baron Beust, formerly chief
minister of the king of Saxony but in 1866 brought to Vienna and made
Austrian chancellor and minister-president. After prolonged
negotiation a _projet_, differing from the original one of Deák in few
respects save that the unity of the monarchy was more carefully
safeguarded, was made ready to be acted upon by the parliaments of the
two states. February 17, 1867, the Andrássy ministry was formed at
Budapest and May 29, by a vote of 209 to 89, the terms of the
Ausgleich, or Compromise, were given formal approval by the Diet. At
Vienna the Reichsrath would probably have been disposed to reject the
proposed arrangement but for the fact that Beust held out as an
inducement the re-establishment of constitutionalism in Austria. The
upshot was that the Reichsrath added some features by which the
_projet_ was liberalized still further and made provision at the same
time for the revision and rehabilitation of the Imperial patent of
1861. During the summer two deputations of fifteen members each,
representing the respective parliaments, drew up a plan of financial
adjustment between the two states; and by acts of December 21-24 final
approval was accorded on both sides to the whole body of agreements.
Already, June 8, in the great cathedral at Buda, Francis Joseph had
been crowned Apostolic King of Hungary and the royal succession under
the terms of the Pragmatic Sanction of 1713, after eighteen years of
suspension, had been definitely resumed.[654]
[Footnote 654: On Austro-Hungarian affairs in the
period 1860-1867 see Cambridge Modern History, XI.,
Chap. 15, XII., Chap. 7 (bibliography, pp.
876-882), and Lavisse et Rambaud, Histoire
Générale, XI., Chap. 13. The best treatise is L.
Eisenmann, Le compromis austro-hongroise (Paris,
1904). An account by an active participant is J.
Andrássy, Ungarns Ausgleich mit Österreich von
Jahre 1867 (Leipzig, 1897). The best detailed
account in English is Leger, History of
Austria-Hungary, Chaps. 34-35. Two important
biographies are: A. Forster, Francis Deák, a Memoir
(London, 1880), and E. Ebeling, F. F. Graf von
Beust (Leipzig, 1870-71).]
CHAPTER XXV (p. 460)
THE GOVERNMENT AND PARTIES OF AUSTRIA
I. THE CONSTITUTION
*509. Texts.*--The fundamental law of the Austrian Empire,[655] in so
far as it has been reduced to writing, exists in the form of a series
of diplomas, patents, and statutes covering, in all, a period of some
two hundred years. Of these instruments the most important are: (1)
the Pragmatic Sanction of the Emperor Charles VI., promulgated
originally April 19, 1713, and in final form in 1724, by which is
regulated the succession to the throne; (2) the Pragmatic Patent of
the Emperor Francis II., August 1, 1804, in accordance with which the
sovereign bears in Austria the Imperial title; (3) the diploma of the
Emperor Francis Joseph I., October 20, 1860, by which was introduced
in the Empire the principle of constitutional government; (4) the
patent of Francis Joseph, February 26, 1861, by which was regulated in
detail the nature of this government; and (5) a series of five
fundamental laws (_Staatsgrundgesetze_), all bearing the date December
21, 1867, and comprising a thoroughgoing revision and extension of the
patent of 1861. In a narrower sense, indeed, the constitution may be
said to consist of these five documents, all of which were sanctioned
by the crown as a portion of the same general settlement by which the
arrangements comprehended in the Ausgleich were effected. Of them,
one, in twenty articles, is essentially a bill of rights; a second, in
twenty-four sections, is concerned with Imperial representation; a
third, in six articles, provides for the establishment of the
Reichsgericht, or Imperial court; a fourth, in fifteen articles,
covers the subject of the judiciary; and the fifth, in twelve
articles, deals with the exercise of administrative and executive
powers.
[Footnote 655: It should be emphasized that the
phrase "Austrian Empire," properly used, denotes
Austria alone. Hungary is no part of the Empire.
Throughout the following description effort has
been made to avoid inaccuracy of expression by
referring to Austria-Hungary as the "dual
monarchy," or simply as "the monarchy." The
nomenclature of the Austro-Hungarian union is
cumbersome, but therein it merely reflects the
character of the union itself.]
*510. The Style of Government.*--Under the provisions of these
instruments Austria is constituted a limited monarchy, with a responsible
ministry, a bicameral legislative body, and a considerable (p. 461)
measure of local self-government. For the exercise, upon occasion, of
essentially autocratic power, however, the way was left open through
the famous Section 13 of the patent of 1861, become Section 14 of the
Law concerning Imperial Representation of 1867. Around no portion of
the constitution has controversy raged more fiercely during the past
generation. The article reads: "If urgent circumstances should render
necessary some measure constitutionally requiring the consent of the
Reichsrath, when that body is not in session, such measure may be
taken by Imperial ordinance, issued under the collective
responsibility of the ministry, provided it makes no alteration of the
fundamental law, imposes no lasting burden upon the public treasury,
and alienates none of the domain of the state. Such ordinances shall
have provisionally the force of law, if they are signed by all of the
ministers, and shall be published with an express reference to this
provision of the fundamental law. The legal force of such an ordinance
shall cease if the Government neglects to present it for the approval
of the Reichsrath at its next succeeding session, and indeed first to
the House of Representatives, within four weeks of its convention, or
if one of the houses refuses its approval thereto."[656] The prolonged
exercise of autocratic power might seem here to be sufficiently
guarded against, but in point of fact, as was demonstrated by the
history of the notable parliamentary deadlock of 1897--1904[657], the
government can be, and has been, made to run year after year upon
virtually the sole basis of the article mentioned. It is only fair to
add, however, that, but for some such practical resource at the
disposal of the executive, constitutional government might long since
have been broken down completely by the recurrent obstructive tactics
of the warring nationalities.
[Footnote 656: Dodd, Modern Constitutions, I., 81.]
[Footnote 657: See p. 479.]
*511. Amendment.*--The constitution promulgated March 4, 1849, made
provision for a definite process of amendment. Upon declaration by the
legislative power that any particular portion of the fundamental law
stood in need of revision, the chambers were to be dissolved and newly
elected ones were to take under consideration the proposed amendment,
adopting it if a two-thirds majority could be obtained in each house.
Upon all such proposals the veto of the Emperor, however, was
absolute. Neither the diploma of October 20, 1860, nor the patent of
February 26, 1861, contained any stipulation upon the subject, nor did
any one of the fundamental laws of 1867 as originally adopted. By act
of April 2, 1873, however, passed at the time when the lower house (p. 462)
of the Reichsrath was being converted into an assembly directly
representative of the people, the Law concerning Imperial Representation
was so modified as to be made to include a specific stipulation with
respect to constitutional amendment in general. Under the terms of
this enactment all portions of the written constitution are subject to
amendment at the hand of the Reichsrath. As in European countries
generally, no essential differentiation of powers that are constituent
from those that are legislative is attempted. The process of revision
is made even easier than that prescribed by the ill-fated instrument
of 1849. It differs in no respect from that of ordinary legislation
save that proposed amendments require a two-thirds vote in each of the
chambers instead of a simple majority. Since 1873 there have been
adopted several amendments, of which the most notable were those of
1896 and 1907 relative to the election of representatives.
*512. The Rights of Citizens.*--For all natives of the various kingdoms
and countries represented in the Reichsrath there exists a common
right of Austrian citizenship. The complicated conditions under which
citizenship may be obtained, exercised, and forfeited are prescribed
in legislative enactments of various dates. One of the five
fundamental laws of 1867, however, covers at some length the general
rights of citizens, and certain of its provisions are worthy of
mention.[658] All citizens, it is declared, are equal before the law.
Public office is open equally to all. Freedom of passage of persons
and property, within the territory of the state, is absolutely
guaranteed, as is both liberty of person and inviolability of
property. Every one is declared free to choose his occupation and to
prepare himself for it in such place and manner as he may desire. The
right of petition is recognized; likewise, under legal regulation,
that of assemblage and of the formation of associations. Freedom of
speech and of the press, under legal regulation, and liberty of
religion and of conscience are guaranteed to all. Science and its
teaching is declared free. One has but to recall the repression of
individual liberty and initiative by which the era of Metternich was
characterized to understand why, with the liberalizing of the Austrian
state under the constitution of 1867, it should have been deemed
essential to put into the fundamental law these and similar guarantees
of personal right and privilege.[659]
[Footnote 658: Law concerning the General Rights of
Citizens. Dodd, Modern Constitutions, I., 71-74.]
[Footnote 659: The texts of the fundamental laws at
present in operation are printed in E. Bernatzik,
Die österreichischen Verfassungsgesetze (2d ed.,
Vienna, 1911), and in a collection issued by the
Austrian Government under the title Die
Staatsgrundgesetze (7th ed., Vienna, 1900). The
statutes of 1867 are in Lowell, Governments and
Parties, II., 378-404, and, in English translation,
in Dodd, Modern Constitutions, I., 71-89. The best
description in English of the Austrian governmental
system is Lowell, _op. cit._; II., Chap. 8. The
best extended treatise is J. Ulbrich, Lehrbuch des
österreichischen Staatsrechts (Vienna, 1883).
Excellent briefer works are L. Gumplowicz, Das
österreichische Staatsrecht (3d ed., Vienna, 1907);
J. Ulbrich, Österreichisches Staatsrecht (3d ed.,
Tübingen, 1904), in Marquardsen's Handbuch; and R.
von Herrnritt, Handbuch des österreichischen
Verfassungsrechtes (Tübingen, 1910). On the
workings of the governmental system something may
be gleaned from G. Drage, Austria-Hungary (London,
1909); S. Whitman, Austria (New York, 1879) and H.
Rumbold, Francis Joseph and his Times (New York,
1909).]
II. THE CROWN AND THE MINISTRY (p. 463)
*513. The Emperor's Status.*--The sovereign authority of the Empire is
vested in the Emperor. Duties are assigned to the ministers, and
privileges are granted to the legislative bodies; but all powers not
expressly conferred elsewhere remain with the Emperor as supreme head
of the state. The Imperial office is hereditary in the male line of
the house of Hapsburg-Lothringen, and the rules governing the
succession are substantially those which were laid down originally in
the Pragmatic Sanction of 1713[660] promulgated by the Emperor Charles
VI. to render possible the succession of his daughter Maria Theresa.
Females may inherit, but only in the event of the failure of male
heirs. By the abdication of the direct heir, the throne may pass to a
member of the royal family who stands farther removed, as it did in
1848 when the present Emperor was established on the throne while his
father was yet living. By reason of the unusual prolongation of the
reign of Francis Joseph, there has been no opportunity in sixty years
to put to a test the rules by which the inheritance is regulated.
Since the death of the Crown Prince Rudolph the heir-presumptive has
been the Archduke Francis Ferdinand, son of the Archduke Charles
Louis, and nephew of the ruling Emperor. It is required that the
sovereign be a member of the Roman Catholic Church.
[Footnote 660: Issued definitely in 1724.]
*514. His Powers.*--By fundamental law it is declared that the Emperor
is "sacred, inviolable, and irresponsible." His powers of government
are exercised largely, however, through ministers who are at least
nominally responsible to the Reichsrath, and through officers and
agents subordinate to them. Most important among the powers expressly
conferred upon the Emperor, and indirectly exercised by him, are: (1)
the appointment and dismissal of ministers; (2) the naming of all
public officials whose appointment is not otherwise by law provided
for; (3) supreme command of the armed forces, with the power of (p. 464)
declaring war and concluding peace; (4) the conferring of titles,
orders, and other public distinctions, including the appointment of
life peers; (5) the granting of pardons and of amnesty; (6) the
summoning, adjourning, and dissolving of the various legislative
bodies; (7) the issuing of ordinances with the provisional force of
law, and (8) the concluding of treaties, with the limitation that the
consent of the Reichsrath is essential to the validity of treaties of
commerce and political treaties which impose obligations upon the
Empire, upon any part thereof, or upon any of its citizens. Further
than this, the right to coin money is exercised under the authority of
the Emperor; and the laws are promulgated, and all judicial power is
exercised, in his name. Before assuming the throne, the Emperor is
required to take a solemn oath in the presence of the two houses of
the Reichsrath "to maintain inviolable the fundamental laws of the
kingdoms and countries represented in the Reichsrath, and to govern in
conformity with them, and in conformity with the laws in
general."[661] The present Emperor-King has a civil list of 22,600,000
crowns, half of which is derived from the revenues of Austria and half
from those of Hungary. The Imperial residence in Vienna, the Hofburg,
has been the seat of the princes of Austria since the thirteenth
century.
[Footnote 661: Law concerning the Exercise of
Administrative and Executive Power, December 21,
1867, § 8. Dodd, Modern Constitutions, I., 88.]
*515. The Ministers: Responsibility.*--The Austrian ministry comprises
portfolios as follows: Finance, the Interior, Railways, National
Defense, Agriculture, Justice, Commerce, Labor, and Instruction and
Worship. Three important departments--those of War, Finance, and
Foreign Affairs and the Imperial and Royal House--are maintained by
the affiliated monarchies in common.[662] And there are usually from
one to four ministerial representatives of leading racial elements
without portfolio, there being in the present cabinet one such
minister for Galicia. All ministers are appointed and dismissed by the
Emperor. Under the leadership of a president of the council or premier
(without portfolio), they serve as the Emperor's councillors, execute
his will, and administer the affairs of their respective branches of
the public service. It is provided by fundamental law that they shall
be responsible for the constitutionality and legality of governmental
acts performed within the sphere of their powers.[663] They are
responsible to the two branches of the national parliament alike, and
may be interpellated or impeached by either. For impeachment an (p. 465)
elaborate procedure is prescribed, though thus far it has not proved
of practical utility. Every law promulgated in the Emperor's name must
bear the signature of a responsible minister, and several sorts of
ordinances--such as those proclaiming a state of siege or suspending
the constitutional rights of a citizen--require the concurrent
signature of the entire ministry. Every minister possesses the right
to sit and to speak in either chamber of the Reichsrath, where the
policy of the Government may call for explanation or defense, and
where there are at least occasional interpellations to be answered.
[Footnote 662: There is a joint ministry of
finance, though each of the monarchies maintains a
separate ministry for the administration of its own
fiscal affairs. On the joint ministries see p.
510.]
[Footnote 663: Law concerning the Exercise of
Administrative and Executive Power, December 21,
1867, § 9. Dodd, Modern Constitutions, I., 88-89.]
Nominally, the parliamentary system is in vogue, but at best it
operates only indifferently. Supposedly responsible, collectively and
individually, to the Reichsrath, the ministers are in practice far
more dependent upon the Emperor than upon the chambers. In France the
inability of political parties to coalesce into two great opposing
groups largely defeats the best ends of the parliamentary system. In
Austria the numerous and ineradicable racial divisions deflect the
system further still from the lines upon which theoretically it should
operate. No political group is sufficiently powerful to rule alone,
and no working affiliation can long be made to subsist. The
consequence is, not only that the Government can ordinarily play off
one faction against another and secure pretty much its own way, but
also that the responsibility of the ministers to the chambers is much
less effective in practice than on paper it appears to be.[664]
[Footnote 664: W. Beaumont, Cabinets éphémères et
ministères provisoires en Autriche, in _Annales des
Sciences Politiques_, March, 1900; H. Hantich,
Nouvelle phase du parlementarisme en Autriche, in
_Questions Diplomatiques et Coloniales_, February
1, 1910.]
III. THE REICHSRATH--THE ELECTORAL SYSTEM
*516. The House of Lords.*--The Reichsrath consists of two chambers. The
upper is known as the Herrenhaus, or House of Lords; the lower, as the
Abgeordnetenhaus, or House of Representatives. The Herrenhaus consists
of a somewhat variable number of men who sit in part by _ex-officio_
right, in part by hereditary station, and in part by special Imperial
appointment. At the close of 1910 there were in the chamber 266
members, distributed as follows: (1) princes of the Imperial family
who are of age, 15; (2) nobles of high rank qualified by the
possession of large estates and nominated to an hereditary seat by the
Emperor, 74; (3) ecclesiastics--10 archbishops and 8 bishops--who are
of princely title inherent in their episcopal seats, 18; and (4) persons
nominated by the Emperor for life in recognition of special service
rendered to the state or the Church, or unusual distinction (p. 466)
attained in literature, art, or science, 159. By law of January 26,
1907, the number of members in the last-mentioned group may not exceed
170, nor be less than 150.[665] Within these limits, the power of the
Emperor to create life peers is absolute. The prerogative is one which
has several times been exercised to facilitate the enactment of
measures upon whose adoption the Government was determined. The
president and vice-president of the chamber are appointed from its
members by the Emperor at the beginning of each session; but the body
chooses all of its remaining officers. The privileges and powers of
the Herrenhaus are co-ordinate with those of the Abgeordnetenhaus,
save that money bills and bills fixing the number of military recruits
must be presented first in the lower chamber.
[Footnote 665: It is interesting to observe that
this guarantee against the wholesale creation of
peers was brought forward with the object of
winning for the Government's Universal Suffrage
Bill the assent of the upper chamber.]
*517. The House of Representatives: Composition.*--The lower chamber, as
constituted by fundamental law of 1867, was made up of 203
representatives, apportioned among the several provinces and elected
by the provincial diets. The system worked poorly, and a law of 1868
authorized the voters of a province to elect the stipulated quota of
representatives in the event that the Diet failed to do so. Still
there was difficulty, arising largely from the racial rivalries in the
provinces, and by an amendment of April 2, 1873, the right of election
was vested exclusively in the enfranchised inhabitants of the Empire.
The number of members was at the same time increased to 353, though
without modifying the proportion of representatives of the various
provinces. Further amendment, in 1896, brought up the membership to
425, where it remained until 1907, when it was raised to the present
figure, 516.
*518. Early Electoral Arrangements: Law of 1873.*--The broadly
democratic electoral system which prevails in the Austrian dominions
to-day is a very recent creation. With the introduction of
constitutionalism in 1867 the problem of the franchise became one of
peculiar and increasing difficulty, and the process by which the
Empire has been brought laboriously to its present condition of
democracy has constituted one of the most tortuous chapters in recent
political history. The conditions by which from the outset the problem
was complicated were three in number: first, the large survival of
self-assertiveness on the part of the various provinces among whom
parliamentary representatives were to be distributed; second, the
keenness of the ambitions of the several racial elements for parliamentary
power; and third, the utter lack of experience and of traditions (p. 467)
on the part of the Austrian peoples in the matter of democratic
government.
When, in 1873, the right of electing deputies was withdrawn from the
provincial diets it was conferred, without the establishment of a new
electorate, upon those elements of the provincial populations which
had been accustomed to take part in the election of the local diets.
These were four in number: (1) the great landowners, comprising those
who paid a certain land tax, varying in the several provinces from 50
to 250 florins ($20 to $100), and including women and corporations;
(2) the cities, in which the franchise was extended to all males of
twenty-four who paid a direct tax of ten gulden annually; (3) chambers
of commerce and of industry; and (4) rural communes, in which the
qualifications for voting were the same as in the cities. To each of
these curiæ, or classes, the law of 1873 assigned a number of
parliamentary representatives, to be elected thereafter in each
province directly by the voters of the respective classes, rather than
indirectly through the diets. The number of voters in each class and
the relative importance of the individual voter varied enormously. In
1890, in the class of landowners there was one deputy to every 63
voters; in the chambers of commerce, one to every 27; in the cities,
one to every 2,918; and in the rural districts, one to every
11,600.[666]
[Footnote 666: Hazen, Europe since 1815, 399.]
*519. The Taaffe Electoral Bill of 1893.*--During the period covered by
the ministry of Count Taaffe (February, 1879, to October, 1893) there
was growing demand, especially on the part of the Socialists, Young
Czechs, German Nationalists, and other radical groups, for a new
electoral law, and during the years 1893-1896 this issue quite
overshadowed all others. In October, 1893, Taaffe brought forward a
sweeping electoral measure which, if it had become law, would have
transferred the bulk of political power to the working classes, at the
same time reducing to impotence the preponderant German Liberal party.
The measure did not provide for the general, equal, and direct
suffrage for which the radicals were clamoring, and by which the
number of voters would have been increased from 1,700,000 to
5,500,000. But it did contemplate the increase of the electorate to
something like 4,000,000. This it proposed to accomplish by abolishing
all property qualifications of voters in the cities and rural
communes[667] and by extending the voting privilege to all adult males
who were able to read and write and who had resided in their electoral
district a minimum of six months. To avoid the danger of an excess of
democracy Taaffe planned to retain intact the curiæ of landed
proprietors and chambers of commerce, so that it would still be (p. 468)
true that 5,402 large landholders would be represented in the lower
house by 85 deputies, the chambers of commerce by 22, and the
remainder of the nation--some 24,000,000 people--by 246. Impelled
especially by fear of socialism, the Conservatives, the Poles, the
German Liberals, and other elements opposed the project, and there
never was any real chance of its adoption. By reason of its halfway
character the Socialists, in congress at Vienna in March, 1894,
condemned it as "an insult to the working classes." Even in Hungary
(which country, of course, the measure did not immediately concern)
there was apprehension, the ruling Magyars fearing that the adoption
of even a partial universal suffrage system in the affiliated state
would prompt a demand on the part of the numerically preponderant
Slavic populations of Hungary for the same sort, of thing.
Anticipating defeat, Taaffe resigned, in October, 1893, before the
measure came to a vote.
[Footnote 667: By a law of 1882 the direct-tax
qualification had been reduced to 5 florins.]
*520. The Electoral Law of 1896.*--Under the Windischgrätz and
Kielmansegg ministries which succeeded no progress was realized, but
the cabinet of the Polish Count Badeni, constituted October 4, 1895,
made electoral reform the principal item in its programme and
succeeded in carrying through a measure which, indeed, was but a
caricature of Taaffe's project, but which none the less marked a
distinct stage of progress toward the broad-based franchise for which
the radicals were clamoring. The Government's bill was laid before the
Reichsrath, February 16, 1896, and was adopted unchanged within the
space of two weeks. The general suffrage which the Socialists demanded
was established, for the election, however, not of the 353
representatives already composing the lower chamber, but merely of a
body of 72 new representatives to be added to the present membership.
In the choice of these 72 additional members every male citizen
twenty-four years of age who had resided in a given district as much
as six months prior to an election was to be entitled to participate;
but elections were to be direct only in those districts in which
indirect voting had been abolished by provincial legislation. Votes
were to be cast, as a rule, by ballot, though under some circumstances
orally. All pre-existing classes of voters were left unchanged, and to
them was simply added a fifth. The aggregate number of electors in the
Empire was raised to 5,333,000. Of the number, however, the 1,732,000
comprised in the original four curiæ were still to elect 353 of the
425 members of the chamber, with the further inequity that many of the
persons who profited by the new arrangement were included already in
one or another of the older classes, and hence were vested by it with
a plural vote. Although, therefore, the voting privilege was now (p. 469)
conferred upon millions of small taxpayers and non-taxpayers who never
before had possessed it, the nation was still very far from a fair and
democratic suffrage system.
*521. Renewed Agitation: the Universal Suffrage Law of
1907.*--Throughout the decade following 1896 electoral agitation was
continuous and widespread, but not until 1905 did the situation become
favorable for further reform. In September of the year mentioned
Francis Joseph approved the proposal that universal suffrage be
included in the programme of the Fejérváry cabinet in Hungary, and the
act was taken at once to mean that the sovereign had arrived at the
conclusion that the democratizing of the franchise was inevitable in
all of his dominions. In point of fact, by reason of the prolonged
parliamentary crisis of late years at Vienna, the Emperor was fast
arriving at precisely such a conclusion. Stimulated by current
developments in Hungary and in Russia, the Austrian Socialists, late
in 1905, entered upon a notable series of demonstrations, and,
November 28, Premier Gautsch was moved to pledge the Government to
introduce forthwith a franchise reform bill based upon the principle
of universal suffrage. February 23, 1906, the promise was redeemed by
the presentation in the Reichsrath of proposals for (1) the abolition
of the system of electoral curiæ, (2) the extension of an equal
franchise to all males over twenty-four years of age and resident in
their district a year, (3) the division of Austria racially into
compartments so that each ethnic group might be protected against its
rivals, and (4) the increase of the number of seats from 425 to 455, a
fixed number to be allotted to each province, and in each province to
each race, in accordance with numbers and taxpaying capacity.
The outlook for the bill in which these proposals were incorporated
was at first not promising. The Social Democrats, the Christian
Socialists, and the Young Czechs were favorable; the Poles were
reserved in their attitude, but inclined to be hostile; practically
all of the German Liberals were opposed; and the landed proprietors,
long accustomed to dominate within the preponderant German element in
the Reichsrath, were violently hostile. In April, 1906, while the bill
was pending, the Gautsch ministry found itself without a parliamentary
majority and was succeeded by a ministry made up by Prince
Hohenlohe-Schillingsfürst. This ministry lasted but six weeks, and
June 2 the coalition cabinet of Baron Beck assumed office. Convinced
that the establishment of universal and direct suffrage would afford
the best means of stimulating loyalty to the dynasty, as well as the
only practicable means of freeing the Government from parliamentary
obstructionism, Emperor Francis Joseph accorded the Beck ministry his
earnest support in its purpose to push to a conclusion the task of (p. 470)
electoral reform. The effort attained fruition in the memorable
Universal Suffrage Law passed by both houses of the Reichsrath in the
closing days of 1906 and approved by the Emperor January 26 of the
following year. The measure, which was in form an amendment of the
fundamental law of December 21, 1867, concerning Imperial
Representation, was opposed by the conservative and aristocratic
members of both houses and by the extremer representatives of the
various nationalities; but, like other portions of the constitutional
system of the Empire, it may not be amended save by a two-thirds vote
of both houses, and it is likely to endure through a considerable
period unchanged.
*522. Racial and Geographical Distribution of Seats.*--In the course of
the prolonged negotiations between the Government and representatives
of the various nationalities by which the preparation of the law was
attended there was worked out a fresh allotment of seats to the
several racial groups of the Empire, in proportion, roughly, to
taxpaying capacity. The total number of seats was raised from 425 to
516. Their distribution among the races, as compared with that
formerly existing, was arranged as follows:[668]
_Before 1907_ _After 1907_
Germans of all parties 205 233
Czechs 81 108
Poles 71 80
South Slavs (Slovenes, Croats, Serbs) 27 37
Ruthenes 11 34
Italians 18 19
Roumanians 5 5
--- ---
418 516
[Footnote 668: For tables exhibiting comparatively
the distribution of seats in 1867, 1873, 1896, and
1907, see W. Beaumont, Le suffrage universel en
Autriche: la loi du 26 janvier 1907 in _Annales des
Sciences Politiques_, Sept., 1907.]
The striking feature of this readjustment is, of course, the increased
number of seats assigned to the non-German nationalities. In
proportion strictly to population, the Germans still possess a larger
number of seats than that to which they are entitled. But the
aggregate is only 233, while the aggregate of Slavic seats is 259.
Even if the former German-Italian _bloc_ were still effective it could
control a total of only 257 votes; but, in point of fact, the Italians
in the Reichsrath to-day are apt to act with the Slavs rather than
with the Germans.
After decision had been reached regarding the distribution of seats in
accordance with races it remained to effect a distribution
geographically among the provinces of the Empire. To each of the
several provinces was assigned an aggregate quota which, in turn, (p. 471)
was distributed within the province among the racial groups represented
in the provincial population. The allotment made, in comparison with
that prevailing under the law of 1896, was as follows:
_Before 1907_ _After 1907_
Kingdom of Bohemia 110 130
Kingdom of Galicia and Lodomeria, with
the grand-duchy of Cracow 78 106
Archduchy of Lower Austria 46 64
Margravate of Moravia 43 49
Duchy of Styria 27 30
Princely County of Tyrol 21 25
Archduchy of Upper Austria 20 22
Duchy of Upper and Lower Silesia 12 15
Duchy of Bukovina 11 14
Duchy of Carniola 11 12
Kingdom of Dalmatia 11 11
Duchy of Carinthia 10 10
Duchy of Salsburg 6 7
Margravate of Istria 5 6
Princely County of Görz and Gradisca 5 6
City of Trieste and its territory 5 5
Territory of Vorarlberg 4 4
--- ---
425 516
*523. Electoral Qualifications and Procedure.*--By the law of 1907 the
class system of voting was abolished entirely in national elections,
and in its stead was established general, equal, and direct manhood
suffrage. With insignificant exceptions, every male citizen who has
attained the age of twenty-four, and who, at the time the election is
ordered, has resided during at least one year in the commune in which
the right to vote is to be exercised, is qualified to vote for a
parliamentary representative. And any male thirty years of age, or
over, who has been during at least three years a citizen, and who is
possessed of the franchise, is eligible to be chosen as a
representative. Voting is by secret ballot, and an absolute majority
of all votes cast is necessary for a choice. In default of such a
majority there is a second ballot between the two candidates who at
the first test received the largest number of votes. It is stipulated,
further, that when so ordered by the provincial diet, voting shall be
obligatory, under penalty of fine, and in the provinces of Lower
Austria, Upper Austria, Silesia, Salsburg, Moravia, and Vorarlberg
every elector is required by provincial regulation to appear at every
parliamentary election in his district, and to present his ballot, the
penalty for neglect (unless explained to the satisfaction of the
proper magistrate) being a fine ranging from one to fifty crowns. In
the House of Lords, where there was strong opposition to the (p. 472)
principle of manhood suffrage, effort was made to introduce in the act
of 1907 a provision for the conferring of a second vote upon all
voters above the age of thirty-five. By the Emperor and ministry it
was urged, however, that the injection of such a modification would
wreck the measure, and when the lower chamber tacitly pledged itself
to enact a law designed to prevent the "swamping" of the peers by
Imperial appointment at the behest of a parliamentary majority, the
plural voting project was abandoned.[669]
[Footnote 669: As has been pointed out, the pledge
was redeemed in 1907 by a measure fixing the
minimum number of life peers at 150 and the maximum
at 170. See p. 466.]
So far as practicable, the electoral constituencies in the various
provinces are arranged to preserve the distinction between urban and
rural districts and to comprise racial groups that are essentially
homogeneous. In regions, as Bohemia, where the population is
especially mixed separate constituencies and registers are maintained
for the electors of each nationality, and a man may vote on only the
register of his own race and for a candidate of that race. Germans,
thus, are obliged to vote for Germans, Czechs for Czechs, Poles for
Poles; so that, while there may be a contest between a German Clerical
and a German Liberal or between a Young Czech and a Radical Czech,
there can be none between Germans and Czechs, or between Poles and
Ruthenes. In general, each district returns but one representative.
The 36 Galician districts, however, return two apiece. Each elector
there, as elsewhere, votes for but one candidate, the device
permitting the representation of minorities. The population comprising
a constituency varies from 26,693 in Salsburg to 68,724 in Galicia.
The average is 49,676.[670]
[Footnote 670: On the electoral law of 1907 see W.
Beaumont, Le suffrage universel en Autriche: la loi
du 26 janvier 1907, in _Annales des Sciences
Politiques_, Sept., 1907; H. Hantich, Le suffrage
universel en Autriche, in _Questions Diplomatiques
et Coloniales_, Feb. 16, 1907; M. E. Zweig, La
réforme électorale en Autriche, in _Revue du Droit
Public_, April-June and July-Sept., 1907.]
*524. The Reichsrath: Sessions and Procedure.*--By the law of 1867 no
limit was fixed for the period of service of the parliamentary
representative. The life of the Reichsrath, and consequently the
tenure of the individual deputy, was terminated only by a dissolution.
Under provision of an amendment of April 2, 1873, however, members of
the lower chamber are elected for a term of six years, at the
expiration of which period, as also in the event of a dissolution, a
new election must be held. Representatives are indefinitely eligible
for re-election. Vacancies are filled by special elections, which may
be held at any time, according to procedure specified by law.
Representatives receive a stipend of 20 crowns for each day's
attendance, with an allowance for travelling expenses.
The fundamental law prescribes that the Reichsrath shall be (p. 473)
convened annually, "during the winter months when possible."[671] The
Emperor appoints the president and vice-president of the Herrenhaus,
from among the members of the chamber, and for the period of a
session. The Abgeordnetenhaus elects from its members its president
and vice-president. Normally, the sessions of both houses are public,
though upon request of the president, or of at least ten members, and
by a decision taken behind closed doors, each house possesses the
right, in exceptional instances, to exclude spectators. Projects of
legislation may be submitted by the Government or by the individual
members of the chambers. Measures pass by majority vote; but no act is
valid unless at the time of its passage there are present in the lower
house as many as 100 members, and in the upper house as many as 40. A
curious provision touching the relations of the two houses is that if,
on a question of appropriation or of the size of a military
contingent, no agreement can be reached between the two houses after
prolonged deliberation, the smallest figure approved by either house
shall be regarded as voted.[672] By decree of the Emperor the
Reichsrath may at any time be adjourned, or the lower chamber
dissolved. Ministers and chiefs of the central administration are
entitled to take part in all deliberations, and to present their
proposals personally or through representatives. Each house may,
indeed, require a minister's attendance. Members of the chambers may
not be held responsible for any vote cast; and for any utterances made
by them they may be held responsible only by the house to which they
belong. Unless actually apprehended in a criminal act, no member of
either house may be arrested or proceeded against judicially during
the continuance of a session, except by the consent of the chamber to
which he belongs.[673]
[Footnote 671: Law of December 21, 1867, concerning
Imperial Representation, § 10. Dodd, Modern
Constitutions, I., 77.]
[Footnote 672: Law of December 21, 1867, concerning
Imperial Representation, § 13. Dodd, Ibid., I.,
81.]
[Footnote 673: For a collection of the rules of
order of the Austrian Parliament see K. and O.
Neisser, Die Geschäftsordnung des Abgeordnetenhaus
des Reichsrates, 2 vols. (Vienna, 1909).]
*525. The Reichsrath: Powers.*--The powers of the Reichsrath are, in
general, those ordinarily belonging to a parliamentary body. According
to fundamental law of 1867, they comprise all matters which relate to
the rights, obligations, and interests of the provinces represented in
the chambers, in so far as these matters are not required to be
handled conjointly with the proper representatives of the Hungarian
portion of the monarchy. The Reichsrath examines and ratifies or
rejects commercial treaties, and likewise political treaties which
place a fiscal burden on the Empire or any portion of it, impose (p. 474)
obligations upon individual citizens, or involve any change of
territorial status. It makes provision for the military and naval
establishments. It enacts the budget and approves all taxes and
duties. It regulates the monetary system, banking, trade, and
communication. It legislates on citizenship, public health, individual
rights, education, criminal justice and police regulation, the duties
and interrelations of the provinces, and a wide variety of other
things. It exercises the right of legalizing or annulling Imperial
ordinances which, under urgent circumstances, may be promulgated by
the Emperor with the provisional force of law when the chambers are
not in session.[674] Such ordinances may not introduce any alteration
in the fundamental law, impose any lasting burden upon the treasury,
or alienate territory. They must be issued, if issued at all, under
the signature of all of the ministers, and they lose their legal force
if the Government does not lay them before the lower chamber within
the first four weeks of its next ensuing session, or if either of the
two houses refuses its assent thereto. Each of the houses may
interpellate the ministers upon all matters within the scope of their
powers, may investigate the administrative acts of the Government,
demand information from the ministers concerning petitions presented
to the houses, may appoint commissions, to which the ministers must
give all necessary information, and may give expression to its views
in the form of addresses or resolutions. Any minister may be impeached
by either house.[675]
[Footnote 674: Issued under warrant of the
much-controverted Section 14. See p. 461.]
[Footnote 675: Law of December 21, 1867, concerning
Imperial Representation, § 21. Dodd, Modern
Constitutions, I., 83. A work of value is G.
Kolmer, Parlament und Verfassung in Österreich
(Vienna, 1909).]
IV. POLITICAL PARTIES
*526. Racial Elements in the Empire.*--The key to the politics of
Austria is afforded by the racial composition of the Empire's
population. In our own day there is a tendency, in consequence of the
spread of socialism and of other radical programmes which leap across
racial and provincial lines, toward the rise of Austrian parties which
shall be essentially inter-racial in their constituencies. Yet at the
elections of 1907--the first held under the new electoral law--of the
twenty-six party affiliations which succeeded in obtaining at least
one parliamentary seat all save possibly two comprised either
homogeneous racial groups or factions of such groups. Fundamentally,
the racial question in Austria has always been that of German _versus_
non-German. The original Austria was preponderantly German; the
wealthiest, the best educated, the most widespread of the racial (p. 475)
elements in the Empire to-day is the German; and by the Germans it has
regularly been assumed that Austria is, and ought to be, essentially a
German country.[676] In this assumption the non-German populations of
the Empire have at no time acquiesced; and while they have never been
able to combine long or effectively against the dominating Germanic
element, they have sought persistently, each in its own way, to compel
a fuller recognition of their several interests and rights.
[Footnote 676: Lowell, Governments and Parties,
II., 95.]
The nationalities represented within the Empire fall broadly into
three great groups: the German, the Slavic, and the Latin. In an
aggregate population of 26,107,304 in 1900 the Germans numbered
9,171,614, or somewhat more than 35 per cent; the Slavs, 15,690,000,
or somewhat more than 60 per cent; and the Latins, 958,065, or
approximately 3.7 per cent. The Germans, comprising the most numerous
of the individual nationalities, occupy exclusively Upper Austria,
Salsburg, and Vorarlberg, the larger portion of Lower Austria,
north-western Carinthia, the north and center of Styria and Tyrol,
and, in fact, are distributed much more generally over the entire
Empire than is any one of the other racial elements. The Slavs are in
two principal groups, the northern and the southern. The northern
includes the Czechs and Slovaks, dwelling principally in Bohemia and
Moravia, and numbering, in 1900, 5,955,397; the Poles, comprising a
compact mass of 4,252,483 people in Galicia and Silesia; and the
Ruthenes, numbering 3,381,570, in eastern Galicia and in Bukovina. The
southern Slavic group includes the Slovenes, numbering 1,192,780, in
Carniola, Görz, Gradisca, Istria, and Styria, and the Servians and
Croats, numbering 711,380, in Istria and Dalmatia. The peoples of
Latin stock are the Italians and Ladini (727,102), in Tyrol, Görz,
Gradisca, Dalmatia, and Trieste, and the Roumanians (230,963) in
Bukovina. Within many of the groups mentioned there is meager survival
of political unity. There are German Clericals, German Progressives,
German Radicals, German Agrarians; likewise Old Czechs, Young Czechs,
Czech Realists, Czech Agrarians, Czech Clericals, and Czech Radicals.
Austrian party history within the past fifty years comprises largely
the story of the political contests among the several nationalities,
and of the disintegration of these nationalities into a bewildering
throng of clamorous party cliques.
*527. Centralists and Federalists.*--The more important of the party
groups of to-day trace their origins to the formative period in recent
Austro-Hungarian constitutional history, 1860-1867. During this period
the fundamental issue in the Empire was the degree of centralization
which it was desirable, or possible, to achieve in the reshaping (p. 476)
of the governmental system. On the one hand were the centralists, who
would have bound the loosely agglomerated kingdoms, duchies, and
territories of the Empire into a consolidated state. On the other were
the federalists, to whom centralization appeared dangerous, as well as
unjust to the Empire's component nationalities. Speaking broadly, the
Germans, supported by the Italians, comprised the party of
centralization; the Slavs, that of federalism. The establishment of
the constitution of 1867, as well as of the Compromise with Hungary in
the same year, was the achievement of the centralists, and with the
completion of this gigantic task there gradually took form a compactly
organized political party, variously known as the National German
party, the German Liberals, or the Constitutionalists, whose
watchwords were the preservation of the constitution and the
Germanization of the Empire. For a time this party maintained the
upper hand completely, but its ascendancy was menaced not only by the
disaffected forces of federalism but by the continued tenseness of the
clerical question and, after 1869, by intestine conflict. As was
perhaps inevitable, the party split into two branches, the one radical
and the other moderate. During the earlier months of 1870 the
Radicals, under Hasner, were in control; but in their handling of the
vexatious Polish and Bohemian questions they failed completely and,
April 4, they gave place to the Moderates under the premiership of the
Polish Count Potocki. The new ministry sought to govern in a
conciliatory spirit and with the support of all groups, but its
success was meager. February 7, 1871, a cabinet which was essentially
federalist was constituted under Count Hohenwart. Its decentralizing
policies, however, were of such a character that the racial question
gave promise of being settled by the utter disintegration of the
Empire, and after eight months it was dismissed.
*528. Rule of the German Liberals, 1871-1879.*--With a cabinet presided
over by Prince Adolf Auersperg the German Liberals then returned to
power. Their tenure was prolonged to 1879 and might have been
continued beyond that date but for the recurrence of factional strife
within their ranks. The period was one in which some of the
obstructionist groups, notably the Czechs, fell into division among
themselves, so that the opposition which the Liberals were called upon
to encounter was distinctly less effective than otherwise it might
have been. At no time since 1867 had the Czechs consented to be
represented in the Reichsrath, a body, indeed, which they had
persisted in refusing to recognize as a legitimately constituted
parliament of the Empire. During the early seventies a party of Young
Czechs sprang up which advocated an abandonment of passive (p. 477)
resistance and the substitution of parliamentary activity in behalf of
the interests of the race. The Old Czechs were unprepared for such a
shift of policy, and in 1873 they played directly into the hands of
the Liberal government by refusing to participate in the consideration
of the electoral reform by which the choice of representatives was
taken from the provincial diets and vested in the four classes of
provincial constituencies. For the carrying of this measure a
two-thirds majority was required, and if the Czechs had been willing
to vote at all upon it they might easily have compassed its defeat. As
it was, the amendment was carried without difficulty. A tenure of
power which not even the financial crisis of 1873 could break was,
however, sacrificed through factional bickerings. Within both the
ministry and the Reichsrath, the dominant party broke into three
groups, and the upshot was the dissolution, February 6, 1879, of the
ministry and the creation of a new one under the presidency of Count
Taaffe, long identified with the Moderate element. Three months later
the House of Representatives was dissolved. In the elections that
followed the Liberals lost a total of forty-five seats, and therewith
their position as the controlling party in both the Reichsrath and the
nation. Taaffe retained the premiership, but his Liberal colleagues
were replaced by Czechs, Poles, Clericals, and representatives indeed
of pretty nearly all of the existing groups save the Germans.[677]
[Footnote 677: As at first reconstituted, the
ministry contained a German Liberal, but he soon
resigned.]
*529. The Taaffe Ministry, 1879-1893.*--The prolonged ministry of Count
Taaffe comprises the second period of Austrian parliamentary history.
Of notably moderate temper, Taaffe had never been a party man of the
usual sort, and he entered office with an honest purpose to administer
the affairs of the nation without regard to considerations of party or
of race. The establishment of his reconstituted ministry was
signalized by the appearance of Czech deputies for the first time upon
the floor of the national parliament. The Taaffe government found its
support in what came to be known as the Right--a quasi-coalition of
Poles, Czechs, Clericals, and the Slavic and conservative elements
generally.[678] It was opposed by the Left, comprising principally the
German Liberals, In 1881 the various factions of the German party,
impelled by the apprehension that German ascendancy might be lost
forever, drew together again and entered upon a policy of opposition
which was dictated purely and frankly by racial aspirations. (p. 478)
Attempts to embarrass the Government by obstruction proved, however,
only indifferently successful. In 1888 the party was once more
reconstructed.
[Footnote 678: In the Chamber the Czechs, Poles,
and Clericals controlled each approximately 55
votes.]
Among the diverse groups by which the Taaffe government was supported
there was just one common interest, namely, the prevention of a return
to power on the part of the German Liberals. Upon this preponderating
consideration, and upon the otherwise divergent purposes of the
Government groups, Taaffe built his system. Maintaining rigidly his
determination to permit no radical alteration of the constitution, he
none the less extended favors freely to the non-Germanic
nationalities, and so contrived to prolong through nearly a decade and
a half, by federalist support, an essentially centralist government.
Government consisted largely, indeed, in perennial bargaining between
the executive authorities on the one hand and the parliamentary groups
on the other, and in the course of these bargainings it was ever the
legislative chambers, not the Government, that lost ground. The
bureaucracy increased its hold, the administrative organs waxed
stronger, the power of the Emperor was magnified. The ministry became
pre-eminently the ministry of the crown, and despite strictly observed
constitutional forms the spirit of absolutism was largely
rehabilitated.[679]
[Footnote 679: The forcefully expressed view of an
eminent Austrian authority, written during the
parliamentary deadlock which marked the close of
the last century, is of interest. "His [Taaffe's]
prolonged ministry had decisive effects upon the
political life of Austria. It rendered forever
impossible a return to Germanizing centralism. It
filled the administrative hierarchy with Slavs,
who, remaining Slavs, placed at the service of
their national propaganda their official influence.
In combatting the Liberal party it restored the
power of the court, of the aristocracy, of the
Church, and it facilitated the obnoxious
restoration of clericalism, by which Austria to-day
is dominated. It at the same time aroused and
corrupted the nationalities and the parties. It
habituated them to give rein unceasingly to their
ambitions and to seek to attain them less by their
own force and labor than by intrigue. The public
demoralization, illustrated to-day so clearly by
the Austrian crisis, is properly the result of the
Taaffe system." M. L. Eisenmann, in Lavisse et
Rambaud, Histoire Générale, XII., 177.]
*530. The German Recovery: Badeni, 1895-1897.*--To the eventual
breakdown of the Taaffe régime various circumstances contributed. Two
of principal importance were the defection of the Young Czechs and the
failure of the several attempts to draw to the support of the
Government the moderate German Liberals. At the elections of 1891 the
Young Czechs obtained almost the entire quota of Bohemian seats, and
at the same time the Liberals recovered enough ground to give them the
position of the preponderant group numerically in the lower chamber.
Neither of these two parties could be persuaded to accord the (p. 479)
Government its support, and during 1891-1893 Taaffe labored vainly
to recover a working coalition. Finally, in 1893, as a last resource,
the Government resolved to undermine the opposition, especially German
Liberalism, by the abolition of the property qualification for voting
in the cities and rural communes. The nature of Taaffe's electoral
reform bill of 1893 has been explained elsewhere, and likewise the
reason for its rejection.[680] Anticipating the defeat of the measure,
the premier retired from office October 23, 1893.
[Footnote 680: See p. 467.]
The Germans now recovered, not their earlier power, but none the less
a distinct measure of control. November 12 there was established,
under Prince Windischgrätz a coalition ministry, comprising
representatives of the German Liberals, the Poles, and the Clericals,
and this cabinet was very successful until, in June, 1895, it was
wrecked by the secession of the Liberals on a question of language
reform in Styria. After four months, covered by the colorless ministry
of Count Kielmansegg, Count Badeni became minister-president (October
4, 1895) and made up a cabinet, consisting largely of German Liberals,
but bent upon an essentially non-partisan administration. The two
tasks chiefly which devolved upon the Badeni ministry were the reform
of the electoral system and the renewal of the decennial economic
compromise with Hungary, to expire at the end of 1897. The first was
accomplished, very ineffectively, through the electoral measure of
1896; the second, by reason of factional strife, was not accomplished
at all.
*531. The Language Question: Parliamentary Deadlock.*--The elections of
1897 marked the utter dissolution of both the United German Left and
the coalition which had borne the designation of the Right. Among the
200 Germans elected to the Chamber there were distinguishable no fewer
than eight groups; and the number of groups represented in the
aggregate membership of 425 was at least twenty-four. Of these the
most powerful were the Young Czechs, with 60 seats, and the Poles,
with 59. Profiting by the recently enacted electoral law, the
Socialists at this point made their first appearance in the Reichsrath
with a total of 14 seats. Taking the Chamber as a whole, there was a
Slavo-Clerical majority, although not the two-thirds requisite for the
enactment of constitutional amendments. The radical opponents of the
Government were represented by the 51 German Liberals only. But no one
of the Slavic groups was disposed to accord its support save in return
for favors received. In the attempt to procure for itself a dependable
majority the Badeni government succeeded but in creating confusion
twice confounded. The Young Czechs, whose support appeared (p. 480)
indispensable, stipulated as a positive condition of that support that
Czech should be recognized as an official language in Bohemia and
Moravia, and by ordinances of April-May, 1897, the Government took it
upon itself to meet this condition. Within the provinces named the two
languages, Czech and German, were placed, for official purposes upon a
common footing. The only result, however, was to drive the Germans,
already hostile, to a settled course of parliamentary obstruction, and
before the year was out the Badeni cabinet was compelled to retire.
The Gautsch ministry which succeeded proposed to maintain the equality
of the Czech and German tongues in Bohemia; wherefore the German
Liberals persisted in their obstructionist policy and declared that
they would continue to do so until the objectionable ordinances should
have been rescinded. March 5, 1898, the Government promulgated a
provisional decree in accordance with which in one portion of Bohemia
the official tongue was to be Czech, in another German, and in the
third the two together. But no one was satisfied and the ministry
resigned. The coalition government of Count Thun Hohenstein which
succeeded labored in the interest of conciliation, but with absolutely
no success. Parliamentary sittings became but occasions for the
display of obstructive tactics, and even for resort to violence, and
legislation came to a standstill. By the use of every known device the
turbulent German parties rendered impossible the passage of even the
most necessary money bills, and the upshot was that, in the summer of
1898, the Government was obliged to fall back upon that extraordinary
portion of the Austrian constitution, commonly known as Section 14, by
which, in default of parliamentary legislation, the crown is
authorized to promulgate ordinances with the force of law. The period
of extra parliamentary government here inaugurated was destined to be
extended through more than six years and to comprise one of the most
remarkable chapters in recent political history.
*532. The Nadir of Parliamentarism.*--Following the retirement of the
Thun Hohenstein ministry, at the end of September, 1899, the
government of Count Clary-Aldingen revoked the language decrees; but
the parliamentary situation was not improved, for the Czechs resorted
forthwith to the same obstructionist tactics of which the Germans had
been guilty and the government had still to be operated principally on
the basis of Section 14. A provisional government under Dr. Wittek, at
the close of 1899, was followed by the ministry of Dr. Körber,
established January 20, 1900; but all attempts at conciliation
continued to be unavailing. In September, 1900, the Reichsrath was (p. 481)
dissolved and the order for the new elections was accompanied by the
ominous declaration of the Emperor that the present appeal to the
nation would be the last constitutional means which would be employed
to bring the crisis to an end. Amid widespread depression, threats of
Hungarian independence, and rumors of an impending _coup d'état_, the
elections took place, in January, 1901. The German parties realized
the largest gains, but the parliamentary situation was not materially
altered, and thereafter, until its fall, December 31, 1904, the Körber
ministry continued to govern substantially without parliamentary
assistance. In 1901-1902, by various promises, the premier induced the
combatants to lay aside their animosities long enough to vote the
yearly estimates, a military contingent, and certain much-needed
economic reforms. But this was virtually the sole interruption of a
six-year deadlock.
*533. Electoral Reform and the Elections of 1907.*--With the
establishment of the second Gautsch ministry, December 31, 1904, a
truce was declared and interest shifted to the carrying out of the
Imperial programme of electoral reform. From the proposed
liberalization of the suffrage many of the party groups were certain
to profit and others had at least a chance of doing so; and thus it
came about that the great electoral law of 1907 was carried through
its various stages under parliamentary conditions which were
substantially normal. Its progress was attended by the fall, in April,
1906, of the Gautsch ministry and, six weeks later, by that of its
provisional successor. But by the coalition government of Baron Beck
(June 2, 1906 to November 8, 1908) the project was pushed to a
successful conclusion, and in its final form the law was approved by
the Emperor, January 26, 1907.
The promulgation of the new electoral measure was followed, May 14, by
a general election, the results of which may be tabulated as shown on
the following page.
Each of the twenty-six groups here enumerated maintained at the time
of the election an independent party organization, although in the
Chamber the representatives of certain of them were accustomed to act
in close co-operation. To the clericals and conservatives of all
shades fell an aggregate of 230 seats; but among the various groups of
this type there has never been sufficient coherence to permit the
formation of a compact conservative party. Among the liberal and
radical groups lack of coherence was, and remains, still more
pronounced. The most striking feature of the election of 1907 was the
gains made by the Social Democrats and the Christian Socialists, to be
explained largely by the extension of the franchise to the
non-taxpaying and small taxpaying population.
(p. 482)
_Seats after _Seats in
election of previous
1907_ Chamber_
Social Democrats 90 11
Christian Socialists 67 26
German Clericals 29 29
German Progressives 23 60
German Radicals 24 46
German Agrarians 21 4
Independent Pan-Germans 8 7
Pan-Germans 3 15
Polish Club 54 66
Polish Radicals 16 0
Polish Independent Socialists 3 0
Ruthenes 28 9
Jewish Zionists 3 0
Young Czechs 19 47
Old Czechs 6 3
Czech Realists 2 0
Czech Agrarians 25 5
Czech Clericals 19 2
Czech Radicals 10 8
Slovene Clericals 22 19
Slovene Liberals 3 6
Italian Liberals 4 12
Italian Clericals 10 6
Croats 9 7
Serbs 2 0
Roumanians 5 4
*534. The Elections of 1911.*--The truce by which the election of 1907
was accompanied was not of long duration, and November 8, 1908, the
ministry of Baron Beck was driven by German obstructionism to resign.
After three months as provisional premier Baron von Bienerth, former
Minister of the Interior, made up a cabinet which included
representatives of a number of parties and which, despite occasional
readjustments of portfolios, exhibited a fair measure of stability
throughout upwards of two years. In December, 1910, the Czechs and
Poles precipitated a cabinet crisis in consequence of which the
ministry was reconstructed (January 9, 1911) in such a manner as to
strengthen the Slavic and weaken the Germanic element. But the forces
of opposition were not appeased, and as a last resort the Government
determined upon a dissolution and an appeal to the country. The
results, however, were by no means those which were desired. At the
general elections, which took place June 13 and 20, the Christian
Socialists, from whom the Government had drawn its most consistent
support, were roundly beaten, and June 26 Baron von Bienerth and his
colleagues resigned. The ministry thereupon made up was presided (p. 483)
over by Baron Gautsch. It, however, endured only until October 31,
when it was succeeded by that of Count Stuergkh.
The elections of 1911 were hotly contested. The 516 seats to be filled
were sought by 2,987 candidates, representing no fewer than fifty-one
parties and factions, and second ballotings were required in almost
two-thirds of the constituencies. The Czechs returned with
undiminished strength, and the German Radicals and Progressives
realized substantial gains. The most notable feature, however, was the
victory of the Social Democrats over the Christian Socialists,
especially in the capital, where the quota of deputies of the one
party was raised from ten to nineteen and that of the other was cut
from twenty to four. The Christian Socialists, it must be observed,
are not socialists in the ordinary meaning of the term. The party was
founded by Dr. Lüger a few years ago in the hope that, despite the
establishment of manhood suffrage in the Empire, the Social Democrats
might yet be prevented from acquiring a primacy among the German
parties. It is composed largely of clericals, and in tone and purpose
it is essentially reactionary. By maintaining an active alliance with
the German Clerical party it contrived to hold in check the Social
Democracy throughout the larger portion of the period 1907-1911. But
it was handicapped all the while by internal dissension, and the
defeat which it suffered at the last elections has relegated it, at
least for the time being, to a subordinate place.[681]
[Footnote 681: On Austrian party politics see
Lowell, Governments and Parties, II., 94-123;
Drage, Austria-Hungary, Chaps, 1, 3, 12; K.
Schwechler, Die österreichische Sozialdemokratie
(Graz, 1907); S. Marmorek, L'Obstruction au
parlement autrichien (Paris, 1908); and E. Benés,
Le problème autrichien et la question tchèque;
étude sur les luttes politiques des nationalités
slaves en Autriche (Paris, 1908). Among valuable
articles in periodicals may be mentioned: W.
Beaumont, La crise du parlementarisme au Autriche;
les élections législatives et la situation
politique, in _Annales des Sciences Politiques_,
March 15, 1901; K. Kramer, La situation politique
en Autriche, ibid., October 15, 1901; G. L. Jaray,
L'Autriche nouvelle: sentiments nationaux et
préoccupations sociales, ibid., May 15 and Sept.
15, 1908, and La physionomie nouvelle de la
question austro-hongroise, in _Questions
Diplomatiques et Coloniales_, Dec. 16, 1910;
Kolmer, La vie politique et parlementaire en
Autriche, in _Revue Politique et Parlementaire_,
July 10, 1911; and G. Blondel, Les dernières
élections en Autriche-Hongrie, in _La Réforme
Sociale_, Aug. 1 and 15, 1911.]
V. THE JUDICIARY AND LOCAL GOVERNMENT
*535. General Principles: the Ordinary Tribunals.*--All judicial power
in the Austrian Empire is exercised, and all judgments and sentences
are executed, in the name of the Emperor. Judges are appointed for
life, by the Emperor or in his name, and they may be removed from (p. 484)
office only under circumstances specified by law and by virtue of
a formal judicial sentence. On taking the oath of office all judicial
officials are required to pledge themselves to an inviolable
observance of the fundamental laws. The Law of December 21, 1867,
concerning the Judicial Power withholds from the courts the power to
pronounce upon the validity of statutes properly promulgated, though
they may render judgment on the validity of Imperial ordinances
involved in cases before them.[682] With some exceptions, fixed by
law, proceedings in both civil and criminal cases are required to be
oral and public; and in all cases involving severe penalties, as well
as in all actions arising from political crimes and misdemeanors and
offenses committed by the press, the guilt or innocence of the accused
must be determined by jury.
[Footnote 682: Art. 7. Dodd, Modern Constitutions,
I., 86.]
By the law of 1867 it is stipulated that there shall be maintained at
Vienna a Supreme Court of Justice and Cassation (_Oberste Gerichts-und
Kassationshof_) for all of the kingdoms and countries represented in
the Reichsrath, and that the organization and jurisdiction of inferior
courts shall be determined by law. Of inferior tribunals there have been
established 9 higher provincial courts (_Oberlandesgerichte_),[683]
74 provincial and district courts (_Landes-und Kreisgerichte_), and 96
county courts (_Bezirksgerichte_). The provincial and district courts
and the county courts, together with a group of jury courts maintained
in connection with the provincial and district tribunals, are courts
of first instance; the higher provincial courts and the Supreme Court
exercise a jurisdiction that is almost wholly appellate. There exist
also special courts for commercial, industrial, military, fiscal, and
other varieties of jurisdiction.
[Footnote 683: Located at Vienna, Graz, Trieste,
Innsbrück, Zara, Prague, Brünn, Cracow, and
Lemberg.]
*536. The Imperial Court.*--In Austria, as in France and other
continental countries, cases affecting administration and the
administrative officials are withheld from the jurisdiction of the
ordinary courts and are committed to special administrative tribunals.
By law of 1867 provision was made for an Imperial Court (_Reichsgericht_),
to exercise final decision in conflicts of jurisdiction between the
two sets of courts and, in general, in all disputed questions of
public law, after the manner of the Court of Conflicts in France. The
Imperial Court was organized by law of April 18, 1869. It sits at
Vienna, and it is composed of a president and deputy president,
appointed by the Emperor for life, and of twelve members and four
substitutes, also appointed for life by the Emperor upon nomination by
the Reichsrath. It decides finally all conflicts of competence (p. 485)
between the administrative and the ordinary judicial tribunals,
between a provincial diet and the Imperial authorities, and between
the independent public authorities of the several provinces of the
Empire. Very important in a country so dominated by a bureaucracy as
is Austria is the power which by fundamental law is vested in the
Imperial Court to pass final verdict upon the merits of all complaints
of citizens arising out of the alleged violation of political rights
guaranteed to them by the constitution, after the matter shall have
been made the subject of an administrative decision. The purpose
involved is to afford the citizen who, believing himself deprived of
his constitutional rights, has failed to obtain redress in the
administrative courts, an opportunity to have his case reviewed by a
tribunal constituted with special view to permanence, independence,
and impartiality. High-handed administrative acts which are covered by
statute, however, are beyond its reach, for, like all Austrian
tribunals, it is forbidden to question the validity of a duly
promulgated law.[684]
[Footnote 684: Dodd, Modern Constitutions, I.,
84-85.]
*537. The Provincial Governments: Composition of the Diet.*--Each of the
seventeen political divisions of the Empire has a government of its
own, established on the basis of its Landesordnung, or provincial
constitution. The executive, for affairs that are considered strictly
divisional, consists of a provincial council, the _Landesausschuss_,
composed of the president of the diet (nominated by the Emperor) as
_ex-officio_ chairman and from four to eight members variously elected
within the province. Imperial interests are specially represented in
the province, however, by a _Statthalter_, or _Landespräsident_,
appointed by the crown, and independent of local control.
Functions of legislation are vested in a Landtag, or diet. The
provincial diet of the modern type came into being under the operation
of the Imperial diploma of October 20, 1860 (superseded by that of
February 26, 1861), replacing the ancient assembly of estates which in
most provinces had persisted until 1848. From 1860 onwards diets were
established in one after another of the provinces, until eventually
all were so equipped. Originally the diets were substantially uniform
in respect to both composition and powers. Aside from certain
_ex-officio_ members, they were composed of deputies chosen for six
years by four electoral curiæ: the great proprietors, the chambers of
commerce, the towns, and the rural communes; and, until 1873, one of
their principal functions was the election of the provincial
delegation in the lower house of the Reichsrath. Each of the seventeen
provincial diets as to-day constituted consists of a single chamber,
and in most instances the body is composed of (1) the archbishops (p. 486)
and bishops of the Catholic and Orthodox Greek churches; (2) the
rectors of universities, and, in Galicia, the rector of the technical
high school of Lemberg and the president of the Academy of Sciences of
Cracow; (3) the representatives of great estates, elected by all
landowners paying land taxes of not less than 100, 200, 400, or 500
crowns, according to the provinces in which their estates are
situated; (4) the representatives of towns, elected by citizens who
possess municipal rights or pay a stipulated amount of direct taxes;
(5) the representatives of boards of commerce and industry, chosen by
the members of these bodies; and (6) representatives of the rural
communes, elected in eight provinces directly, in the others
indirectly, by deputies (Wahlmänner) returned by all inhabitants who
pay direct taxes to the amount of 8 crowns yearly. In a few of the
provinces there is, besides these, a general electoral class composed
of all qualified male subjects of the state over twenty-four years of
age;[685] and there are some other variations, as for example, in
Moravia, where, by a law of November 27, 1905, the proportional system
of representation was introduced. The diets vary in membership from 26
in Vorarlberg and 30 in Görz and Gradisca to 151 in Moravia, 161 in
Galicia, and 242 in Bohemia. The deputies are elected in all cases for
a period of six years, and the diets assemble annually. But a session
may be closed, and the diet may be dissolved, at any time by the
presiding officer, under the direction of the Emperor.
[Footnote 685: When the class system of voting for
members of the Reichsrath was on the point of being
abolished by the law of January 26, 1907, there was
raised the question as to whether a similar step
should not be taken in respect to provincial
elections. It was generally agreed, however, that
the absence of an aristocratic upper chamber in the
provincial diet renders the class system within the
province not wholly undesirable. The provinces were
encouraged to liberalize their franchise
regulations, but not to abandon the prevailing
electoral system. The province of Lower Austria led
the way by increasing the membership of its diet
from 79 to 127, to be elected as follows: 58 by
manhood suffrage throughout the province, 31 by the
rural communes, 16 by the large landholders, 15 by
the towns, and 4 by the chambers of commerce. Two
bishops and the rector of the University of Vienna
were continued as members.]
*538. Functions of the Diet.*--The powers of the diets are not
enumerated, but, rather, are residual. By fundamental law of 1867 it
is stipulated that "all matters of legislation other than those
expressly reserved to the Reichsrath by the present law belong within
the power of the Provincial Diets of the kingdoms and countries
represented in the Reichsrath and are constitutionally regulated by
such Diets."[686] In certain matters, naturally those of an (p. 487)
essentially local character, the diet may act with absolute freedom,
save that it is within the competence of the Emperor to veto any of
its measures. In other matters, such as education and finance, which
fall within the range of the Reichsrath's competence, the powers of
the diet are limited and subsidiary. A policy very generally pursued
has been that of formulating at Vienna general regulations for the
entire Empire, leaving to the diets the task of devising legislation
of a local and specific character for the execution of these
regulations; though it can hardly be maintained that the results have
been satisfactory. The diets are not infrequently radical, and even
turbulent, bodies, and it has been deemed expedient ordinarily by the
Imperial authorities to maintain a close watch upon their proceedings.
[Footnote 686: Law of December 21, 1867, concerning
Imperial Representation, § 12. Dodd, Modern
Constitutions, I., 79.]
*539. The Commune.*--Throughout the Empire the vital unit of local
government is the commune. As is true of the province, the commune is
an administrative district, and one of its functions is that of
serving as an agency of the central government in the conduct of
public affairs. Fundamentally, however, the commune is an autonomous
organism, rooted in local interest and tradition. As such, it
exercises broad powers of community control. It makes provision for
the safety of person and property, for the maintenance of the local
peace, for the supervision of traffic, for elementary and secondary
education, and for a variety of other local interests. Except in
respect to affairs managed by the commune as agent of the Imperial
government, the local authorities are exempt from discipline at the
hand of their superiors, and, indeed, an eminent Austrian authority
has gone so far as to maintain that the communes of Austria possess a
larger independent competence than do the communes of any other
European state.[687]
[Footnote 687: J. Redlich, Das Wesen der
österreichischen Kommunalverfassung (Leipzig,
1910).]
Except in the case of some of the larger towns, which have special
constitutions, the rural and urban communes of the Empire are
organized upon the same pattern. The executive authority is vested in
an elective committee, or council, presided over by a _Vorsteher_, or
burgomaster, chosen from the members of the committee. The _Vorsteher_
is not removable by the central authorities, and over his election
they possess no control. In certain of the towns the place of the
communal committee is taken by a corporation. In every commune there
is an assembly (the _Gemeindevertretung_), the members of which are
elected for three (in Galicia six) years by all resident citizens who
are payers of a direct tax. For the purpose of electing assemblymen
the voters are divided into three classes, very much as under the (p. 488)
Prussian electoral system, and this arrangement, indeed, comprises
virtually the only non-democratic aspect of the communal constitution.
In Galicia, Styria, and Bohemia there exists also a district assembly,
elected for three years (in Galicia six) and made up of
representatives of great estates, the most highly taxed industries and
trades, towns and markets, and rural communes. A committee of this
body, known as the _Bezirksausschuss_, administers the affairs of the
district.
CHAPTER XXVI (p. 489)
THE GOVERNMENT AND PARTIES OF HUNGARY
I. THE CONSTITUTION
*540. Antiquity.*--By reason of both its antiquity and its adaptability
to varying conditions, the constitution of the kingdom of Hungary
deserves to be considered one of the most remarkable instruments of
its kind. Like the fundamental law of England, it is embodied in a
maze of ancient statutes and customs, and it is the distinctive
creation of a people possessed of a rare genius for politics and
government. On the documentary side its history is to be traced at
least to the Golden Bull of Andrew II., promulgated in 1222; though
that instrument, like the contemporary Great Charter in England,
comprised only a confirmation of national liberties that were already
old.[688] Under Hapsburg domination, from the early sixteenth century
onwards, the fundamental political system and the long established
laws of the Hungarian kingdom were repeatedly guaranteed. Much of the
time they were, in practice, disregarded; but the nationalistic vigor
of the Hungarian people invested them with unlimited power of
survival, and even during the reactionary second quarter of the
nineteenth century they were but held in suspense.
[Footnote 688: There is an interesting comparative
study of the _Bulla Aurea_ and the Great Charter in
E. Hantos, The Magna Carta of the English and of
the Hungarian Constitution (London, 1904).]
*541. Texts: the "March Laws."*--In large part, the constitution to-day
in operation took final form in a series of measures enacted by the
Hungarian parliament during the uprising of 1848. Thirty-one laws, in
all, were at that time passed, revising the organization of the
legislative chambers, widening the suffrage, creating a responsible
cabinet, abolishing feudal survivals, and modernizing, in general, the
institutions of the kingdom. The broad lines which remained were those
marked out in the ancient constitutional order; the new measures
merely supplemented, revised, and imparted definite form to
pre-existing laws, customs, and jealously guarded rights. Not all of
these inherited constitutional elements, however, were included in the
new statutes; and to this day it is true that in Hungary, as in (p. 490)
Great Britain, a considerable portion of the constitution has never
been put into written form. The fate of the measures of 1848 was for a
time adverse. The Austrian recovery in 1849 remanded Hungary to the
status of a subject province, and it was not until 1867, after seven
years of arduous experimentation, that the constitution of 1848 was
permitted again to come into operation. The Ausgleich involved as one
of its fundamentals a guarantee for all time of the laws, constitution,
legal independence, freedom, and territorial integrity of Hungary and
its subordinate countries. And throughout all of the unsettlement and
conflict which the past half-century has brought in the Austro-Hungarian
world the constitution of kingdom and empire alike has stood firm
against every shock. The documents in which, chiefly, the written
constitution is contained are: (1) Law III. of 1848 concerning the
Formation of a Responsible Hungarian Ministry; (2) Law IV. of 1848
concerning Annual Sessions of the Diet; (3) Law XXXIII. of 1874
concerning the Modification and Amendment of Law V. of 1848, and of
the Transylvanian Law II. of 1848; and (4) Law VII. of 1885 altering
the organization of the Table of Magnates.[689]
[Footnote 689: The texts of all of the fundamental
laws of Hungary at present in operation are printed
in G. Steinbach, Die ungarischen Verfassungsgesetze
(3d ed., Vienna, 1900). English translations of the
more important are in Dodd, Modern Constitutions,
I., 93-111. The standard treatise on the Hungarian
constitutional system is S. Rádo-Rotheld, Die
ungarische Verfassung (Berlin, 1898), upon which is
based A. de Bertha, La constitution hongroise
(Paris, 1898). In both of these works the Magyar
domination in Hungary is regarded with favor. A
readable book is A. de Bertha, La Hongrie moderne
de 1849 à 1901; étude historique (Paris, 1901). An
older treatise, in three volumes, is A. von
Virozil, Das Staatsrecht des Königsreichs Ungarn
(Pest, 1865-1866). Valuable works of more recent
publication include G. Steinbach, Die ungarischen
Verfassungsgesetze (Vienna, 1906); A. Timon,
Ungarische Verfassungs-und Rechtsgeschichte (2d
ed., Berlin, 1908); H. Marczoll, Ungarisches
Verfassungsrecht (Tübingen, 1909); and especially
G. von Ferdinandy, Staats und Verwaltungsrecht des
Königreichs Ungarn und seiner Nebenländer (Hanover,
1909). Worthy of mention is P. Matter, La
constitution hongroise, in _Annales de l'École
Libre des Sciences Politiques_, July 15, 1889, and
April 15, 1890. Excellent discussions for English
readers will be found in J. Andrássy, The
Development of Hungarian Constitutional Liberty
(London, 1908); C. M. Knatchbull-Hugessen, The
Political Evolution of the Hungarian Nation
(London, 1908); and P. Alden (ed.), Hungary of
To-day (London and New York, 1910). The
celebration, in 1896, of the thousandth anniversary
of the establishment of the Magyars in Europe was
made the occasion of the publication of a multitude
of more or less popular books devoted, as a rule,
to a review of Hungarian national development.
Among them may be mentioned: A. Vambéry, Hungary in
Ancient and Modern Times (London, 1897); R.
Chélard, La Hongrie millénaire (Paris, 1906); and
M. Gelléri, Aus der Vergangenheit und Gegenwart des
tausendjährigen Ungarn (Budapest, 1896).]
II. THE CROWN AND THE MINISTRY (p. 491)
*542. The Working Executive.*--The constitutional arrangements
respecting the executive branch of the Hungarian government are set
forth principally in Law III. of 1848 "concerning the Formation of a
Responsible Hungarian Ministry." The king attains his position _ipso
jure_, by reason of being Emperor of Austria, without the necessity of
any distinct act of public law. Within six months of his accession at
Vienna he is crowned monarch of Hungary at Budapest, in a special
ceremony in which is used the crown sent by Pope Sylvester II. upwards
of a thousand years ago to King Stephen. The new sovereign is required
to proffer Parliament an "inaugural certificate," as well as to take a
coronation oath, to the effect that he will maintain the fundamental
laws and liberties of the country; and both of these instruments are
incorporated among the officially published documents of the realm.
The entire proceeding partakes largely of the character of a
contractual arrangement between nation and sovereign.
As in Austria, the powers of the crown are exercised very largely
through the ministry. And, by reason of the peculiar safeguards in the
Hungarian laws against royal despotism, as well as the all but
uninterrupted absence of the king from the dominion, the ministry at
Budapest not only constitutes the Hungarian executive in every real
sense, but it operates on a much more purely parliamentary basis than
does its counterpart at Vienna. "His Majesty," says the law of 1848,
"shall exercise the executive power in conformity with law, through
the independent Hungarian ministry, and no ordinance, order, decision,
or appointment shall have force unless it is countersigned by one of
the ministers residing at Budapest."[690] Every measure of the crown
must be countersigned by a minister; and every minister is immediately
and actually responsible to Parliament for all of his official acts.
[Footnote 690: Law III. of 1848, § 3. Dodd, Modern
Constitutions, I., 94.]
*543. Composition and Status of the Ministry.*--The ministry consists of
a president of the council, or premier, and the heads of nine
departments, as follows: Finance, National Defense, Interior,
Education and Public Worship, Justice, Industry and Commerce,
Agriculture, the Ministry for Croatia and Slavonia, and the Ministry
near the King's Person. The last-mentioned portfolio exists by virtue
of the constitutional requirement that "one of the ministers shall
always be in attendance upon the person of His Majesty, and shall take
part in all affairs which are common to Hungary and the hereditary
provinces, and in such affairs he shall, under his responsibility,
represent Hungary."[691] All ministers are appointed by the king, (p. 492)
on nomination of the premier. All have seats in Parliament and must be
heard in either chamber when they desire to speak. They are bound,
indeed, to attend the sessions of either house when requested, to
submit official papers for examination, and to give "proper
explanations" respecting governmental policies. They may be impeached
by vote of a majority of the lower chamber, in which event the trial
is held before a tribunal of twelve judges chosen by secret ballot by
the upper house from among its own members. Inasmuch, however, as the
lower house has acquired the power by a simple vote of want of
confidence to compel a cabinet to resign, the right of impeachment
possesses in practice small value. The ministry is required to submit
once a year to the lower house for its examination and approval a
statement of the income and needs of the country, together with an
account of the income administered by it during the past twelve
months.[692]
[Footnote 691: Law III. of 1848, § 13. Dodd, Modern
Constitutions, I., 94.]
[Footnote 692: Law III. of 1848, § 37. Ibid., I.,
97.]
III. PARLIAMENT--THE ELECTORAL SYSTEM
*544. The Table of Magnates.*--The Hungarian parliament consists of two
houses, whose official designations are _Förendihaz_--Table, or
Chamber, of Magnates--and _Képviselöház_, or Chamber of Deputies. The
upper house is essentially a perpetuation of the ancient Table of
Magnates which, in the sixteenth century, began to sit separately as
an aristocratic body made up of the great dignitaries of the kingdom,
the Catholic episcopate (also, after 1792, that of the Orthodox Greek
Church), the "supreme courts," and the adult sons of titled families.
The reforms of 1848 left the Chamber untouched, though its composition
was modified slightly in 1885.[693] At the session of 1910-1911 it
contained 16 archdukes of the royal family (eighteen years of age or
over); 15 state dignitaries; 2 presidents of the High Courts of
Appeal; 42 archbishops and bishops of the Roman Catholic and Greek
Orthodox churches; 13 representatives of the Lutheran, Calvinist, and
Unitarian faiths; 236 members of the hereditary aristocracy (i.e.,
those of the whole number of the nobility who pay a land tax to the
amount of at least 6,000 crowns annually); 3 members elected by the
provincial diet of Croatia; and 60 life peers, appointed by the crown
or chosen by the Chamber of Magnates itself--a total of 387.[694] The
membership is therefore exceedingly complex, resting on the (p. 493)
various principles of hereditary right, _ex-officio_ qualification,
royal nomination, and election. In practice the upper house is
distinctly subordinate to the lower, to which alone the ministers are
responsible. Any member may acquire, by due process of election, a
seat in the lower chamber, and the privilege is one of which the more
ambitious peers are not reluctant to avail themselves. Upon election
to the lower house a peer's right to sit in the upper chamber is, of
course, suspended; but when the term of service in the popular branch
has expired, the prior right is revived automatically.
[Footnote 693: Law VII. of 1885 altering the
Organization of the Table of Magnates. Dodd, Modern
Constitutions, I., 100-105.]
[Footnote 694: The number is, of course, variable.
The old Table of Magnates was a very large body,
consisting of more than 800 members.]
*545. The Chamber of Deputies: the Franchise.*--By law of 1848, amended
in 1874, it is stipulated that the Chamber of Deputies, historically
descended from the ancient Table of Nuncios, shall consist of 453
members, "who shall enjoy equal voting power, and who shall be elected
in accordance with an apportionment made on the basis of population,
territory, and economic conditions."[695] Of the total number of
members, 413 are representatives of Hungary proper and 40 are
delegates of the subordinate kingdom of Croatia, Slavonia, and
Dalmatia. This kingdom possesses its own organs of government,
including a unicameral diet which exercises independent legislative
power in all internal affairs. Its forty deputies take part in the
proceedings at Budapest only when subjects are under consideration
which are of common concern to all of the countries of St. Stephen's
crown, such as questions pertaining to finance, war, communications,
and relations with Austria.[696]
[Footnote 695: Law V. of 1848 concerning the
Election of Representatives, § 5. Dodd, Modern
Constitutions, I., 105.]
[Footnote 696: On the status of the Croatian
kingdom see p. 507.]
The election of deputies is governed by an elaborate statute of
November 10, 1874, by which were perpetuated the fundamentals of the
electoral law of 1848. In respect to procedure, the system was further
amended by a measure of 1899. Qualifications for the exercise of the
suffrage are based on age, property, taxation, profession, official
position, and ancestral privileges. Nominally liberal, they are, in
actual operation, notoriously illiberal. The prescribed age for an
elector is twenty years, indeed, as compared with twenty-four in
Austria; but the qualifications based upon property-holding are so
exacting that they more than offset the liberality therein involved.
These qualifications--too complicated to be enumerated here--vary
according as they arise from capital, industry, occupation, or
property-holding. With slight restrictions, the right to vote is
possessed without regard to property or income, by members of the
Hungarian Academy of Sciences, professors, notaries public, (p. 494)
engineers, surgeons, druggists, graduates of agricultural schools,
foresters, clergymen, chaplains, and teachers. On the other hand,
state officials, soldiers in active service, customs employees, and
the police have no vote; servants, apprenticed workingmen, and
agricultural laborers are carefully excluded; and there are the usual
disqualifications for crime, bankruptcy, guardianship, and deprivation
by judicial process. In an aggregate population of approximately
20,000,000 to-day there are not more than 1,100,000 electors.
*546. The Magyar Domination.*--The explanation of this state of affairs
is to be sought in the ethnographical composition of Hungary's
population. Like Austria, Hungary contains a _mélange_ of races and
nationalities. The original Hungarians are the Magyars, and by the
Magyar element attempt has been made always to preserve as against the
affiliated German and Slavic peoples an absolute superiority of
social, economic, and political power. The Magyars occupy almost
exclusively the more desirable portion of the country, i.e., the great
central plain intersected by the Danube and the Theiss, where they
preponderate decidedly in as many as nineteen counties. Clustered
around them, and in more or less immediate touch with kindred peoples
beyond the borders, are the Germans and the Slavs--the Slovaks in the
mountains of the north, the Ruthenes on the slopes of the Carpathians,
the Serbs on the southeast, and the Croats on the southwest. When the
census of 1900 was taken the total population of Hungary (including
Croatia-Slavonia) was 19,254,559. Of this number 8,742,301 were
Magyars; 8,029,316 were Slavs; 2,135,181 were Germans; and 397,761
were of various minor racial groups. To put it differently, the
Magyars numbered 8,742,301; the non-Magyars, 10,512,258. The
fundamental fault of the Hungarian electorate is that it has been
shaped, and is deliberately maintained, in the interest of a race
which comprises numerically but 45.4 per cent of the country's
population.[697] So skillfully, indeed, have electoral qualifications
and electoral proceedings been devised in the Magyar interest that the
non-Magyar majority has but meager representation, and still less
influence, at Budapest.[698] Even in Hungary proper the electorate in
1906 comprised but 24.4 per cent of the male population over twenty
years of age; and, despite the disqualifications that have been
mentioned one-fourth of the men who vote are officials or employees of
the state.
[Footnote 697: It is but fair to say that in
Hungary proper the Magyar percentage in 1900 was
51.4.]
[Footnote 698: Of the 413 representatives of
Hungary at Budapest in 1909, but 26 were
non-Magyars, and after the elections of June, 1910,
but 7.]
*547. The Demand for Electoral Reform: the Franchise Reform Bill (p. 495)
of 1908.*--In recent years, especially since the Austrian electoral
reform of 1906-1907, there has been in Hungary an increasingly
insistent demand that the Magyar parliamentary hegemony be overthrown,
or at least that there be assured to the non-Magyar peoples something
like a proportionate share of political influence. As early as 1905
the recurrence of legislative deadlocks at Budapest influenced Francis
Joseph to ally himself with the democratic elements of the kingdom and
to declare for manhood suffrage; and in the legislative programme of
the Fejérváry government, made public October 28, 1905, the place of
principal importance was assigned to this reform. Fearing the swamping
of the popular chamber by the Slavs and Germans, the Magyars steadily
opposed all change, and for the time being the mere threat on the part
of the Government was sufficient to restore tolerable, if not normal,
parliamentary conditions. The Wekerle coalition cabinet of 1900
announced electoral reform as one of its projected tasks, but as time
elapsed it became apparent that no positive action was likely to be
taken. During 1907 and 1908 riotous demonstrations on the part of the
disappointed populace were frequent, and at last, November 11, 1908,
Count Andrássy, Minister of the Interior, introduced in the Chamber
the long-awaited Franchise Reform Bill.
The measure fell far short of public expectation. It was drawn, as
Count Andrássy himself admitted, in such a manner as not "to
compromise the Magyar character of the Hungarian state." After a
fashion, it conceded manhood suffrage. But, to the end that the Magyar
hegemony might be preserved, it imposed upon the exercise of the
franchise such a number of restrictions and assigned to plural voting
such an aggregate of weight that its concessions were regarded by
those who were expected to be benefited by it as practically
valueless. The essentials of the measure were: (1) citizens unable to
read and write Hungarian should be excluded from voting directly,
though they might choose one elector for every ten of their number,
and each elector so chosen should be entitled to one vote; (2) every
male citizen able to read and write Hungarian should be invested, upon
completing his twenty-fourth year and fulfilling a residence
requirement of twelve months, with one vote; (3) electors who had
passed four standards of a secondary school,[699] or who paid yearly a
direct tax amounting to at least twenty crowns ($4.16), or who
fulfilled various other conditions, should be entitled to two votes;
and (4) electors who had completed the course of secondary instruction,
or who paid a direct tax of 100 crowns (approximately $21), should (p. 496)
be possessed of three votes. As before, voting was to be oral and
public. In the preamble of the measure the cynical observation was
offered that "the secret ballot protects electors in dependent
positions only in so far as they break their promises under the veil
of secrecy." It was announced that the passage of the bill would be
followed by the presentation of a scheme for the redistribution of
seats.
[Footnote 699: Equivalent to the completion of
one-half of the course of secondary instruction.]
*548. Rejection of the Bill.*--According to calculations of the _Neue
Freie Presse_, the effect of the measure would have been to increase
the aggregate body of electors from 1,100,000 to 2,600,000, and the
number of votes to something like 4,000,000. The number of persons
entitled to three votes was estimated at 200,000; to two votes, at
860,000; to one vote, at 1,530,000; to no vote, at 1,270,000. An
aggregate of 1,060,000 persons in the first two classes would cast
2,320,000 votes; an aggregate of 2,800,000 in the last two would cast
1,530,000 votes. The number of persons participating in parliamentary
elections would be more than doubled, but political power would remain
where it was already lodged. The measure would have operated, indeed,
to strengthen the Magyar position, and while the Germans would have
profited somewhat by it, the Slavs would have lost largely such power
as they at present possess. Based as the scheme was upon a curious
elaboration of the educational qualification, it was recognized
instantly, both in the kingdom and outside, as an instrument of
deliberate Magyar domination. Among the Slavic populations the
prevalence of illiteracy is such that the number of persons who could
attain the possession of even one direct vote would be insignificant.
By the Socialists, and by the radical and Slavic elements generally,
the scheme was denounced as a sheer caricature of the universal,
equal, and direct suffrage for which demand had been made.
Upon the introduction of the bill parliamentary discord broke out
afresh, and through 1909 there was a deadlock which effectually
prevented the enactment of even the necessary measures of finance. In
January, 1910, the sovereign at last succeeded in securing a new
ministry, presided over by Count Hedérváry, and in the programme of
this Government the introduction of manhood suffrage was accorded a
place of principal importance. June 26, 1910, the Speech from the
Throne, at the opening of the newly elected parliament, announced that
a franchise bill would be submitted "on the basis of universal
suffrage and in complete maintenance of the unitary national character
of the Hungarian state." Various circumstances co-operated, however,
to impose delay and, despite the sovereign's reiterated interest in
the reform, no action as yet has been taken. The Hungarian franchise
remains the most illiberal and the most antiquated in Europe. The (p. 497)
racial situation seems utterly to preclude the possibility of a reform
that will be in all respects satisfactory; indeed, it seems almost to
preclude the possibility of reform at all. Yet, that the pressure will
be continued until eventually there shall be an overhauling of the
present inadequate system can hardly be doubted.[700]
[Footnote 700: On the question of the Hungarian
suffrage see S. Aberdam, La crise hongroise, in
_Revue Politique et Parlementaire_, Oct. 10, 1909,
and Les récentes crises politiques en Hongrie, in
_Revue des Sciences Politiques_, May-June and
July-Aug., 1912; G. Louis-Jaray, Le suffrage
universel en Hongrie, in _Questions Diplomatiques
et Coloniales_, February 16, 1909; R. Henry, La
crise hongroise, ibid., June 1, 1910; J. Mailath,
Les élections générales hongroises, ibid., Aug. 16,
1910, and The Hungarian Elections, in _Contemporary
Review_, Oct., 1910; F. de Gerando, Le radicalisme
hongroise, in _Revue Politique et Parlementaire_,
July, 1911; A. Duboscq, La réforme électorale en
Hongrie, in _Questions Diplomatiques et
Coloniales_, July 1, 1912; S. Huszadik, La Hongrie
contemporaine et le suffrage universel (Paris,
1909); and B. Auerbach, Races et nationalités en
Autriche-Hongrie (2d ed., Paris, 1910).]
*549. Electoral Procedure.*--Elections are conducted in each town or
_comitat_ (county) by a central electoral committee of at least twelve
members, chosen by the municipal council of the town or by the general
council of the _comitat_. The list of voters in each district is drawn
up by a sub-committee of this body. When an election is to be held,
the Minister of the Interior fixes, thirty days in advance, a period
of ten days during which the polling must be completed. As in Great
Britain, the elections do not take place simultaneously, and a
candidate defeated in one constituency may stand, and possibly be
successful, in another. All polling within a particular town or
_comitat_, however, is concluded within one day. Candidates may be
nominated by any ten electors of the district, and candidacies may be
declared until within thirty minutes of the hour (eight o'clock A. M.)
for the polling to begin.
Voting is everywhere public and oral. Each elector, after giving his
name and establishing his identity, simply proclaims in a loud voice
the name of the candidate for whom he desires to have his vote
recorded. If no candidate obtains an absolute majority, the central
committee fixes a date (at least fourteen days distant) for a second
polling, on which occasion the contest lies between the two candidates
who at the first balloting polled the largest number of votes. Prior
to a law of 1899 defining jurisdiction in electoral matters, Hungarian
elections were tempestuous, and not infrequently scandalous. Beginning
with the elections of 1901, however, electoral manners have shown
considerable improvement; though ideal conditions can hardly be
realized until oral voting shall have been replaced by the secret
ballot.[701] Any elector who has attained the age of twenty-four, (p. 498)
is a registered voter, and can speak Magyar (the official language of
Hungarian parliamentary proceedings) is eligible as a candidate.
Deputies receive a stipend of 4,800 crowns a year, with an allowance
of 1,600 crowns for house rent.
[Footnote 701: Seatus Viator, Corruption and Reform
in Hungary: a Study of Electoral Practice (London,
1911).]
*550. Parliamentary Organization and Procedure.*--The national
parliament assembles in regular session once a year at Budapest.
Following a general election, the Chamber of Deputies meets, under the
presidency of its oldest member, after a lapse of time (not exceeding
thirty days) fixed by the royal letters of convocation. The Chamber of
Magnates being convoked by the crown at the same date, all members
repair to the royal palace to hear the Speech from the Throne, which
is delivered by the king in person or by an especially appointed royal
commissioner.[702] The lower chamber then passes upon the validity of
the election of its members, though by law of 1899 the actual exercise
of this jurisdiction is committed in large part to the Royal High
Court.[703] The president and vice-president of the Chamber of
Magnates are appointed by the king from the members of that house; the
secretaries are elected by the house from its own members, by secret
ballot. The lower house elects, from its members, all of its
officials--a president, two vice-presidents, and a number of
secretaries. The presidents of the two houses are chosen for the
entire period of the parliament; all other officials are chosen
annually at the beginning of a session.
[Footnote 702: King Francis Joseph I. has been
absent upon this important occasion but once since
1867. Apponyi, in Alden, Hungary of To-day, 166.]
[Footnote 703: Ibid., 166-175.]
Each house is authorized, at its first annual session after an
election, to adopt an order of business and to make the necessary
regulations for the maintenance of peace and propriety in its
deliberations. The president, with the aid of sergeants-at-arms, is
charged with the strict enforcement of all such rules. Sittings of the
two houses are required to be public, but spectators who disturb the
proceedings may be excluded. The maximum life of a parliament was
raised, in 1886, from three years to five. It is within the power of
the king, however, not only to extend or to adjourn the annual
session, but to dissolve the lower chamber before the expiration of
the five-year period. In the event of a dissolution, orders are
required to be given for a national election, and these orders must be
so timed that the new parliament may be assembled within, at the most,
three months after the dissolution. And there is the further requirement
that, in the event of a dissolution before the budget shall have (p. 499)
been voted for the ensuing year, the convocation of the new parliament
shall be provided for within such a period as will permit the
estimates for the succeeding year to be considered before the close of
the current year.
*551. The Powers of Parliament: the Parliamentary System.*--In the
Hungarian constitutional system Parliament is in a very real sense
supreme. The king can exercise his prerogatives only through ministers
who are responsible to the lower chamber, and all arrangements
pertaining to the welfare of the state fall within the competence of
the legislative branch. Within Parliament it is the Chamber of
Deputies that preponderates. Aside from the king and ministry, it
alone enjoys the power of initiating legislation; and the opposition
with which the Chamber of Magnates may be disposed to meet its
measures invariably melts away after a show of opinion has been made.
By a simple majority vote in the lower chamber a minister may be
impeached for bribery, negligence, or any act detrimental to the
independence of the country, the constitution, individual liberty, or
property rights. Trial is held before a tribunal composed of men
chosen by secret ballot by the Chamber of Magnates from its own
members. For the purpose thirty-six members in all are required to be
elected. Of the number, twelve may be rejected by the impeachment
commission of the lower house, and twelve others by the minister or
ministers under impeachment. Those remaining, at least twelve in
number, try the case. Procedure is required to be public and the
penalty to be "fixed in proportion to the offense."[704]
[Footnote 704: Law III. of 1848 concerning the
Formation of a Responsible Hungarian Ministry, §§
33-34. Dodd, Modern Constitutions, I., 97.]
The statement which has sometimes been made that the parliamentary
system operates to-day in the kingdom of Hungary in a fuller measure
than in any other continental country requires qualification.
Nominally, it is true, an unfavorable vote in the Deputies upon a
Government measure or action involves the retirement of a minister, or
of the entire cabinet, unless the crown is willing to dissolve the
Chamber and appeal to the country; and no Government project of
consequence can be carried through without parliamentary approval.
Practical conditions within the kingdom, however, have never been
favorable for the operation of parliamentarism in a normal manner. In
the first place, the parliament itself is in no wise representative of
the nation as a whole. In the second place, the proceedings of the
body are not infrequently so stormy in character that for months at a
time the essential principles of parliamentarism are hopelessly
subverted. Finally, and most fundamental of all, at no period in the
kingdom's history have there been two great parties, contending on (p. 500)
fairly equal terms for the mastery of the state, each in a position to
assume direction of the government upon the defeat or momentary
discomfiture of the other. From 1867 to 1875, as will appear, there
was but one party (that led by Deák) which accepted the Compromise,
and hence could be intrusted with office; and from 1875 to the present
day there has been but one great party, the Liberal, broken at times
into groups and beset by more or less influential conservative
elements, but always sufficiently compact and powerful to be able to
retain control of the government. Under these conditions it has worked
out in practice that ministries have retired repeatedly by reason of
decline of popularity, internal friction, or request of the sovereign,
and but rarely in consequence of an adverse vote in Parliament.
IV. POLITICAL PARTIES
*552. The Question of the Ausgleich.*--Throughout half a century the
party history of Hungary has centered about two preponderating
problems, first, the maintenance of the Compromise with Austria and,
second, the preservation of the political ascendancy of the Magyars.
Of these the first has been the more fundamental, because the
ascendancy of the Magyars was, and is, an accomplished fact and upon
the perpetuation of that ascendancy there can be, among the ruling
Magyars themselves, no essential division. The issue upon which those
elements of the population which are vested with political power (and
which, consequently, compose the political parties in the true sense)
have been always most prone to divide, is that of the perpetuation and
character of the Ausgleich. To put it broadly, there have been
regularly two schools of opinion in respect to this subject. There
have been the men, on the one hand, who accept the arrangements of
1867 and maintain that by virtue of them Hungary, far from having
surrendered any of her essential interests, has acquired an influence
and prestige which otherwise she could not have enjoyed. And there
have been those, on the other hand, who see in the Ausgleich nothing
save an abandonment of national dignity and who, therefore, would have
the arrangement thoroughly remodelled, or even abrogated outright.
Under various names, and working by different methods, the parties of
the kingdom have assumed almost invariably one or the other of these
attitudes.
*553. Formation of the Liberal Party.*--As has been pointed out, the
Compromise was carried through the Hungarian parliament in 1867 by the
party of Deák. Opposed to it was the Left, who favored the maintenance
of no union whatsoever with Austria save through the crown. The (p. 501)
first ministry formed under the new arrangement, presided over by
Count Andrássy, was composed of members of the Deák party, and at the
national elections of 1869 this party obtained a substantial, though
hard-won, majority. In 1871 Andrássy resigned to become the successor
of Count Beust in the joint ministry of foreign affairs at Vienna, and
two years later Deák himself, now an aged man, withdrew from active
political life. There followed in Hungary an epoch of political
unsettlement during the course of which ministries changed frequently,
finances fell into disorder, and legislation was scant and haphazard.
The Deák party disintegrated and, but for the fact that the Left
gradually abandoned its determination to overthrow the Ausgleich, the
outcome might well have been a constitutional crisis, if not war. As
it was, when, in February, 1875, the leader of the Left, Kálman Tisza,
publicly acknowledged his party's conversion to the Austrian
affiliation, the fragments of the Deák party amalgamated readily with
the Left to form the great Liberal party by which the destinies of
Hungary have been guided almost uninterruptedly to the present day.
Except for the followers of Kossuth, essentially irreconcilable, the
Magyars were now united in the support of some sort of union with
Austria, and most of them were content for the present to abide by the
arrangement of 1867. Before the close of 1875 Tisza was established at
the head of a Liberal cabinet, and from that time until his fall, in
March, 1890, he was continuously the real ruler of Hungary.
*554. The Liberal Ascendancy: Tisza, Szápáry, Wekerle, and Bánffy.*--The
primary policy of Tisza was to convert the polyglot Hungarian kingdom
into a centralized and homogeneous Magyar state, and to this end he
did not hesitate to employ the most relentless and sometimes
unscrupulous means. Nominally a Liberal, he trampled the principles of
liberalism systematically under foot. To the disordered country,
however, his strong rule brought no small measure of benefit,
especially in respect to economic conditions. He supported faithfully
the Compromise of 1867; but when, in 1877, the commercial treaty
between the two halves of the monarchy expired he contrived to procure
increased advantages for Hungary, and among them the conversion of the
Austrian National Bank into a joint institution of the two states.
Opposition to the Tisza régime arose from two sources principally, i.e.,
the Kossuth party of Independence, which clung still to the principles
of 1848, and the National party, led by the brilliant orator Count
Albert Apponyi, distinguishable from the Independence group, on the
one hand, by its provisional acquiescence in the Ausgleich and (p. 502)
from the Liberals, on the other, by its still more enthusiastic
advocacy of Magyarization. At Vienna, Tisza was regarded as
indispensable; but growing discontent in Hungary undermined his
position and March 13, 1890, he retired from office.
With the fall of Tisza there was inaugurated a period of short
ministries whose history it would be unprofitable to attempt to
recount in detail. The Liberal party continued in control, for there
had appeared no rival group of sufficient strength to drive it from
power. But the rise of a series of issues involving the relations of
church and state injected into the political situation a number of new
elements and occasioned frequent readjustments within the ministerial
group. The ministry of Count Szápáry, which succeeded that of Tisza
was followed, November 21, 1892, by that of Dr. Sandor Wekerle, and
it, in turn, after a number of the religious bills had been passed,
was succeeded, January 11, 1895, by a cabinet presided over by Baron
Bánffy. At the elections of 1896 the Liberals were overwhelmingly
triumphant, acquiring in the lower chamber a majority of two to one.
The Nationalist contingent was reduced from 57 to 35.
*555. The Era of Parliamentary Obstructionism.*--The period covered by
the Bánffy ministry (January, 1895, to February, 1899) was one of the
stormiest in Hungarian parliamentary history. At the close of 1897 the
decennial economic agreement with Austria came automatically to an
end, and despite its best efforts the Government was unable to procure
from Parliament an approval of a renewal of the arrangement. Through
two years successively the existing agreement was extended
provisionally for twelve months at a time. It was only during the
ministry of Széll, who took office in February, 1899, that a renewal
was voted, covering the period to 1907. In Hungary there is no
constitutional provision equivalent to Section 14 of the constitution
of Austria, but during 1897-1899 the utter breakdown of legislation at
Budapest drove Premier Bánffy to a policy of government by decree very
similar to that which was at the same time being employed at Vienna.
The Government had all of the while a substantial majority, but the
obstructionist tactics of the Independence group, the Apponyi
Nationalists, and the Clericals were of such a nature that normal
legislation was impossible. Under the régime of Széll (February, 1899,
to May, 1903), who was a survivor of the old Deák group,
constitutionalism was rehabilitated and the Liberals who had been
alienated by Bánffy's autocratic measures were won back to the
Government's support. Nationalist obstruction likewise diminished, for
the primary object of Apponyi's followers had been to drive Bánffy
from power.
The brief ministry of Count Khuen-Hedérváry (May 1 to September (p. 503)
29, 1903) was followed by a ministry presided over by Count István
[Stephen] Tisza, son of Kálman Tisza, premier from 1875 to 1890. The
principal task of the younger Tisza's ministry was to effect an
arrangement whereby the Hungarian army, while remaining essentially
Hungarian, should not be impaired in efficiency as a part of the dual
monarchy's military establishment. During parliamentary consideration
of this subject obstruction to the Government's proposals acquired
again such force that, under the accustomed rules of procedure, no
action could be taken. November 18, 1904, the opposition shouted down
a Modification of the Standing Orders bill, designed to frustrate
obstruction, and would permit no debate upon it; whereupon, the
president of the Chamber declared the bill carried and adjourned the
house until December 13, and subsequently until January 5, 1905. The
opposition commanded now 190 votes in a total of 451. When the date
for the reassembling arrived members of the obstructionist groups
broke into the parliament house and by demolishing the furniture
rendered a session for the time impossible. In disgust Tisza appealed
to the country, only to be signally defeated. The Government carried
but 152 seats. The Kossuth party of Independence alone carried 163;
the Liberal dissenters under Andrássy got 23; the Clerical People's
party, 23; the Bánffy group, 11; and the non-Magyar nationalities, 8.
Tisza sought to retire, but not until June 17, 1905, would the
sovereign accept his resignation.
*556. The Government's Partial Triumph.*--Incensed by the prolonged, and
in many respects indefensible, character of the parliamentary
deadlock, Francis Joseph resolved to establish in office an
essentially extra-constitutional ministry which should somehow
contrive to override the opposition, and likewise to set on foot a
movement looking toward the revolutionizing of Hungarian parliamentary
conditions by the introduction of manhood suffrage. Under the ministry
of Baron Fejérváry, constituted June 21, 1905, there was inaugurated a
period of frankly arbitrary government. Parliament was prorogued
repeatedly, and by censorship of the press, the dragooning of towns,
and the dismissal of officers the Magyar population was made to feel
unmistakably the weight of the royal displeasure. For awhile there was
dogged resistance, but in time the threat of electoral reform took the
heart out of the opposition. Outwardly a show of resistance was
maintained, but after the early months of 1906 the Government may be
said once more to have had the situation well in hand. Two events of
the year mentioned imparted emphasis to the profound change of
political conditions which the period of conflict had produced. The
first was the establishment, under the premiership of the Liberal (p. 504)
leader Dr. Wekerle, of a coalition cabinet embracing a veritable
galaxy of Hungarian statesmen, including Francis Kossuth, Count
Andrássy, and Count Apponyi. The second was the all but complete
annihilation, at the national elections which ensued, of the old
Liberal party, and the substitution for it, in the rôle of political
preponderance, of the Kossuth party of Independence. The number of
seats carried by this rapidly developing party was 250, or more than
one-half of the entire number in the Chamber.
*557. The Parliamentary Conflict Renewed.*--The Wekerle cabinet entered
office pledged to electoral reform, although in the subject it in
reality cherished but meager interest. In 1908, as has been related,
it was impelled by popular pressure to submit a new electoral
scheme;[705] but that scheme was conceived wholly in the Magyar
interest and did not touch the real problem. It very properly failed
of adoption. Meanwhile the ministry fell into hopeless disagreement
upon the question of whether Hungary should consent to the renewal of
the charter of the Austro-Hungarian Bank (to expire December 31, 1910)
or should hold out for the establishment of a separate Hungarian Bank,
and, April 27, 1909, Premier Wekerle tendered his resignation. At the
solicitation of the sovereign he consented to retain office until a
new ministry could be constituted, which, in point of fact, proved to
be until January 17, 1910. Added to the problem of the Bank was an
even more vexatious one, that, namely, of the Magyarization of the
Hungarian regiments. The extremer demands in the matter of
Magyarization emanated, of course, from the Independence party, though
upon the issue the party itself became divided into two factions, the
extremists being led by Justh and the more moderate element by
Kossuth. The coalition was disrupted utterly; the Wekerle ministry
dragged on simply because through many months no other could be
brought together to take its place. The year 1909 passed without even
the vote of a budget.
[Footnote 705: See p. 495.]
January 17, 1910, Count Hedérváry succeeded in forming a cabinet, and
there ensued a lull in the political struggle. At the elections of
June, the Government--representing virtually the revived Liberal
party--carried 246 seats, while the two wings of the Independence
party secured together only 85. The Clericals were reduced to 13 and
the non-Magyars to 7. Under the leadership of István Tisza there was
organized, at the beginning of 1910, a so-called "National Party of
Work," which by the emphasis which it laid upon its purpose of
practical achievement commended itself to large elements of the
nation. By the Hedérváry government it was announced that the (p. 505)
franchise would be reformed in such a manner as to maintain, without
the employment of the plural vote, the historical character of the
Magyar state; but the bitterness of Magyar feeling upon the subject
continued to preclude all possibility of action. The embarrassments
continually suffered by the Hedérváry ministry reached their
culmination in the winter of 1911-1912, at which time the relations
between Austria and Hungary became so strained that Emperor Francis
Joseph threatened to abdicate unless pending difficulties should be
adjusted. The question of most immediate seriousness pertained to the
adoption of new regulations for the military establishment, but the
electoral issue loomed large in the background. The retirement of the
Hedérváry cabinet, March 7, 1912, and the accession of a ministry
presided over by Dr. de Lukacs affected the situation but slightly.
The new premier made it clear that he would labor for electoral
reform, and issue was joined with him squarely upon this part of his
programme by the aristocracy, the gentry, the Chamber of Magnates, and
all the adherents of Andrássy, Apponyi, and Kossuth, with the
deliberately conceived purpose of frightening the Government, and
especially the Emperor-King, into an abandonment of all plans to
tamper with existing electoral arrangements. During the earlier months
of the ministry efforts of the premier to effect a working agreement
with the forces of opposition were but indifferently successful.[706]
[Footnote 706: For a brief account of Hungarian
party politics to 1896 see Lowell, Governments and
Parties, II., 152-161. For references to current
periodicals see p. 497.]
V. THE JUDICIARY AND LOCAL GOVERNMENT
*558. Law and Justice.*--The law of Hungary, like that of England, is
the product of long-continued growth. It consists fundamentally of the
common law of the mediæval period (first codified by the jurist
Verböczy in the sixteenth century), amplified and modernized in more
recent times, especially since the reforms of 1867, so that what
originally was little more than a body of feudal customs has been
transformed into a comprehensive national code. Hungarian criminal
law, codified in 1878, is recognized to be the equal of anything of
the kind that the world possesses. Since 1896 there has been in
progress a codification of the civil law, and the task is announced to
be approaching completion. There are numerous special codes,
pertaining to commerce, bankruptcy, and industry, whose promulgation
from time to time has marked epochs in the economic development of the
nation.
The lower Hungarian tribunals, or courts of first instance, comprise
458 county courts, with single judges, and 76 district courts, (p. 506)
with two or more judges each. Both exercise jurisdiction in civil and
criminal cases; but the jurisdiction of the county courts in civil
cases extends only to suits involving not more than 1,200 crowns,
while in criminal cases these tribunals are not competent to impose
punishment exceeding a single year's imprisonment. The district courts
serve as courts of appeal from the county courts. Of superior courts
there are fourteen--twelve "royal tables," or courts of appeal, a
Supreme Court of Justice at Agram, and a Royal Supreme Court at
Budapest. The twelve contain, in all, 200 judges; the Royal Supreme
Court contains 92. All judges are appointed by the king. Once
appointed, they are independent and irremovable. Only Hungarian
citizens may be appointed, and every appointee must have attained the
age of twenty-six, must be of good moral character, must be familiar
with the language of the court in which he is to serve, and must have
passed the requisite legal examinations. Salaries vary from 3,840 to
10,000 crowns. Supreme administrative control of the judicial system
is vested in the Minister of Justice. The sphere of his authority is
regulated minutely by parliamentary statute. In the main, he
supervises the judges, attends to the legal aspects of international
relations, prepares bills, and oversees the execution of sentences.
*559. Local Government: the County.*--The principal unit of local
government in Hungary is the county. The original Hungarian county
instituted by St. Stephen about the year 1000, was simply a district,
closely resembling the English county or the French department, at the
head of which the king placed an officer to represent the crown in
military and administrative affairs. Local self-government had its
beginning in the opposition of the minor nobility to this centralizing
agency, and in periods of royal weakness the nobles usurped a certain
amount of control, first in justice, later in legislation, and finally
in the election of local officials, which in time was extended legal
recognition. At all points the county became substantially autonomous.
Indeed, by 1848 Hungary was really a confederation of fifty-two
counties, each not far removed from an aristocratic republic, rather
than a centralized state. For a time after 1867 there was a tendency
toward a revival of the centralization of earlier days. In 1876 laws
were enacted which vested the administration of the county in a
committee composed in part of members elected within the county, but
also in part of officials designated by the crown; and a statute of
1891 went still further in the direction of bureaucratic
centralization. More recently, however, the county has undergone a
slight measure of democratization.
Exclusive of Croatia-Slavonia, there are in Hungary to-day 63 (p. 507)
rural counties and 36 urban counties or towns with municipal rights.
In Croatia-Slavonia the numbers are 8 and 4 respectively. The urban
counties are in reality municipalities and are essentially separate
from the rural counties in which they are situated. The governmental
system of the county comprises a council of twenty, composed half of
members chosen by the electors for six years and half of persons who
pay the highest taxes, together with an especially appointed committee
which serves as the local executive. At the head of the assembly is
the _föispán_, or lord lieutenant, appointed by the crown. Legally,
the counties may withhold taxes and refuse to furnish troops, but
there is no popular representation in the true sense in the county
governments. The franchise is confined to the very restricted
parliamentary electorate. The subject races and the working classes
are unrepresented and the real possessors of power are the Magyar
landowners.
*560. Croatia, Slavonia, and Dalmatia.*--To the kingdom of Hungary
proper are attached certain _partes adnexæ_ which enjoy a large
measure of political autonomy. Dalmatia, united to Hungary at the
beginning of the twelfth century, belongs _de jure_ to Hungary and _de
facto_ to Austria; Croatia and Slavonia belong both _de jure_ and _de
facto_ to Hungary.[707] Croatia and Slavonia, as Hungarian dominions,
have always possessed a peculiar status. They are inalienable portions
of the kingdom, and in all that pertains to war, trade, and finance
they are on precisely the same footing as any other part of the state.
In other matters, however, i.e., in religion, education, justice, and
home affairs generally, they enjoy a wide range of independent control.
The administration of common affairs is vested in the Hungarian
ministry, which must always contain a minister with the special
function of supervision of Croatian interests. In the parliament at
Budapest Croatia-Slavonia is represented by 40 members (sent from its
own diet) in the Chamber of Deputies and three members in the Chamber
of Magnates. These arrangements exist in virtue originally of an
agreement concluded between the Magyars and the Croats in 1868, and
they are closely analogous to the relationships established by the
Compromise of the previous year between Hungary and Austria. The
compact of 1868 was renewed upon several occasions prior to 1898, (p. 508)
since which time it has been intermittently under process of revision.
Among the Croats there has long been insistent demand for its
fundamental modification. The charge, in general, is that as at
present administered the arrangement operates all but exclusively to
the benefit of the Hungarians.[708] The Wekerle coalition ministry of
1906 promised a redress of grievances, but none was forthcoming, and
in more recent years, especially 1907-1908, riots and other
anti-Magyar demonstrations have been not uncommon in the territories.
[Footnote 707: Until 1848 the grand-principality of
Transylvania also enjoyed a considerable measure of
autonomy. In 1848 it was united with Hungary. In
1849 it regained its ancient independence, but in
1867 it was again joined with Hungary. By
legislation of 1868 and 1876 it was fully
incorporated in the kingdom, 75 seats being awarded
it in the Chamber of Deputies at Budapest in lieu
of its provincial diet, which was abolished.]
[Footnote 708: Under the agreement 44 per cent of
the Croatian-Slavonian revenue is retained for
local needs and the remaining 56 per cent is
devoted to common expenditures of the kingdom upon
the army, public works, and the national debt. It
is alleged, among other things, that this
apportionment is unjust, and, furthermore, that the
Hungarian authorities systematically divert local
funds to national uses.]
The local Croatian-Slavonian diet is a unicameral body consisting of
90 deputies elected by districts, and of dignitaries (ecclesiastics,
prefects of counties, princes, counts, and barons) to the number of
not more than half of the quota of elected members. The executive
consists of the three departments of Interior and Finance, Culture and
Education, and Justice. At the head of each is a chief, and over them
all presides an official known as the _Banus_. The _Banus_ is
appointed by the crown on the nomination of the premier. He is
_ex-officio_ a member of the Chamber of Magnates, and it is his
function to supervise all matters of administration in the provinces,
under the general direction of the Croatian minister, who constitutes
the vital tie between the central government at Budapest and the
dependent territories. Local government is administered in eight rural
and four urban counties.[709]
[Footnote 709: An English version of the statute of
1868 regulating the status of Croatia-Slavonia is
printed in Drage, Austria-Hungary, 767-783. For
extended discussions of the subject see Drage, _op.
cit._, Chap. ii; Geosztanyi, in P. Alden (ed.),
Hungary of To-day, Chap. ii; G. Horn, Le Compromis
de 1868 entre la Croatie et la Hongrie (Paris,
1907); G. de Montbel, La condition politique de la
Croatie-Slavonie dans la monarchie austro-hongroise
(Toulouse, 1909); and R. Gonnard, Entre Drave et
Save; études économiques, politiques, et sociales
sur la Croatie-Slavonie (Paris, 1911). See also R.
Henry, La Hongrie, la Croatie, et les nationalités,
in _Questions Diplomatiques et Coloniales_, Aug.
16, 1907; J. Mailath Hongrie et Croatie, ibid.,
Nov. 1, 1907.]
CHAPTER XXVII (p. 509)
AUSTRIA-HUNGARY: THE JOINT GOVERNMENT
*561. The Ausgleich.*--The unique political relation which subsists
to-day between the Empire of Austria and the kingdom of Hungary rests
upon the Ausgleich, or Compromise, of 1867, supplemented at certain
points by agreements of more recent date. The fundamental terms of the
arrangement, worked out by the Emperor Francis Joseph, Deák, and Baron
Beust, were incorporated in essentially identical statutes enacted by
the Hungarian Parliament and the Austrian Reichsrath December 21 and
24 of the year mentioned. Between the demand of Hungary, on the one
hand, for independence (save only in respect to the crown), and that
of Austria, on the other, for the thoroughgoing subordination of the
Hungarian to an Imperial ministry, there was devised a compromise
whose ruling principle is that of dualism rather than that of either
absolute unity or subordination. Under the name Austria-Hungary there
was established a novel type of state consisting of an empire and a
kingdom, each of which, retaining its identity unimpaired, stands in
law upon a plane of complete equality with the other. Each has its own
constitution, its own parliament, its own ministry, its own
administration, its own courts. Yet the two have but one sovereign and
one flag, and within certain large and important fields the
governmental machinery and public policy of the two are maintained in
common. The laws which comprise the basis of the arrangement are the
product of international compact. They provide no means by which they
may be amended, and they can be amended only in the manner in which
they were adopted, i.e., by international agreement supplemented by
reciprocal parliamentary enactment.[710]
[Footnote 710: Drage, Austria-Hungary. Chap. 12; H.
Friedjung, Der Ausgleich mit Ungarn (Leipzig,
1877); Count Andrássy, Ungarns Ausgleich mit
Österreich von Jahre 1867 (Leipzig, 1897); L.
Eisenmann, Le compromis austro-hongroise (Paris,
1904). The Austrian and Hungarian texts of the
Ausgleich laws, with German versions in parallel
columns, are printed in I. Zolger, Der
staatsrechtliche Ausgleich zwischen Österreich und
Ungarn (Leipzig, 1911). English versions are in
Dodd, Modern Constitutions, I., 114-122, and Drage,
Austria-Hungary, 744-750, 753-766. In a speech in
the Hungarian Chamber November 23, 1903, Count
István Tisza sought to demonstrate that, properly,
there is no such thing as an Austro-Hungarian
Ausgleich--that the two instruments of 1867 are not
only of different date but are essentially
independent, each being revocable at will by the
power by which it was enacted. An able polemic in
opposition to the views of Tisza is to be found in
F. Tezner, Ausgleichsrecht und Ausgleichspolitik
(Vienna, 1907). Tezner is an Austrian publicist.]
I. THE COMMON ORGANS OF GOVERNMENT (p. 510)
*562. The Emperor-King.*--Of organs of government which the two
dominions possess in common, and by which they are effectually tied
together administratively, there are three: (1) the monarch; (2) the
ministries of Foreign Affairs, War, and Finance; and (3) the
Delegations. The functions and prerogatives of the monarch are
three-fold, i.e., those which he possesses as emperor of Austria,
those which belong to him as king of Hungary, and those vested in him
as head of the Austro-Hungarian union. In theory, and largely in
practice, the three sets of relationships are clearly distinguished.
All, however, must be combined in the same individual. The law of
succession is the same, and it would not be possible for Francis
Joseph, for example, to vacate the kingship of Hungary while retaining
the Imperial office in the co-ordinated state. But there is a
coronation at Vienna and another at Budapest; the royal title reads
"Emperor of Austria, King of Bohemia, etc., and Apostolic King of
Hungary"; and the relations of the sovereign with each of the two
governments are most of the time conducted precisely as if the other
of the two were non-existent. In the capacity of dual sovereign the
monarch's principal functions comprise the command of the army and
navy,[711] the appointment of heads of the joint ministries, the
promulgation of ordinances applying to the states in common, and the
giving of assent to measures enacted by the dual legislative body.
[Footnote 711: As an illustration of the
sensitiveness of the Hungarians in the matter of
their Austrian relations the fact may be cited that
in 1889, after prolonged effort, an arrangement was
procured in accordance with which the joint
sovereign, in the capacity of commander of the
armed forces, is known as Emperor _and_ King, not
as Emperor-King.]
*563. The Joint Ministries.*--By the Compromise of 1867 the three
departments of administration which most obviously require
concentration and uniformity were established upon a basis of
community between the two governmental systems. The first of these is
the ministry of Foreign Affairs. Neither Austria nor Hungary as such
maintains diplomatic intercourse with other powers; Under the
direction of the Foreign Minister (known, until 1871, as the Imperial
Chancellor) are maintained all relations with foreign governments,
through a diplomatic and consular service which represents in every
respect the monarchy as a whole. Commercial treaties, and treaties (p. 511)
stipulating changes of territory or imposing burdens upon the state or
upon any part of it, require the assent of both the parliament at
Vienna and that at Budapest.
The second common ministry is that of War. With respect to military
and naval administration there has been no little misunderstanding,
and even ill-feeling, between the two states. The instruments of 1867
vest the supreme command of the army and navy in the joint monarch,
yet the armed establishments of the states are maintained on the basis
of separate, even if approximately identical, laws, and each is placed
under the immediate supervision of a separate minister of national
defence. Each country maintains its independent arrangements for the
raising of the yearly contingent of recruits. It is only after the
quotas have been raised that the dual monarch can exercise his power
of appointing officers and regulating the organization of the forces.
The authority of the joint war minister is confined largely to matters
of secondary importance, such as equipment and the commissariat. Only
a close understanding between the ministries at Vienna and Budapest
can be depended upon, in the last analysis, to avert an utter
breakdown of the admittedly precarious military establishment.[712]
[Footnote 712: V. Duruy, L'Armée austro-hongroise,
in _Revue de Paris_, Jan. 15, 1909; M. B., L'Armée
autrichienne, in _Annales des Sciences Politiques_,
May, 1909; Com. Davin, La marine austro-hongroise,
in _Questions Diplomatiques et Coloniales_, Aug.
16, 1909.]
The third common ministry is that of Finance. Each of the two states
maintains an independent finance ministry and carries its own budget,
because, within certain limitations, the administration of fiscal
matters is left to the states in their separate capacities; but
questions of joint expenditure, the establishment of the joint budget,
and the examination of accounts are committed to a common ministry at
Vienna. The powers of the joint minister of finance are, in point of
fact, limited. Like the other joint ministers, he may not be a member
of either the Austrian or the Hungarian cabinet, nor may he have
access to the separate parliaments. His function is essentially that
of a cashier. He receives the contributions made by the two states to
the common expenses and hands them over to the several departments.
Until the annexation of Bosnia and Herzegovina, in 1908, it devolved
upon him, by special arrangement, to administer the affairs of these
semi-dependent territories.
*564. Fiscal and Economic Arrangements.*--In 1867 it was agreed that the
common expenditures of Austria and Hungary should be met, in so (p. 512)
far as possible, from the joint revenues, especially the customs,
and that all common outlays in excess of these revenues should be
borne by the states in a proportion to be fixed at decennial intervals
by the Reichsrath and the Hungarian Parliament. Other joint interests
of an economic nature--trade, customs, the debt, and railway
policy--were left likewise to be readjusted at ten-year intervals. In
respect to contributions, the arrangement hit upon originally was that
all common deficits should be made up by quotas proportioned to the
tax returns of the two countries, namely, Austria 70 per cent and
Hungary 30 per cent. As has been pointed out, the periodic overhauling
of the economic relationships of the two states has been productive of
frequent and disastrous controversy. The task was accomplished
successfully in the law of June 27, 1878, and again in that of May 21,
1887. But the readjustment due in 1897 had the curious fortune not to
be completed until the year in which another readjustment was due, i.e.,
1907. To the parliamentary contests, at both Vienna and Budapest,
by which the decade 1897--1907 was filled some allusion has been
made.[713] They involved distinctly the most critical test of
stability to which the Ausgleich has been subjected since its
establishment. During the period various features of the pre-existing
arrangements were continued in force by royal decree or by provisional
parliamentary vote, but not until October, 1907, were the economic
relation of the two states put once more upon a normal basis.
Throughout the decade the Emperor-King exercised repeatedly the
authority with which he is invested by law of 1867 to fix the ratio of
contributions for one year at a time, when action cannot be had on the
part of the legislative bodies. The ratio prevailing during the period
was Austria 66-46/49 per cent and Hungary 33-3/49 per cent.
[Footnote 713: See pp. 479-481, 502-504.]
By the agreement of 1907, concluded for the usual ten-year period, the
Hungarian quota was raised from the figure mentioned to 36.4 per cent.
The customs alliance, established in 1867 and renewed in 1878 and
1887, was superseded by a customs and commercial treaty, in accordance
with which each state maintains what is technically a separate customs
system, although until the expiration of existing conventions with
foreign powers in 1917 the tariff arrangements of the two states must
remain identical. Under the conditions which have arisen the customs
unity of the monarchy is likely to be disrupted in fact, as already it
is in law, upon the advent of the year mentioned. Thereafter
commercial treaties with foreign nations will be negotiated in the
name of the two states concurrently and will be signed, not merely by
the common minister of foreign affairs, but also by a special (p. 513)
Austrian and a special Hungarian representative.[714]
[Footnote 714: L. Louis-Jaray, Les relations
austro-hongroises et le nouveau compromis
économique, in _Questions Diplomatiques et
Coloniales_, Jan. 16 and Feb. 1, 1908; and Les
dispositions économiques du nouveau compromis
austro-hongrois, in _Revue Économique
Internationale_, March, 1908.]
*565. The Delegations: Organization and Sessions.*--All legislative
power of the Reichsrath and of the Hungarian Parliament, in so far as
it relates to the joint affairs of the states, is exercised by two
"delegations," one representing each of the two parliaments. The
Austrian Delegation consists of sixty members, twenty of whom are
chosen by the Herrenhaus from its own members, and the other forty of
whom are elected by the Abgeordnetenhaus in such manner that the
deputies from each province designate a number of delegates allotted
to them by law. The Hungarian Delegation consists likewise of sixty
members, twenty elected by and from the upper, forty by and from the
lower, chamber, with the further requirement that there shall be
included four of the Croatian members of the Chamber of Deputies and
one of the Croatians in the Chamber of Magnates. All members of both
Delegations are elected annually and may be re-elected. They must be
convoked by the Emperor-King at least once a year. Every device is
employed to lay emphasis upon the absolute equality of the two
Delegations, and of the states they represent, even to the extent of
having the sessions held alternately in Vienna and Budapest. The two
bodies meet in separate chambers, each under a president whom it
elects, but the proposals of the Government are laid before both at
the same time by the joint ministry. In the Austrian Delegation all
proceedings are conducted in the German tongue; in the Hungarian, in
Magyar; and all communications between the two are couched in both
languages. Sittings, as a rule, are public. In the event of a failure
to agree after a third exchange of communications there may be, upon
demand of either Delegation, a joint session. Upon this occasion there
is no debate, but merely the taking of a vote, in which there must
participate an absolutely equal number of members of the two
organizations.
*566. The Delegations: Powers.*--The members of the common ministry have
the right to share in all deliberations of the Delegations and to
present their projects personally or through deputies. They must be
heard whenever they desire. Each Delegation, on the other hand, has a
right to address questions to the joint ministry, or to any one of its
members, and to require answers and explanations. By concurrent vote
of the two bodies a joint minister may be impeached. In such a (p. 514)
case the judges consist of twenty-four independent and legally trained
citizens representing equally the two countries, chosen by the
Delegations, but not members thereof. The power is one very unlikely
to be exercised; in truth, the responsibility of the ministers to the
Delegations is more theoretical than actual.
The functions of the Delegations are severely restricted. They extend
in no case beyond the common affairs of the two states; and they
comprise little more than the voting of supplies asked by the
Government and a certain supervision of the common administrative
machinery. Of legislative power, in the proper sense, the two bodies
possess virtually none. Practically all law in the dual monarchy takes
the form of statutes enacted concurrently by the separate parliaments
of Austria and Hungary. The system is not ideal. It involves delay,
confusion, and an excess of partisan wrangling. Probably upon no other
basis, however, would even the semblance of an Austro-Hungarian union
be possible. The existing arrangement operates somewhat to the
advantage of Hungary, because the Hungarian Delegation is a body which
votes solidly together, whereas the Austrian is composed of mutually
hostile racial and political groups.
II. THE TERRITORIES OF BOSNIA AND HERZEGOVINA
*567. Annexation of the Provinces, 1908.*--By the Congress of Berlin, in
1878, Austria was authorized, ostensibly in the interest of the peace
of Europe, to occupy and administer the neighboring provinces of
Bosnia and Herzegovina; and from that date until 1908, although the
provinces continued under the nominal sovereignty of the Sultan of
Turkey, their affairs were managed regularly by the Austro-Hungarian
minister of finance. The eventual absorption of the territories by the
dual monarchy was not unexpected, but it came in virtue of a _coup_ by
which the European world was thrown for a time into some agitation.
The revolution at Constantinople during the summer of 1908,
accompanied by the threatened dissolution of European Turkey, created
precisely the opportunity for which the authorities at Vienna had long
waited. October 5, Prince Ferdinand of Bulgaria proclaimed the
complete separation of Bulgaria from the Sultan's dominions and
assumed the title of king. Two days later Emperor Francis Joseph
proclaimed to the inhabitants of Bosnia and Herzegovina the immediate
extension of Austro-Hungarian sovereignty over them, alleging that the
hour had arrived when they ought to be raised to a higher political
level and accorded the benefits of Austro-Hungarian constitutionalism.
Among the population of the annexed provinces the Roman Catholic (p. 515)
element approved the union, but the Greek Orthodox and Mohammedan
majority warmly opposed it. The people of the provinces are Servian in
race, and in the interest of the Servian union which it was hoped at
some time to bring about Servia and Montenegro protested loudly, and
even began preparations for war. The annexation constituted a flagrant
infraction of the Berlin Treaty, and during some weeks the danger of
international complications was grave. Eventually, however, on the
understanding that the new possessor should render to Turkey certain
financial compensation, the various powers more or less grudgingly
yielded their assent to the change of status.
*568. The Constitution of 1910: the Diet.* At the time of the annexation
it was promised that the provinces should be granted a constitution.
The pledge was fulfilled in the fundamental laws which were
promulgated by the Vienna Government February 22, 1910. The
constitution proper consists of a preamble and three sections, of
which the first relates to civil rights, the second to the composition
of the Diet, and the third to the competence of the Diet. Under the
terms of the preamble the pre-existing military and administrative
arrangements are perpetuated. The civil rights section extends to the
annexed provinces the principal provisions of the Austrian
constitution in respect to equality before the law, freedom of
personal movement, the protection of individual liberty, the
independence of judges, freedom of conscience, autonomy of recognized
religious communities, the right of free expression of opinion, the
abolition of restrictive censorship, the freedom of scientific
investigation, secrecy of postal and telegraphic communications, and
the rights of association and public meeting.
The second section creates a diet of seventy-two elected and twenty
_ex-officio_ representatives, fifteen of the latter being dignitaries
of the Mohammedan, Servian, Greek Orthodox and Roman Catholic
religious communities. The presidential bureau, consisting of one
president and two vice-presidents, is appointed annually by the crown
at the opening of the session. Each creed is regularly to be
represented in the bureau, the presidential office being held by a
Servian, a Mohammedan, and a Croat in annual rotation. To be valid,
the decisions of the Diet require the presence of a majority of the
members, except when ecclesiastical matters are under discussion. Upon
such occasions the presence of four-fifths of the Diet, and a
two-thirds majority, is required.
The third section excludes from the legislative competence of the Diet
all joint Austro-Hungarian affairs and questions pertaining to the
armed forces and to customs arrangements. The Diet is, however, (p. 516)
empowered to elect a national council of nine members and to
commission it to lay the views of the Diet before the Austro-Hungarian
Government. In all other matters, such as civil, penal, police and
commercial law, industrial and agrarian legislation, sanitation,
communications, taxation, the provincial estimates, the issue and
conversion of loans, and the sale or mortgaging of provincial
property, the Diet has a free hand. Government measures to be
submitted to the Diet require, however, the previous sanction of the
Austrian and the Hungarian cabinets, whose assent is also necessary
before bills passed by the Diet can receive the sanction of the crown.
*569. The Electoral System.*--Subsequent statutes regulate the franchise
and electoral procedure. First of all, the seventy-two elective seats
in the Diet are divided among the adherents of the various religious
denominations, the Servians receiving 31, the Mohammedans 24, and the
Catholic Croats 16. One seat is reserved for a representative of the
Jews. The seats are divided, furthermore, into three curiæ, or
electoral classes, eighteen being allotted to a first class composed
of large landed proprietors and the heaviest taxpayers, twenty to a
second class composed of urban electors, and thirty-four to a third
class composed of rural electors. The franchise is bestowed upon all
subjects of the crown, born in the provinces or possessing one year's
residential qualification, who are of the male sex and have completed
their twenty-fourth year. In the first of the three classes women
possess the franchise, although they may exercise it only by male
deputy. Candidates for election must have completed their thirtieth
year and must be of the male sex and in full enjoyment of civil
rights. Civil and railway servants, as well as public school teachers,
are not eligible. In the first and second classes votes are recorded
in writing, but in the third, or rural, class, voting, by reason of
the large proportion of illiterates, is oral. In the second and third
(urban and rural) classes the system of single-member constituencies
has been adopted. The provinces are divided into as many Servian,
Mohammedan, and Catholic constituencies, with separate registers, as
there are seats allotted to the respective creeds. For the Jews all
the towns of the two provinces form a single constituency.[715]
[Footnote 715: The texts of the organic acts of
1910 are printed in K. Lamp, Die Rechtsnatur der
Verfassung Bosniens und der Herzegowina vom 17
Februar 1910, in Jahrbuch des Öffentlichen Rechts
(Tübingen, 1911), V.; L. Geller,
Bosnisch-herzegowinische Verfassungs und politische
Grundgesetze (Vienna, 1910); and in Zeitschrift für
Völkerrecht und Bundesstaatsrecht, IV., No. 5. See
also F. Komlössy, Das Rechtsverhältniss Bosniens
und des Herzegowina zu Ungarn (Pressburg, 1911).]
PART VII.--THE LOW COUNTRIES (p. 517)
CHAPTER XXVIII
THE GOVERNMENT OF HOLLAND
I. A CENTURY OF POLITICAL DEVELOPMENT
Geographical juxtaposition, combined with historical circumstance, has
determined that between the two modern kingdoms of Holland and
Belgium, widely as they differ in many fundamental characteristics,
relations should be continuous and close. Both nations have sprung
from groups of provinces comprised within the original Low Countries,
or Netherlands. Following the memorable contest of the Dutch with
Philip II. of Spain, the seven provinces to the north achieved their
independence at the beginning of the seventeenth century and, under
the name of the United Provinces, built up a system of government,
republican in form though in operation much of the time really
autocratic, which survived through more than two hundred years. The
ten provinces to the south continued under the sovereignty of Spain
until 1713, when by the Treaty of Utrecht they were transferred to
Austria. They did not attain the status of independent nationality
until 1831.
*570. The French Domination, 1793-1814.*--The constitutional
arrangements operative in the Holland and Belgium of to-day are to be
regarded as products largely of the era of the French Revolution and
of the Napoleonic domination. Between 1795 and 1810 both groups of Low
Country provinces were absorbed by France, and both were forced quite
out of their accustomed political channels. The provinces comprising
the Austrian Netherlands were overrun by a French army early in 1793.
By decree of October 1, 1795, they were incorporated in the French
Republic, being erected into nine departments; and by the Treaty of
Lunéville, February 9, 1801, they were definitely ceded by Austria to
France.[716] February 1, 1793, the French Republic declared war upon
Holland. During the winter of 1794--1795 the Dutch provinces were (p. 518)
occupied, and by the Treaty of The Hague, May 16, 1795, they were
erected into a new nationality known as the Batavian Republic, under
the protection of France.[717] The constitution of the old republic
was thoroughly overhauled and the stadtholderate, long in the
possession of the house of Orange, was abolished. To the considerable
body of anti-Orange republicans the coming of the French was, indeed,
not unwelcome. May 24, 1806, the Batavian Republic was converted by
Napoleon into the kingdom of Holland, and Louis Bonaparte, younger
brother of the French Emperor, was set up as the unwilling sovereign
of an unwilling people. Nominally, the new kingdom was both
constitutional and independent; practically, it was an autocracy and a
dependency of France. King Louis labored conscientiously to safeguard
the interests of his Dutch subjects, but in vain. After four years he
abdicated, under pressure; whereupon, July 9, 1810, an Imperial edict
swept away what remained of the independent status of the Dutch people
and incorporated the kingdom absolutely with France. The ancient
provinces were replaced by seven departments; to the Dutch were
assigned six seats in the French Senate, three in the Council of
State, and twenty-five in the Legislative Body; a lieutenant-general
was established at the head of the administrative system; and no
effort was spared to obliterate all survivals of Dutch nationality.
[Footnote 716: L. Delplace, La Belgique sous la
domination française, 2 vols. (Louvain, 1896); L.
de Lanzac de Laborie, La domination française en
Belgique, 2 vols. (Paris, 1895).]
[Footnote 717: L. Legrand, La révolution française
en Hollande: la république batave (Paris, 1894).]
*571. The Settlement by the Congress of Vienna: the Constitution of
1815.*--With the overthrow of Napoleon the fate of both the Dutch and
the Belgian provinces fell to the arbitrament of the allied powers. In
the first Treaty of Paris, concluded May 30, 1814, between the Allies
on the one side and France on the other, it was stipulated that the
Belgian territories should be joined with Holland and that the whole,
under the name of the Kingdom of the United Netherlands, should be
assigned to the restored house of Orange, in the person of William I.,
son of the stadtholder William V. Already, consequent upon the Dutch
revolt which followed the defeat of Napoleon at Leipzig, William had
been recalled from his eighteen-year exile. December 1, 1813, he had
accepted formally the sovereignty of the Dutch provinces, and early in
1814 a constitution had been drawn up and put in operation. The desire
of the Allies, particularly of Great Britain, was that there should be
brought into existence in the Low Countries a state which should be
sufficiently powerful to constitute a barrier to possible aggressions
of France upon the north. The union of the Belgian with the Dutch
provinces, was intended furthermore, to compensate the Dutch in (p. 519)
some measure for their losses of colonial possessions to Great
Britain during the war. By the Final Act of the Congress of Vienna,
June 9, 1815, and by the second Peace of Paris, November 20 following,
the arrangement was ratified. With Holland and the Austrian
Netherlands were united in the new state the bishopric of Liège, the
duchy of Limburg, and the duchy (henceforth to be known as the
grand-duchy) of Luxemburg. The last-mentioned territory, while
included in the Germanic Confederation, was bestowed upon the Dutch
sovereign in compensation for German principalities ceded by him at
this time to Prussia.[718] March 15, 1815, William began his reign
under the new régime in Holland, and September 27 following he was
crowned at Brussels.
[Footnote 718: These ceded territories comprised
the ancestral domains of the house of Nassau which
lay in Germany--Dietz, Siegen, Hadamar, and
Dillenburg. The grand-duchy of Luxemburg was joined
with the Netherlands by a personal union only, and
in its capital, as a fortress of the German
Confederation, was maintained a Prussian garrison.
William dealt with the territory, however,
precisely as if it were an integral part of his
kingdom, extending to it the constitution of 1815
and administering its affairs through the agency of
Dutch officials. At the time of the Belgian revolt,
in 1830, Luxemburg broke away from Dutch rule and
there ensued in the history of the grand-duchy an
anomalous period during which the legal status of
the territory was hotly disputed. In 1839 the
Conference of London assigned to Belgium that
portion of the grand-duchy which was contiguous to
her frontiers and remanded the remainder to the
status of an hereditary possession of the house of
Nassau. In 1856 a separate constitution was granted
the people of the territory, and in 1867, following
the dissolution of the old Germanic Confederation,
the grand-duchy was declared by an international
conference at London to be a sovereign and
independent (but neutral) state, under the guaranty
of the powers. The connection between Luxemburg and
Holland was thereafter purely dynastic. Until the
death of William III., in 1890, the king of the
Netherlands was also grand-duke of Luxemburg; but
with the accession of Queen Wilhelmina the union of
the two countries was terminated, by reason of the
fact that females were at that time excluded from
the throne of the grand-duchy. A law of 1907,
however, vested the succession in the princess
Marie, eldest daughter of the reigning Grand-Duke
William; and upon the death of her father, Feb. 26,
1912, this heiress succeeded to the grand-ducal
throne. The head of the state is the grand-duke (or
grand-duchess). There is a council of state
nominated by the sovereign and a chamber of
deputies of 53 members, elected directly by the
cantons for six years. The state has an area of but
998 square miles and a population (in 1910) of
259,891. P. Eyschen, Das Staatsrecht des
Grossherzogtums Luxemburg (Tübingen, 1910).]
In fulfillment of a promise made his people, King William promulgated,
August 24, 1815, a new constitution, drafted by a commission
consisting of an equal number of Dutch and Belgian members. The
instrument provided for a States-General of two chambers, one
consisting of members appointed for life by the crown, the other
composed of an equal number (55) of Dutch and Belgian deputies elected
by the provincial estates. Bills might be rejected, but might not (p. 520)
be originated or amended, by this assembly. The suffrage was severely
restricted; trial by jury was not guaranteed; the budget was to be
voted for a number of years at a time; ministers were declared
responsible solely to the king; and, all in all, there was in the new
system little enough of liberalism. When the instrument was laid
before a Belgian assembly it was overwhelmingly rejected. None the
less it was declared in effect, and it continued the fundamental law
of the united dominions of William I. until 1830.
*572. The Belgian Revolution, 1830-1831.*--Friction between the Dutch
and the Belgians was from the outset incessant. The union was
essentially an artificial one, and the honest efforts of the king to
bring about a genuine amalgamation but emphasized the irreconcilable
differences of language, religion, economic interest, and political
inheritance that separated the two peoples. The population of Belgium
was 3,400,000; that of Holland but 2,000,000. Yet the voting power of
the former in the lower legislative chamber was no greater than that
of the latter, and in fact the Dutch were able all the while to
maintain in that body a small working majority. Administrative offices
were filled, in large part, by Dutchmen, and the attitude quite
commonly assumed (in a measure, without doubt, unconsciously) by the
public authorities strongly suggested that Holland was the
preponderating power and Belgium little more than so much subjugated
territory. The upshot was discontent and eventual rebellion. In 1828
the principal political parties of Belgium, the Catholics and the
Liberals, drew together in the "Union," the object of which was to
bring about the recognition of Belgian independence, or, in the event
that this should prove impossible of attainment, the establishment of
thoroughgoing Belgian autonomy, with no union with Holland save of a
purely personal character through the crown. Inspired by the success
of the July Revolution in France, and hopeful of obtaining French
assistance, the Belgians in August, 1830, broke into open revolt.
After a period of violence, a provisional government at Brussels,
October 4, 1830, proclaimed Belgium's independence and summoned a
national congress to which was committed the task of drawing up a
scheme of government. Aroused by the imminent loss of half of his
dominion, King William, after an ineffectual display of military
force, offered concessions; and the States-General went so far as to
authorize the establishment in the southern provinces of a separate
administrative system, such as at one time would have met the Belgian
demand. The day for compromise, however, had passed. The Belgian
congress voted overwhelmingly for the establishment of an independent
monarchy, adopted (February 7, 1831) a liberal constitution, and, (p. 521)
after offering the throne without avail to the Duke of Nemours, second
son of Louis Philippe of France, selected as king the German Prince
Leopold of Saxe-Coburg, who, under the title of Leopold I., was
crowned July 21 of the same year.
*573. The Independence of Belgium.*--These proceedings involved the
overturning of an arrangement which the Allies in 1815 had considered
essential to the security of Europe. Several considerations,
however,--among them the outbreak of insurrection in Poland,--induced
the powers to acquiesce with unexpected readiness in the dissolution
of the loose-jointed monarchy. December 20, 1830, a conference of the
five principal powers at London formally pronounced in favor of a
permanent separation, and when, in August, 1831, a Dutch army crossed
the frontier and inflicted upon the Belgians an overwhelming defeat, a
French force compelled the invaders to surrender the fruits of their
victory and to retire from the country. A treaty of separation was
drawn up by the London conference under date of November 25, 1831,
under whose terms there were recognized both the independence and the
neutrality of the new Belgian monarchy. William of Holland protested
and flatly refused to sign the instrument. The British and French
governments compelled him outwardly to acquiesce in the agreement,
although it was not until April 19, 1839, that he gave it his formal
assent. Embittered by his losses and chagrined by the constitutional
amendments to which his own people compelled him to submit, he
abdicated in 1840 in favor of his son.[719]
[Footnote 719: On the constitutional aspects of
Dutch-Belgian history in the period 1815-1840 see
Cambridge Modern History, X., Chap. 16
(bibliography, pp. 848-851); D. C. Boulger, History
of Belgium, 2 vols. (London, 1909), I.; Stern,
Geschichte Europas, IV., Chap. 2. General works of
importance include J. B. Nothomb, Essai historique
et politique sur la révolution belge, 3 vols. (4th
ed., Brussels, 1876); C. White, The Belgian
Revolution, 2 vols. (London, 1835); C. V. de Bavay,
Histoire de la révolution belge de 1830 (Brussels,
1873); L. Hymans, Histoire politique et
parlementaire de la Belgique de 1814 à 1830
(Brussels, 1869); J. J. Thonissen, La Belgique sous
le règne de Leopold Ier, 3 vols. (Louvain, 1861).]
*574. Constitutional Revision in Holland.*--After 1831 the
constitutional development of Holland and that of Belgium move in
separate channels.[720] In Holland the fundamental law of 1815 was
retained, but the modifications which have been introduced in it,
notably in 1840, 1848, and 1887, have so altered its character as to
have made of it an essentially new instrument. The revision of 1840
was forced upon the king by the Liberals, whose position was
strengthened by the fiscal chaos into which the nation had fallen (p. 522)
under the previous autocratic régime. The reformers got very much less
than they demanded. Instead of the ministerial responsibility and the
public control of the finances for which they asked they procured only
an arrangement to the effect that the budget should be submitted to
the States-General every two years and the colonial balance sheet
yearly, together with certain changes of detail, including a
curtailment of the civil list and a reduction of the membership of the
States-General in consequence of the loss of Belgium. Yet these
reforms were well worth while.
[Footnote 720: For that of Belgium see p. 534.]
During the reign of William II. (1840-1849) the demand for
constitutional revision was incessant. The king was profuse in
promises, but vacillating. In 1844, and again in 1845, a specific
programme of revision failed of adoption. By 1848, however, economic
distress and popular discontent had become so pronounced that the
sovereign was forced to act. The overthrow of Louis Philippe at Paris,
too, was not without effect. March 17 the king named a state
commission of five members which was authorized to draft a revision of
the constitution, and the resulting instrument, after being adopted in
an extraordinary session of the States-General, was promulgated
November 3. The revision of 1848 introduced into the Dutch
constitutional system many fundamental changes. Instead of being
appointed by the crown, members of the upper branch of the
States-General were thereafter to be elected by the provincial
estates; and in the choice of members of the lower house, direct
popular elections were substituted for indirect. The ministers of the
king were made responsible to the States-General, and the powers of
the legislative body were otherwise increased through the extension of
its authority over colonial affairs, provision for a regular annual
budget, and, most of all, recognition of the right to initiate and to
amend projects of legislation. Constitutional government in Holland
may be said virtually to have had its beginning in 1848.
*575. The Constitution To-day.*--Through several decades following the
accession of William III., in 1849, the political history of Holland
comprises largely a story of party strife, accentuated by the efforts
of the various political groups--especially the Liberals, the
Conservatives, and the Catholics--to apply in practice the
parliamentary system.[721] The death of Prince Alexander, June 21,
1884, occasioned a constitutional amendment to provide for the
accession of a female sovereign and the establishment of a regency,
and three years later a parliamentary deadlock compelled the king to
authorize a general revision of the fundamental law whereby the (p. 523)
number of citizens in possession of the franchise was more than
tripled. The constitution of Holland at the present day is the amended
instrument of November 6, 1887. It comprises more than two hundred
articles, being, indeed, one of the lengthiest documents of its kind
in existence. Like most European constitutions, it may be amended by
the ordinary legislative organs, though under specially prescribed
conditions. The first step in the amending process consists in the
adoption by the legislative chambers of a resolution affirming that
there is sufficient reason for taking under consideration the
amendment or amendments in hand. Following the promulgation of this
resolution the chambers are required to be dissolved. The newly
elected houses then take up the project for final disposition, and if
by a two-thirds vote they adopt it, and if the sovereign assents, it
goes into operation.[722]
[Footnote 721: Cambridge Modern History, XI., Chap.
23.]
[Footnote 722: Arts. 194-197. Dodd, Modern
Constitutions, II., 118. The text of the
constitution, in English translation, is printed in
Dodd, II., 80-119. An excellent annotated edition
of the instrument, in Dutch, is G. L. van den Helm,
De Grondwet voor het koningrijk der Nederlanden
(The Hague, 1889). An elaborate commentary is
contained in J. T. Buijs, De Grondwet, 3 vols.
(Arnheim, 1883-1888). One of the best expositions
of the Dutch constitutional system is L. de Hartog,
Das Staatsrecht des Königreichs der Niederlande
(Freiburg, 1886), in Marquardsen's Handbuch, though
this work antedates the amendments of 1887. More
recent is J. van Hamel, Staats-und Verwaltungsrecht
des Königreichs der Niederlande (Hanover, 1910).]
II. THE CROWN AND THE MINISTRY
*576. Status of the Sovereign.*--The government of Holland[723] is in
form a constitutional, hereditary monarchy. Until 1884 the royal
succession was vested exclusively in the direct male line of the house
of Orange-Nassau in the order of primogeniture. The death, however, in
the year mentioned, of the sole surviving male heir occasioned, as has
been stated, an amendment of the constitution authorizing the succession
of a female heir, in default of a male; and, upon the death of William
III., November 23, 1890, the throne accordingly passed to his only
daughter, the present Queen Wilhelmina.[724] In default of a legal
heir, the successor to the throne is to be designated by a law presented
by the crown and acted upon by a joint meeting of the legislative
chambers, each house containing for this purpose double its usual (p. 524)
number of members. In the event of the minority or the incapacity of
the sovereign a regency is established, and the regent is named by law
enacted by the States-General in joint session.[725]
[Footnote 723: The official title is "The Kingdom
of the Netherlands." In ordinary usage, however,
the term "Holland" is more commonly employed.]
[Footnote 724: Wilhelmina was at the time but ten
years of age. Until she attained her majority,
August 31, 1898, a regency was exercised by the
Queen-Dowager Emma. E. Lemonon, La succession au
trône néerlandais, in _Questions Diplomatiques et
Coloniales_, December 1, 1908.]
[Footnote 725: Arts. 20-21. Dodd, Modern
Constitutions, II., 84.]
The sovereign, at accession, is installed in a public joint meeting of
the two chambers in the city of Amsterdam, and is required to take
oath always "to observe and maintain the constitution;" whereupon the
members of the chambers solemnly pledge themselves "to do everything
that a good and loyal States-General ought to do." The person of the
monarch is declared inviolable. For the maintenance of the royal
establishment the constitution stipulates that, in addition to the
revenue from the crown lands, the sovereign shall be entitled to a
yearly income, to be paid out of the national treasury, together with
summer and winter residences, the maximum public expenditure upon
which, however, is restricted to 50,000 florins a year. At each
accession the amount of the annual stipend is fixed by law for the
entire reign. William II.'s civil list was 1,000,000 guilders, but at
the accession of William III. in 1849 the amount was reduced to
600,000, where it has remained to the present day. The family of
Orange is possessed of a large private fortune, most of which was
accumulated by William I. from a variety of commercial and industrial
ventures. The Prince of Orange, as heir apparent, is accorded by the
state an annual income of 100,000 florins, which is increased to
200,000 upon his contracting a marriage authorized by law.
*577. The Ministry.*--Associated with the sovereign is a Council of
State, consisting of the Prince of Orange (when above eighteen years
of age) and of a variable number of members appointed by the crown.
The number of members is at present fourteen. By the terms of the
constitution the sovereign is required to submit for discussion in the
Council of State all matters to be presented to the States-General,
and all general administrative questions of the kingdom and of its
colonies and possessions throughout the world.[726] Besides this
advisory Council of State there is a Council of Ministers, comprising
the heads of nine executive departments established by the sovereign.
Nominally the ministers are appointed and dismissed by the crown at
will, but actually the parliamentary system has acquired sufficient
foothold to impose upon the sovereign a considerable measure of
restriction at this point. All decrees and orders must be
countersigned by the head of one of the ministerial departments; and
it is expressly stipulated that responsibility for all royal acts
shall lie with the ministers.[727] The heads of ministerial (p. 525)
departments are privileged to occupy seats in both branches of the
States-General, but unless elected regularly as members they possess
only a deliberative voice in the proceedings of the chamber in which
they sit.[728]
[Footnote 726: Art. 75. Ibid., II., 94.]
[Footnote 727: Art. 54. Dodd, Modern Constitutions,
II., 90.]
[Footnote 728: Art. 94. Ibid., II., 99.]
*578. The Exercise of Executive Powers.*--Despite the liberalizing
tendencies which underlie Dutch constitutional history since 1815, the
powers of the crown are still enormous. Executive authority is vested
solely in the sovereign and the ministers, and there are not a few
acts of importance which the sovereign may perform quite
independently. The sovereign exercises supreme control over foreign
relations, declares war, concludes and ratifies treaties,[729] confers
titles of nobility, appoints to public offices, coins money, grants
pardons in cases of penalties imposed by judicial sentence, maintains
supreme control over the land and naval forces, settles certain types
of disputes arising between provinces, or between provinces and
communes or corporations, issues general administrative regulations,
recommends projects of law to the States-General, and approves or
rejects all measures adopted by that body. The sovereign is, however,
in no sense above the law. Many things may not be done at all, save
under the authority of a regularly enacted piece of legislation.
Dispensations from legal provisions, for example, may be granted by
the crown only under the authority of law. In still other respects the
sweeping grants of power contained within the constitution are
tempered by counter-balancing stipulations. Thus, the sovereign has
the right to coin money; but it is also prescribed that "the monetary
system shall be regulated by law."[730] And the crown has "supreme
control of the colonies and possessions of the kingdom in other parts
of the world;" but "the regulations for the conduct of the government
in the colonies and possessions shall be established by law."[731]
[Footnote 729: Save that treaties which provide for
modifications of the boundaries of the state, or
impose a public pecuniary obligation, or contain
any other provision touching legal rights, may not
be approved by the crown until after sanction shall
have been accorded by the States-General, unless
the power has been reserved to the crown by law to
conclude such a treaty. Art. 59. Dodd, Modern
Constitutions, II., 91.]
[Footnote 730: Art. 61. Ibid., II., 91.]
[Footnote 731: Art. 61. Ibid.]
III. THE STATES-GENERAL AND POLITICAL PARTIES
*579. The Chambers: Earlier Electoral Arrangements.*--Legislative power
within the kingdom is vested jointly in the sovereign and a States-General,
or parliament, of two chambers. The upper chamber consists of (p. 526)
fifty members elected in varying proportions by the "estates," or
representative assemblies, of the eleven provinces.[732] The term of
office is nine years, and one-third of the members retire triennially.
Male citizens who have attained the age of thirty, who are in full
control of their property, and who have not been disqualified by
judicial sentence, are eligible to membership, provided either that
they are among the heaviest payers of direct national taxes or that
they hold, or have held, one or more principal public offices
designated by law.[733]
[Footnote 732: The provincial quotas are as
follows: South Holland, 10; North Holland, 9; North
Brabant and Gelderland, 6 each; Friesland, 4;
Overyssel, Groningen, and Limberg, 3 each; Zealand,
Utrecht, and Drenthe, 2 each. Prior to the
constitutional revision of 1848 members of the
upper house were appointed by the king.]
[Footnote 733: Art. 90. Dodd, Modern Constitutions,
II., 98.]
The lower chamber consists of one hundred members elected directly by
the voters of the kingdom for a term of four years. Under the original
constitution of 1815 members of the lower house were chosen by the
provincial estates. Direct election was introduced by the
constitutional revision of 1848. During several decades the franchise,
based upon taxpaying qualifications, was narrowly restricted. After
1870 the Liberals carried on a persistent campaign in behalf of a
broader electorate, and by a constitutional amendment of 1887 the
franchise was extended to all males twenty-three years of age and
over, who are householders paying a minimum house-duty, lodgers who
for a time have paid a minimum rent, or who are possessed of "signs of
fitness and social well-being." The provisions relating to
householders and lodgers alone increased the electorate at a stroke
from approximately 100,000 to 300,000. The precise meaning and
application of the phrase "fitness and social well-being" were left to
be defined by law, and through upwards of a decade political
controversy in Holland centered principally about this question. The
coalition Catholic-Conservative ministry of 1888-1891 refused flatly
to sanction the enactment of any sort of law upon the subject. In 1893
the Liberal Minister of the Interior, Tak van Poortvliet, brought
forward a project whereby it was proposed to put upon the qualifying
phrase an interpretation of well-nigh the broadest possible character.
A man was to be regarded as fulfilling the educational requirement if
he were able to write, and the social requirement if simply he were
not a recipient of public charity. By the adoption of this scheme the
number of electors would have been raised to something like 800,000,
and Holland would have attained a reasonable approximation of manhood
suffrage. The Moderate Liberals, the Conservatives, and most of the
Catholics opposed the proposition, and the elections of 1894 (p. 527)
proved the supporters of the van Poortvliet programme to be in the
minority. The total strength of the "Takkians" in the new chamber was
46, of whom 35 were Liberals; that of the "anti-Takkians" was 54, of
whom 24 were Catholics.
*580. The Electoral Law of 1896 and the Question of Electoral
Reform.*--In the newly constituted ministry it fell to Samuel van
Houten, leader of a radical group that had opposed the van Poortvliet
project, to prepare an alternative measure. In the notable electoral
law of 1896 the compromise proposals of van Houten were definitely
accepted, and they constitute the essential features of the electoral
system at the present day. Under this arrangement the members of the
lower chamber are elected in one hundred single-member districts by
male citizens of the age of twenty-five and over, who meet any one of
the following qualifications: (1) payment of a direct tax of at least
one florin; (2) payment of a minimum rental as householders or
lodgers; (3) proprietorship or rental of a vessel of at least
twenty-four tons; (4) the earning of a wage or salary varying from 275
to 550 florins a year; (5) investment of one hundred florins in
government bonds, or of fifty florins in a savings bank; and (6) the
passing of an examination required for entrance upon a public office
or upon a private employment. By the reform of 1896 the number of
voters in the realm was increased to 700,000.
In 1905 there was created a royal commission of seven members to which
was assigned the task of considering and reporting proposals relative
to proportional representation, the salaries of members, and other
questions of constitutional revision. The Government, however,
reserved to itself specifically the right to bring forward proposals
relating to the actual extension of the franchise. The report of this
commission, submitted late in 1907, recommended, among other things,
the introduction of proportional representation and (by a vote of six
out of seven) the extension of the franchise to women. These
suggestions failed of adoption, but late in 1910 a new commission was
appointed, under the presidency of the Conservative premier Heemskerk,
and to this body was given power to propose changes in any portion
whatsoever of the governmental order. The successful operation of
proportional representation in adjoining countries, especially Belgium
and Sweden, renders it probable that the system will be adopted
ultimately in Holland. The future of woman's suffrage is more
problematical. Women already possess the right to vote in the
proceedings of the dike associations if they are taxpayers or if they
own property adjoining the dikes, and in June, 1908, the Lutheran
Synod gave women the right to vote in ecclesiastical affairs on a (p. 528)
footing with men. Since 1894 there has been a National Woman's
Suffrage Society, to which was added, in 1906, a Woman's Suffrage
League; and women are freely admitted to membership in the political
clubs maintained by the adherents of the various parties.
Any male citizen who has attained his thirtieth year, who is in full
possession of property, and who has not been disqualified by judicial
sentence, is eligible to a seat in the popular chamber. By
constitutional provision, members are allowed, in addition to
travelling expenses, a salary of 2,000 florins a year; and, under law
of May 4, 1889, members of the upper house who do not live in the
place of meeting receive a _per diem_ of ten florins during the
continuance of each session.
*581. The States-General: Organization and Powers.*--The constitution
requires that the States-General shall assemble at least once each
year and that its regular annual session shall be opened on the third
Tuesday in September. The sovereign may convoke an extraordinary
session at any time; but regular sessions are not dependent upon the
royal summons. The crown possesses the right to dissolve the houses,
separately or simultaneously; but a decree of dissolution must contain
an order for the election of the new house, or houses, within fourteen
days, and for the assembling of the houses within two months.[734]
Except in the event of a dissolution, a regular session is required to
extend through at least twenty days; but upon the expiration of the
twenty-day period the sovereign may terminate the sitting whenever in
his judgment "the interests of the state no longer require its
continuance."[735] The president of the upper house is appointed by
the crown from among the members for the period of one session. The
corresponding officer of the lower house is similarly appointed from a
list of three members submitted by the chamber. Each house appoints,
from non-members, its clerk and such other officials as may be
required; each examines the credentials of its newly elected members
and renders final verdict upon their validity; and each regulates the
details of its own procedure. Except when one-tenth of the members of
a chamber request the closing of the doors, or the president deems
such a step necessary, sessions are public. Neither house may take
action upon any matter unless at least half of its members are
present, and final action upon all propositions is taken by an
absolute majority of the members present. A portion of the business of
the States-General is transacted in joint sessions of the two houses.
In joint session the two are regarded as one chamber, under the
presidency of the president of the upper house. For the changing (p. 529)
of the order of royal succession or the appointment of an heir to the
throne, the constitution requires that the membership of each chamber
be doubled. In such an event there is added to the regular members of
each house an equal number of extraordinary members, elected in the
same manner as the regular members.[736]
[Footnote 734: Art. 73. Dodd, Modern Constitutions,
II., 94.]
[Footnote 735: Art. 103. Ibid., II., 100.]
[Footnote 736: Art. 83. Dodd, Modern Constitutions,
II., 96.]
In the proceedings of the States-General the lower chamber enjoys a
distinct preponderance. The upper chamber, indeed, is commonly
regarded as constitutionally the weakest body of its kind in Europe.
It possesses neither the power to initiate legislation, general or
financial, nor power to amend projects of law. Any measure which comes
before it must be accepted or rejected as it stands. Bills may be
originated either by the Government or by members of the lower
chamber, and it is required that the sovereign shall send all
recommendations, whether pertaining to laws or to other matters, to
the lower house, in a written message or by committee.[737] The
projects of the general financial laws must be presented annually to
the lower house in the name of the crown, immediately after the
opening of the regular session. No taxes may be levied save by law. In
addition to its powers of a purely legislative character, the
States-General is authorized to investigate, either as separate
chambers or in joint session, the executive conduct of public
affairs.[738] Under stipulated conditions, the States-General, by a
two-thirds vote, and with the assent of the crown, may amend the
constitution.[739]
[Footnote 737: Art. 110. Ibid., II., 101.]
[Footnote 738: Art. 95. Ibid., II., 99.]
[Footnote 739: See p. 523.]
*582. Political Parties: Election of 1903.*--Since the middle of the
nineteenth century political preponderance has alternated irregularly
between two principal party groups. One of these is the Liberals,
representative especially of the commercial towns, and falling into
the two general categories of Moderates and Progressives. The other is
the Conservatives, consisting largely of orthodox Protestants,
especially the Calvinistic peasantry, and supported, as a rule, by the
Catholics. In more recent times the Socialists have made their
appearance as a distinct political element, but thus far they have
cast in their lot regularly with the Liberals. Between 1871 and 1888
the Liberals were in power continuously; and, after a brief interval
covered by a Conservative-Catholic ministry, they regained control and
kept it throughout the decade 1891-1901. In 1901 a coalition ministry
was created, under the premiership of the Conservative Dr. Kuyper.
This lasted until 1903.
In the spring of the year mentioned the lower house rejected an (p. 530)
important measure relating to higher education upon whose enactment
the Kuyper ministry was determined. The Chamber was dissolved and in
June elections were held. Prior to the elections the Chamber contained
58 Ministerialists and 42 anti-Ministerialists (Liberals and
Socialists). The opposition elements were far from united. The
Socialists insisted upon an immediate amendment of the constitution to
provide for universal suffrage; the Progressive Liberals favored only
the eventual adoption of such an amendment; the Moderate Liberals were
opposed to it altogether. None the less, the result of the elections
was to terminate the Conservative majority and to replace it by a
slender but indubitable Liberal majority of four. The Conservatives
carried 48 seats; the Liberals 45; and the Socialists 7. The Kuyper
ministry forthwith resigned.
*583. The Political Situation Since 1909.*--The period from June, 1905,
to December, 1907, was covered by the two successive Liberal
ministries of Borgesius and De Meester. Each was essentially
colorless. Efforts to bring about an extension of the suffrage failed,
and during 1907 the Liberal majority virtually disappeared. The upshot
was that, February 8, 1908, there was created a new ministry, under
Dr. Heemskerk, whose members were drawn from the Conservatives. At the
general election of June 11, 1909, the Conservatives recovered
supremacy completely. Following the grouping which prevails at the
present day, the results of this election were as follows: (1)
Anti-Revolutionaries (largely rural Calvinists), 23 members; (2)
Historic Christians, 12; (3) Roman Catholics, 25--a total Conservative
quota of 60; (4) Free Liberals, 4; Union Liberals, 21; Liberal
Democrats, 8; Socialists, 7--a total Liberal contingent of 40.
Furthermore, while the Conservatives were compactly organized, the
Liberals were divided hopelessly among themselves and quite unable to
offer substantial resistance to their opponents. With a majority of 20
in the lower chamber and of 19 in the upper, with a popular vote in
excess by 80,000 of that of the Liberals, and with a ministry in
office which, if not brilliant, was at least popular, the
Conservatives came off from the campaign in a position to maintain
through an extended period, so far as may be foreseen, their control
of public affairs. Quite the contrary of the contemporary situation in
Belgium, the rifts which separate the various Liberal groups tend in
Holland to deepen, and the political impotence of Liberalism
consequently to be accentuated.[740]
[Footnote 740: On Dutch political parties see P.
Verschave, La Hollande politique; le rôle des
catholiques néerlandais depuis dix ans, in _Le
Correspondant_, April 10, 1908; Les élections
générales et la situation politique aux pays-bas:
l'organisation de la campagne électorale, ibid.,
Nov. 25, 1909; and La Hollande politique; un parti
catholique en pays protestant (Paris, 1910).]
IV. THE JUDICIARY AND LOCAL GOVERNMENT (p. 531)
*584. Judicial Principles.*--The constitution guarantees various
fundamental personal rights, including those of petition, assembly,
free speech, and equality before the law in all matters pertaining to
the protection of person and property. It likewise undertakes to
guarantee the individual against partiality and arbitrariness in the
administration of justice. Except in unusual cases, prescribed by law,
no one may be taken into custody except upon a warrant issued by a
judge, stating specifically the reason for arrest. No one may be
removed against his will from the jurisdiction of the tribunal in
which he has a right to be tried. General confiscation of the property
of a person adjudged guilty may not be imposed as a penalty for any
offense. Save in exceptional cases, specified by law, or when in the
opinion of the judge public order and morals forbid, the sessions of
all courts are required to be public. Judgments must be pronounced in
public session. They must be accompanied by a statement of the
considerations upon which they are based, and, in criminal cases, by a
citation of the specific provisions of law upon which the sentence is
founded.[741]
[Footnote 741: Arts. 149-161. Dodd, Modern
Constitutions, II., 110-112.]
*585. The Courts.*--Justice is administered throughout the kingdom in
the name of the crown, and all judicial officers are appointed by the
crown. Within the constitution provision is made only for a supreme
tribunal known as the High Court (_Hooge Raad_) of the Netherlands,
sitting at The Hague. Minor courts exist by virtue of ordinary law.
The judges of the High Court, five in number, are appointed by the
crown from lists prepared by the lower house of the States-General.
The junctions of the High Court are of large importance. On appeal
from inferior tribunals it may annul any judicial proceeding, decree,
or judgment held by it to be unwarranted by law. It is charged with
the duty of seeing that suits are properly tried and decided, and that
judicial officials comply with the laws. Inferior judges are appointed
normally for life, but under conditions prescribed by law they may be
dismissed or relieved of their duties by decision of the High Court.
Finally, the High Court constitutes a tribunal before which, upon
charges brought by either the sovereign or the lower chamber, members
of the States-General, heads of the ministerial departments,
governors-general, members of the Council of State, and commissioners
of the crown in the provinces, may be prosecuted upon charge of
offenses committed in office. Such prosecution may be instituted (p. 532)
either during an official's tenure of office or after his retirement.[742]
[Footnote 742: Arts. 162-166. Dodd, Modern
Constitutions, II., 112-113.]
Of inferior tribunals there are three grades. At the bottom are the
cantonal courts, 106 in number, consisting each of a single judge and
taking cognizance of claims under 200 guilders, breaches of police
regulations, and other cases of a minor nature. Next are the district
courts, 23 in number, each consisting of three judges and exercising
within the _arrondissement_ jurisdiction in matters of more weight.
Still above the district tribunals are five courts of appeal, each
comprising a body of three judges. Trial by jury is unknown in
Holland.
*586. Local Government: the Province.*--The constitution of the
Netherlands is somewhat peculiar in that it prescribes at length not
merely the form and character of the national government, but also the
arrangements that shall prevail respecting the governments of the
provinces and the communes throughout the kingdom. Of provinces there
are eleven; of communes, 1,123. The importance of the province is
enhanced by the fact that the nation has sprung from a pure
confederation, the original autonomy of the federated provinces having
never been wholly obliterated under the present centralized régime.
Each province has its own representative body, or "provincial
estates," a unicameral assembly whose members are chosen directly for
six years by all inhabitants of the province who are entitled to vote
for members of the lower house of the States-General. Half of the
members retire every three years. The number of members varies,
according to the population of the province, from eighty in South
Holland to thirty-five in Drenthe. The assembly meets at least twice a
year. Its powers are extensive, although it can perform no legislative
act without the assent of the crown. It enacts ordinances, levies
taxes, prepares and submits to the sovereign an annual budget,
controls in certain respects the municipalities, and elects those
members of the upper branch of the States-General to which the
individual province is entitled.
For the exercise of executive authority within the province there are
two agencies. The provincial assembly appoints from its own members a
committee of six, known as the "deputed states," to which, in
accordance with conditions fixed by law, the daily administration of
affairs is intrusted. Furthermore the sovereign appoints and
establishes in each province a commissioner who is charged with the
execution of royal orders and with a general supervision of the acts
of the local authorities. This royal commissioner presides over the
deliberations of both the provincial estates and the committee of six,
possessing in the committee the power also of voting. He is (p. 533)
distinctly the chief magistrate of the province, and at the same time
the effective tie between the central and the provincial
governments.[743]
[Footnote 743: Arts. 127-141. Dodd, Modern
Constitutions, II., 105-108.]
*587. Local Government: the Commune.*--In all essential respects the
government of the Dutch communes is prescribed by the national
constitution, with the result that that government is characterized by
uniformity no less thoroughgoing than is the communal government of
France. Within each commune is a council of from seven to forty-five
members elected directly by the people of the commune for a term of
six years under franchise arrangements identical with those obtaining
in the election of members of the provincial estates, save that no
one, although otherwise qualified to vote for communal councillors,
may exercise the privilege unless he contributes a minimum amount
yearly to the communal rates. One-third of the members of the council
retire every two years. The council meets publicly as frequently as
business requires. It enacts by-laws, levies taxes, supervises
education, and represents the interests of the commune, if occasion
arises, before the sovereign, the States-General, and the provincial
estates. All of its legislative acts are liable to veto by the crown,
and the municipal budget requires regularly the approval of the
committee of the provincial estates. Executive authority within the
commune is vested in a burgomaster, or mayor, appointed by the
sovereign for a term of six years, and a board of two to six
_wethouders_, or aldermen, elected by and from the council. The
burgomaster presides in the council and, as a representative of the
royal authority, may suspend for a period of thirty days any measure
enacted.[744]
[Footnote 744: Arts. 142-148. Ibid., II.,
108-110.]
CHAPTER XXIX (p. 534)
THE GOVERNMENT OF BELGIUM
I. THE CONSTITUTION--THE CROWN AND THE MINISTRY
*588. The Constitution: Liberalism and Stability.*--The constitution of
the kingdom of Belgium was framed, consequent upon the declaration of
Belgian independence October 4, 1830, by a national congress of two
hundred elected delegates. It was promulgated February 7, 1831, and
July 21 of the same year the first independent Belgian sovereign,
Leopold I., took oath to observe and maintain it. Circumstances
conspired to give the instrument a pronouncedly liberal character.
Devised in the midst of a revolution brought on principally by the
autocratic rule of King William I., it is, and was intended to be,
uncommonly explicit in its definition of the royal prerogative. There
were Belgians in 1831, indeed, who advocated the establishment of a
republic. Against such a course various considerations were urged, and
with effect; but the monarchy which was set up, owing clearly its
existence to popular suffrage, is of the strictly limited,
constitutional type. "All powers," it is asserted in the fundamental
law, "emanate from the people."[745] The principles of liberalism are
the more in evidence by reason of the fact that the framers of the
constitution deliberately accepted as models the French instruments of
1791 and 1830 and were likewise influenced profoundly by their
admiration for the constitutional system of Great Britain.
[Footnote 745: Art. 25. Dodd, Modern Constitutions,
I., 130.]
A striking testimony to the thoroughness with which the work was done,
and to the advanced character of the governmental system established,
is the fact that the text of the Belgian fundamental law endured
through more than half a century absolutely unchanged, and, further,
that when in our own generation the task of amendment was undertaken
not even the most ardent revisionists cared to insist upon more than
the overhauling of the arrangements respecting the franchise. Leopold
I.(1831-1865), and Leopold II. after him (1865-1909), frankly
recognized the conditional basis of the royal tenure and, although
conspicuously active in the management of public affairs, afforded (p. 535)
by their conduct slight occasion for popular criticism or disaffection.
Even the revolutionary year 1848 passed without producing in Belgium
more than a mere ripple of unrest. In 1893 the constitution was
amended to provide for universal male suffrage, and in 1899 a further
amendment instituted a system of proportional representation.
Otherwise, the instrument stands to-day virtually as it was put into
operation in 1831. It need hardly be remarked that, in Belgium as
elsewhere, the written constitution does not by any means contain the
whole of the actually operative political system. Numerous aspects of
parliamentarism, and of other well-established governmental forms and
practices, depend for their sanction upon the conventions, rather than
upon the law, of the constitution; but they are none the less real and
enduring.
*589. Content and Amendment.*--The written constitution of Belgium, like
that of Holland, is comprehensive in scope. It comprises an extended
bill of rights; a detailed definition of the framework of the national
executive, legislative, and judicial departments; special provisions
relating to finance and the army; and an enumeration of the principles
underlying the provincial and communal administration. It contains a
total of 139 articles, of which eight, being temporary in character,
are inoperative. The process of amendment is identical with that which
prevails in Holland. Upon declaration by the legislative chambers to
the effect that a specified amendment is desirable, the chambers are
_ipso facto_ dissolved. If the chambers thereupon elected approve the
proposition by a two-thirds vote, and the sovereign accords it his
sanction, it is declared adopted.[746]
[Footnote 746: Art. 131. Dodd, Modern
Constitutions, I., 146. The text of the
constitution of Belgium, in English translation, is
printed in Dodd, Modern Constitutions, I., 126-148,
and in the _Annals of the American Academy of
Political and Social Science_, May, 1896,
Supplement (translation by J. M. Vincent). French
texts of the constitution and of important laws
will be found in F. Larcier, Code politique et
administratif de la Belgique (2d ed., Brussels,
1893). The standard commentary is J. J. Thonissen,
La constitution belge (3d ed., Brussels, 1879).
Works of value relating to the amendments of
1893-1894 are C. Thiebault et A. Henry, Commentaire
législatif des articles révisés de la constitution
belge (Brussels, 1894), and Beltjens, La
constitution belge révisée (Liège, 1895). The best
treatises on the Belgian constitutional system are
P. Errera, Das Staatsrecht des Königreichs Belgien
(Tübingen, 1909), and Traité de droit public belge:
droit constitutionnel, droit administratif (Paris,
1908), and O. Orban, Le droit constitutionnel de la
Belgique, 3 vols. (Liège, 1906-1911). An older but
excellent work is A. Giron, La droit public de la
Belgique (Brussels, 1884). A convenient elementary
book on the subject is F. Masson et C. Wiliquet,
Manuel de droit constitutionnel (7th ed., Brussels,
1904). A useful volume is E. Flandin, Institutions
politiques de l'Europe contemporaine (2d ed.,
Paris, 1907), I.]
*590. The Crown.*--Kingship in Belgium is hereditary in the (p. 536)
direct male line in the order of primogeniture. In default of male
descendants, the king, with the consent of the legislative chambers,
may name his successor.[747] A king or heir to the throne attains his
majority at the age of eighteen. In the event of a minority, or of the
incapacity of the sovereign, the two houses are required to meet in a
single assembly for the purpose of making provision for a regency. The
powers of regent may not be conferred upon two or more persons
jointly, and during the continuance of a regency no changes may be
made in the constitution.[748] If by chance the throne should fall
wholly vacant, the choice of a sovereign would devolve upon the
legislative chambers, specially re-elected for the purpose, and
deliberating in joint session. The civil list of the crown is fixed at
the beginning of a reign. That of Leopold II., as established by law
of December 25, 1865, was 3,300,000 francs, and that of the present
sovereign, Albert I., is the same.
[Footnote 747: This privilege was conferred by an
amendment (Art. 61) adopted September 7, 1893.]
[Footnote 748: Arts. 60, 79-85. Dodd, Modern
Constitutions, I., 136, 138-139.]
*591. The Ministers and the Parliamentary System.*--The Council of
Ministers consists of ten heads of executive departments. These,
together with a variable number of ministers without portfolio,
comprise the Council of State, an advisory body convened by the crown
as occasion requires. All ministers are appointed, directly or
indirectly, and all may be dismissed, by the king. All must be Belgian
citizens, and no member of the royal family may be tendered an
appointment. Ministers are all but invariably members of one or the
other of the legislative houses, principally of the House of
Representatives.[749] Whether members or not, they are privileged to
attend all sessions and to be heard at their own request. The houses,
indeed, possess the right to demand their attendance. But no minister
may vote, save in a house of which he is a member.[750]
[Footnote 749: The minister of war, regularly an
active military official, has been usually not a
legislative member. Aside from this one post,
however, the custom of selecting ministers
exclusively from the chambers has been followed
almost as rigorously in Belgium as in Great
Britain. And so largely are the ministers taken
from the lower house that the Senate not
infrequently has no representative at all in the
cabinet.]
[Footnote 750: Arts. 86-91. Dodd, Modern
Constitutions, I., 139-140.]
Belgium is one of the few continental states in which the parliamentary
system is thoroughly operative. At no point is the constitution more
explicit than in its stipulation of the responsibility of ministers.
Not only is it declared that the king's ministers are responsible; it
is stipulated that "no decree of the king shall take effect unless it
is countersigned by a minister, who, by that act alone, renders himself
responsible for it"; also that "in no case shall the verbal or (p. 537)
written order of the king relieve a minister of responsibility."[751]
The House of Representatives is vested with the right to accuse
ministers and to arraign them before the Court of Cassation; and the
king may not pardon a minister who has been sentenced by this
tribunal, save upon request of one of the two legislative chambers. A
ministry which finds that it cannot command the support of a majority
in the House of Representatives has the right to determine upon the
dissolution of either of the houses, or of both. If after a general
election there is still lack of harmony, the ministry, as would be the
procedure in a similar situation in Great Britain, retires from
office, the sovereign calls upon an opposition party leader to assume
the premiership and to form a cabinet, and the remainder of the
ministers are selected from the dominant parties by this official, in
consultation with the king. By reason of the multiplicity of party
groups in Belgium, the king is apt to be allowed somewhat wider
latitude in the choice of a premier than is possible in Great
Britain.[752]
[Footnote 751: Arts. 63-64, 89. Dodd, Modern
Constitutions, I., 137, 140.]
[Footnote 752: Dupriez, Les Ministres, I., 210-230;
O. Kerchove de Denterghem, De la responsabilité des
ministres dans le droit public belge (Paris,
1867).]
*592. The Exercise of Executive Powers.*--The powers of the executive,
exercised nominally by the king, but actually by the ministry, are
closely defined in the constitution; and there is the stipulation,
unusual in European constitutions, that the king shall possess no
powers other than those which the constitution, and the special laws
enacted under the constitution, confer explicitly upon him.[753] Under
the conditions that have been explained, the king appoints all
officials who are attached to the general administrative and foreign
services, but other officials only in so far as is expressly
authorized by law. He commands the forces by land and sea, declares
war, and concludes peace. He negotiates treaties, with the limitation
that treaties of commerce and treaties which impose a burden upon the
state, or place under obligation individual Belgian citizens, take
effect only after receiving the approval of the two houses; and with
the further condition that no cession, exchange, or acquisition of
territory may be carried through save by warrant of a law. The king
promulgates all legislative measures, and he is authorized to issue
all regulations and decrees necessary for the execution of the laws.
In theory he possesses the power of the veto, but in the Belgian, as
in parliamentary governments generally, there is no occasion for the
actual exercise of this power. The king convokes, prorogues, and
dissolves the chambers; though the provisions of the constitution (p. 538)
relating to the legislative sessions are so explicit that the crown is
left small discretion in the matter. The king, finally, is authorized
to remit or to reduce the penalties imposed by the tribunals of
justice, to coin money, to confer titles of nobility (which must be
purely honorary), and to bestow military orders in accordance with
provisions of law.[754]
[Footnote 753: Art. 78. Dodd, Modern Constitutions,
I., 138.]
[Footnote 754: Arts. 66-67. Dodd, Modern
Constitutions, I., 137-138.]
II. THE HOUSES OF PARLIAMENT--THE ELECTORAL SYSTEM
*593. The Senate.*--The Belgian parliament consists of two houses, both
elective and both representative of the nation as a whole. The upper
house, or Senate, is composed of 112 members, chosen for a term of
eight years. With respect to the method of their election, the members
fall into two categories. Under constitutional provision, as amended
by law of September 7, 1893, a number of senators equal to one-half
the number of members of the House of Representatives is elected
directly by the voters, in proportion to the population of the several
provinces. The electorate which returns these senators is identical
with that which returns the deputies, and by law of December 29, 1899,
the principle of proportional representation, as applied in elections
of the lower chamber, is applied to senatorial elections within each
province. A second group of members consists of those elected by the
provincial councils, to the number of two for each province having
fewer than 500,000 inhabitants, of three for each province having from
500,000 to 1,000,000 inhabitants, and of four for each province having
more than 1,000,000 inhabitants. The proportion of senators elected
directly by the people is approximately three-fourths, being at
present 76 to 26. Prior to the amendment of 1893 all members of the
Senate were chosen by the same electorate which chose the members of
the lower chamber. Inasmuch as only payers of direct taxes to the
amount of 2,000 francs a year were eligible as senators, the upper
house represented almost exclusively the interests of wealth. By
vesting in the provincial councils the choice of a portion of the
senators, who should be eligible regardless of taxpaying
qualifications, it was hoped to impart to the Senate a more broadly
representative character. At the same time the tax qualification for
popularly elected members was reduced by a third. It may be noted that
there is a possibility of a small non-elective element in the Senate.
According to the terms of the constitution, the sons of the king, or
if there be none, the Belgian princes of the branch of the royal
family designated to succeed to the throne, shall be by right senators
at the age of eighteen, though without deliberative vote until the (p. 539)
age of twenty-five.[755] Prior to his accession to the throne, in
1909, the present sovereign Albert I., nephew and heir-presumptive of
Leopold II., was entitled to a senatorial seat. There is at present no
representative of royalty who is eligible.
[Footnote 755: Art. 58. Dodd, Modern Constitutions,
I., 135.]
All elective senators must be Belgian citizens and Belgian residents,
at least forty years of age, and in the unrestricted enjoyment of
civil and political rights. Senators elected by the provincial
councils are subject to no property qualifications,[756] but those
elected directly by the people must be drawn from either payers of as
much as 1,200 francs of direct national taxes or proprietors or
lessees of Belgian real estate of an assessed income of at least
12,000 francs. In provinces, however, where the number of eligible
persons falls short of the proportion of one for every 5,000
inhabitants, the list is completed by the addition of such a number of
the heaviest taxpayers of the province as may be necessary to
establish this proportion.[757] Save passes on the national railways,
senators receive no salary or other emolument.
[Footnote 756: They may not be, and may not have
been within two years preceding their election,
members of the assembly which returns them.]
[Footnote 757: Art. 56. Dodd, Modern Constitutions,
I., 135.]
*594. The House of Representatives: Earlier Electoral
Arrangements.*--The lower legislative chamber consists of deputies
elected directly by the voters of the kingdom. The number of seats is
determined by law, under the general provision that it may not exceed
the proportion of one for 40,000 inhabitants. Prior to 1899 it was
152; to-day it is 186. The term is four years. Half of the membership
retires every two years, though in the event of a dissolution the
house is entirely renewed.[758] The qualifications which the
constitution requires of deputies are those of citizenship, residence
in Belgium, attainment of the age of twenty-five, and possession of
civil and political rights. Deputies receive an honorarium of 4,000
francs a year, together with free transportation upon all State and
concessionary railways between the places of their respective
residences and Brussels, or any other city in which a session may be
held.
[Footnote 758: This is true also of the Senate.]
The Belgian electoral system at the present day is noteworthy by
reason of three facts: (1) it is based upon the principle of universal
manhood suffrage; (2) it embraces a scheme of plural voting; and (3)
it provides for the proportional representation of parties. Under the
original constitution of 1831 the franchise, while not illiberal for
the time, was restricted by property qualifications of a somewhat
sweeping character. Deputies were elected by those citizens only who
paid yearly a direct tax varying in amount, but in no instance of less
than twenty florins. In 1848 there was enacted a series of (p. 540)
electoral laws whereby the property qualification was reduced to a
uniform level of twenty florins and the number of voters was virtually
doubled. With this arrangement the Liberals were by no means
satisfied, and agitation in behalf of a broader electorate was
steadily maintained. As early as 1865 the Liberal demands were
actively re-enforced by those of organizations of workingmen, and in
1870 the Catholic ministry found itself obliged to sanction a
considerable extension of the franchise in elections within the
provinces and the communes. After 1880 the brunt of the electoral
propaganda was borne by the Socialists, and the campaign for
constitutional revision was directed almost solely against the 47th
article of the fundamental law, in which was contained the original
stipulation respecting the franchise. Since 1830 the population of
Belgium had all but doubled, and there had been in the country an
enormous increase of popular intelligence and of economic prosperity.
That in a population of 6,000,000 (in 1890) there should be an
electorate of but 135,000 was a sufficiently obvious anomaly. The
broadly democratic system by which members of the French Chamber of
Deputies and of the German Reichstag were elected was proclaimed by
the revisionists to be the ideal which it was hoped to realize in
Belgium.
*595. The Electoral Reform Act of 1893.*--In 1890 the Catholic ministry,
recognizing in part the justice of the demand, and preferring, if
there were to be revision, to carry it through, rather than to incur
the risk of having it carried through by a radical cabinet, yielded to
the pressure and consented to the formal consideration of the
electoral question upon the floors of the two chambers. Three years of
intermittent, but animated, discussion ensued. At length, in May,
1892, the chambers were able to agree upon the primary proposition
that some sort of revision was necessary. Then came the dissolution
which is required by the constitution in such a case, followed by a
general election. The newly chosen chambers, which for the purpose in
hand comprised virtually a constituent convention, entered upon their
task later in the same year. In both the Catholics maintained a
majority, but by reason of the requirement of a two-thirds vote for
the adoption of a constitutional amendment, they were none the less
obliged to rely upon the Liberals for a certain amount of support. In
the scheme of revision which was finally adopted all parties had some
substantial share.
No fewer than fourteen distinct programmes of reform were laid before
the chambers.[759] The Conservatives, in general, desired the
introduction of a system based upon occupation combined with the (p. 541)
payment of taxes; the majority of the Liberals sought to secure
special recognition for electors of approved capacity--in brief, an
educational qualification; the Radicals inside, and the Socialists
outside, Parliament carried on a relentless propaganda in behalf of
universal, direct, and equal suffrage. The rejection in committee
(April, 1893) of a plan of universal suffrage occasioned popular
demonstrations which required the calling out of the military, and
when it was proposed to stop with a reduction of the age limit for
voters there were threats of a universal industrial strike. In the end
all elements wisely receded from their extreme demands and it was
found possible to effect agreement upon a compromise. A Catholic
deputy--Albert Nyssens, professor at the University of Louvain--came
forward with a scheme for manhood suffrage, safeguarded by the plural
vote, and September 3, 1893, the plan was adopted.[760]
[Footnote 759: It will be remembered that for the
purpose of considering constitutional amendments
the chambers meet in joint session.]
[Footnote 760: The Nyssens scheme was brought to
the attention of the Belgian people through the
medium of a pamphlet entitled "Le suffrage
universel tempéré."]
*596. The Franchise To-day.*--By the terms of the law of 1893, one vote
is allotted to every male Belgian citizen who has attained the age of
twenty-five years, who is in unrestricted enjoyment of his civil and
political rights, and who has been resident at least one year in a
given commune. There is nothing whatsoever in the nature of either an
educational or a property qualification. Having conferred, however,
upon the mass of male citizens the right to vote, the law proceeds to
define the conditions under which a citizen may be entitled to two
votes, or even three. One supplementary vote is conferred upon (1)
every male citizen over thirty-five years of age, married or a
widower, with legitimate offspring, and paying to the state as a
householder a tax of not less than five francs, unless exempt by
reason of his profession, and (2) every male citizen over twenty-five
years of age owning real estate to the assessed value of 2,000 francs,
or possessing income from land corresponding to such valuation, or who
for two years has derived a minimum interest return of one hundred
francs a year from Belgian funds, in the form of either government
bonds or obligations of the Belgian government savings-bank. Two
supplementary votes are conferred upon citizens over twenty-five years
of age who (1) hold a diploma from an institution of higher learning,
or an indorsed certificate testifying to the completion of a course of
secondary education of the higher grade; or (2) occupy or have
occupied a public office, hold or have held a position, practice or
have practiced a profession, which presupposes the knowledge imparted
in secondary instruction of the higher grade--such offices, (p. 542)
positions, and professions to be defined from time to time by law.[761]
[Footnote 761: Art. 47. Dodd, Modern Constitutions,
I., 132-133.]
What, therefore, the law of 1893 does is, broadly, to confer upon
every male citizen one vote and to specify three principal conditions
under which this basal voting power may be augmented. As the head of a
family, the citizen's suffrage may be doubled. By reason of his
possession of property or of capital, it likewise may be doubled. On
the basis of a not unattainable educational qualification, it may be
tripled. Under no circumstances may an individual be entitled to more
than three votes. The plural vote of Belgium differs, therefore, from
that of Great Britain, not only in that it is based upon a variety of
qualifications of which property ownership is but one, but also in
that there is fixed an absolute and reasonably low maximum of votes.
It is of interest further to observe that voting is declared by the
Belgian constitution to be obligatory. Failure to appear at the polls,
without adequate excuse made to the election officer, is a
misdemeanor, punishable by law. The citizen may, if he likes, evade
the law by depositing a blank ballot. But he must deposit a ballot of
some sort.[762]
[Footnote 762: On the earlier aspects of Belgian
electoral reform see J. Van den Heuvel, De la
révision de la constitution (Brussels, 1892); L.
Arnaud, La révision belge, 1890-1893 (Paris and
Brussels, 1894); La réforme électorale en Belgique,
in _Annales de l'École Libre des Sciences
Politiques_, July, 1894; E. Van der Smissen, L'État
actuel des partis politiques en Belgique, ibid.,
Sept., 1898. An important work by a leading
socialist and a deputy from Brussels is L.
Bertrand, Histoire de la démocratie et du
socialisme en Belgique depuis 1830, 2 vols.
(Brussels and Paris, 1906-1907). Mention may be
made also of E. Vandervelde et J. Destree, Le
socialisme en Belgique (2d ed., Paris, 1903) and
the older work of E. de Laveleye, Le parti clérical
en Belgique (Brussels, 1874). A careful study is J.
Barthélemy, L'organisation du suffrage et
l'expérience belge (Paris, 1912). In 1910-1911 the
number of parliamentary electors was 1,697,619, of
whom 993,070 had one vote, 395,866 had two votes,
and 308,683 had three votes.]
III. PARTIES AND ELECTORAL REFORM SINCE 1894--PARLIAMENTARY PROCEDURE
*597. The Adoption of Proportional Representation, 1899.*--The first
election held under the law of 1893, that of October 14, 1894,
demonstrated that by that measure the number of electors had been
multiplied almost exactly by ten. The total number of voters was now
1,370,000; the number of votes cast was 2,111,000. Contrary to general
expectation, the election gave the Catholics an overwhelming majority
in the lower chamber. They obtained 105 seats, the Socialists 29, and
the Liberals only 18. The elections of 1896 and 1898 gave the (p. 543)
Catholics a still more pronounced preponderance. At the beginning
of 1899 the parties of the opposition could muster in the lower house
only forty votes and in the upper only thirty-one. The Liberal party
was threatened with extinction. Its popular strength, however, was
still considerable, and from both Liberals and Socialists there arose
an insistent demand for the adoption of a scheme whereby the various
parties should be accorded seats in the law-making bodies in
proportion to their popular vote.
The idea of proportional representation was not at this time in
Belgium a new one. It had been formulated and defended in the lower
chamber as early as 1866. Since 1881 there had been maintained a
national reform organization whose purpose was in part to propagate
it; and it is worthy of note that at the time of the revision of 1893
the ministry, led by the premier Beernaert, had advocated its
adoption.[763] In 1895 the principle was introduced in a statute
relating to communal elections. Following a prolonged contest, which
involved the retirement of two premiers, a bill extending the plan to
parliamentary elections was pressed upon the somewhat divided Catholic
forces and, December 29, 1899, was enacted into law. Under the
provisions of this measure deputies and the popularly elected senators
continue to be chosen within the arrondissement by _scrutin de liste_.
Within each arrondissement the seats to be filled are distributed
among the parties in proportion to the party strength as revealed at
the polls, the allotment taking place in accordance with the list
system formulated by Victor d'Hondt, of the University of Ghent. The
number of deputies elected in an arrondissement varies from three to
twenty-one. When an elector appears at the polls he presents his
official "summons" to vote and receives from the presiding officer
one, two, or three ballot papers according to the number of votes to
which he is entitled. He takes these papers to a private compartment,
marks them, places them in the ballot-box, and has returned to him his
letter of summons stamped in such a way as to show that he has
fulfilled the obligation imposed upon him by law. The candidates of
the various parties are presented in lists, and the task of the
elector is merely to indicate his approval of one list for each of the
votes to which he is entitled. This he does by pencilling white spots
contained in the black squares at the head of the lists or against the
names of individual candidates. He may pencil only the spot at the (p. 544)
head of a list, thereby approving the order in which the candidates
have been arranged by the party managers; or, by marking spaces
opposite names of candidates, he may indicate his preference for a
different order.
[Footnote 763: Another interesting proposal in 1893
was that at the discretion of the crown a
legislative measure might be submitted to direct
popular vote. By reason of the fear that such a
scheme would vest in the crown an excess of power
the experiment was not tried.]
*598. How Seats Are Allotted.*--The process of the apportionment of
seats may be illustrated by a hypothetical case. Let it be assumed
that within a given arrondissement four lists of parliamentary
candidates have been presented and that at the polls an aggregate vote
of 33,000 is distributed as follows: Catholics, 16,000; Liberals,
9,000; Socialists, 4,500; and Christian Democrats, 3,500. Let it be
assumed, further, that the arrondissement is entitled to eight seats.
The total number of votes for each list is divided successively by the
numbers 1, 2, 3, 4, etc., and the results are arrayed thus:
_Christian_
_Catholic_ _Liberal_ _Socialist_ _Democrat_
_List_[764] _List_ _List_ _List_
Divided by 1 16,000 9,000 4,500 3,500
Divided by 2 8,000 4,500 2,250 1,750
Divided by 3 5,333 3,000 1,500 1,166
Divided by 4 4,000 2,250 1,125 875
Divided by 5 3,200 1,800 900 700
[Footnote 764: In point of fact, the lists as
published and as placed before the voter are
indicated merely by number.]
The eight highest numbers (eight being the number of seats to be
filled) are then arranged in order of magnitude as follows:
16,000
9,000
8,000
5,333
4,500
4,500
4,000
3,500
The lowest of these numbers, 3,500, becomes the common divisor, or the
"electoral quotient." The number of votes cast for each list is
divided by this quotient, and the resulting numbers (fractions being
disregarded) indicate the quota of seats to which each of the parties
is entitled. In the case in hand the results would be:
16,000 divided by 3,500 = 4 Catholic seats
9,000 divided by 3,500 = 2 Liberal seats
4,500 divided by 3,500 = 1 Socialist seat
3,500 divided by 3,500 = 1 Christian Democrat seat
*599. The Making up of the Lists.*--Lists of candidates are made (p. 545)
up, and the order in which the names of candidates appear is
determined, by the local organizations of the respective parties. In
order to be presented to the electorate a list must have the
previously expressed support of at least one hundred electors. A
candidate may stand as an independent, and his name will appear in a
separate "list," providing his candidacy meets the condition that has
been mentioned; and it is within the right of any organization or
group, political or non-political, to place before the electorate a
list. The power of the organization responsible for the presentation
of a list to fix the order of candidates' names is not a necessary
feature of the proportional system and it has been the object of much
criticism, but it is not clear that serious abuse has arisen from it.
Candidates whose names stand near the top of the list are, of course,
more likely to be elected than those whose names appear further down,
for, under the prevailing rules, all votes indicated in the space at
the head of a list form a pool from which the candidates on the list
draw in succession as many votes as may be necessary to make their
individual total equal to the electoral quotient, the process
continuing until the pool is exhausted. Only by receiving a large
number of individual preferential votes can a candidate be elected to
the exclusion of a candidate whose name precedes his.[765]
[Footnote 765: Valuable books dealing with
proportional representation in Belgium are G.
Lachapelle, La représentation proportionnelle en
France et en Belgique (Paris, 1911); F. Goblet
d'Alviella, La représentation proportionelle en
Belgique, and La représentation proportionelle
intégrale (Paris, 1910); Barriéty, La
représentation proportionelle en Belgique (Paris,
1906); Dubois, La représentation proportionelle
soumise à l'expérience belge (Lille, 1906); and J.
Humphreys, Proportional Representation (London,
1911). A careful account is contained in the Report
and Evidence of the British Royal Commission on
Electoral Systems (1910), Report, Cd. 5,163;
Evidence, Cd. 5,352. Useful articles are: E.
Mahaim, Proportional Representation and the Debates
upon the Electoral Question in Belgium, in _Annals
of American Academy of Political and Social
Science_, May, 1900; E. Van der Smissen, La
représentation proportionnelle en Belgique et les
élections générales de mai 1900, in _Annales des
Sciences Politiques_, July-Sept., 1900; and J.
Humphreys, Proportional Representation in Belgium,
in _Contemporary Review_, Oct., 1908.]
*600. The Elections of 1906, 1908, and 1910.*--The first parliamentary
election following the adoption of the proportional system--that of
May, 1900--left the Catholics with a larger preponderance in the lower
chamber than they had dared expect.[766] None the less, the effect of
the change was distinctly to revive the all but defunct Liberal party,
to stimulate enormously the aspirations of the Socialists, and, in (p. 546)
general, to replace the crushing Catholic plurality of former years by
a wide distribution of seats among representatives of the various
parties and groups. Prior to the election of 1890 the Catholic
majority was 32. The election of 1900 left it at 16; that of 1902, at
26; that of 1904, at 20; that of 1906, at 12; that of 1908, at 8; and
that of 1910, at 6. Following the elections which took place in five
of the nine provinces in 1906, party strength in the Chamber was as
follows: Catholics, 89; Liberals, 46; Socialists, 30; Christian
Democrats, 1. After the elections in the other four provinces in 1908,
it was: Catholics, 87; Liberals, 43; Socialists, 35; Christian
Democrats, 1.
[Footnote 766: It will be recalled that the term of
deputies is four years, half retiring every two
years. There is, therefore, a parliamentary
election, but not throughout the entire country,
every second year.]
The elections of May, 1910,[767] were contested with unusual keenness
by reason of the fact that the Liberal-Socialist coalition seemed to
have, for the first time in a quarter of a century, a distinct chance
for victory. The Catholics were notoriously divided upon certain
public issues, notably Premier Schollaert's Compulsory Military
Service bill, and it was believed in many quarters that their tenure
of power was near an end. The Liberal hope, however, was doomed to
disappointment; for, although both Liberals and Socialists realized
considerable gains in the popular vote in some portions of the
kingdom, in only a single constituency was the gain sufficient to
carry a new seat. The consequence was that the Catholic majority was
reduced, but not below six, and party strength in the Chamber stood:
Catholics, 86; Liberals, 45; Socialists, 34; Christian Democrats, 1.
Among reasons that may be assigned for the Liberal failure are the
fact that the country was prosperous and not disposed to precipitate a
change of governments, the alienation of some voters by the working
relations that had been established between the Liberals and the
Socialists, and the advantage that regularly accrues to the Catholics
from the plural vote.
[Footnote 767: In the five provinces of Brabant,
Anvers, Namur, West Flanders, and Luxemburg, the
term of whose deputies was about to expire.]
*601. The Catholic Triumph in 1912.*--During the years 1910-1912 the
Catholic tenure of power, prolonged uninterruptedly since 1884, seemed
more than once on the point of being broken. Most of the time,
however, the legislative machine performed its functions sufficiently
well with a majority of but half a dozen seats, and the drift of
affairs operated eventually to strengthen the Catholic position. In
March, 1911, Premier Schollaert introduced an education bill looking
toward the placing of church schools upon a footing financially with
the schools maintained by the communes, and the opposition to this
measure acquired such intensity that the author of the bill was forced
to retire. But his successor, De Broqueville, a man of conciliatory
temperament, formed a new Catholic cabinet which, by falling back (p. 547)
upon a policy of "marking time," contrived to stave off a genuine
defeat. In the municipal elections held throughout the country October
15, 1911, the Liberal-Socialist candidates were very generally
successful, but the parliamentary elections which took place June 2,
1912, had the unexpected result of entrenching the Catholic party more
securely in power than in upwards of a decade. The combined assault of
the Liberals and the Socialists upon "clericalism" fell flat, and
against the Government's contention that the extraordinary and
incontestable prosperity of the country merited a continuance of
Catholic rule no arguments were forthcoming which carried conviction
among the voters. The Catholic vote showed an increase of 130,610, the
Liberal and Socialist opposition an increase of 40,402, and the
Christian Democrats a decrease of 4,692. The new chamber consists of
101 Catholics, 45 Liberals, 38 Socialists, and 2 Christian Democrats,
giving the Government a clear majority of sixteen. The elections were
marked by grave public unrest, involving widespread strikes and
anti-clerical demonstrations, with some loss of life. More clearly
than before was exhibited in this campaign the essentially bourgeois
and doctrinaire character of the present Liberal party. The intimate
touch with the masses which in the days of its ascendancy, prior to
1884, the party enjoyed has been lost, and more and more the
proletariat is looking to the Socialists for propagation of the
measures required for social and industrial amelioration.
*602. The Demand for Further Reform.*--A project upon which the
Socialists and Liberals in the last election, as upon several former
occasions, have found it possible to unite is the abolition of the
plural vote. Almost immediately after the adoption of the amendment of
1893 the Socialists declared their purpose to wage war unremittingly
upon this feature of the new system. In its stead they demanded that
there be substituted the rule of _un homme, un vote_, "one man, one
vote," with the age limit reduced to twenty-one years. Following the
triumph of the Catholics in 1900, the agitation of the Socialists was
redoubled, and in it the Liberals very generally joined. Between the
two groups there arose seemingly irreconcilable differences of method,
the Liberals being unable to approve the obstructionism and other
violent means employed by their allies. In time, however, the
Socialist methods became more moderate, and the realization on the
part of both elements that only by fighting together might they hope
to win induced a fuller and more durable co-operation between the two.
For the time being the Socialists have subordinated to the establishment
of universal and equal suffrage all other features of their political and
industrial programme.[768] Upon the desirability of maintaining (p. 548)
proportional representation all parties are agreed, and it is probably
but a question of time until the principle will be applied fully, as
it is not to-day, in the elections of the provinces and communes.
[Footnote 768: August 15, 1911, Socialists and
Liberals combined in an anti-plural-vote
demonstration in Brussels in which 150,000 people
are estimated to have taken part. For an able
defense of plural voting under the system
prevailing in Belgium see L. Dupriez,
L'Organisation du suffrage universel en Belgique.
Cf. E. Van der Smissen, La question du suffrage
universel en Belgique, in _Annales des Sciences
Politiques_, Sept., 1902. On recent aspects of
Belgian politics consult L. Dupriez, L'évolution
des partis politiques en Belgique et les élections
de mai 1906, ibid., Sept., 1906; A. Kahn, Les
élections belges, in _Questions Diplomatiques et
Coloniales_, June 16, 1910; and J. Van den Heuvel,
Les élections belges, in _Le Correspondant_, June
25, 1912. J. H. Humphreys, Proportional
Representation in Belgium, in _Contemporary
Review_, Oct., 1908, contains a concrete account of
the elections of 1908. A useful volume is A.
Fromes, Code électoral belge (Brussels, 1908).]
*603. The Legislative Chambers: Organization and Procedure.*--The two
houses meet by established right on the second Tuesday in November of
each year, at the Palais de la Nation, in Brussels. A regular session
must continue through a period of at least forty days. The king may
convene the chambers in extraordinary session. He may adjourn them,
save that in no case may an adjournment exceed the term of one month;
nor may it be renewed during the same session, without the consent of
the houses. Finally, the king may dissolve the chambers, or either of
them; but the act of dissolution must include an order for an election
within forty days and a summons of the newly elected parliament to
meet within two months.[769]
[Footnote 769: Arts. 70-72. Dodd, Modern
Constitutions, I., 137.]
Each house judges the qualifications of its members and decides all
contests arising in relation thereto; each elects, at the opening of a
session, its president, vice-president, secretaries, and other
officials; each determines by its own rules the manner in which its
powers shall be exercised. Sessions are normally public; but by vote
of an absolute majority, taken at the instigation of the president or
of ten members, either body may decide to consider a specific subject
behind closed doors. Votes are taken _viva voce_ or by rising, but a
vote on a bill as a whole must always be by roll call and _viva voce_.
Except on propositions pertaining to constitutional amendments and a
few matters (upon which a two-thirds vote is required), measures are
passed by absolute majority. They must, however, be voted upon article
by article.
From the essentially democratic character of the Belgian government,
it follows that the powers of the legislative chambers are comprehensive.
The functions of legislation are vested by the constitution conjointly
in the king and the two houses, but in practice they are exercised (p. 549)
in a very large measure by the houses alone. Each house, as well as
the crown, possesses full rights of legislative initiative, though it
is required that all laws relating to the revenues or expenditures of
the state, or to military contingents, shall be voted first by the
House of Representatives. Authoritative interpretation of measures
enacted is confided exclusively to the legislative power, and each
house is guaranteed the right to inquire into the conduct of public
affairs and to compel the attendance of ministers for the purpose of
interpellation, although the lower house alone is given power to
formulate charges against public officials and to arraign them before
the Court of Cassation.
IV. THE JUDICIARY AND LOCAL GOVERNMENT
*604. The Courts.*--Aside from special military, commercial, and labor
tribunals, the courts of Belgium comprise a symmetrical hierarchy
modelled upon that created under the Code Napoléon. At the bottom are
the courts of the 222 cantons, each consisting of a single justice of
the peace, vested in ordinary breaches of police regulations with sole
authority, though in more serious cases associated with the
burgomaster of the commune. Next above are the tribunals of first
instance, one in each of the twenty-six arrondissements into which the
kingdom is divided, and each consisting of three judges. The court of
first instance serves as a court of appeal from the decisions of the
cantonal tribunal, and at the same time it possesses original
jurisdiction in more serious cases of crime and misdemeanors within
the arrondissement. Above the courts of first instance stand the three
courts of appeal, sitting at Brussels, Ghent, and Liège. That at
Brussels consists of four chambers. At the apex is the Court of
Cassation, sitting at the capital. In this supreme tribunal there is
but a single judge, but associated with him is a large staff of
assistants. The function of the Court of Cassation is to determine
whether the decisions of inferior tribunals are in accord with the law
and to annul such as are not. It is of interest to observe, however,
that it is the Court of Cassation that tries a minister upon charges
preferred by the House of Representatives, and this is the only
circumstance under which the tribunal exercises any measure of
original jurisdiction. The creation of the Court of Cassation and of
the three courts of appeal is specifically provided for within the
constitution. All inferior tribunals are created by law, and none are
permitted to be established otherwise. For the trial of criminal cases
there are special tribunals, in three grades: police courts,
correctional courts, and courts of assize.
All judges and justices of the peace are appointed by the king for
life. Members of the courts of appeal and the presidents and (p. 550)
vice-presidents of the courts of original jurisdiction are selected
from two double lists presented, the one by these courts and the other
by the provincial councils. Members of the Court of Cassation are
selected from two double lists presented, the one by the Senate and
the other by the Court itself. All other judicial officers are
appointed by the crown independently. Except for urgent reasons of
public order or morals, sessions of all tribunals are public, and
every judgment must be pronounced in open court. Unlike Holland,
Belgium has a well developed system of trial by jury. Jury trial is
guaranteed by the constitution in all criminal cases and in all cases
involving political or press offenses. As in England and the United
States, it is the function of the jury to determine whether or not the
accused is guilty and that of the court to explain the law and to
pronounce sentence. A jury consists regularly of twelve members.[770]
[Footnote 770: Arts. 92-107. Dodd, Modern
Constitutions, I., 140-142. Roubion, La séparation
des pouvoirs administratif et judiciaire en
Belgique (Paris, 1905).]
*605. Local Government: Province and Arrondissement.*--Upon the subject
of local government the constitution of Belgium is less explicit than
is that of Holland. Aside from specifying that provincial and communal
institutions shall be regulated by law, it contents itself with an
enumeration of certain principles--among them direct elections,
publicity of sittings of provincial and communal councils, publicity
of budgets and accounts--whose application is regularly to be
maintained.[771] Of local governmental units there are three:[772] the
province, the arrondissement, and the commune. The provinces are nine
in number.[773] In each is a council, elected by all resident citizens
who are entitled to participate in the direct election of senators.
The term is eight years, half of the membership being renewed every
four years. The council meets at least once a year, on the first
Tuesday in July. Its sessions must not exceed four weeks in length nor
be briefer than fifteen days. Special sessions may be called by the
king. The council considers and takes action upon substantially all
legislative, administrative, and fiscal affairs which concern the
province alone. It elects from its own members a permanent deputation
of six men which is charged with the government of the province while
the council is not in session. This deputation is presided over by the
governor-general of the province who is appointed by the crown and
who serves as the principal intermediary between the provincial (p. 551)
and the central governments.
[Footnote 771: Arts. 108-109. Dodd, Modern
Constitutions, I., 142-143.]
[Footnote 772: Not including the canton, which
exists purely for judicial purposes. It is the
jurisdiction of the justice of the peace.]
[Footnote 773: Antwerp, Brabant, East Flanders,
West Flanders, Hainaut, Liège, Limburg, Luxemburg,
and Namur.]
The arrondissement, or district (twenty-six in number), is important
chiefly as an electoral and judicial unit. Members of the lower house
of the national parliament are elected within the arrondissement under
the scheme of proportional representation which has been described;
and, as has been pointed out, each arrondissement is the seat of a
court of first instance.
*606. The Commune.*--In Belgium, as in France and other continental
countries, the vital organism of local government is the commune. The
total number of communes in the kingdom is 2,629. The principal agency
of government within each is a council. Members of this council are
elected for a term of eight years, under arrangements of a somewhat
complicated character determined by the population of the commune.
Voting is _viva voce_; plural votes (to a maximum of four) are
authorized; and seats, under certain conditions, are allocated in
accordance with the principle of proportional representation. A
somewhat singular fact is that the aggregate communal electorate of
the kingdom is perceptibly smaller than the provincial or the
national. The fact arises largely from the circumstance that the
communal voter is required to have been domiciled at least three years
in the commune, while residence of but a single year is required for
participation in provincial and parliamentary elections.[774]
[Footnote 774: In 1902, 1,146,482 communal electors
cast a total of 2,007,704 votes. In 1910-1911 there
were 1,440,141 provincial, and 1,300,514 communal,
voters.]
The administrative body of the commune consists of a burgomaster, or
mayor, appointed by the crown (in communes whose population exceeds
5,000 elected by the communal council) for a term of ten years, and a
college of _échevins_, or aldermen, elected by and from the communal
council. The burgomaster is head of the local police, and to him and
to the council fall the keeping of the register of births, marriages,
and deaths, the making and enforcing of local ordinances, and, in
general, the safeguarding of the welfare of the community. The more
important measures of the communal council become valid only after
they have received the approval of the provincial deputation, or even
of the ministry at Brussels; and there are special officials, known as
_commissaires d'arrondissement_, appointed by the provincial
deputation, to maintain supervision over the communes and their
governing authorities. A fundamental characteristic, indeed, of
Belgian administration is the combination of constant supervision by
the central power with a really large measure of local autonomy.[775]
[Footnote 775: Dupriez, Les Ministres, 262-276; E.
de Laveleye, Local Government and Taxation, in
Cobden Club Essays (London, 1875).]
PART VIII.--SCANDINAVIA (p. 553)
CHAPTER XXX
THE GOVERNMENT OF DENMARK
I. DEVELOPMENT PRIOR TO 1814
The kingdom of Denmark is among the smallest of European states. Its
area is but 15,582 square miles, which is less than one-third of that
of the state of New York, and its population, according to the returns
of 1911, is but 2,775,076. The nation is one whose social experiments,
economic enterprises, and political practices abound in interest. As a
power, it counts nowadays for little. Time was, however, when it
counted for much, and the developments by which the kingdom has been
reduced to its present status among the nations comprise one of the
remarkable chapters of modern European history.
*607. Union of Kalmar, 1397.*--The maximum of Danish dominion was
attained by virtue of the Union of Kalmar, in 1397, whereby the three
kingdoms of Denmark, Norway, and Sweden were united under the regency
of Margaret, daughter of the Danish king Valdemar IV.[776] By the
terms of this arrangement the native institutions and the separate
administration of each of the three states were guaranteed; and, in
point of fact, so powerless at times during succeeding generations was
the Danish sovereign in his over-sea dominions that for all practical
purposes each of the three affiliated kingdoms may be regarded as
having retained essentially its original independence. During an
extended period at the middle of the fifteenth century Sweden even had
a king of her own. None the less, there was a form of union, and at
times the preponderance of Denmark tended to reduce the northern
nations to the status of mere dependencies. The union with Sweden
lasted only a century and a quarter. Under the leadership of Gustavus
Vasa the Swedish people, in 1523, effectually regained their
independence, although in accordance with the Treaty of Malmö, in
1524, certain of the southernmost Swedish provinces remained for a
time under Danish control.[777] It was the lot of Norway, on the (p. 554)
other hand, not alone to be brought more thoroughly into subjection to
Denmark than was Sweden, but to continue under Danish sovereignty
until 1814, and even at that date to pass instantly from the control
of Denmark into that of Sweden, rather than to regain her ancient
independence.
[Footnote 776: The nominal sovereign was Margaret's
great-nephew, Eric of Pomerania, who was elected at
a convention of representatives of the three
kingdoms held simultaneously with the establishment
of the Union. Eric was deposed in 1439.]
[Footnote 777: R. N. Bain, Scandinavia, a Political
History of Denmark, Norway, and Sweden (Cambridge,
1905), Chap. 3; P. B. Watson, The Swedish
Revolution under Gustavus Vasa (London, 1889).]
*608. The Loss of Norway, 1814.*--The loss of Norway by Denmark was an
incident of the Napoleonic wars. During the course of those wars
Denmark, as long as was practicable, maintained a policy of
neutrality. But in 1807, after she had rejected an offer of a British
alliance, she was attacked by a British fleet, and thereupon she
became the firmest and most persistent of the allies of Napoleon. Thus
it came about that when the contest of the powers drew to an end
Denmark had the misfortune to be found upon the losing side. Sweden
stood with the Allies, and the upshot was that, to compensate that
nation for her loss of Finland to Russia and of Pomerania to Prussia,
the Allies gave their consent, in 1812-1813, to the dismemberment by
Sweden of the Danish dominion. The work was accomplished by the French
marshal Bernadotte, crown prince of Sweden (by adoption) from 1810,
and later king (1818-1844). By the Treaty of Kiel, January 14, 1814,
Norway was ceded perforce by Denmark to Sweden, and by the Congress of
Vienna, later in the year, the transfer was accorded the formal
approval of the powers. The Norwegians objected and proceeded to elect
as their king a Danish prince; but in the end they were compelled to
submit. Denmark was unable to do more than make ineffectual protest.
*609. Political Development: the Revolution of 1660.*--The governmental
system with which Denmark emerged from the era of Napoleon was
essentially that which had been in operation in the kingdom since the
second half of the seventeenth century. Prior to a remarkable
revolution which, in 1660, followed the conclusion of a costly war
with Sweden, monarchy in Denmark was limited and almost uniformly
weak. Through three hundred years the kings were elected by the
Rigsrad, or senate, and the conditions of their tenure were such as to
preclude both the independence of action and the accumulation of
resources which is essential to absolutism. As early as 1282 the
nobles were able to extort from the crown a _haandfaestning_, or
charter, and almost every sovereign after that date was compelled,
once at least during his reign, to make a grant of chartered
privileges. To the Danehof, or national assembly, fell at times a (p. 555)
goodly measure of authority, although eventually it was the Rigsrad
that procured the supreme control of the state. The national assembly
comprised the three estates of the nobles, the clergy, and the
burgesses;[778] the senate was a purely aristocratic body.
[Footnote 778: In the Swedish diet the peasantry
constituted a fourth estate, but in Denmark no
political power was possessed by this class.]
In 1660 there occurred a revolution in consequence of which the
monarchy was rehabilitated and a governmental system which long had
been notoriously disjointed and inefficient was replaced by a system
which, if despotic, was at least much superior to that which
theretofore had been in operation. The nobles, discredited by the
calamities which their misrule had brought upon the nation, were
compelled to give way, and the estates represented in the Danehof
surrendered, in a measure voluntarily, a considerable portion of the
privileges to which they had been accustomed to lay claim. The
monarchy was put once more upon an hereditary basis and its powers
were materially enlarged. The intent of the aggressive sovereign of
the day, Frederick III., was to proceed with caution, but not to stop
halfway. By the promulgation of two monumental documents the road was
thrown open to thoroughgoing absolutism. One of these was the
"Instrument, or Pragmatic Sanction, of the King's Hereditary Right to
the Kingdoms of Denmark and Norway," dated January 10, 1661. The other
was the _Kongelov_, or "King's Law," of November 14, 1665, a state
paper which has been declared to have "the highly dubious honor of
being the one written law in the civilized world which fearlessly
carries out absolutism to its last consequences."[779] In the
_Kongelov_ it was made _lèse-majesté_ in any manner to usurp or
infringe the king's absolute authority; it was asserted that the
moment the sovereign ascends the throne crown and scepter are vested
in him by his own right; and the sole obligation of the king was
affirmed to be to maintain the indivisibility of the realm, to
preserve the Christian faith in accordance with the Augsburg
Confession, and to execute faithfully all of the provisions of the
_Kongelov_ itself. Such were the principles upon which, during upwards
of two centuries thereafter, the government of the Danish kingdom was
based. Absolutism was all but unrelieved; but it is only fair to add
that most of the sovereigns, according to the light which they
possessed, sought to govern in the interest of their subjects.[780]
[Footnote 779: Bain, Scandinavia, 266.]
[Footnote 780: For sketches of Danish political
history prior to 1814 see Bain, Scandinavia, Chaps.
2, 4, 7, 10, 15; Lavisse et Rambaud, Histoire
Générale, III., Chap. 14, IV., Chap. 15; VI., Chap.
17; VII., Chap. 23; IX., Chap. 23. An important
Danish work is P. F. Barfod, Danmarks Historie,
1319-1536 (Copenhagen, 1885).]
II. THE RISE OF CONSTITUTIONALISM, 1814-1866 (p. 556)
*610. The Provincial Diets.*--Gradually after 1814 the kingdom recovered
from the depression into which by its loss of territory and its
staggering indebtedness it had been plunged, and with the recovery
came a revived political spirit as well as a fresh economic stimulus.
The sixteen years between the Treaty of Kiel and the revolutionary
year 1830 were almost absolutely devoid of political agitation, but
after 1830 there set in, in Denmark as in most continental countries,
a liberal movement whose object was nothing less than the
establishment of a constitutional system of government. To meet in
some measure the demands which were made upon him, King Frederick VI.
called into being, by decrees of 1831 and 1834, four Landtags, or
diets, one in each of the provinces of the realm--Schleswig, Holstein,
Jutland, and the Islands.[781] The members of these assemblies,
comprising burgesses, landowners, and peasants, were to be chosen by
the landed proprietors for a term of six years, and they were to meet
biennially for the discussion of laws and taxes and the drawing up of
petitions. A few landowners, professors, and ecclesiastics were to be
appointed to membership by the crown. The function of each of the four
bodies was purely consultative.
[Footnote 781: The ordinance establishing the
provincial assemblies was promulgated May 28, 1831,
but the assemblies did not come into existence
until after the supplementary decrees of May 15,
1834. In 1843 Iceland was granted "home rule," with
the right to maintain an independent legislature.]
*611. Royal Opposition to Reform.*--From the point of view of the
Liberals, whose aim was the institution of a national parliamentary
system, the king's concession was too meager to comprise more than a
bare beginning. Throughout the remainder of the reign agitation was
kept up, although at the hand of a sovereign whose fundamental
political principle was the divine right of kings, little that was
more substantial was to be expected. Christian VIII., who succeeded
Frederick in December, 1839, brought with him to the throne a
reputation for enlightened and progressive views. Further, however,
than to pledge himself to certain administrative reforms the new
sovereign displayed scant willingness to go. One liberal project after
another was repelled, and press prosecutions and other coercive
measures were brought to bear to discourage propaganda. It was in this
period, however, that there arose a preponderating issue whose
settlement was destined eventually to exert a powerful influence in
the establishment of constitutional government in Denmark, i.e., the
question of the policy to be pursued in respect to the affiliated
duchies of Schleswig, Holstein, and Lauenburg.[782] During the (p. 557)
later years of the reign successive ministries grappled vainly with
this problem, and the political forces of the kingdom came to be
divided with unprecedented sharpness by the conflict between the
separatist tendency and the demand for immediate and complete
incorporation. The king himself was brought eventually to consent to
the framing of a constitution for the whole of his dominions, as a
means of holding the realm together; but he died, January 20, 1848,
before the task had been completed.
[Footnote 782: Holstein and Lauenburg were German
in population and were members of the German
Confederation. Southern Schleswig also was
inhabited by German-speaking people, though the
duchy did not belong to the Confederation.
Schleswig and Holstein had been joined with Denmark
under a precarious form of union since the Middle
Ages. Lauenburg was acquired, with the assent of
the Allies, in 1814-1815 in partial compensation
for the loss of Norway.]
*612. The Constitutions of 1848-1849.*--Within eight days the
constitution was promulgated by the new sovereign, Frederick VII.
Under its provisions there was established a parliament representative
of all of the Danish dominions. Neither the Danes nor the inhabitants
of the duchies, however, were satisfied, and in Holstein there broke
out open rebellion. Prussia intervened in behalf of the disaffected
duchies, and Great Britain and Russia in behalf of the Danish
Government. The result was the triumph of the Government; but in the
meantime the rescript by which the common constitution had been
promulgated was withdrawn. In its place was published a decree which
provided for the establishment of a bicameral national assembly
(Rigsdag), of whose 152 members 38, nominated by the crown, were to
form a Landsthing, or upper chamber, and the remaining 114, elected by
the people, were to comprise a Folkething, or house of representatives.
In the early summer of 1849 a constitution embodying these
arrangements was drawn up; and June 5, after having been adopted by
the new Rigsdag, the instrument was approved by the crown. For the
moment the question of the duchies seemed insoluble, and this second
constitution was extended to Jutland and the Islands only, i.e., to
Denmark proper. Its adoption, however, is a landmark in Danish
constitutional history. Under its terms the autocracy of the
_Kongelov_ was formally abandoned and in its place was substituted a
limited monarchy in which legislative powers were to be shared by the
crown with an elective diet and the executive authority was to be
exercised by ministers responsible to the legislative body. As will
appear, it was this constitution of June 5, 1849, that, with revision,
became permanently the fundamental law of the kingdom.[783]
[Footnote 783: Bain, Scandinavia, Chap. 16;
Cambridge Modern History, XI., Chap. 24
(bibliography, pp. 961-962); Lavisse et Rambaud,
Histoire Générale, X., Chap. 18; C. F. Allen,
Histoire de Danemark depuis les temps les plus
reculés jusqu'à nos jours (Copenhagen, 1878).]
*613. The Problem of the Duchies.*--Following prolonged (p. 558)
international conferences, there was issued, January 28, 1852, a new
constitutional decree by which it was provided that the kingdom proper
and Schleswig, Holstein, and Lauenburg should have a common
constitution for common affairs, but that each of the territories
should enjoy autonomy in the management of its separate concerns. An
ultra-conservative constitution which had been worked out by the
Rigsdag in consultation with the Landtags of the duchies, was
promulgated October 2, 1855. No sooner had the instrument been put in
operation, however, than stubborn opposition to its provisions arose,
both from the duchies themselves and from the interested powers of
Germany. November 28, 1858, the Danish Government yielded in so far as
to consent to the withdrawal of the constitution from Holstein and
Lauenburg. Through several years thereafter the question of the
duchies overshadowed all else in Danish politics and in Danish
diplomatic relations. March 30, 1863, a royal decree recognized the
essential detachment of Holstein from the monarchy and vested the
legislative power of the duchy solely in the king and the local
estates. Later in the year, however, the premier Hall proposed and
carried through the Rigsdag a constitution which contemplated again
the incorporation of Schleswig with the kingdom. To this instrument
the Council of State, November 13, gave its assent, and, five days
later, with the approval of the new sovereign, Christian IX., it
became law. So far as Denmark was concerned, the solution of the
question of the duchies was now at hand. In the name of Prussia and
Austria, Bismarck demanded summarily that the November constitution be
rescinded. War ensued, and by the Treaty of Vienna, October 30, 1864,
Denmark, in defeat, yielded all claim to Schleswig, Holstein, and
Lauenburg. After continuing for a time a bone of contention between
the leading German states, these territories were incorporated,
subsequent to the Austro-Prussian war of 1866, in the kingdom of
Prussia. Denmark, shorn of a million of population and approximately
one-third of her territory, was reduced in power and area to
substantially her present proportions.[784]
[Footnote 784: Cambridge Modern History, XI., Chap.
16; Lavisse et Rambaud, Histoire Générale, XI.,
Chap. 12; J. W. Headlam, Bismarck and the
Foundation of the German Empire (New York, 1909),
Chap. 8; H. Delbrück, Der Deutsch-Dänische Krieg,
1864 (Berlin, 1905).]
*614. The Revised Constitution of 1866.*--The loss of the duchies, while
humiliating, cut the Gordian knot, of Danish political reconstruction.
July 28, 1866, the constitution of July 5, 1849, in revised form, (p. 559)
was re-issued, and this instrument continues to the present day the
fundamental law of the kingdom. Its ultimate adoption was the
achievement largely of the agricultural interests in the Rigsdag; but
the king, Christian IX., though not in sympathy with the parliamentary
ideal of government, gave it his cordial support. The constitution is
an elaborate document, in ninety-five articles. In addition to the
customary specifications relating to the executive, legislative, and
judicial departments of the government, it contains a wide variety of
guarantees respecting religion, freedom of speech and of the press,
liberty of assemblage and of petition, and uniformity of judicial
procedure, which, taken together, comprise a very substantial bill of
rights.[785] The method of its amendment is not materially unlike that
prevailing in Holland, Belgium, and a number of other continental
countries. Proposals regarding alterations or additions may be
submitted at any time within either branch of the Rigsdag. In the
event of the adoption of a proposal of the kind by both chambers, it
becomes the duty of the Government, provided it favors the change, to
dissolve the Rigsdag and to order a general election. If the newly
chosen Rigsdag adopts the proposed amendment without change and the
crown formally approves it, the modification goes forthwith into
effect.[786] Constitutional amendments since 1866 have been, however,
neither numerous nor important.[787]
[Footnote 785: Arts. 80-94. Dodd, Modern
Constitutions, I., 278-280.]
[Footnote 786: Art. 95. Ibid., I., 280.]
[Footnote 787: The text of the Danish constitution,
in English translation, is printed in Dodd, Modern
Constitutions, I., 267-281; H. Weitemeyer, Denmark
(London, 1891), 203-217; and British and Foreign
State Papers, LVIII. (1867-1868), 1,223 ff. The
best brief treatise on the Danish constitutional
system is C. Goos and H. Hansen, Das Staatsrecht
des Königsreichs Dänemark (Freiburg, 1889), in
Marquardsen's Handbuch. A Danish edition of this
work was issued at Copenhagen in 1890. The best
extended commentaries are H. Matzen, Den Danske
Statsforfatningsret (3d ed., Copenhagen, 1897-1901)
and C. G. Holck, Den Danske Statsforfatningsret
(Copenhagen, 1869). T. H. Aschehoug, Den Nordiske
Statsret (Copenhagen, 1885) is a useful study, from
a comparative point of view, of the constitutional
law of Denmark, Norway, and Sweden.]
III. THE CROWN AND THE MINISTRY
*615. The King: Status and Powers.*--The form of the Danish government
is declared by the constitution to be that of a limited monarchy.[788]
The throne is hereditary, and the succession is regulated by a law of
July 31, 1853, adopted in pursuance of the Treaty of London of May (p. 560)
8, 1852, wherein the powers bestowed the Danish succession upon Prince
Christian, of Schleswig-Holstein-Sonderburg-Glücksburg, and the direct
male descendants of his union with the Princess Louise of Hesse-Cassel,
niece of Christian VIII. of Denmark.[789] By the constitution it is
required of the king that he shall not become the ruler of any country
other than Denmark without the consent of the Rigsdag, that he shall
belong to the Evangelical Lutheran Church (the national church of
Denmark, supported by the state), and that before assuming the throne
he shall give in writing before the Council of State an assurance,
under oath, that he will maintain inviolate the constitution of the
kingdom.[790] The royal civil list is fixed by law for the term of the
reign. That of the present sovereign, Frederick VIII., is one million
kroner annually.
[Footnote 788: Art. 1. Dodd, Modern Constitutions,
I., 267.]
[Footnote 789: Prince Christian became, in 1863,
King Christian IX.]
[Footnote 790: One original text of this pledge
must be preserved in the archives of the crown,
another in those of the Rigsdag. Art. 7. Dodd,
Modern Constitutions, I., 267.]
The powers of the king are comprehensive. Within the limitations
prescribed by the constitution, he exercises "supreme authority over
all the affairs of the kingdom." He appoints to all offices, dismisses
from office, and transfers from one office to another. He declares war
and makes peace. He concludes and terminates treaties of alliance and
of commerce, on condition only that an agreement which involves a
cession of territory or a change of existing international relations
must receive the assent of the Rigsdag. He exercises the power of
pardon and of amnesty, save that without the consent of the Folkething
he may not relieve ministers of penalties arising from impeachment
proceedings. He grants such licenses and exemptions from the laws as
are authorized by statute. He convenes the Rigsdag in regular session
annually and in extraordinary session at will, adjourns it, and
dissolves either or both of the houses. He may submit to it projects
for consideration or drafts of laws, and his consent is necessary to
impart legal character to any of the measures which it enacts. He
orders the publication of statutes and sees that they are executed.
Finally, when the need is urgent and the Rigsdag is not in session, he
may promulgate ordinances, provided, first, that they are not contrary
to the constitution, and, second, that they are laid before the
Rigsdag at its ensuing meeting.
*616. The Ministry and the Parliamentary System.*--For the measures of
the government the king is not personally responsible. His powers are
exercised through ministers, who are appointed and may be removed by
him, and whose number and functions are left to his determination. The
ministries are nine in number, as follows: Foreign Affairs, (p. 561)
Interior, Justice, Finance, Commerce, Defense, Agriculture, Public
Works, and Public Instruction and Ecclesiastical Affairs. Collectively
the ministers form the Council of State, over which the king presides
and in which the heir to the throne, if of age, is entitled to a seat.
All laws and important public matters are apt normally to be discussed
in the Council of State. There is also, however, a Council of
Ministers, consisting simply of the nine heads of departments under
the presidency of an additional minister designated by the crown, and
to this body are referred in practice many minor subjects that call
for consideration.
The ministers, so the constitution affirms, are responsible for the
conduct of the government.[791] The king's signature of a measure
gives it legal character only if accompanied by the signature of one
or more of the ministers, and ministers may be called to account by
the Folkething, as well as by the king, for their conduct in office.
There is, furthermore, a special Court of Impeachment for the trial of
ministers against whom charges are brought. On the surface, these
arrangements seem to imply the existence of a parliamentary system of
government, with a ministry answerable singly and collectively to the
popular legislative chamber. In point of fact, however, there has been
all the while much less parliamentarism in Denmark than seemingly is
contemplated in the constitution, and it is hardly too much to say
that since the adoption of the present constitution the most
interminable of political controversies in the kingdom has been that
centering about the question of the responsibility of ministers. Until
at least within the past decade, the practice of the crown has been
regularly to appoint ministers independently and to maintain them in
office in disregard of, and even in defiance of, the wishes of the
popular branch of the legislature. The desire of the Liberals has been
to inaugurate a thoroughgoing parliamentary régime, under which the
sovereign should be obligated to select his ministers from the party
in control of the Folkething and the ministers, in turn, should be
responsible to the Folkething, in fact as well as in theory, for all
of their official acts. Throughout the prolonged period covered by the
ministry of Jakob Estrup (1875-1894) the conflict upon this issue was
incessant. During the whole of the period Estrup and his colleagues
commanded the support of a majority in the Landsthing, but were
accorded the votes of only a minority in the lower chamber. After the
elections of 1884, indeed, the Government could rely upon a total of
not more than nineteen votes in that chamber.
[Footnote 791: Art. 12. Dodd, Modern Constitutions,
I., 268.]
*617. The Establishment of Ministerial Responsibility.*--Under the
continued stress of this situation constitutionalism broke down (p. 562)
completely. The Government, finding its projects of military and
naval reform persistently thwarted and its budgets rejected, stretched
its prerogatives beyond all warrant of law. Provisional measures, in
the form of royal ordinances, and arbitrary decisions multiplied, and
budgets were adopted and carried into execution without so much as the
form of parliamentary sanction. In time the forces of opposition fell
into disagreement and the more moderate element was brought to the
point of compromise. Between the Conservatives and the National
Liberals, on the one hand, by whom the Government had been supported,
and the conciliatory element of the Liberal opposition, on the other,
a truce was arranged, and in 1894, for the first time in nine years,
it was found possible to enact the annual finance law in regular
manner. In this same year Estrup's retirement cleared the way for the
appointment of a moderate Conservative ministry. Under Estrup's
successors the conflict was continued, but not so vigorously as
before. More and more the political center of gravity shifted to the
Folkething, and when the general elections of 1901 returned to that
body an overwhelming majority of Liberals, Christian IX. was at last
compelled to give way and to call into being a Liberal ("Left Reform")
ministry. It is too much to say that the parliamentary system is as
yet completely established in Denmark. There is, however, a closer
approximation to it than ever before, and there is every prospect of
the ultimate and thorough triumph of the essential parliamentary
principle. In 1908, and again in 1909, a ministry was virtually forced
to resign by the pressure of parliamentary opposition.
IV. THE RIGSDAG--POLITICAL PARTIES
*618. The Landsthing.*--The Rigsdag is composed of two chambers--the
Landsthing, or Senate, and the Folkething, or House of Representatives.
The Landsthing consists of 66 members, of whom 12 are appointed by the
king, seven are elected in Copenhagen, 45 are elected in the larger
electoral divisions comprising rural districts and towns, one is
elected in Bornholm, and one is chosen by the Lagthing of the Faröe
Islands.[792] The king's appointment of members is made for life, from
among active or former members of the Folkething. Elected members
serve regularly eight years, one-half retiring every four years. The
seven members for Copenhagen are chosen by an electoral college
composed of (1) electors chosen by all citizens who are entitled (p. 563)
to vote for members of the Folkething, in the ratio of one elector for
every 120 voters or major fraction thereof, and (2) an equal number of
electors chosen by the voters who, during the preceding year, have
been assessed upon a taxable income of not less than 2,000
rix-dollars. The members elected from the rural districts and towns
are chosen indirectly, after a manner analogous to that in operation
in the capital.[793] The result is a very successful combination of
the principles of indirect popular election and indirect
representation of property. In all cases the election of members takes
place according to the principles of proportional representation.[794]
Every person eligible to the Folkething is eligible to the Landsthing,
provided he has resided in his electoral circle, or district, during
the year preceding his election.
[Footnote 792: Art. 34. Dodd, Modern Constitutions,
I., 272. The status of the Faröe Islands is that of
an integral portion of the kingdom, not that of a
dependency. It is analogous to the status of
Algeria in the French Republic. No other outlying
Danish territory is represented in the Rigsdag.]
[Footnote 793: For details see Art. 37 of the
constitution. Dodd, Modern Constitutions, I., 272.]
[Footnote 794: It is of interest to observe that
Denmark was the first nation to make use of a
system of proportional representation. The
principle was introduced originally as early as
1855, in the constitution promulgated in that year,
and it was retained through the constitutional
changes of 1863 and 1866, although its application
was restricted to the election of members of the
upper chamber. An account of its introduction is
contained in La représentation proportionnelle
(Paris, 1888), published by the French Society for
the Study of Proportional Representation.]
*619. The Folkething.*--The Folkething is composed of deputies chosen
directly by manhood suffrage for a term of three years. By the
constitution it is stipulated that as nearly as practicable there
shall be one member for every 16,000 inhabitants. In point of fact,
the total membership of the Chamber is but 114, whereas at the ratio
indicated it should be upwards of 170. Deputies are elected by secret
ballot (since 1901), in single-member districts. The franchise is
extended to all male citizens of good reputation who have attained the
age of thirty years, except those who are in actual receipt of public
charity, those who have at one time been recipients of public charity
and have rendered no reimbursement therefor, those who are in private
service and have no independent household establishment, and those who
are not in control of their own property. The voter must have resided
a minimum of one year in the circle in which he proposes to vote.[795]
With the exception of non-householders in private service, of persons
under guardianship, and of recipients of public charity, all male
citizens who have completed their twenty-fifth year are qualified for
election. Curiously enough, it is thus possible for a citizen to
become a member of the Folkething before he is old enough to vote at a
national election. Members of both chambers receive, in addition to
travelling expenses, regular payment for their services at the (p. 564)
rate of ten kroner per day during the first six months of a session,
and six kroner for each day thereafter.
[Footnote 795: Art. 30. Dodd, Modern Constitutions,
I., 271.]
During recent years there has been no small amount of agitation in
behalf of a more democratic electoral system. In April, 1908, there
was enacted an important piece of legislation whereby the franchise in
municipal elections was conferred upon all resident taxpayers of the
age of twenty-five, men and women alike; and, beginning with the
elections of 1909, women have both voted and held office regularly
within the municipalities. By the legislation of 1908 the number of
persons qualified to vote at local elections was practically doubled.
Early in 1910 a measure was passed in the Folkething whereby the age
limit for voters in parliamentary elections was reduced from thirty to
twenty-five years and the suffrage was conferred upon women and upon
persons engaged in service. This measure did not become law, but in
the Folkething elected May 20 of the same year Premier Berntsen
introduced a new bill of essentially the same nature. The question of
proportional representation was deferred, the bill providing for (1)
the reduction of the voting age to twenty-five; (2) the increase of
the number of deputies to 132; and (3) the extension of the suffrage
in national elections to women, together with eligibility for seats in
both of the legislative chambers. This measure likewise failed; but at
the opening of Parliament in October, 1912, fresh proposals upon the
subject were introduced.
*620. The Rigsdag: Sessions and Powers.*--The Rigsdag is required to
meet in regular session on the first Monday in October of every year.
Each house determines the validity of the election of its members;
each makes its own regulations concerning its order of business and
the maintenance of discipline; each elects its own president,
vice-presidents, and other officers. Each has the right to propose
bills, each may present addresses to the king, and the consent of each
is necessary to the enactment of any law. By provision of the
constitution the annual budget must be laid on the table of the
Folkething at the beginning of each regular session, and no tax may be
imposed, altered, or abolished save by law. Each house is required to
appoint two salaried auditors whose business it is to examine the
yearly public accounts and to determine whether there have been either
unrecorded revenues or unauthorized expenditures. For the adjustment
of conflicts between the two chambers there is provided a method
whereby there may be constituted a joint conference committee similar
to that employed under like circumstances in the American Congress.[796]
Sessions are public, and a majority of the membership constitutes (p. 565)
a quorum. With the consent of the house to which he belongs, any
member may propose subjects for consideration and may request
explanations from the Government concerning them. Ministers are
entitled to appear and to speak in either chamber as often as they may
desire, provided they do not otherwise infringe upon the order of
business. By reason of the uncertain status of ministerial
responsibility the right of interpellation means as yet but little in
practice. The minister may or may not reply to inquiries, and in any
case he is not obliged by unfavorable opinion or an adverse vote to
retire.
[Footnote 796: Art. 53. Dodd, Modern Constitutions,
I., 274.]
*621. Political Parties: the Ministry of Estrup, 1875-1894.*--Prior to
1848 the preponderating public issues of Denmark were concerned
chiefly with the introduction in the kingdom of a constitutional type
of government. Between 1848 and 1864, they related all but exclusively
to the status of the duchies of Schleswig, Holstein, and Lauenburg.
During the closing quarter of the past century they centered
principally in the titanic conflict which a growing and indomitable
majority in the Folkething, representing a no less determined majority
of the nation, waged with King Christian IX. and his advisers in
behalf of the enforcement of constitutional limitations upon the crown
and of ministerial responsibility to the national legislative body.
The prolonged struggle between the Government and the parliamentary
majority had its beginning in 1872, when the various radical groups in
the Folkething, drawing together under the designation of the United
Left, rejected a proposed budget and passed a vote of want of
confidence in the Conservative Government. The avowed purpose of the
disaffected elements was to force the ministry of Holstein of
Holsteinborg to retire, to compel the sovereign to select his
ministers from the parliamentary majority, and to enforce the
principle of ministerial responsibility to the lower legislative
chamber. Supported by the king and the Landsthing, however, the
ministry refused to resign. June 11, 1875, there was called to the
premiership an able and aggressive statesman, Jakob Estrup, who
through the next nineteen years continuously maintained the
Government's position against the most desperate of parliamentary
assaults. During the whole of this period Estrup commanded the support
of the Landsthing, but was opposed by large majorities in the
Folkething and throughout the country. The struggle raged principally
upon questions of finance. Estrup, who retained for himself the
portfolio of finance, was bent upon the strengthening of Danish
armaments, and over the protest of the Folkething huge budgets were
put into effect again and again by simple ordinance of the crown. From
1882 onwards ordinary legislation was at a standstill, and during (p. 566)
nine years after 1885 there was not one legal grant of supplies. The
constitution was reduced well nigh to waste paper.
*622. Later Conservative Governments: the Triumph of the Left.*--In 1886
the Radicals, despairing of overthrowing the Estrup government by
obstruction, resorted for the first time to negotiation. Not until
April 1, 1894, however, was the parliamentary majority able to agree
with the Government and the Landsthing upon a budget which, by being
made retroactive, legalized the irregular fiscal expedients of the
past two decades. In August of the same year Estrup was succeeded in
the premiership by Reedtz-Thott who, although a Conservative, and
hence a supporter of the Government's position, was more favorable to
conciliation than had been his predecessor. The struggle, however, was
by no means ended. The elections of 1895 and of 1898 resulted in
decisive victories for the Liberals and Radicals, and in the Chamber
the Government was confronted by an overwhelming majority comprising a
Moderate Left, a Reform or Radical Left, and a group of Social
Democrats. Even in the Landsthing the Government's hold was growing
less substantial. Reedtz-Thott, none the less, clung to office until
December, 1899, and after his retirement there followed two more
Conservative ministries--those of Hörring (December, 1899, to April,
1900) and of Sehested (April, 1900, to July, 1901).
On July 16, 1901, occurred the most notable political event in a
half-century of Danish history. Confronted by a majority of 106 to 8
in the Folkething, besieged by widespread popular opinion, and
possessing no longer a dependable majority in the Landsthing, the aged
Christian IX. gave way, with such grace as he could muster, and
summoned to the premiership Professor Deuntzer, by whom was
constituted a pure Left Reform ministry. At the partial elections of
September 19, 1902, the Conservatives lost absolutely their majority
in the upper chamber, while in the Folkething party strength was so
redistributed that, while the Conservatives retained their eight
seats, the Social Democrats acquired fourteen and the Left Reform
party seventy-seven. The elections of June 16, 1903, wrought but
insignificant changes of status.
*623. The Christensen Ministry (1905-1908) and the Elections of
1906.*--As was to be expected of a party whose rôle had been regularly
one of mere opposition, the Left Reform, after gaining office,
developed a certain amount of internal discord. In January, 1905, the
Deuntzer ministry broke up and a more homogeneous and moderate cabinet
was organized under the Left Reform leader Christensen. This ministry
contrived to retain office until October, 1908. At the elections of
May 29, 1906, the Government took its stand upon manhood suffrage (p. 567)
in parliamentary elections, equal suffrage in municipal elections (in
accordance with the principle of proportional representation) for all
taxpayers, and the reform of both the administrative and judicial
systems. Its bitterest opponents were its former allies, the Radical
Left (which had split off from the Left Reform party after the
formation of the Christensen ministry) and the Social Democrats,
though neither of these parties put forward a programme which was in
any measure specific. After an unusually spirited contest the
Government was found to have lost three seats, the Social Democrats to
have gained eight, the Radical Left to have lost four, and the
Conservatives to have gained two. The resulting grouping in the
Folkething was as follows: Left Reform (Ministerialists), 55; Moderate
Left, 9; Radical Left, 9; Social Democrats, 24; Conservatives, 13;
Independents, 3; member for Faröe Islands, 1. At the partial renewal
of the Landsthing in September, 1906, the Government lost five seats,
and with them the majority which, aided by the Moderate Left and the
Free Conservatives,[797] it had been able since 1901 to control. The
consequence of its losses was that the Christensen ministry drew
appreciably toward the Conservative elements of the Rigsdag, as
against the Radicals and Socialists.
[Footnote 797: A group which, after the formation
of the Deuntzer ministry, split off from the
Conservatives in the upper chamber.]
*624. Ministerial Instability, 1908-1912.*--October 11, 1908, largely by
reason of the scandal in which it was involved by the embezzlements of
the minister of the interior Alberti, the ministry of Christensen was
replaced by a cabinet formed by Neergaard. It in turn retired, July
31, 1909, defeated upon bills to which it was committed for the
strengthening of the national fortifications. The Holstein-Ledreborg
ministry which succeeded was able to secure the passage of the bills,
but, October 22, 1909, it was forced out on a vote of want of
confidence. At the election of May 25, 1909, in which the military
bills comprised the principal issue, the Left Reform government had
continued to lose ground, while the Radicals (though not the Social
Democrats) and the Conservatives had gained. October 28, 1909, a new
ministry was formed by the Radical leader Zahle. In the Folkething the
Radicals possessed 20 seats only, but with the aid of the Social
Democrats, possessing 24, they hoped to be able to attain some measure
of success. The hope proved vain. April 18, 1910, the Folkething was
dissolved, and there followed another spirited campaign in which the
military question was preponderant. The Radical government, with its
Socialist allies, went before the country on a platform which proposed
the repeal of the defense measures passed during the previous (p. 568)
year. But at the elections of May 20 both Radicals and Social Democrats
obtained precisely the respective number of seats which they had
before possessed, while 69 deputies were returned by the groups which
were favorable to the execution of the contested measures. July 1, the
Zahle ministry resigned and was succeeded by a cabinet formed by Klaus
Berntsen, leader of the Moderate Left. The new ministry, although
drawn exclusively from the Left, was well received by the Conservatives,
who pledged it their continued support against the Radical-Socialist
coalition.[798]
[Footnote 798: The salient facts relating to the
political history of Denmark since 1870 may be
gleaned from the successive volumes of the _Annual
Register_. Works of importance dealing with the
subject include N. Neergaard, Danmarks Riges
Historie siden 1852 (Copenhagen, 1909); H. Holm,
Forligets förste Rigsdagssamling 1894-1895
(Copenhagen, 1895), and Kampen om Ministeriet
Reedtz-Thott (Copenhagen, 1897); H. Barfod, Hans
Majestaet Kong Christian IX. (Copenhagen, 1888);
and A. Thorsöe, Kong Christian den Niende
(Copenhagen, 1905).]
V. THE JUDICIARY AND LOCAL GOVERNMENT
*625. General Principles: the Courts.*--In the Danish constitution there
are laid down a number of general principles with respect to the
judicial branch of the government, but the organization of the courts
is left almost entirely to be regulated by law. It is stipulated that
judges, who are appointed by the crown, may not be dismissed except in
consequence of judicial sentence, nor transferred against their wishes
from one tribunal to another, unless in the event of a reorganization
of the courts;[799] that they shall exercise their functions strictly
in compliance with law; that in criminal cases and cases involving
political offenses trial shall be by jury; that in the administration
of justice there shall be, so far as practicable, publicity and oral
procedure; and that it shall be within the competence of the courts to
decide all questions relative to the extent of the powers of the
public officials.
[Footnote 799: At the age of sixty-five they may be
retired on full salary.]
The tribunals that have been established by law comprise, beginning at
the bottom, the magistracies of the _herreds_, or hundreds, and the
justiceships of the towns; a superior court (_Overret_), with nine
judges, at Viborg, and another, with twenty judges, at Copenhagen; and
a Supreme Court (_Höjesteret_), with a chief justice, twelve associate
judges, and eleven special judges, at Copenhagen. Of hundred
magistrates (_herredsfogder_) and town justices (_byfogder_) there
are, in all, 126. Appeal in both civil and criminal cases lies from
them to the superior courts, and thence to the supreme tribunal. There
is, in addition, a Court of Impeachment (_Rigsret_), composed of the
members of the Supreme Court, together with an equal number of (p. 569)
members of the Landsthing elected by that body as judges for a term
of four years. The principal function of this tribunal is the trial of
charges brought against ministers by the king or by the
Folkething.[800]
[Footnote 800: Arts. 68-74. Dodd, Modern
Constitutions, I., 276-277.]
*626. The Administration of Justice Act, 1908.*--In May, 1908, a
long-standing demand of the more progressive jurists was met in part
by the passage of an elaborate Administration of Justice bill, whereby
there was carried further than previously the separation of the
general administrative system of the kingdom from the administration
of justice. Not until the enactment of this measure were the
constitutional guarantees of jury trial, publicity of judicial
proceedings, and the independence of the judiciary put effectively in
force. Curiously enough, the drafting and advocacy of the bill fell
principally to a minister, Alberti, who was on the point of being
proved one of the most deliberate criminals of the generation. The
measure, which comprised 1,015 clauses, introduced no modification in
the existing hierarchy of tribunals, but it readjusted in detail the
functions of the several courts and defined more specifically the
procedure to be employed in the trial of various kinds of cases. One
provision which it contains is that a jury shall consist of twelve
men, that any person who is eligible for election to the Folkething is
eligible for selection as a juryman, and that jury service is
obligatory. On the ground that it fell short of fulfilling the
essential pledges of the constitution, the Radical and Socialist
members of the Rigsdag vigorously opposed the measure.[801]
[Footnote 801: The bill was carried in the
Folkething by a vote of 57 to 42; in the Landsthing
by a vote of 38 to 5.]
*627. Local Government.*--For administrative purposes the kingdom is
divided into 18 Amter, or counties. In each is an Amtmand, or
governor, who is appointed by the crown, and an Amtsrad, or council,
composed of members elected indirectly within the county. The counties
are divided into hundreds, which exist principally for judicial
purposes, and the hundreds are divided into some 1,100 parishes. In
each town is a burgomaster, who is appointed by the crown, and who
governs with or without the assistance of aldermen. Copenhagen,
however, has an administrative system peculiar to itself. Its
burgomaster, elected by the town council, is merely confirmed by the
crown.
CHAPTER XXXI (p. 570)
THE SWEDISH-NORWEGIAN UNION AND THE GOVERNMENT OF NORWAY
I. POLITICAL DEVELOPMENT TO 1814
*628. Sweden in Earlier Modern Times.*--During the centuries which
intervened between the establishment of national independence under
the leadership of Gustavus Vasa in 1523 and the end of the Napoleonic
era, the political system of the kingdom of Sweden oscillated in a
remarkable manner between absolutism and liberalism. The establishment
of a national parliamentary assembly antedated the period of union
with Denmark (1397-1523); for it was in 1359 that King Magnus,
embarrassed by the unmanageableness of the nobility and obliged to
fall back upon the support of the middle classes, summoned
representatives of the towns to appear before the king along with the
nobles and clergy, and thus constituted the first Swedish Riksdag. By
an ordinance of Gustavus Adolphus in 1617, what had been a turbulent
and ill-organized body was transformed into a well-ordered national
assembly of four estates--the nobles, the clergy, the burghers, and
the peasants--each of which met and deliberated regularly apart from
the others. There was likewise a Rigsrad, or senate, which comprised
originally a grand council representative of the semi-feudal landed
aristocracy, but which by the seventeenth century had come to be
essentially a bureaucracy occupying the chief offices of state at the
pleasure of the crown. Under Gustavus Adolphus and his earlier
successors, especially Charles XI. (1660-1697), however, the
government took on the character of at least a semi-absolutism. The
Rigsdag retained the right to be consulted upon important foreign and
legislative questions, but the power of initiative was exercised by
the sovereign alone. The Riksdag of 1680 admitted that the king was
responsible for his acts only to God, and that between him and his
people no intermediary was needed; and in 1682 the same body
recognized as vested in the crown the right freely to interpret and
amend the law.[802]
[Footnote 802: Bain, Scandinavia, Chaps. 8, 11;
Cambridge Modern History, IV. Chaps. 5, 20; Lavisse
et Rambaud, Histoire Générale, III., Chap. 14; IV.;
Chap. 15.]
*629. Weakness of the Monarchy in the Eighteenth Century.*--A new (p. 571)
chapter in Swedish constitutional history was inaugurated by the
calamities incident to the turbulent reign of the Mad King of the
North, Charles XII. (1697-1718), and the Great Northern War, brought
to a culmination by the cession to Russia in the Peace of Nystad,
August 30, 1721, of all the Baltic provinces which Sweden had
possessed. Early in the reign of Frederick I. (1720-1751), chiefly by
laws of 1720-1723, the government was converted into one of the most
limited of monarchies in Europe. The sovereign was reduced, indeed, to
a mere puppet, his principal function being that of presiding over the
deliberations of the Rigsrad. Virtually all power was vested in the
Riksdag. A secret committee representative of the four estates
prepared all measures, controlled foreign relations, and appointed all
ministers, and laws of every kind were enacted by the affirmative vote
of three of the four orders. The constitutional system, while
nominally monarchical, became essentially republican. In operation,
however, it was hopelessly cumbersome, and throughout half a century
the political activities of the kingdom comprised little more than a
wearisome struggle of rival factions.[803]
[Footnote 803: Bain, Scandinavia, Chaps. 12-13;
Cambridge Modern History, V., Chaps. 18-19; Lavisse
et Rambaud, Histoire Générale, VI., Chap. 17.]
Under Gustavus III. (1771-1792), nephew of Frederick the Great of
Prussia, the pendulum swung back again distinctly toward absolutism.
The Riksdag, according to its custom, sought at the opening of the
reign to impose upon the new sovereign a renunciatory coronation oath.
Gustavus, however, raised objection, and the contest became so keen
that the king resolved upon a _coup d'état_ whereby to accomplish a
restoration of the pristine independence and vigor of the royal
office. The plan was laid with care and was executed with complete
success. August 20, 1772, there was forced upon the estates, almost at
the bayonet's point, a constitution which had been contrived
specifically to transform the weak and disjointed quasi-republic into
a compact monarchy. The monarchy was to be limited, it is true, but
the framework of the state was so reconstructed that the balance of
power was certain to incline toward the crown. Without the approval of
the Riksdag no law might be enacted and no tax levied; but the estates
might be summoned and dismissed freely by the king, and in him was
vested exclusively the power of legislative initiative. Under this
instrument the government of Gustavus III., and in even a larger
measure that of Gustavus IV. (1792-1809),[804] was pronouncedly
autocratic.
[Footnote 804: Gustavus IV., being a minor at his
accession, did not assume control of the government
until November 1, 1796.]
*630. Sweden in the Napoleonic Period.*--Sweden is one of the (p. 572)
many European nations which in the course of the Napoleonic period
acquired a new constitutional system, but one of the few in which the
fundamentals of the system at that time established have been
maintained continuously to the present day. Sweden was drawn into the
Napoleonic wars at an early stage of their progress. December 3, 1804,
Gustavus IV. cast in his fortunes on the side of the foes of France,
and although in 1806-1807 Napoleon sought to detach him from the
Allies, all effort in that direction failed. The position of Gustavus,
however, was undermined in his own country by his failure to defend
Finland on the occasion of the Russian invasion of 1808, and March 29,
1809, yielding to popular pressure, and hoping to save the crown for
his son, he abdicated. By the Riksdag the royal title, withheld from
the young Prince Gustavus, was bestowed upon the eldest brother of
Gustavus III., who, under the name of Charles XIII., was proclaimed
June 5. On the same day the Riksdag ratified formally an elaborate
_regerings-formen_, or fundamental law, which, amended from time to
time, has been preserved to the present day as the constitution of the
kingdom.[805]
[Footnote 805: See p. 589. Bain, Scandinavia, Chap.
14; Lavisse et Rambaud, Histoire Générale, VII.,
Chap. 23; VIII., Chap. 23.]
*631. Constitutional Development of Norway to 1814.*--During more than
four centuries, from the Union of Kalmar, in 1397, to the Treaty of
Kiel, January 14, 1814, Norway was continuously subordinated more or
less completely to Denmark. The political history and constitutional
development of the nation, therefore, had little opportunity to move
in normal channels. Prior to the Union the royal power was
considerable, and at times virtually absolute, although an ever
present obstacle to the consolidation of the monarchy was the
independent spirit of the nobility. By the fourteenth century,
however, the old landed aristocracy, decimated by civil war and
impoverished by the loss of the fur trade to Russia, had been so
weakened that it no longer endangered in any degree the royal
supremacy. From the end of the thirteenth century we hear of a
_palliment_, or parliament, which was summoned occasionally at the
pleasure of the king. But at no time had this gathering assumed the
character of an established national legislative body.
From the point of view of political status the history of Norway under
the Union falls into four fairly clearly marked periods. The first,
extending from 1397 to the accession of Christian I. in 1450,
culminated in an unsuccessful attempt on the part of the Norwegians to
throw off the Danish yoke. The second, extending from 1450 to the
recognition of Frederick I. as king in Norway in 1524, was marked (p. 573)
by a still closer union between the two kingdoms. The third, beginning
with the accession of Frederick and closing with the Danish revolution
of 1660, was a period in which, largely in consequence of the
Protestant Revolt, Norway was reduced virtually to the level of a
subjugated province. The fourth, inaugurated by the rehabilitation of
the monarchy in Denmark in 1660, witnessed the raising of Norway from
the status of subjection to the rank of a sovereign, hereditary
kingdom on a footing of approximate equality with Denmark. The period
closed with a widespread revival of the nationalist spirit, one of the
first fruits of which was the obtaining, in 1807, of an administrative
system separate from that of Denmark and, in 1811, of the privilege of
founding at Christiania a national university.[806]
[Footnote 806: Bain, Scandinavia, Chaps. 4, 5, 7,
10, 15; H. H. Boyesen, A History of Norway from the
Earliest Times (2d ed., London, 1900).]
II. THE SWEDISH-NORWEGIAN UNION, 1814-1905
*632. Bernadotte and the Treaty of Kiel.*--As has been pointed out, the
kingdom of Sweden acquired independence of Denmark near the end of the
first quarter of the sixteenth century. The liberation of Norway was
delayed until the era of Napoleon, and when it came it meant, not the
independence which the Norwegians craved, but forced affiliation with
their more numerous and more powerful neighbors on the east. The
succession of events by which the new arrangement was brought about
was engineered principally by Napoleon's ex-marshal Bernadotte. May
28, 1810, Prince Charles Augustus of Augustenburg, whom the Riksdag
had selected as heir to the infirm and childless Charles XIII., died,
and after a notable contest, Bernadotte was agreed upon unanimously by
the four estates (August 21) as the new heir. November 5 the
adventuresome Frenchman received the homage of the estates and was
adopted by the king as crown prince under the name of Charles
John.[807] By reason of the infirmity of the sovereign, Bernadotte
acquired almost at once virtual control of the government. From the
outset he believed it to be impossible for Sweden to recover Finland;
but he believed no less that she might recoup herself, with the assent
of the powers, by the acquisition of the Danish dominion of Norway. In
March and April, 1813, Great Britain and Russia were brought to the
point of giving the desired assent, and by the Treaty of Kiel, January
14, 1814, the king of Denmark, under pressure applied by the (p. 574)
Allies, made the desired surrender.[808]
[Footnote 807: Upon the death of Charles XIII.,
February 5, 1818, the "prince" succeeded to the
throne under the name of Charles XIV. He reigned
until 1844.]
[Footnote 808: C. Schefer, Bernadotte roi (Paris,
1899); L. Pingaud, Bernadotte, Napoléon, et les
Bourbons (Paris, 1901); G. R. Lagerhjelm, Napoleon
och Carl Johan, 1813 (Stockholm, 1891).]
*633. The Movement for Norwegian Independence: the Constitution of
1814.*--In Norway there was small disposition to accept the new
arrangement. Instead there was set up the theory that when the Danish
sovereign renounced his claim to the throne of his northern dominion
the Norwegian state legally reverted forthwith to its former condition
of independence. Upon this assumption 112 representatives of the
nation, of whom 82 were opposed to union with Sweden, met at the
Eidsvold iron-works near Christiania, and drew up a liberal
constitution modelled principally on the French instrument of 1791,
under which was established a national Storthing, or parliament. May
17, furthermore, Prince Christian Frederick, the Danish governor of
the country, was elected king of Norway. From the Swedish point of
view these sovereign acts were absolutely invalid, and upon Norway's
rejection of mediation by the powers Bernadotte invaded the country at
the head of a Swedish army. In a short, sharp campaign the Norwegians
were hopelessly beaten,[809] and the upshot was that Christian
Frederick was forced to abdicate (October 7, 1814), the Storthing was
compelled to give its assent to the union with Sweden (October 20),
the Eidsvold constitution was revised (November 4) to bring it into
accord with the conditions of the union, and the Storthing went
through the formality of electing Charles XIII. king of Norway and of
recognizing Bernadotte as heir to the throne. Fifty of the one hundred
ten articles of the Eidsvold constitution were retained unaltered; the
remainder were revised or omitted. Amended upon a number of subsequent
occasions, this constitution of November 4, 1814, has continued in
operation to the present day as the _Grundlov_, or fundamental law, of
the Norwegian state. No constitution was ever born of a more
interesting contest for national dignity and independence.
[Footnote 809: G. Björlin, Der Krieg in Norwegen,
1814 (Stuttgart, 1895).]
*634. Nature of the Union.*--The union of the two states was of a purely
personal character; that is to say, it was a union solely through the
crown. Each of the kingdoms maintained its own constitution, its own
ministry, its own legislature, its own laws, its own financial system,
its own courts, its own army and navy. The legal basis of the
affiliation was the _Riksakt_, or Act of Union, of August, 1815,--an
ultimate agreement between the two states which in Norway was formally
adopted by the Storthing as a part of the Norwegian fundamental (p. 575)
law, but which in Sweden was regarded as a treaty, and hence was never
incorporated by the Rigsdag within the constitution. In each of the
states the functions and status of the crown were regulated by
constitutional provisions; and the character of the royal power was by
no means the same in the two. In Sweden, for example, the king
possessed independent legislative power and his veto was absolute; in
Norway he possessed no such independent prerogative and his veto was
only suspensive. There was a common ministry of war and another of
foreign affairs; beyond this the functions of a common administration
were vested in a complicated system of joint councils of state.
Matters of common concern lying outside the jurisdiction of the crown
were regulated by concurrent resolutions or laws passed by the Riksdag
and the Storthing independently. But in all matters of internal
legislation and administration the two kingdoms were as separate as if
no legal relations had been established between them. There was not
even a common citizenship.
*635. Causes of Friction.*--From the outset the union was menaced by
perennial friction. Differences between the two kingdoms in respect to
language, manners, and economic concerns were pronounced; differences
of social and political ideas were still more considerable;
differences in governmental theories and institutions were seemingly
irreconcilable. In Sweden the tone of the political system, until far
in the nineteenth century, was distinctly autocratic, and that of the
social system aristocratic; in Norway the principle that preponderated
was rather that of democracy. Between the two states there was
disagreement upon even the fundamental question of the nature of the
union. The Swedish contention was that at the Peace of Kiel Norway was
ceded to Sweden by Denmark and that the mere fact that, following the
unsuccessful attempt of the Norwegians to establish their
independence, Sweden had chosen to grant the affiliated kingdom a
separate statehood and local autonomy did not contravene Norway's
essentially subordinate position within the union. The Norwegians, on
the other hand, maintained that, in the last analysis, they comprised
an independent nation and that their union with Sweden rested solely
upon their own sovereign decision in 1814 to accept Charles XIII. as
king; from which the inference was that Norway should be dealt with as
in every respect co-ordinate with Sweden. The conflicts which sprang
from these differences of conception were frequent and serious. There
was no disguising the fact that the administration of the joint
affairs of the kingdoms was conducted from a point of view that was
essentially Swedish, and the history of the union throughout the (p. 576)
period of its existence is largely a story of the struggle on the part
of the Norwegians, through the medium of the Storthing, to attain in
practice the fully co-ordinate position which they believed to be
rightfully theirs. Again and again amendments to the constitution in
the interest of the royal power were submitted by successive
sovereigns, only to be rejected by the Storthing.
In 1860 the Swedish estates insisted upon a revision of the Act of
Union which should include the establishment of a common parliament
for the two countries, in which, in approximate accordance with
population, there would be twice as many Swedish members as Norwegian.
The Storthing, naturally enough, rejected the proposition. In 1869 the
Storthing fortified its position by adopting a resolution in
accordance with which its sessions, theretofore triennial, were made
annual, and in 1871 the first annual Storthing rejected an elaborate
modification of the Act of Union, to which the Conservative ministry
of Stang had been induced to lend its support, whereby the supremacy
of Sweden would have been recognized explicitly and the bonds of the
union would have been tightened correspondingly. Two years later the
new sovereign, Oscar II. (1872-1907), gave reluctant assent to a
measure by which the office of viceroy in Norway was abolished.
Thereafter the head of the government at Christiania was the president
of the ministry, or premier; and, following a prolonged contest, in
the early eighties there was forced upon the crown the principle of
ministerial responsibility (in Norway).
*636. The Question of the Consular Service.*--The rock upon which the
union foundered eventually, however, was Norway's participation in the
management of diplomatic and consular affairs. The subject was one
which had been left in 1814 without adequate provision, and throughout
the century it gave rise to repeated difficulties. In 1885, and again
in 1891, there was an attempt to solve the problem, but upon each
occasion the only result was a deadlock, the Storthing insisting upon,
and the Swedish authorities denying, Norway's right, as an independent
kingdom, to participate equally with Sweden in the conduct of the
foreign relations of the two states. In 1892 the Storthing resolved
upon the establishment of an independent Norwegian consular service;
but to this the king would not assent. Norwegian trading and maritime
interests had come to be such that, in the opinion of the commercial
and other influential classes of the kingdom, separateness of consular
administration was indispensable, and upon the success of this reform
was made to hinge eventually the perpetuity of the union itself.
Throughout several years the deadlock continued. At the Norwegian
elections of 1894 and 1897 the Liberals were overwhelmingly successful,
and it was made increasingly apparent that the Norwegian people (p. 577)
were veering strongly toward unrestricted national independence. July
28, 1902, a lengthy report was submitted by a Swedish-Norwegian
Consular Commission, constituted upon Swedish initiative earlier in
the year, in which the practicability of two entirely separate
consular systems was asserted, and, March 24, 1903, an official
_communiqué_ announced the conclusion of an agreement between
representatives of the two countries under which there were to be
worked out two essentially identical codes of law for the government
of the two systems. Upon the nature of these codes, however, there
arose serious disagreement, and when, in 1904, the Boström ministry of
Sweden submitted as an absolute condition that any Norwegian consul
might be removed from office by the Swedish foreign minister, the
entire project was brought to naught.
*637. The Norwegian Declaration of Independence: the Separation.*--March
1, 1905, the Norwegian ministry presided over by Hagerup resigned and
was replaced by a ministry made up by Christian Michelsen, which
included representatives of both the Liberal and Conservative parties.
May 23 the Storthing, by unanimous vote, passed a new bill for the
establishment of Norwegian consulships. The king, four days later,
vetoed the measure; whereupon the Michelsen government resigned. The
king refused to accept the resignation; the ministers refused to
reconsider it. June 7 Michelsen and his colleagues placed their
resignation in the hands of the Storthing, and that body, impelled at
last to cut the Gordian knot, adopted by unanimous vote a resolution
to the effect (1) that, the king having admitted his inability to form
a Government, the constitutional powers of the crown had become
inoperative, and (2) that Oscar II. having ceased to act as king of
Norway, the union with Sweden was to be regarded as _ipso facto_
dissolved. By another unanimous vote the ministerial group was
authorized to exercise temporarily the prerogatives hitherto vested in
the sovereign.
On the part of certain elements in Sweden there was a disposition to
resist Norwegian independence, and for a time there was prospect of
war. The mass of the people, however, cared but little for the
maintenance of the union. The prevailing national sentiment was
expressed with aptness by the king himself when he affirmed that "a
union to which both parties do not give their free and willing consent
will be of no real advantage to either." June 20 the Riksdag was
convened in extraordinary session to take under advisement the
situation. Dreading war, this body eventually decided to sanction
negotiations looking toward a separation, provided, however, that the
Norwegian people, either through the agency of a newly elected (p. 578)
Storthing or directly by referendum, should avow explicitly their
desire for independence. During a recess of the Riksdag a Norwegian
plebiscite was taken, August 13, with the result that 368,211 votes
were cast in favor of the separation and but 184 against it. Two weeks
later eight commissioners representing the two states met at Karlstad,
in Sweden, and negotiated a treaty, signed September 23, wherein the
terms of the separation were specifically fixed. This instrument,
approved by the Storthing October 9 and by the reassembled Riksdag
October 16, provided for the establishment of a neutral, unfortified
zone on the common frontier south of the parallel 61° and stipulated
that all differences between the two nations which should prove
impossible of adjustment by direct negotiation should be referred to
the permanent court of arbitration at the Hague, provided such
differences should not involve the independence, integrity, or vital
interests of either nation. October 27 King Oscar formally
relinquished the Norwegian crown.
III. THE NORWEGIAN CONSTITUTION--CROWN AND MINISTRY
*638. The Revised Fundamental Law.*--In Norway there was widespread
sentiment in favor of the establishment of a republic. The continuance
of monarchy was regarded, however, as the course which might be
expected to meet with most general approval throughout Europe, and in
a spirit of conciliation the Storthing tendered to King Oscar an offer
to elect as sovereign a member of the Swedish royal family. The offer
was rejected; whereupon the Storthing selected as a candidate Prince
Charles, second son of the then Crown Prince Frederick of Denmark, the
late King Frederick VIII. November 12 and 13, 1905, the Norwegian
people, by a vote of 259,563 to 69,264, ratified the Storthing's
choice, the advocates of a republic recording some 33,000 votes. The
new sovereign was crowned at Trondhjem June 22, 1906. By assuming the
title of Haakon VII. he purposely emphasized the essential continuity
of the present Norwegian monarchy with that of mediæval times.[810]
[Footnote 810: Haakon VI. reigned 1343-1380,
shortly before the Union of Kalmar. For brief
accounts of the relations of Sweden and Norway
under the union see Bain, Scandinavia, Chap. 17;
Cambridge Modern History, XI., Chap. 24, XII.,
Chap. 11; Lavisse et Rambaud, Histoire Générale,
X., Chap. 18; XI., Chap. 12; XII., Chap. 7. The
best general treatise is A. Aall and G. Nikol, Die
Norwegische-schwedische Union, ihr Bestehen und
ihre Lösung (Breslau, 1912). From the Norwegian
point of view the subject is well treated in F.
Nansen, Norge og Foreningen med Sverige
(Christiania, 1905), in translation, Norway and the
Union with Sweden (London, 1905); from the Swedish,
in K. Nordlung, Den svensk-norska krisen (Upsala
and Stockholm, 1905), in translation. The
Swedish-Norwegian Union Crisis, A History with
Documents (Stockholm, 1905). Worthy of mention are
R. Pillons, L'Union scandinave (Paris, 1899); A.
Mohn, La Suède et la révolution norvégienne (Geneva
and Paris, 1906); and Jordan, La séparation de la
Suède et de la Norvège (Paris, 1906). A useful
survey is P. Woultrin, in _Annales des Sciences
Politiques_, Jan. 15 and March 15, 1906.]
The fundamental law of Norway to-day is the Eidsvold constitution (p. 579)
of April, 1814, revised, November 4 following, to comport with the
conditions of the union with Sweden. The original instrument was not
only democratic in tone, but doctrinaire. With little in the nature of
native institutions upon which to build, the framers laid hold of
features of the French, English, American, and other foreign systems,
in the effort to transplant to Norwegian soil a body of political
forms and usages calculated to produce a high order of popular
government. No inconsiderable portion of these forms and usages
survived the revision enforced by the failure to achieve national
independence. Of this portion, however, several proved impracticable,
and constitutional amendments after 1814 were numerous. Upon the
establishment of independence in 1905 the fundamental law was modified
further by the elimination from it of all reference to the former
Swedish affiliation. The constitution to-day comprises one hundred
twelve articles, of which forty-six deal with the executive branch of
the government, thirty-seven with citizenship and the legislative
power, six with the judiciary, and twenty-three with matters of a
miscellaneous character. The process of amendment is appreciably more
difficult than that by which changes may be introduced in the Swedish
instrument.[811] Proposed amendments may be presented in the Storthing
only during the first regular session following a national election,
and they may be adopted only at a regular session following the
ensuing election, and by a two-thirds vote. It is required,
furthermore, that such amendments "shall never contravene the
principles of the constitution, but shall relate only to such
modifications in particular provisions as will not change the spirit
of the instrument."[812]
[Footnote 811: See p. 589.]
[Footnote 812: Art. 112. Dodd, Modern
Constitutions, II., 143. An English version of the
Norwegian constitution is printed in Dodd, ibid.,
II., 123-143, and in H. L. Braekstad, The
Constitution of the Kingdom of Norway (London,
1905). The standard treatise on the Norwegian
system of government is T. H. Aschehoug, Norges
Nuvaerende Statsforfatning (2d ed., Christiania,
1891-1893); but a more available work is an earlier
one by the same author, Das Staatsrecht der
vereinigten Königreiche Schweden und Norwegen
(Freiburg, 1886), in Marquardsen's Handbuch. The
most recent and, on the whole the most useful,
treatise is B. Morgenstierne, Das Staatsrecht des
Königreichs Norwegen (Tübingen, 1911).]
*639. The Crown and the Council.*--The government of Norway, like (p. 580)
that of Sweden and of Denmark, is in form a limited hereditary
monarchy. The popular element in it is both legally and actually more
considerable than in the constitutional system of either of the sister
Scandinavian states; none the less, the principle of monarchy is
firmly entrenched, and, as has been pointed out, not even the overturn
of 1905 endangered it seriously. The constitution contains provisions
respecting the succession to the throne, the conduct of affairs during
a minority, and the establishment of a regency, which need not be
recounted here, but which are designed to meet every possible
contingency. In the event of the absolute default of a legal successor
the Storthing is empowered to elect.
Supreme executive authority is vested in the king, who must be an
adherent of the Lutheran Church, and who at his accession is required
to take oath in the presence of the Storthing to govern in conformity
with the constitution and laws. Associated with the king is a Council
of State, upon which, since the king may be neither censured nor
impeached, devolves responsibility for virtually all executive acts.
The Council consists of a minister of state, or premier, and at least
seven other members. All are appointed by the crown, and all must be
Norwegian citizens not less than thirty years of age and adherents of
the established Lutheran faith. The king may apportion the business of
state among the councillors as he desires. There are at present, in
addition to the ministry of state, eight ministerial portfolios, i.e.,
Foreign Affairs, Justice, Worship and Instruction, Agriculture,
Labor, Finance, Defense, and Commerce, Navigation and Industry. All
ministers are regularly members of the Storthing, though by the
constitution the crown is authorized for special reasons to add to the
Council members who possess no legislative seats. The heir to the
throne, if eighteen years of age, is entitled to a seat in the
Council, but without vote or responsibility.
*640. The Exercise of Executive Powers.*--Most of the powers which are
possessed by the king may be exercised by him only in conjunction with
the Council. Like the fundamental law of Sweden, that of Norway
stipulates that, while it shall be the duty of every member of the
Council to express his opinion freely, and of the king to give ear to
all such opinions, it "shall remain with the king to decide according
to his own judgment."[813] None the less, the acts of the crown are,
as a rule, those not only, legally, of the king _in_ council but,
actually, of the king _and_ council. With the exception of military
commands, all orders issued by the king must be countersigned by the
minister of state, and ministers may be impeached at any time by (p. 581)
the Odelsthing before the Rigsret, or Court of Impeachment; so that,
in effect, there is a close approach to the parliamentary system of
ministerial responsibility. Under these conditions, the crown appoints
all civil, ecclesiastical, and military officials; removes higher
officials (including the ministers) without previous judicial
sentence; pardons offenders after conviction; regulates religious
services, assemblies, and meetings; issues and repeals regulations
concerning commerce, customs, industry, and public order; and enforces
the laws of the realm. The king is commander-in-chief of the land and
naval forces, though these forces may not be increased or diminished,
or placed at the service of a foreign sovereign or state, without the
consent of the Storthing. And the king has the power to mobilize
troops, to commence war and conclude peace, to enter into and to
withdraw from alliances, and to send and to receive ambassadors.[814]
[Footnote 813: Art. 30. Dodd, Modern Constitutions,
II., 128.]
[Footnote 814: Arts. 16, 17, 20-26. Dodd, Modern
Constitutions, II., 125-127.]
IV. THE STORTHING--POLITICAL PARTIES
*641. Electoral System: the Franchise.*--Among the legislatures of
Europe that of Norway is unique. In structure it represents a curious
cross between the principles of unicameral and bicameral organization.
It comprises essentially a single body, which, however, for purely
legislative purposes is divided into two chambers, or sections, the
Lagthing and the Odelsthing. This division is made subsequent to the
election of the members, so that representatives are chosen simply to
the Storthing as a whole. The elections take place every third year.
There are forty-one urban, and eighty-two rural, districts, and every
district returns one member--a total of 123.
Formerly the franchise rested, as in Sweden, upon a property
qualification; but by a series of suffrage reforms within the past
decade and a half it has been brought about that in respect to
electoral privileges Norway is to-day the most democratic of European
countries. In 1898 the Liberal government of Steen procured the
enactment of a measure which long had occupied a leading place in the
programme of the radical elements. By it the parliamentary franchise
was conferred upon all male citizens of a minimum age of twenty-five
years who have resided at least five years in Norway and who have
suffered no judicial impairment of civil rights. The effect was to
double at a stroke the national electorate. In 1901 the same Government
carried an important bill by which the suffrage in municipal elections
was conferred upon male citizens without restriction (save that of age),
upon all unmarried women twenty-five years of age who pay taxes on (p. 582)
an annual income of not less than 300 kronor, and upon all married
women of similar age whose husbands are taxed in equivalent amounts.
During ensuing years there was widespread agitation in behalf of the
parliamentary franchise for women, and the Liberal party made this one
of the principal items in its programme. June 14, 1907, by a vote of
73 to 48, the Storthing rejected a proposal that women be given the
parliamentary franchise on the same terms as men, but by the decisive
majority of 96 to 25 it conferred the privilege upon all women who
were in possession of the municipal franchise under the law of 1901.
The rapidity with which woman's suffrage sentiment had developed is
indicated by the fact that as late as 1898 a proposal looking toward
the including of women in the parliamentary electorate had received in
the Storthing a total of but 33 votes. By the legislation of 1907
Norway became the first of European nations to confer upon women,
under any conditions, the privilege of voting for members of the
national legislative body and of sitting as members of that body. At
the elections of 1909, the first in which women participated, no
revolutionizing effects were observed. The electorate, however, was
increased by approximately 300,000, which was somewhat over half of
the kingdom's total female population of the requisite age.[815] April
30, 1910, the Constitutional Committee of the Storthing, by a majority
of four to three, recommended that parliamentary suffrage be extended
to women on equal terms with men, i.e., without reference to taxpaying
qualifications. The recommendation was rejected, but during the next
month the Odelsthing voted, 71 to 10, and the Lagthing, 24 to 7, to
apply the principle of it in municipal elections. Thus the municipal
electorate was enlarged by approximately 200,000, and the way was
prepared, as many believe, for the adoption eventually of the
Committee's original recommendation. Prior to an amendment of May 25,
1905, parliamentary elections were indirect. In the urban districts
one elector was chosen for every fifty voters, and in the rural
districts, one for every one hundred. Now, however, elections are
direct. Each petty political unit having a municipal government of its
own comprises a voting precinct. If at the first ballot no candidate
in the district receives a majority of all the votes cast, a second
ballot is taken, when a simple plurality is decisive. A noteworthy
feature of the system is the fact that voters who on account of
illness, military service, or other valid reason, are unable to appear
at the polls are permitted to transmit their votes in writing to the
proper election officials.
[Footnote 815: At the election of 1909 the total
number of parliamentary electors was 785,358. The
number of votes recorded, however, was but
487,193.]
*642. Qualifications, Sessions, and Organization.*--No one may be (p. 583)
chosen a member of the Storthing unless he or she is thirty years
of age, a resident of the kingdom of ten years' standing, and a
qualified voter in the election district in which he or she is chosen;
but a former member of the Council of State, if otherwise qualified,
may be elected to represent any district.[816] Under recent
legislation every member of the Storthing receives a salary of three
thousand kroner a year, in addition to travelling expenses. The
Storthing meets in regular session annually, without regard to summons
by the crown. The constitution fixed originally as the date of
convening the first week-day after October 10 of each year; but, May
28, 1907, the Storthing adopted an amendment whereby, beginning with
1908, the meeting time was changed to the first week-day after January
10. For sufficient reasons, an extraordinary session may be convoked
by the king at any time. The length of sessions is indeterminate,
except that an extraordinary session may be adjourned by the crown at
will, and no session, extraordinary or regular, may be prolonged
beyond two months without the king's consent. At its first regular
session following a general election the Storthing divides itself into
two chambers. A fourth of the membership is designated to constitute
the Lagthing, the remaining three-fourths comprise the Odelsthing; and
the division thus effected holds until the succeeding election. Each
chamber elects its own president, secretary, and other officers.
Sessions are public, and business may not be transacted unless at
least two-thirds of the members are present.
[Footnote 816: Arts. 59-64. Dodd, Modern
Constitutions, II., 134-135.]
*643. Powers and Procedure of the Storthing.*--The powers of the
Storthing, as enumerated in the constitution, include the enactment
and the repeal of laws; the levying of taxes, imposts, and duties; the
appropriating and the borrowing of money; the regulating of the
currency; the examining of treaties concluded with foreign powers; the
inspection of the records of the Council of State; the making of
provision for the auditing of the national accounts; and regulation of
the naturalization of foreigners.[817] All bills are required to be
presented first in the Odelsthing, by one of the members of the body,
or by the Government, through a councillor of state. Only in the event
that a measure passes the Odelsthing is it presented at all in the
Lagthing, for the sole function of the smaller chamber is to act as a
check upon the larger one. The Lagthing may either approve or reject a
bill which the Odelsthing submits, but may not amend it. A measure
rejected is returned, with reasons for the rejection. Three courses
are then open to the Odelsthing: to drop the measure, to submit it in
amended form, or to resubmit it unchanged. When a bill from the (p. 584)
Odelsthing has been twice presented to the Lagthing, and has been a
second time rejected, the two chambers are convened in joint session,
and in this consolidated body proposals are carried by a two-thirds
vote. All questions pertaining to the revision of the constitution are
required to be voted upon in this manner.
[Footnote 817: Art. 75. Ibid., II., 136.]
*644. The Veto Power.*--A bill passed by the Storthing is laid forthwith
before the king. If he approves it, the measure becomes law. If he
does not approve it, he returns it to the Odelsthing with a statement
of his reasons for disapproval. A measure which has been vetoed may
not again be submitted to the king by the same Storthing. The royal
veto, however, is not absolute. "If," says the constitution, "a
measure has been passed without change by three regular Storthings
convened after three separate successive elections, and separated from
each other by at least two intervening regular sessions, without any
conflicting action having in the meantime been taken in any session
between its first and last passage, and is then presented to the king
with the request that his majesty will not refuse his approval to a
measure which the Storthing, after the most mature deliberation,
considers beneficial, such measure shall become law even though the
king fails to approve it...."[818] In the days of the Swedish union
the precise conditions under which the royal veto might be exercised
were the subject of interminable controversy. In respect to ordinary
legislation the stipulations of the constitution were plain enough,
but in respect to measures which in essence comprised constitutional
amendments the silence of that instrument afforded room for wide
differences of opinion. An especially notable conflict was that which
took place in the early eighties respecting a proposal to admit the
Norwegian ministers to the Storthing with the privilege of
participation in the deliberations of that body. The measure was
passed by overwhelming majorities by three Storthings after three
successive general elections, and in accordance with the constitution,
under the Norwegian interpretation, it ought thereupon to have been
recognized as law. The king, however, not only refused to approve the
bill, but asserted firmly that his right to exercise an absolute veto
in constitutional questions was "above all doubt"; and when the
Storthing pronounced the measure law without the royal sanction, both
crown and Swedish ministry avowed that by them it would not be
recognized as valid. In the end (in 1884) the Storthing won, but the
issue was revived upon numerous occasions. Under the independent
monarchy of 1905 there has been no difficulty of the sort; nor, in
view of the eminently popular aspect of kingship in Norway to-day, (p. 585)
is such difficulty likely to arise.
[Footnote 818: Art. 79. Dodd, Modern Constitutions,
II., 137-138.]
*645. Political Parties: Liberals and Conservatives.*--Prior to the
accession of Oscar II., in 1872, the preponderating fact in the
political development of the kingdom was the gradual growth of
parliamentary power on the part of the representatives of the
peasantry. Between 1814 and 1830 the business of the Storthing was
conducted almost wholly by members of the upper and official classes,
but during the decade 1830-1840 the peasantry rose to the position of
a highly influential class in the public affairs of the nation. The
first of the so-called "peasant Storthings" was that of 1833. In it
the peasant representatives numbered forty-five, upwards of half of
the body. Under the leadership of Ole Ueland, who was a member of
every Storthing between 1833 and 1869, the peasant party made its
paramount issue, as a rule, the reduction of taxation and the practice
of economy in the national finances.
After 1870 the intensification of the Swedish-Norwegian question led
to the drawing afresh of party lines, and until the separation of
1905, the new grouping continued fairly stable. By the amalgamation of
the peasant party, led by Jaabaek, and the so-called "lawyers" party,
led by Johan Sverdrup, there came into being in the seventies a great
Liberal party (the Venstre, or Left) whose fundamental purpose was to
safeguard the liberties of Norway as against Swedish aggression. Until
1884 this party of nationalism was obliged to content itself with the
rôle of opposition. Governmental control was lodged as yet in the
Conservatives, whose attitude toward Sweden was distinctly
conciliatory. In 1880 the Conservative leader, Frederick Stang,
resigned the premiership, but his successor was another Conservative,
Selmer. At the elections of 1882 the Liberals obtained no fewer than
82 of the 114 seats in the Storthing. Still the Conservatives refused
to yield. In the meantime the Odelsthing had brought the entire
ministry to impeachment before the Rigsret for having advised the king
to interpose his veto to the measure giving ministers seats in
Parliament. Early in 1883 Selmer and seven of his colleagues were
sentenced to forfeiture of their offices, and the remaining three were
fined. March 11, 1884, the king announced his purpose to abide by the
decision of the court, distasteful to him as it was, and the Selmer
cabinet was requested to resign. An attempt to prolong yet further the
tenure of the Conservatives failed completely, and, June 23, 1884, the
king sent for Sverdrup and authorized the formation of the first
Liberal ministry in Norwegian history. The principal achievement of
the new government was the final enactment of the long-contested (p. 586)
measure according parliamentary seats to ministers. To this project
the king at last gave his consent.
*646. The Ministerial Succession to 1905.*--The Sverdrup ministry
endured almost exactly four years. In 1887 the party supporting it
split upon a question of ecclesiastical policy, and at the elections
of 1888 the Conservatives obtained fifty-one seats, while of the
sixty-three Liberals returned not more than twenty-six were really in
sympathy with Sverdrup. July 12, 1889, Sverdrup and his colleagues
resigned. Then followed a rapid succession of ministries, practically
every one of which met its fate, sooner or later, upon some question
pertaining to the Swedish union: (1) that of Emil Stang[819]
(Conservative), July 12, 1889, to March 5, 1891; (2) that of Johannes
Steen (Liberal), which lasted until April, 1893; (3) a second Stang
ministry, to February, 1895; and (4) the coalition ministry of
Professor Hagerup, to February, 1898. At the elections of 1897 the
Liberals won a signal victory, carrying seventy-nine of the one
hundred fourteen seats, and in February of the next year there was
established a second Steen ministry, under whose direction, as has
appeared, there was carried the law introducing manhood suffrage.
Steen retired in April, 1902, and another Liberal government, that of
Blehr, held office until October, 1903. At the elections of 1903 the
Conservatives and Moderates obtained sixty-three seats, the Liberals
fifty, and the Socialists four. A second Hagerup ministry filled the
period between October 23, 1903, and March 1, 1905, and upon its
retirement there was constituted, under circumstances which involved
temporarily the all but complete annihilation of party lines, a
coalition ministry under Christian Michelsen, at whose hands was
brought about immediately the separation from Sweden and the
constitutional readjustments of 1905.
[Footnote 819: Son of the earlier premier,
Frederick Stang.]
*647. Party History Since the Separation.*--Following the subsidence of
the excitement attending the separation the party alignments of
earlier days tended rapidly to reappear. The old issues, however, had
been disposed of, and in their place sprang up new ones, largely
social and economic in character. At the elections of 1906 the
subjects to which the Liberals gave most prominence were female
suffrage, old age pensions, and sickness and unemployment insurance.
The Michelsen government, which was essentially Conservative, issued a
moderate reform programme and, alleging that former party lines were
obsolete, called upon the citizens of all classes for support. The
elections were notable chiefly by reason of the fact that the Social
Democrats increased their quota in the Storthing to eleven. Despite
attacks of the more radical Left, the Michelsen cabinet stood firm (p. 587)
until October 28, 1907, when the premier, by reason of ill health, was
obliged to retire. Lövland, the minister of foreign affairs,
succeeded; but, March 14, 1908, on a vote of want of confidence, his
ministry was overthrown. A new cabinet was made up thereupon by the
Liberal leader, Gunnar Knudsen. At the elections of 1909--the first in
which women participated--this Liberal government lost the slender
majority which it had possessed, and January 27, 1910, it resigned.
Prior to the elections there were in the Storthing fifty-nine
Liberals, fifty-four Conservatives and Moderates, and ten Social
Democrats. Afterwards there were sixty-three Conservatives and
Moderates, forty-seven Liberals, eleven Social Democrats, and two
Independents. The popular vote of the Social Democrats was much in
excess of that at any former election, but it was so distributed that
the party realized from it but a single additional legislative seat.
Upon the resignation of Knudsen the premiership was offered to
Michelsen, whose health, however, precluded his accepting it. February
1, 1910, a Conservative-Moderate ministry was made up by Konow.
February 19, 1912, it was succeeded by another ministry of the same
type, under the premiership of the former president of the Storthing,
Bratlie. At the elections of November 12, 1912, the Government lost
heavily to the Liberals and to the Social Democrats. The socialist
quota now numbers twenty-three.[820]
[Footnote 820: A brief account of Norwegian
political parties to 1900 will be found in Lavisse
et Rambaud, Histoire Générale, XII., 266-274; to
1906, in Cambridge Modern History, XII., 280-290.
For additional references see pp. 578-579.]
V. THE JUDICIARY AND LOCAL GOVERNMENT
*648. The Courts.*--For the administration of civil justice the kingdom
of Norway is divided into 105 districts--eighty rural and twenty-five
urban--in each of which there is a court of first instance composed of
two justices chosen by the people. There are three higher tribunals,
each with a chief justice and two associates. At the top stands the
Höiesteret, or Supreme Court, consisting of a chief justice and six
associates. The decisions of the Supreme Court may be neither appealed
nor reviewed. For the trial of criminal cases, as regulated by law of
July 1, 1887, there exist two types of tribunals: (1) the Lagmandsret,
consisting of a president and ten jurors and (2) the Meddomsret,
consisting of a judge and two non-professional assistants chosen for
each case. There are in the kingdom four Lagdömmer, or jury districts,
each divided into circuits corresponding, as a rule, to the counties.
The jury courts take cognizance of the more serious cases. "No (p. 588)
one," the constitution stipulates, "shall be tried except in
accordance with law or punished except by virtue of a judicial
sentence; and examination by means of torture is forbidden."[821] The
members of the Lagthing, together with those of the Supreme Court,
comprise the Rigsret, or Court of Impeachment. This tribunal tries,
without appeal, cases involving charges of misconduct in office
brought by the Odelsthing against members of the Council of State, the
Supreme Court, or the Storthing.[822]
[Footnote 821: Art. 96. Dodd, Modern Constitutions,
II., 141.]
[Footnote 822: Arts. 86-87. Ibid., II., 139.]
*649. Local Government.*--For purposes of administration the kingdom is
divided into twenty regions--the cities of Christiania and Bergen and
eighteen _Amter_, or counties. At the head of each is an Amtmand, or
prefect, who is appointed by the crown. The principal local unit is
the _Herred_, or commune, of which there are upwards of seven hundred,
mostly rural parishes. As a rule, the government of the commune is
vested in a body of twelve to forty-eight representatives and a
Formaend, or council, elected by and from the representatives and
comprising one-fourth of their number. Every third year the
representatives choose from among the members of the council a
chairman and a deputy chairman; and, under the presidency of the
Amtmand, the chairmen of the rural communes within each county meet
yearly as an Amtsthing, or county diet, and adopt the budget of the
county. Since the municipal electoral law of 1910 members of the
communal councils are chosen on a basis of universal suffrage for both
men and women.
CHAPTER XXXII (p. 589)
THE GOVERNMENT OF SWEDEN
I. THE CONSTITUTION--THE CROWN AND THE MINISTRY
*650. The Fundamental Laws.*--The constitution of the kingdom of Sweden
is one of the most elaborate instruments of its kind in existence. It
comprises a group of fundamental laws of which the most comprehensive
is the _regerings-formen_ of June 6, 1809, in 114 articles.[823]
Closely related are (1) the law of royal succession of September 26,
1810; (2) the law of July 16, 1812, on the liberty of the press; and
(3) the law of June 26, 1866, providing for a reorganization of the
legislative chambers. The organs and powers of government are defined
in much detail, but there is nothing equivalent to the bill of rights
which finds a place in most European constitutions. The process of
amendment is easy and minor amendments have been frequent. Amendments
may originate with either the crown or the legislative houses, and any
amendment which receives the assent of the crown is declared to be
adopted if, after having been proposed or approved by one Riksdag, it
is sanctioned by the succeeding one. Through the re-election of the
lower chamber, which must intervene between the two stages, the people
have some opportunity to participate in the amending process.[824]
[Footnote 823: See p. 572.]
[Footnote 824: Arts. 81-82. Dodd, Modern
Constitutions, II., 240. In 1908 the ex-premier
Staaff proposed that when the two chambers should
disagree upon questions concerning the constitution
and general laws resort should be had to a popular
referendum; but the suggestion was negatived by the
upper house unanimously and by the lower by a vote
of 115 to 78. The text of the Swedish constitution,
together with the supplementary fundamental laws of
the kingdom, is contained in W. Uppström, Sveriges
Grundlager och konstitutionela stadgar jemte
kommunallagarne samt Norges Grundlov (6th ed.,
Stockholm, 1903). An English version is printed in
Dodd, Modern Constitutions, II., 219-251, and a
French one in Dareste, Constitutions Modernes (3d
ed.), II., 46-114. The best brief treatise upon
Swedish constitutional history is P. Fahlbeck, La
constitution suédoise et le parlementarisme moderne
(Paris, 1905). The best description of the Swedish
government as it was a quarter of a century ago is
T. H. Aschehoug, Das Staatsrecht der vereinigten
königreiche Schweden und Norwegen (Freiburg, 1886),
in Marquardsen's Handbuch. The principal treatise
in Swedish is C. Naumann, Sveriges
statsförfatningsrätt (2d ed., Stockholm,
1879-1884).]
*651. The Crown and the Ministry.*--At the head of the state (p. 590)
stands the king. The monarchy is hereditary, and the crown is
transmitted in the male line in the order of primogeniture. It is
required that the king shall belong invariably to the Lutheran Church
and that at his accession he shall take an oath to maintain
scrupulously the laws of the land. With the king is associated a
Statsrad, or Council of State, appointed by the crown "from among
capable, experienced, honest persons of good reputation, who are
Swedes by birth, and who belong to the pure, evangelical faith."[825]
By constitutional requirement the Council is composed of eleven
members, one of whom is designated by the king as minister of state
and president of the council, or premier. Of the eleven eight are
heads of the departments, respectively, of Foreign Affairs, Justice,
Land Defense, Naval Defense, Home Affairs, Finance, Agriculture, and
Education and Ecclesiastical Affairs. The president and two other
members are ministers without portfolio.
[Footnote 825: Art. 4. Dodd, Modern Constitutions,
II., 220.]
*652. The Exercise of Executive Powers.*--The powers of the Swedish
executive are large. A few are exercised by the crown alone; some by
the crown in conjunction with a small specified number of ministers;
the majority by the crown and entire ministry conjointly. The king
acts independently as the commander-in-chief of the land and naval
forces of the kingdom. He may conclude treaties and alliances with
foreign powers, after having consulted the minister of state, the
minister of foreign affairs, and one other member of the Council. But
if he wishes to declare war or to conclude peace he must convene in
special session the full membership of the Council and must require of
each member separately his opinion. "The king may then," it is
stipulated, "make and execute such a decision as he considers for the
best interests of the country."[826] In other words, in such a matter
the king is obliged to consult, but not necessarily to be guided by,
his ministerial advisers.
[Footnote 826: Art. 13. Ibid., 223.]
In general, it may be affirmed that this is the principle which
underlies the organization of the Swedish executive. After having been
prepared by one or more of the ministers, projects are considered by
the king in council; but the right of ultimate decision rests with the
king. It is thus that appointments to all national offices are made,
titles of nobility are conferred, ordinances are promulgated, texts of
new laws are framed, and questions of peace and war are determined.
Nominally, the ministers are responsible to the Riksdag for all acts
of the Government. But the constitution plainly states that after
matters have been discussed in the Council "the king alone shall have
the power to decide."[827] If the king's decision is palpably (p. 591)
contrary to the constitution or the general laws, the ministers are
authorized to enter protest. But that is all that they may do. The
ministers have seats in the Riksdag, where they participate in debate
and, in the name of the crown, initiate legislation. But their
responsibility lies so much more directly to the king than to the
legislature that what is commonly understood as the parliamentary
system can hardly be said to exist in the kingdom.
[Footnote 827: Art. 9. Dodd, Modern Constitutions,
II., 221.]
II. THE RIKSDAG: ELECTORAL SYSTEM
*653. Establishment of the Bicameral System, 1866.*--Until past the
middle of the nineteenth century the Swedish Riksdag, or diet,
comprised still an assemblage of the four estates of the realm--the
nobles, the clergy, the burghers, and the peasants. Throughout several
decades a preponderating political question was that of substituting
for this essentially mediæval arrangement a modern bicameral
legislative system. In 1840 the Riksdag itself insisted upon a change,
but the king, Charles XIV., refused to give his assent. During the
reign of Oscar I. (1844-1859) several proposals were forthcoming, but
none met with acceptance. It was left to Charles XV. (1859-1872), in
collaboration with his able minister of justice, Baron Louis Gerhard
de Geer, to effect the much-needed reform. In January, 1863, the
Government submitted to the Estates a measure whereby there was to be
constituted a Riksdag of two chambers--an upper one, which should be
essentially an aristocratic senate, and a lower, whose members should
be elected triennially by the people. In 1865 all of the four estates
acted favorably upon the bill and, January 22, 1866, the measure was
promulgated by the crown as an integral part of the fundamental law of
the kingdom. September 1, 1866, there were held the first national
elections under the new system. Since 1866 the upper chamber has
represented principally the old estates of the nobles and clergy, and
the lower has comprised the combined representatives of the townsmen
and peasants. The one has been conservative, and even aristocratic;
the other, essentially democratic. But the reform has contributed
greatly to the breaking up of the ancient rigidity of the Swedish
constitution and has opened the way for a parliamentary leadership on
the part of the commons which was impossible so long as each of four
orders was in possession of an equal voice and vote in legislative
business.
*654. The Upper Chamber.*--The membership of both houses of the Riksdag
is wholly elective, that of the upper indirectly, and that of the (p. 592)
lower directly, by the people. The upper house consists of 150 members
chosen by ballot, after the principle of proportional representation,
for a term of six years by the twenty-five Landsthings, or provincial
representative assemblies, and by the corporations of five of the
larger towns--Stockholm, Göteborg, Malmö, Norrköping, and Gäfle. These
electoral bodies are arranged in six groups, in one of which an
election takes place in September of every year. The franchise
arrangements under which they are themselves chosen are still
determined principally with reference to property or income, but they
are no longer so undemocratic as they were prior to the electoral
reform of 1909, and whereas the elections were previously indirect,
they are now direct. No person may be elected to the upper chamber who
is not of Swedish birth, who has not attained his thirty-fifth year,
and who during three years prior to his election has not owned taxable
property valued at 50,000 kroner or paid taxes on an annual income of
at least 3,000 kroner.[828] A member who at any time loses these
qualifications forthwith forfeits his seat. Members formerly received
no compensation, but under the reform measure of 1909 they, as
likewise members of the lower chamber, are accorded a salary of 1,200
kroner for each session of four months, and, in the event of an extra
session, 10 kroner a day, in addition to travelling expenses.
[Footnote 828: These amounts were substituted in
1909 for 80,000 and 4,000 respectively.]
*655. The Lower Chamber.*--As constituted by law of 1894, modified by
the reform act of 1909, the lower chamber consists of 230 members
chosen under a system of proportional representation in fifty-six
electoral districts, each of which returns from three to seven
deputies. The number of members to be chosen in each of the districts
is determined triennially, immediately preceding the balloting. Prior
to the franchise law of 1909 the suffrage was confined, through
property qualifications, within very narrow bounds. The electorate
comprised native Swedes twenty-five years of age or over who were
qualified as municipal voters and who possessed real property to the
taxed value of 1,000 kroner, or who paid taxes on an annual income of
at least 800 kroner, or who possessed a leasehold interest for at
least five years of a taxable value of 6,000 kroner. In 1902 it was
demonstrated by statistics that of the entire male population of the
kingdom over twenty-one years of age not more than thirty-four per
cent could meet these qualifications.
*656. Beginnings of the Movement for Electoral Reform.*--As early as
1895 insistent demand began to be made in many quarters for an
extension of the franchise, and in the Riksdag of 1896 Premier Boström
introduced a moderate measure looking toward that end and involving
the introduction of proportional representation. The bill, (p. 593)
however, was defeated. Agitation was continued, and in 1900 the
Liberals made electoral reform the principal item of their programme.
In 1901 there was passed a sweeping measure for the reorganization of
the army whereby were increased both the term of military service and
the taxes by which the military establishment was supported. Argument
to the effect that such an augmentation of public burdens ought to be
accompanied by an extension of public privileges was not lost upon the
members of the Conservative Government, and at the opening of the
Riksdag of 1902 the Speech from the Throne assigned first place in the
legislative calendar to a Suffrage Extension bill. March 12 the
measure was laid before the chambers. The provisions of the bill were,
in brief, (1) that every male citizen, already possessed of the
municipal franchise, who had completed his twenty-fifth year and was
not in arrears in respect to taxes or military service, should be
entitled to vote for a member of the lower national chamber; and (2)
that every voter who was married, or had been married, or had
completed his fortieth year, should be entitled to two votes. By
reason of its plural voting features the measure was not well
received, even though the plural vote was not made in any way
dependent upon property. It was opposed by the Liberals and the Social
Democrats, and members even of the Conservative Government which had
introduced it withheld from it their support. Amidst unusual public
perturbation the Liberals drew up a counter-proposal, which was
introduced in the lower chamber April 16. It contemplated not simply
one vote for all male citizens twenty-five years of age who possessed
the municipal franchise, but also a sweeping extension of the
municipal franchise itself. The upshot was the adoption by the Riksdag
of a proposal to the effect that the Government, after conducting a
thorough investigation of the entire subject, should submit, in 1904,
a new measure based upon universal suffrage from the age of
twenty-five.
*657. The Conservative Proposal of 1904.*--The issue was postponed, but
agitation, especially on the part of the Social Democrats, was
redoubled. February 9, 1904, the Government laid before the lower
chamber a new suffrage bill embodying the recommendations of a
commission appointed some months previously to conduct the
investigation which had been ordered. The principal provisions of the
measure were (1) that every male municipal taxpayer who had attained
his twenty-fifth year, and was not deficient in respect to his fiscal
or military obligations, should be entitled to one vote for a member
of the Chamber; and (2) that the 230 legislative seats should be
distributed among thirty-three electoral districts, and should be
filled by deputies chosen according to the principle of (p. 594)
proportional representation. The introduction of this measure became
the signal for the appearance of a multitude of projects dealing with
the subject, most of which discarded proportional representation but
imposed still fewer restrictions upon the franchise. In the upper
house the Government's proposal, modified somewhat to meet the demands
of the agrarian interests, was passed by a vote of 93 to 50; but in
the lower chamber the substance of it was rejected by the narrow
margin of 116 to 108.
In view of the continued support of the upper house and the meagerness
of the opposition majority in the lower, the Government, at the
opening of the Riksdag of 1905, submitted afresh its suffrage bill
without material modification. Again there was a deluge of
counter-proposals, the most important of which was that introduced
March 18 by Karl Staaff, in behalf of the Liberals, to the effect that
every citizen in good standing of the age of twenty-four should be
entitled to one vote, and that the Chamber should consist of 165 rural
and 65 urban members, chosen in single-member constituencies. May 3
and 4 the Government's bill was carried in the upper house by a vote
of 93 to 50, but lost in the lower by a vote of 114 to 109. Upon
Staaff's project the lower house was almost equally divided.
*658. The Proposal of the Staaff Government, 1906.*--Upon the
resignation of the Lundeberg cabinet, October 28, 1905, following the
Norwegian separation, a Liberal ministry was made up by Staaff, and
when, January 15, 1906, the Riksdag reassembled in regular session the
new Government was ready to push to a conclusion the electoral
controversy. February 24 Premier Staaff introduced an elaborate
measure comprising an amplification of that which had been brought
forward by him a year earlier. By stipulating that at the age of
twenty-four every man of good character should have one vote the
scheme proposed enormously to enlarge the quota of enfranchised
citizens, and by apportioning representatives among the town and
country districts in the ratio of 65 to 165 it promised to reduce
materially the existing over-representation of the towns. It excluded
from the franchise bankrupts, persons under guardianship, and
defaulters in respect to military service; it required for election at
the first ballot, though not at the second, an absolute majority; it
stipulated that a rearrangement of constituencies, in accordance with
population, should be made every nine years by the king. It gave no
place to the principle of proportional representation which had
appeared in the proposals of the Conservative ministries of 1904 and
1905; and while favorable mention was made of female suffrage, the
authors of the measure avowed the opinion that the injection of (p. 595)
that issue at the present moment would endanger the entire reform
programme. Amidst renewed public demonstrations the usual flood of
counter-projects, several stipulating female suffrage, made its
appearance. The upper chamber, dominated by the Conservatives, held
out for proportional representation, and, May 14, it negatived the
Staaff proposal by a vote of 125 to 18. The day following the bill was
passed in the lower chamber by a majority of 134 to 94, and a little
later proportional representation was rejected by 130 votes to 98.
*659. A Compromise Bill Adopted, 1907.*--Upon the Conservative
Government of Lindman which succeeded devolved the task of framing a
measure upon which the two chambers could unite. A new bill made its
appearance February 2, 1907. Its essential provisions were (1) that
the members of the lower chamber should be elected by manhood suffrage
(with the limitations specified in the Liberal programme of 1906) and
proportional representation; (2) that the number of electoral
districts should be fixed at fifty-six, each to return from three to
seven members; (3) that members of the upper chamber should be elected
by the provincial Landsthings and the municipal councils for six years
instead of nine as hitherto, and by proportional representation; and
(4) that the municipal suffrage, which forms the basis of the
elections to the Landsthing, should be democratized in such a manner
that, whereas previously a wealthy elector might cast a maximum of 100
votes in the towns and 5,000 in the rural districts,[829] henceforth
the maximum of votes which might be cast by any one elector should be
forty. By the Liberals and Social Democrats this measure was denounced
as inadequate, although on all sides it was admitted that the changes
introduced by it were so sweeping as to amount to a positive revision
of the constitution. The spokesmen of the Liberal Union reintroduced
the Staaff bill of 1906, and the Social Democrats brought forward a
new measure which accorded a prominent place to female suffrage.
February 8 the two chambers elected a joint committee to investigate
and report upon the Government's project. Various amendments were
added to the bill, e.g., one whereby members of the upper chamber
henceforth should receive an emolument for their services, and
eventually, May 14, the measure was brought to a vote. Despite the
apprehensions of the Government, it was carried. In the lower house
the vote was 128 to 98; in the upper, 110 to 29.
[Footnote 829: Under the prevailing system, each
elector in the towns had one vote for every 100
kroner income, subject to a limit of 100 votes;
each one in the country had ten votes for every 100
kroner income, subject to a limit of 5,000 votes.]
*660. Final Enactment, 1909: Woman's Suffrage.*--The measure (p. 596)
comprised a series of constitutional amendments, and, in accordance
with the requirements in such cases, it remained in abeyance until a
newly elected Riksdag (chosen in 1908 and assembled in 1909) should
have had an opportunity to take action upon it. In the Riksdag of 1908
ex-Premier Staaff introduced a measure granting female suffrage in
parliamentary elections and extending it in municipal elections. But
both chambers negatived this and every other proposal offered upon the
subject, preferring to support the Government in its purpose to keep
the issue of woman's suffrage in the background until the reforms of
1907 should have been carried to completion. Early in the session of
1909 the "preliminary resolution" of 1907 was given the final approval
of the chambers. The Liberals, being now interested principally in the
woman's suffrage propaganda, did not combat the measure, so that the
majorities for its adoption were overwhelming.
The enactment of this piece of legislation constitutes a landmark in
Swedish political history. Through upwards of a decade the question of
franchise reform had overshadowed all other public issues and had
distracted attention from various pressing problems of state.
Denounced still by the extremists of both radical and conservative
groups, the new law was hailed by the mass of the nation with the most
evident satisfaction.[830] The question of woman's suffrage remains.
At the elections of 1908 the Liberal party emulated the Social
Democrats in the incorporation of this project in its programme, and,
April 21, 1909, the Constitutional Committee of the Riksdag
recommended the adoption of a measure whereby women should be accorded
the parliamentary suffrage and eligibility to sit as members of either
chamber. In May, 1911, the essentials of this recommendation were
accepted by the lower chamber by a vote of 120 to 92, but by the upper
they were rejected overwhelmingly. At the opening of the Riksdag of
1912 the Speech from the Throne announced the purpose of the
Government to introduce a measure for the enfranchisement of women,
and during the session the promise was redeemed by the bringing (p. 597)
forward of a bill in accordance with whose terms every Swede, without
distinction of sex, over twenty-four years of age and free from legal
disabilities, may vote for members of the lower chamber.
[Footnote 830: In the main, the scheme of
proportional representation adopted in Sweden is
similar to that in operation in Belgium (see pp.
542-545). Electors are expected to write at the
head of their ballot papers the name or motto of
their party. The papers bearing the same name or
emblem are then grouped together, the numbers in
each group are ascertained, and the seats available
are allotted to these groups in accordance with the
d'Hondt rule, irrespective of the number of votes
obtained by individual candidates. The candidate
receiving the largest number of votes is declared
elected. The papers on which his name appears are
then marked down to the value of one-half, the
relative position of the remaining candidates is
ascertained afresh, and the highest of these is
declared elected, and so on. Unlike the Belgian
system, the Swedish plan provides for the allotment
of but a single seat at a time. Humphreys,
Proportional Representation, 296-313.]
III. THE RIKSDAG IN OPERATION--POLITICAL PARTIES
*661. Organization and Procedure.*--By the Riksdag law of 1866 the king
is required to summon the chambers annually and empowered to convene
extraordinary sessions as occasion may demand. It is within the
competence of the king in council to dissolve either or both of the
chambers, but in such an event a general election must be ordered
forthwith, and the new Riksdag is required to be assembled within
three months after the dissolution.[831] The president and
vice-presidents of both houses are named by the crown; otherwise the
chambers are permitted to choose their officials and to manage their
affairs independently. It is specifically forbidden that either house,
or any committee, shall deliberate upon or decide any question in the
presence of the sovereign. The powers of the Riksdag cover the full
range of civil and criminal legislation; but no measure may become law
without the assent of the crown. In other words, the veto which the
king possesses is absolute. At the same time, the king is forbidden,
save with the consent of the Riksdag, to impose any tax, to contract
any loan, to dispose of crown property, to alienate any portion of the
kingdom, to change the arms or flag of the realm, to modify the
standard or weight of the coinage, or to introduce any alteration in
the national constitution. Measures may be proposed, not only by the
Government, but by members of either house. The relations between the
two houses are peculiarly close. At each regular session there are
constituted certain joint committees whose function is the preparation
and preliminary consideration of business for the attention of both
chambers. Most important among these committees is that on laws,
which, in the language of the constitution, "elaborates projects
submitted to it by the houses for the improvement of the civil,
criminal, municipal, and ecclesiastical laws."[832] Other such
committees are those on the constitution, on finance, on
appropriations, and on the national bank.
[Footnote 831: Art. 109. Dodd, Modern
Constitutions, II., 249.]
[Footnote 832: Art. 53. Ibid., II., 234.]
*662. Powers.*--The stipulations of the constitution which relate to
finance are precise. "The ancient right of the Swedish people to tax
themselves," it is affirmed, "shall be exercised by the Riksdag
alone."[833] The king is required at each regular session to lay (p. 598)
before the Riksdag a statement of the financial condition of the
country in all of its aspects, both income and expenses, assets and
debts. It is made the duty of the Riksdag to vote such supplies as the
treasury manifestly needs and to prescribe specifically the objects
for which the separate items of appropriation may be employed; also to
vote two separate amounts of adequate size to be used by the king in
emergency only, in the one instance in the event of war, in the other,
when "absolutely necessary for the defense of the country, or for
other important and urgent purposes."
[Footnote 833: Art. 57. Ibid., 234.]
Finally, the Riksdag is authorized and required to exercise a
supervisory vigilance in relation to the several branches of the
governmental system. One of the functions of the Constitutional
Committee is that of inspecting the records of the Council of State to
determine whether there has been any violation of the constitution or
of the general laws; and in the event of positive findings the
Committee may institute proceedings before the Riksrâtt, or Court of
Impeachment. At every regular session the Riksdag is required to
appoint a solicitor-general, ranking equally with the attorney-general
of the crown, with authority to attend the sessions of any of the
courts of the kingdom, to examine all judicial records, to present to
the Riksdag a full report upon the administration of justice
throughout the nation, and, if necessary, to bring charges of
impeachment against judicial officers. Every third year the Riksdag
appoints a special commission to determine whether all of the members
of the Supreme Court "deserve to be retained in their important
offices." Every third year, too, a commission of six is constituted
which, under the presidency of the solicitor-general, overhauls the
arrangements respecting the liberty of the press.[834]
[Footnote 834: Arts. 96-100. Dodd, Modern
Constitutions, II., 244-245.]
*663. Political Parties: Military and Tariff Questions.*--In Sweden, as
in European countries generally, the party alignment which lies at the
root of contemporary politics is that of Conservatives and Liberals.
Much of the time, however, within the past half-century party
demarcations have been vague and shifting, being determined largely in
successive periods by the rise and disappearance of various
preponderating public issues. The first great question upon which
party affiliations were shaped after the accession of Oscar II. in
1872 was that of national defense. The army and navy were recognized
at that time to be hopelessly antiquated, and the successive
Conservative ministries of the seventies were resolved upon greatly
increased expenditures in the interest of military and naval
rehabilitation. Against this programme was set squarely that of rigid
economy, urged by the strongly organized Landtmannapartiet, or (p. 599)
Agricultural party, representing the interests of the landed
proprietors, large and small, of the kingdom. The Landtmannapartiet
was founded in 1867, immediately following the reconstitution of the
Riksdag under the law of 1866, and through several decades it
comprised the dominating element in the lower chamber, in addition to
possessing at times no inconsiderable amount of influence in the upper
one. Throughout the period covered by the Conservative ministry of
Baron de Geer (1875-1880) and the Agricultural party's government
under Arvid Posse (1880-1883) there was an all but unbroken deadlock
between the upper chamber, dominated by the partisans of military
expenditure, and the lower, dominated equally by the advocates of
tax-reduction. It was not until 1885 that a ministry under Themptander
succeeded in procuring the enactment of a compromise measure
increasing the obligation of military service but remitting thirty per
cent of the land taxes. By this legislation the military and tax
issues were put in the way of eventual adjustment.
Already there had arisen a new issue, upon which party lines were
chiefly to be drawn during the later eighties and earlier nineties.
This was the question of the tariff. The continued distress of the
agrarian interests after 1880, arising in part from the competition of
foreign foodstuffs, suggested to the landed interests of Sweden that
the nation would do well to follow in the path already entered upon by
Germany. The consequence was the rise of a powerful protectionist
party, opposed by a free trade party with which were identified
especially the merchant classes. In 1886 the agrarians procured a
majority in the lower chamber, and by 1888 they were in control of
both branches. The free trade Themptander ministry was thereupon
replaced by the protectionist ministry of Bildt, under which, in 1888,
there were introduced protective duties on cereals, and later, in
1891-1892, on manufactured commodities. Step by step, the customs
policy developed by Sweden during the middle of the century was
reversed completely.
*664. Politics Since 1891.*--July 10, 1891, the Conservative Erik Gustaf
Boström, became premier, and thereafter, save for a brief interval
covered by the von Otter ministry (September, 1900, to July, 1902)
this able representative of the dominant agrarian interests continued
uninterruptedly at the helm until the Norwegian crisis in the spring
of 1905. With the elimination, however, of the tariff issue from the
field of active politics, Premier Boström adopted an attitude on
public questions which, on the whole, was essentially independent. In
the later nineties there arose two problems, neither entirely new,
which were destined long to occupy the attention of the Government
almost to the exclusion of all things else. One of these was the (p. 600)
readjustment with Norway. The other was the question of electoral
reform. The one affected considerably the fate of ministries, but did
not alter appreciably the alignment of parties; the other became the
issue upon which party activity largely turned through a number of
years. All parties from the outset professed to favor electoral
reform, but upon the nature and extent of such reform there was the
widest difference of sentiment and policy. During the course of the
contest upon this issue the Liberal party tended to become distinctly
more radical than it had been in the nineties; and it is worthy of
note that the rise of the Social Democrats to parliamentary importance
falls almost entirely within the period covered by the electoral
controversy. The first Social Democratic member of the Riksdag was
elected in 1896. From 1906 to 1911 the Conservative ministry of
Lindman, supported largely by the landholding elements of both
chambers, maintained steadily its position. At the elections of 1908
the Liberals realized some gains, and at those of 1911 both they and
the Social Democrats cut deeply into the Conservative majority. When,
in September, 1911, it appeared that the Liberals had procured 102
seats in the lower chamber, the Social Democrats 64, and the
Conservatives but 64, the Lindman government promptly resigned and a
new ministry was made up by the Liberal leader and ex-premier Staaff.
The invitation which was extended the Social Democrats to participate
in the forming of the ministry was declined. In October the upper
chamber was dissolved, for the first time in Swedish history, and at
the elections which were concluded November 30 the Liberals and Social
Democrats realized another distinct advance. Before the elections the
chamber contained 116 Conservatives, 30 Liberals, and 4 Social
Democrats; following them the quotas were, respectively, 87, 51, and
12.[835]
[Footnote 835: V. Pinot, Le parlementarisme
suédois, in _Revue Politique et Parlementaire_,
Sept. 10, 1912.]
IV. THE JUDICIARY AND LOCAL GOVERNMENT
*665. The Courts.*--In theory the judicial power in Sweden, being lodged
ultimately in the crown, is indistinguishable from the executive; in
practice, however, it is essentially independent. The constitution
regulates with some minuteness the character of the principal
tribunal, the _Högsta Domstolen_, or Supreme Court, but leaves the
organization of the inferior courts to be determined by the king and
the Riksdag. The Supreme Court consists of eighteen "councillors of
justice" appointed by the crown from among men of experience, honesty,
and known legal learning. The functions of the court are largely (p. 601)
appellate, but it is worthy of note that in the event that a request
is made of the king by the lower courts, or by officials, respecting
the proper interpretation of a law, the Supreme Court is authorized to
furnish such interpretation, provided the subject is a proper one for
the consideration of the courts. Cases of lesser importance may be
heard and decided in the Supreme Court by five, or even four, members,
when all are in agreement. In more important cases at least seven
judges must participate. When the king desires he may be present, and
when present he possesses two votes in all cases heard and decided.
When the question is one of legal interpretation he is entitled to two
votes, whether or not he actually attends the proceedings. All
decisions are rendered in the name of the king. The inferior tribunals
comprise 212 district courts, or courts of first instance, and three
higher courts of appeal (_hofrâtter_), situated at Stockholm,
Jönköping, and Kristianstad. In the 91 urban districts the court
consists of the burgomaster and at least two aldermen; in the 121
rural districts, of a judge and twelve elected and unpaid peasant
proprietors serving as jurymen. No person occupying judicial office
may be removed save after trial and judgment.
*666. Local Government.*--The kingdom is divided into twenty-five
administrative provinces or counties (_lân_).[836] The principal
executive official in each is a _landshöfding_, or prefect, who is
appointed by the crown and assisted by a varying number of bailiffs
and sub-officials. Each province has a Landsthing, or assembly, which
meets for a few days annually, in September, under the presidency of a
member designated by the crown. All members are elected directly by
the voters of the towns and rural districts, in accordance with the
principle of proportional representation, and under a body of
franchise regulations which, while much liberalized in 1909, still is
based essentially upon property-holding. The function of the
Landsthing is the enactment of provincial legislation and the general
supervision of provincial affairs. In a few of the larger
towns--Stockholm, Göteborg, Malmö, Norrköping, and Gäfle--these
functions are vested in a separate municipal council. The conditions
under which purely local affairs are administered are regulated by the
communal laws of March 21, 1862. Each rural parish and each town
comprises a self-governing commune. Each has an assembly, composed of
all taxpayers, which passes ordinances, elects minor officials, and
decides petty questions of purely communal concern.
[Footnote 836: One of these comprises simply the
city of Stockholm.]
PART IX.--THE IBERIAN STATES (p. 603)
CHAPTER XXXIII
THE GOVERNMENT OF SPAIN
I. THE BEGINNINGS OF CONSTITUTIONALISM
*667. The Napoleonic Régime and the National Resistance.*--It was the
fortune of the kingdom of Spain, as it was that of the several Italian
states, to be made tributary to the dominion of Napoleon; and in
Spain, as in Italy, the first phase of the growth of constitutional
government fell within the period covered by the Corsican's
ascendancy. Starting with the purpose of punishing Portugal for her
refusal to break with Great Britain, Napoleon, during the years
1807-1808, worked out gradually an Iberian policy which comprehended
not only the subversion of the independent Portuguese monarchy but
also the reduction of Spain to the status of a subject kingdom. In
pursuance of this programme French troops began, in February, 1808,
the occupation of Spanish strongholds, including the capital. The aged
Bourbon king, Charles IV., was induced to renounce his throne and the
crown prince Ferdinand his claim to the succession, and, June 6,
Joseph Bonaparte, since 1806 king of Naples, was designated sovereign.
An assembly of ninety-one pliant Spanish notables, convened at Bayonne
in the guise of a junta, was influenced both to "petition" the Emperor
for Joseph's appointment and to ratify the _projet_ of a Napoleonic
constitution.
Napoleon's seizure of the crown of Spain was an act of sheer violence,
and from the outset Joseph was considered by his subjects a simple
usurper. The establishment of the new régime at Madrid became the
signal for a national uprising which not only compelled the Emperor
seriously to modify his immediate plans and to lead in person a
campaign of conquest, but contributed in the end to the collapse of
the entire Napoleonic fabric. Upon the restoration of some degree of
order there followed the introduction of a number of reforms--the
sweeping away of the last vestiges of feudalism, the abolition of the
tribunal of the Inquisition, the reduction of the number of monasteries
and convents by a third, and the repeal of all internal customs. (p. 604)
But the position occupied by the alien sovereign was never other than
precarious. At no time did he secure control over the whole of the
country, and during the successive stages of the Peninsular War of
1807-1814 his mastery of the situation diminished gradually to the
vanishing point. At the outset the principal directing agencies of the
opposition were the irregularly organized local juntas which sprang up
in the various provinces, but before the end of 1808 there was
constituted a central junta of thirty-four members, and in September,
1810, there was convened at Cadiz a general Cortes--not three estates,
as tradition demanded, but a single assembly of indirectly elected
deputies of the people.
*668. The Constitution of 1812.*--Professing allegiance to the captive
Ferdinand, the Cortes of 1810 addressed itself first of all to the
prosecution of the war and the maintenance of the national
independence, but after a year it proceeded to draw up a constitution
for a liberalized Bourbon monarchy. Save the fundamental decree upon
which rested nominally the government, of Joseph Bonaparte, this
constitution, promulgated March 19, 1812, was the first such
instrument in Spanish history. It was, of course, the first to emanate
from Spanish sources. Permeating it throughout were the radical
principles of the French constitution of 1791. It asserted
unreservedly the sovereignty of the people and proclaimed as
inviolable the principle of equality before the law. Executive
authority it intrusted to the king, but the monarch was left so scant
a measure of independence that not only might he never prorogue or
dissolve the Cortes, but not even might he marry or set foot outside
the kingdom without express permission. For the actual exercise of the
executive functions there were created seven departments, or
ministries, each presided over by a responsible official. The
fundamental powers of state were conferred upon a Cortes of one
chamber, whose members were to be elected for a term of two years by
indirect manhood suffrage. Various features of the French constitution
which experience had shown to be ill-advised were reproduced blindly
enough, among them the ineligibility of members of the legislative
body for re-election and the disqualification of ministers to sit as
members. The government of the towns was intrusted to the inhabitants;
that of the provinces, to a governor appointed by the central
authorities and an assembly of deputies popularly chosen for a term of
four years. As the starting point of Spanish constitutional
development the fundamental law of 1812 is of genuine interest. It is
not to be imagined, however, that the instrument reflects with any
degree of accuracy the political sentiment and ideals of the mass of
the Spanish people. On the contrary, it was the work of a slender (p. 605)
democratic minority, and it was never even submitted to the nation for
ratification. It was a product of revolution, and at no time was there
opportunity for its framers to put it completely into operation.[837]
[Footnote 837: For brief accounts of the Napoleonic
régime in Spain see Cambridge Modern History, IX.,
Chap. 11 (bibliography, pp. 851-853); Lavisse et
Rambaud, Histoire Générale, IX., Chap. 6; A.
Fournier, Life of Napoleon the First, 2 vols., (new
ed. New York, 1911), II., Chaps. 14-15; J. H. Rose,
Life of Napoleon I. (London, 1902), Chap. 28; M. A.
S. Hume, Modern Spain, 1788-1898 (London, 1899),
Chaps. 2-4; and H. B. Clarke, Modern Spain,
1815-1898 (Cambridge, 1906), Chap. 1. Of the
numerous histories of the Peninsular War the most
celebrated is W. Napier, History of the War in the
Peninsula and the South of France, 1807-1814, 10
vols. (London, 1828).]
*669. The Restoration and the Reign of Ferdinand VII.*--Upon the fall of
Napoleon the legitimate sovereign, under the name of Ferdinand VII.,
was established forthwith upon the Spanish throne. At one time he had
professed a purpose to perpetuate the new constitution, but even
before his return to Madrid he pronounced both the constitution and
the various decrees of the Cortes "null and of no effect," and when
the Cortes undertook to press its claims to recognition it found
itself powerless. In the restoration of absolutism the king was
supported not only by the army, the nobility, and the Church, but also
by the mass of the people. For constitutional government there was
plainly little demand, and if Ferdinand had been possessed of even the
most ordinary qualities of character and statesmanship, he might
probably have ruled successfully in a perfectly despotic manner
throughout the remainder of his life. As it was, the reaction was
accompanied by such glaring excesses that the spirit of revolution was
kept alive, and scarcely a twelvemonth passed in the course of which
there were not menacing uprisings. In January, 1820, a revolt of
unusual seriousness began in a mutiny at Cadiz on the part of the
soldiers who were being gathered for service in America. The revolt
spread and, to save himself, the king revived the constitution of 1812
and pledged himself to a scrupulous observance of its stipulations.
The movement, however, was doomed to prompt and seemingly complete
failure. The liberals were disunited, and the two years during which
the king was virtually a prisoner in their hands comprised a period of
sheer anarchy. The powers of the Holy Alliance, moreover, in congress
at Verona (1822), adopted a programme of intervention, in execution of
which, in April, 1823, the French government sent an army across the
Pyrenees under the command of the Duke of Angoulême. A six months'
campaign, culminating in the capture of Cadiz, whither the Cortes had
carried the king, served effectively to crush the revolution and to
reinstate the sovereign completely in the position which he had (p. 606)
occupied prior to 1820. Then followed a fresh period of repression, in
the course of which the constitution of 1812 was again set aside, and
throughout the remaining decade of the reign the government of the
kingdom was both despotic and utterly unprogressive.[838]
[Footnote 838: On the period covered by Ferdinand's
reign see Cambridge Modern History, X., Chap. 7
(bibliography, pp. 808-811); Lavisse et Rambaud,
Histoire Générale, X., Chap. 6; Clarke, Modern
Spain, Chaps. 2-4, and Hume, Modern Spain,
1788-1898, Chaps. 5-6. Extended works which touch
upon the constitutional aspects of the period
include: H. Gmelin, Studien zur Spanischen
Verfassungsgeschichte des neunzehnten Jahrhunderts
(Stuttgart, 1905); G. Diercks, Geschichte Spaniens
(Berlin, 1895); A. Borrego, Historia de las Cortes
de España durante el siglo XIX. (Madrid, 1885); and
M. Calvo y Martin, Regimem parlamentario de España
en el siglo XIX. (Madrid, 1883). A valuable essay
is P. Bancada, El sentido social de la revolucion
de 1820, in _Revista Contemporânea_ (August,
1903).]
II. POLITICAL AND CONSTITUTIONAL DEVELOPMENT, 1833-1876
*670. Maria Christina and the Estatuto Real of 1834.*--Ferdinand VII.
died September 29, 1833, leaving no son. Regularly since the
establishment of the Bourbon dynasty the succession in Spain had been
governed by the principle of the Salic Law, imported originally from
France. But, to the end that the inheritance might fall to a daughter
rather than to his brother, Don Carlos, Ferdinand had promulgated, in
1830, a Pragmatic Sanction whereby the Salic principle was set aside.
Don Carlos and his supporters refused absolutely to admit the validity
of this act, but Ferdinand was succeeded by his three-year-old
daughter, Isabella, and the government was placed in the hands of the
queen-mother, Maria Christina of Naples, as regent.[839] Her
administration of affairs lasted until 1840. From the constitutional
point of view the period was important solely because, under stress of
circumstances, the regent was driven to adopt a distinctly liberal
policy, and, in time, to promulgate a new constitutional instrument.
Don Carlos, supported by the nobility, the clergy, and other
reactionary elements, kept up a guerilla war by which the tenure of
the "Christinos" was endangered continuously. The regent was herself a
thoroughgoing absolutist, but her sole hope lay in the support of (p. 607)
the liberals, and to retain that it was necessary for her to make
large concessions. The upshot was that in April, 1834, she issued a
royal statute (_Estatuto Real_), whereby there was established a new
type of Cortes, comprising two chambers instead of one. The upper
house, or Estamento de Proceres, was essentially a senate; the lower,
or Estamento de Procuradores, was a chamber of deputies. Members of
the Procuradores were to be elected by taxpayers for a term of three
years. Upon the Cortes was conferred power of taxation and of
legislation; but the Government alone might propose laws, and the
Cortes, like its ancient predecessor, was allowed no initiative save
that of petitioning the Government to submit measures upon particular
subjects. A minimum of one legislative session annually was
stipulated; but the sovereign was left free otherwise to convoke and
to dissolve the chambers at will. Ministers were recognized to be
responsible solely to the crown.
[Footnote 839: In the mediæval states of Spain
there was no discrimination against female
succession. The Spanish Salic Law was enacted by a
decree of Philip V. in 1713, at the close of the
War of the Spanish Succession. Its original object
was to prevent the union of the crowns of France
and Spain. In view of the change which had come in
the international situation, Charles IV., supported
by the Cortes, in 1789 abrogated the act of 1713
and re-established the law of _Siete Partidas_
which permitted the succession of women. This
measure was recorded in the archives, but was not
published at the time; so that what Ferdinand VII.
did was simply to publish, May 19, 1830, at the
instigation of the Queen, this _pragmatica_, or
law, of 1789. The birth of Isabella occurred the
following October 10.]
*671. The Constitution of 1837.*--Toward the establishment of
constitutional government the Statute of 1834 marked some, albeit
small, advance. The Moderados, or moderate liberals, were disposed to
accept it as the largest concession that, for the present, could be
expected. But the Progressistas, or progressives, insisted upon a
revival of the more democratic constitution of 1812, and in 1836 the
regent was compelled by a widespread military revolt to sign a decree
pledging the Government to this policy. A constituent Cortes was
convoked and the outcome was the promulgation of the constitution of
June 17, 1837, based upon the instrument of 1812, but in respect to
liberalism standing midway between that instrument and the Statute of
1834. Like the constitution of 1812, that of 1837 affirmed the
sovereignty of the nation and the responsibility of ministers to the
legislative body. On the other hand, the Cortes was to consist, as
under the Statute, of two houses, a Senate and a Congress. The members
of the one were to be appointed for life by the crown; those of the
other were to be elected by the people for three years. In a number of
respects the instrument of 1837 resembled the recently adopted
constitution of Belgium, even as the Statute of 1834 had resembled the
French Charter of 1814. In the words of a Spanish historian, the
document of 1837 had the two-fold importance of "assuring the
constitutional principle, which thenceforth was never denied, and of
ending the sentiment of idolatry for the constitution of 1812."[840]
[Footnote 840: R. Altamira, in Cambridge Modern
History, X., 238.]
*672. The Constitution of 1845.*--October 12, 1840, the regent Maria
Christina was forced by the intensity of civil discord to abdicate and
to withdraw to France. Her successor was General Espartero, leader of
the Progressistas and the first of a long line of military men to
whom it has fallen at various times to direct the governmental (p. 608)
affairs of the Spanish nation. November 8, 1843, the princess Isabella
although yet but thirteen years old, was declared of age and, under
the name of Isabella II., was proclaimed sovereign. Her reign,
covering the ensuing twenty years, comprised distinctly an era of
stagnation and veiled absolutism. Nominally the constitution of 1837
continued in operation until 1845. At that time it was replaced by a
revised and less liberal instrument, drawn up by the Moderados with
the assistance of an ordinary Cortes. The duration of the Cortes was
extended from three to four years, severer restrictions upon the press
were established, supervision of the local authorities was still
further centralized, and the requirement that the sovereign might not
marry without the consent of the Cortez was rescinded. In the course
of a revolutionary movement in 1854 there was convoked a constituent
Cortes, dominated by Moderates and Progressives. The constitution
which this body framed, comprising essentially a revival of the
instrument of 1837, was never, however, put in operation. In the end,
by a royal decree of 1856, the constitution of 1845 was amended and
re-established. Save for some illiberal amendments of 1857,[841] which
were repealed in 1864, this instrument of 1845 continued in operation
until 1868. Throughout the period, however, constitutionalism was
hardly more than a fiction.[842]
[Footnote 841: One established conditions under
which senatorial seats might be made hereditary.]
[Footnote 842: Cambridge Modern History, X., Chap.
7; XI., Chap. 20; Lavisse et Rambaud, Histoire
Générale, X., Chap. 6; XI., Chap. 9; Hume, Modern
Spain, Chaps. 7-12; Clarke, Modern Spain, Chaps.
5-11; Mariano, La Regencia de D. Baldomero
Espartero (Madrid, 1870); J. Perez de Guzman, Las
Cortes y los Gobiernos del reinado de Da Isabel
II., in _La España Moderna_, 1903.]
*673. The Constitution of 1869: King Amadeo.*--By a revolt which began
in September, 1868, the queen was compelled to flee from the country,
and, eventually, June 25, 1869, to abdicate. A provisional government
effected arrangements for the election of a Cortes by manhood
suffrage, and this Cortes, convened at the capital, February 11, 1869,
addressed itself first of all to the task of drafting a new national
constitution. A considerable number of members advocated the
establishment of a republic; but for so radical an innovation there
was clearly no general demand, and in the end the proposition was
rejected by a vote of 214 to 71. June 1 a constitution was adopted
which, however, marked a large advance in the direction of liberalism.
It contained substantial guarantees of freedom of speech, freedom of
the press, liberty of religion, and the right of petition and of
public assembly, and in unequivocal terms the sovereignty of the
people was affirmed afresh. A Cortes of two houses was provided (p. 609)
for, the members of the Senate to be chosen indirectly by the people
through electoral colleges and the provincial assemblies, those of the
Congress to be elected by manhood suffrage, the only qualification for
voting being the attainment of the age of twenty-five years and
possession of ordinary civil rights.
Pending the selection of a sovereign, a regency was established under
Marshal Serrano. Among the several dignitaries who were
considered--Alfonso (son of the deposed Isabella) the Duke of
Montpensier, Ferdinand of Savoy (brother of King Victor Emmanuel of
Italy), King Luiz of Portugal, Ferdinand of Saxony, Leopold of
Hohenzollern-Sigmaringen, and Prince Amadeo, duke of Aosta, second son
of Victor Emmanuel--favor settled eventually upon the last named, who
was elected November 19, 1870, by a vote of 191 to 120. At the end of
1870 the new sovereign arrived in Spain, and February 2, 1871, he took
oath to uphold the recently established constitution. From the outset,
however, his position was one of extreme difficulty. He was opposed by
those who desired a republic, by the Carlists, by the adherents of the
former crown prince Alfonso, and by the clergy; and as a foreigner he
was regarded with indifference, if not antipathy, by patriotic
Spaniards generally. February 10, 1873, wearied by the turbulence in
which he was engulfed, he resigned his powers into the hands of the
Cortes, and by that body his abdication was forthwith accepted. It is
a sufficient commentary upon the political character of the reign to
observe that within the twenty-four months which it covered there were
no fewer than six ministerial crises and three general elections.
*674. The Republic (1873-1875): Monarchy Restored.*--The breakdown of
the elective monarchy, following thus closely the overthrow of
absolutism, cleared the way for the triumph of the republicans. The
monarchist parties, confronted suddenly by an unanticipated situation,
were able to agree upon no plan of action, and the upshot was that, by
a vote of 258 to 32, the Cortes declared for a republic and decreed
that the drafting of a republican constitution should be undertaken by
a specially elected convention. Although it was true, as Castelar
asserted, that the monarchy had perished from natural causes, that the
republic was the inevitable product of existing circumstance, and that
the transition from the one to the other was effected without
bloodshed, it was apparent from the outset that republicanism had not,
after all, struck root deeply. A constitution was drawn up, but it was
at no time really put into operation. The supporters of the new régime
were far from agreed as to the kind of republic, federal or (p. 610)
centralized, that should be established;[843] the republican leaders
were mutually jealous and prone to profitless theorizing; the nation
was lacking in the experience which is a prerequisite of
self-government.[844] At home the republic was opposed by the
monarchists of the various groups, by the clergy, and by the extreme
particularists, and abroad it won the recognition of not one nation
save the United States. The presidency of Figueras lasted four months;
that of Pi y Margall, six weeks; that of Salmeron, a similar period;
that of Castelar, about four months (September 7, 1873, to January 3,
1874). Castelar, however, was rather a dictator than a president, and
so was his Conservative successor Serrano. By the beginning of 1874 it
was admitted universally that the only escape from the anomalous
situation in which the nation found itself lay in a restoration of the
legitimist monarchy, in the person of Don Alfonso, son of Isabella II.
The collapse of the republic was as swift and as noiseless as had been
its establishment. The principal agency in it was the army, which, in
December, 1874, declared definitely for Alfonso, after he had pledged
himself to a grant of amnesty and the maintenance of constitutional
government. December 31 a regency ministry under the presidency of
Cánovas was announced, and the new reign began with the landing of the
young sovereign at Barcelona, January 10, 1875. Between the premature
and ineffective republicanism of the past year, on the one hand, and
the absolutism of a Carlist government, on the other, the
constitutional monarchy of Alfonso XII. seemed a logical, and to the
mass of the Spanish people, an eminently satisfactory, compromise.[845]
[Footnote 843: Castelar favored a consolidated and
radical republic; Serrano, a consolidated and
conservative republic; Pi y Margall, a federal
republic, on the pattern of the United States;
Pavia, a republic which should be predominantly
military.]
[Footnote 844: In this connection may be mentioned
a remark of General Prim, one of the leading
spirits in the provisional government of 1868. When
asked why at that time he did not establish a
republic his reply was: "It would have been a
republic without republicans." There was no less a
dearth of real republicans in 1873-1874.]
[Footnote 845: On the revolutionary and republican
periods see Cambridge Modern History XI., Chap. 20
(bibliography, pp. 945-949); Lavisse et Rambaud,
Histoire Générale, XII., Chap. 9; Hume, Modern
Spain, Chap. 10; V. Cherbuliez, L'Espagne
politique, 1868-1873 (Paris, 1874); W. Lauser,
Geschichte Spaniens von dem Sturz Isabellas,
1868-1875 (Leipzig, 1877); E. H. Strobel, The
Spanish Revolution, 1868-1875 (London, 1898); E.
Rodriguez Solis, Historia del partido republicano
español (Madrid, 1893); Pi y Margall, Amadeo de
Saboya (Madrid, 1884); H. R. Whitehouse, Amadeus,
King of Spain (New York, 1897). A significant work
is E. Castelar, Historia del movimiento republicano
en Europa (Madrid, 1873-1874). Special works
dealing with the restoration include A. Houghton,
Les origines de la restauration des Bourbons en
Espagne (Paris, 1890); Diez de Tejada, Historia de
la restauracion (Madrid, 1879).]
III. THE PRESENT CONSTITUTION (p. 611)
*675. The Constitution Adopted.*--The year following the
re-establishment of the monarchy was consumed largely in the
suppression of the Carlists and the reorganization of the government.
During this period Cánovas, at the head of a strong Conservative and
Clerical ministry, ruled virtually as a dictator, and sooner or later
most vestiges of the republic were swept away, while the nation was
won over solidly to the new order. At the election of the first Cortes
of the Restoration, January 22, 1876, the principle of manhood
suffrage was continued in operation, though so docile did the
electorate prove that Cánovas was able to secure, in both chambers, a
heavy majority which was ready to vote at the Government's behest a
franchise system of a much less liberal type. The first important task
of this Cortes was the consideration and adoption of a new national
constitution. As to the sort of constitution most desirable there was,
as ever, wide difference of opinion. The Conservatives favored a
revival of the instrument of 1845. The Liberals much preferred a
restoration of that of 1869. A commission of thirty-nine, designated
May 20, 1875, by a junta convened by Cánovas, had evolved with some
difficulty an instrument which combined various features of both of
these earlier documents, and by the Cortes of 1876 this proposed
constitution was at length accorded definite, though by no means
unanimous, assent (June 30). This instrument was put forthwith into
operation, and it has remained to this day, substantially without
alteration, the fundamental law of Spain. Based essentially upon the
constitution of 1845, it none the less exhibits at many points the
influence of the liberal principles which underlay the instrument of
1869.
*676. Contents: Guarantees of Individual Liberty.*--In scope the
constitution is comprehensive. Its text falls into thirteen "titles"
and eighty-nine articles. Like the constitution of Italy, it contains
no provision for its own amendment; but in Spain, as also in Italy,
the distinction between constituent and legislative powers is not
sharply drawn and a simple act of the legislative body is in practice
adequate to modify the working constitution of the kingdom. Among the
thirteen titles one of the most elaborate is that in which are defined
the rights and privileges of Spanish subjects and of aliens resident
in Spain.[846] Among rights specifically guaranteed are those of
freedom of speech, freedom of the press, peaceful assemblage, the
formation of associations, petition, unrestrained choice of professions,
and eligibility to public offices and employments, "according to (p. 612)
merit and capacity." Immunities guaranteed include exemption from
arrest, "except in the cases and in the manner prescribed by law";
exemption from imprisonment, except upon order of a competent judicial
official; freedom from molestation on account of religious opinions,
provided due respect for "Christian morality" be shown;[847] and
exemption from search of papers and effects and from confiscation of
property, save by authority legally competent. It is forbidden that
either the military or the civil authorities shall impose any penalty
other than such as shall have been established previously by law.
Certain guarantees, i.e., those respecting arrest, imprisonment,
search, freedom of domicile, freedom of speech and press, assemblage,
and associations, may, under provision of the constitution, be
suspended throughout the kingdom or in any portion thereof, but only
when demanded by the security of the state, and then only temporarily
and by means of a specific law. In no case may any other guarantee
which is named in the constitution be withdrawn, even temporarily.
When the Cortes is not in session the Government may suspend, through
the medium of a royal decree, any one of the guarantees which the
Cortes itself is authorized to suspend, but at the earliest
opportunity such a decree must be submitted to the Cortes for
ratification. It need hardly be pointed out that the opportunity for
the evasion of constitutionalism which is created by this power of
suspension is enormous, and anyone at all familiar with the history of
public affairs in Spain would be able to cite numerous occasions upon
which, upon pretexts more or less plausible, the guarantees of the
fundamental law have been set at naught.[848]
[Footnote 846: No. 1. Dodd, Modern Constitutions,
II., 199-203.]
[Footnote 847: By Article II Roman Catholicism is
declared to be the religion of the state. "The
nation," it is stipulated further, "binds itself to
maintain this religion and its ministers." Dodd,
Modern Constitutions, II., 201.]
[Footnote 848: An official text of the constitution
of 1876 is published by the Spanish Government
under the title Constitución politica de la
monarchia Española y leyes complementarias (4th
ed., Madrid, 1901). The texts of all of the Spanish
constitutions of the nineteenth century are printed
in the first volume of Muro y Martinez,
Constituciones de España y de las demas naciones de
Europa, con la historia general de España (Madrid,
1881); also in the first volume--Constituciones y
reglamentos (Madrid, 1906)--of a collection
projected by the Spanish Government under the title
of Publicaciones Parlamentarias. English versions
of the instrument of 1876 appear in British and
Foreign State Papers, LXVII. (1875-1876), 118 ff.,
and Dodd, Modern Constitutions, II., 199-216. An
excellent brief treatise on Spanish constitutional
development is H. Gmelin, Studien zur spanischen
Verfassungsgeschichte des neunzehnten Jahrhunderts
(Stuttgart, 1905); on Spanish constitutional law,
M. Torres Campos, Das Staatsrecht des Königreichs
Spanien (Freiburg, 1889), in Marquardsen's
Handbuch; on Spanish administrative law, V.
Santamaria de Paredes, Curso de derecho
administrativo (5th ed., Madrid, 1898); and on the
comparative aspects of Spanish institutions, R. de
Oloriz, La Constitución española comparada con las
de Inglaterra, Estados-Unidos, Francia y Alemania
(Valencia, 1904). More extended works of importance
include V. Santamaria de Paredes, Curso de derecho
politico (6th ed., Madrid, 1898), and A. Posada,
Tratado de derecho administrativo (Madrid,
1897-1898). A monumental collection of laws
relating to Spanish administrative affairs is M.
Martinez Alcubilla, Diccionario de la
administración Española, Peninsular y Ultramarina
(5th ed., 1892-1894), to which is added annually an
appendix containing texts of the most recent laws
and decrees. Special treatises of importance are M.
M. Calvo, Regimen parlamentario en España (Madrid,
1883); J. Costa, Oligarquia y Caciquismo como la
forma actual del Gobierno en España (Madrid, 1903);
and Y. Guytot, L'évolution politique et sociale de
l'Espagne (Paris, 1899). Mention may be made of R.
Fraoso, Las constituciones de España, in _Revista
de España_, June-July, 1880.]
IV. THE CROWN AND THE MINISTRY (p. 613)
*677. The Rules of Succession.*--Executive power in the kingdom is
vested solely in the crown, although in practice it devolves to a
large degree upon the council of ministers. Kingship is hereditary,
and in regulation of the succession the constitution lays down the
general principle that an elder line shall always be preferred to
younger ones; in the same line, the nearer degree of kinship to the
more remote; in the same degree of kinship, the male to the female; in
the same sex, the older to the younger person. By the original
constitution Alfonso XII. was declared to be the legitimate sovereign,
and provision was made that if the line of legitimate descendants of
Alfonso should be extinguished, his sisters should succeed in the
established order; then his aunt (the sister of his mother Isabella
II.) and her legitimate descendants; and, finally, the descendants of
his uncles, the brothers of Ferdinand VII.[849] It will be recalled
that the Pragmatic Sanction of 1830 abolished in Spain the Salic
principle and restored the ancient right of females to inherit. Spain
is, indeed, one of the few European states in which this right exists.
At the same time, as has been pointed out, when the degree of kinship
is identical, preference is accorded the male. Thus it came about that
the present sovereign, Alfonso XIII., the posthumous son of Alfonso
XII., took precedence over his two sisters, both of whom were older
than he, and the elder of whom, Maria de las Mercedes, actually was
queen from the death of her father, November 25, 1885, until the birth
of her brother, May 17, 1886.[850]
[Footnote 849: Arts. 59-61. Dodd, Modern
Constitutions, II., 211.]
[Footnote 850: She was, however, but a child five
years of age.]
*678. Regencies.*--Any member of the royal family who may be incapable
of governing, or who by his conduct may have forfeited his claim to the
good-will of the nation, may be excluded from the succession by (p. 614)
law. Disputes concerning rights or facts involved in the succession
are to be adjusted by law, and in event that all of the family lines
mentioned in the constitution should be extinguished it would become
the duty of the Cortes to make such disposal of the crown as might be
adjudged "most suitable to the nation."[851] Both the sovereign and
the heir presumptive are forbidden to marry any person who by law is
excluded from the succession. They are, indeed, forbidden to contract
a marriage at all until after the Cortes shall have examined and
approved the stipulations involved. The age of majority of the
sovereign is fixed at sixteen years. When the king is a minor, his
father or his mother, or, in default of a living parent, the relative
who stands next in the order of succession, is constituted regent,
provided always that such person be a Spaniard at least twenty years
of age and not by law excluded from the succession. Should there be no
one upon whom the regency may lawfully devolve, it is the duty of the
Cortes to appoint a regency of one, three, or five persons. If, at any
time, in the judgment of the Cortes, the sovereign becomes
incapacitated to rule, a regency is required to be vested in the crown
prince, provided he be sixteen years of age. In default of a qualified
crown prince the regency devolves upon the queen; and in default of
both son and queen, upon a person determined in accordance with the
rules already mentioned.
[Footnote 851: Art. 62. Dodd, Modern Constitutions,
II., 212.]
*679. Powers of the Crown.*--The powers of the crown are of the sort
common among continental monarchies. By the constitution they are
thrown into two groups, i.e., those which may be exercised freely and
independently and those which may be exercised only upon the
authorization of a special law. Enumeration of the first group begins
with the sweeping statement that "the power of executing the laws is
vested in the king, and his authority extends to everything which
conduces to the preservation of public order at home and the security
of the state abroad, in conformity with the constitution and the
laws."[852] Powers specifically named include the approval and
promulgation of the laws; the issuing of decrees, regulations, and
instructions designed to facilitate the execution of the laws; the
appointment and dismissal of ministers and of civil officials
generally; command of the army and navy and direction of the land and
naval forces; the declaration of war and the conclusion of peace;[853]
the conduct of diplomatic and commercial relations with foreign
states; the pardoning of offenders; the control of the coinage; (p. 615)
and the conferring of honors and distinctions of every kind. Of powers
which the sovereign may exercise only in pursuance of authority
specially conferred by law there are five, as follows: alienation,
cession, or exchange of any portion of Spanish territory; incorporation
of new territory; admission of foreign troops into the kingdom;
ratification of all treaties which are binding individually upon
Spaniards, and of treaties of offensive alliance which stipulate the
payment of subsidies to any foreign power, or which relate especially
to commerce; and abdication of the crown in favor of the
heir-presumptive.
[Footnote 852: Art. 50. Ibid., II., 210.]
[Footnote 853: It is required that subsequent to a
declaration of war or the conclusion of peace the
king shall submit to the Cortes a report
accompanied by pertinent documents.]
*680. The Ministry: Organization and Functions.*--In Spain, as in
constitutional states generally, the powers appertaining to the
executive are exercised in the main by the ministers. Concerning the
ministry the constitution has little to say. It, in truth, assumes,
rather than makes specific provision for, the ministry's existence. It
confers upon the crown the power freely to appoint and to dismiss
ministers; it stipulates that ministers may be senators or deputies
and may participate in the proceedings of both legislative chambers,
but may vote only in the chambers to which they belong; and, most
important of all, it enjoins that ministers shall be responsible, and
that no order of the king may be executed unless countersigned by a
minister, who thereby assumes personal responsibility for it. This
principle of ministerial responsibility, which found its first
expression in Spain in the constitution of 1812, is enforced nowadays
sufficiently, at least, to ensure the nation, through the Cortes, some
actual control over the policies and measures of the executive. Of
ministries there are at present nine, as follows: Foreign Affairs;
Justice; Finance; War; Marine; Interior; Public Instruction and Fine
Arts; Commerce; and Public Works. At the head of the ministerial
council is a president, or premier, who, under royal approval, selects
his colleagues, but ordinarily assumes himself no portfolio. It is the
function of the ministers not only to serve as the heads of executive
departments and to explain and defend in the legislative chambers the
acts of the government, but, in their collective capacity, to
formulate measures for presentation to the Cortes and, especially, to
submit every year for examination and discussion a general budget,
accompanied by a scheme of taxation or other proposed means of meeting
prospective expenditures. In each chamber there is reserved for the
ministers of the crown a front bench to the right of the presiding
official. The practice of interpellation exists, although ministries
rarely retire by reason of a vote of censure arising therefrom. But any
minister may be impeached by the Congress before the Senate. In Spain,
as in France and Italy, the parliamentary system is nominally in (p. 616)
operation; but, as in the countries mentioned, the multiplicity and
instability of party groups render the workings of the system totally
different from what they are in Great Britain. Ministries are
invariably composite rather than homogeneous in political complexion,
with the consequence that they are unable to present a solid front or
long to retain their hold upon the nation's confidence.
V. THE CORTES
*681. The Senate: Composition.*--The legislative powers of the kingdom
are vested in "the Cortes, together with the king." The Cortes
consists of two co-ordinate chambers, the Senate and the Congress of
Deputies. In the composition of the Senate the prescriptive,
appointive, and elective principles are curiously intertwined, the
chamber containing one group of men who are members in their own
right, another who are appointed by the crown and sit for life, and a
third who are elected by the corporations of the state and by the
large taxpayers. In number the first two categories jointly may not
exceed 180; the third is fixed definitely at that figure. In point of
fact the life senators nominated by the crown number 100, while the
quota of prescriptive members varies considerably. This last-mentioned
group comprises grown sons of the sovereign and of the heir-presumptive;
the admirals of the navy and the captains-general of the army; the
patriarch of the Indies and the archbishops; the presidents of the
Council of State, the Supreme Court, the Court of Accounts, and the
Supreme Councils of War and Marine, after two years of service; and
grandees of Spain[854] in their own right, who are not subjects of
another power and who have a proved yearly income of 60,000 pesetas
($12,000) derived from real property of their own, or from rights
legally equivalent to real property.[855]
[Footnote 854: The rank of grandee (_grande_) is a
dignity conferred by the sovereign, either for life
or as an hereditary honor.]
[Footnote 855: Art. 21. Dodd, Modern Constitutions,
II., 204].
*682. Appointment and Election of Senators.*--Appointment of senators by
the crown is made by special decree, in which must be stated the
grounds upon which each appointment is based. In the selection of
appointees the sovereign is not entirely free, but since the constitution
designates no fewer than twelve classes from which appointments may be
made, the range of choice is large. Among the categories enumerated
are the presidents of the legislative chambers; deputies who have been
members of as many as three congresses, or who have served during as
many as eight sessions; ministers of the crown; bishops; grandees;
lieutenant-generals of the army and vice-admirals of the navy, of (p. 617)
two years' standing; ambassadors, after two years of active service,
and ministers plenipotentiary, after four years; presidents and
directors of the half-dozen royal academies, and persons who in point
of seniority belong within the first half of the list of members of
these respective bodies; head professors in the universities, who have
held this rank and have performed the duties pertaining to it through
a period of four years; and a variety of other administrative,
judicial, and professional functionaries. Persons belonging to any one
of these groups, however, are eligible for appointment only in the
event that they enjoy an annual income of 7,500 pesetas ($1,500),
derived from property of their own or from salaries of permanent
employments, or from pensions or retirement allowances. In addition to
the classes mentioned persons are eligible who for two years have
possessed an annual income of 20,000 pesetas, or who have paid into
the public treasury a direct tax of 4,000 pesetas, provided that in
addition they possess titles of nobility, or have been members of the
Cortes, provincial deputies, or mayors in capitals of provinces or in
towns of more than 20,000 inhabitants. Appointments are made regularly
for life.
The conditions under which the quota of 180 elected senators are
chosen were defined by a statute of February 8, 1877. One senator is
chosen by the clergy in each of the nine archbishoprics; one by each
of the six royal academies; one by each of the ten universities; five
by the economic societies; and the remaining 150 by electoral colleges
in the several provinces. The electoral college is composed of members
of the provincial deputations and of representatives chosen from among
the municipal councillors and largest taxpayers of the towns and
municipal districts. But no one may become a senator by election who
would be ineligible, under the conditions above mentioned, to be
appointed to a seat by the crown. And it is required in all cases that
to become a senator one must be a Spaniard, must have attained the age
of thirty-five, must have the free management of his property, and
must not have been subjected to criminal proceedings, nor have been
deprived of the exercise of his political rights. The term of elected
senators is ten years. One-half of the number is renewed every five
years; but upon a dissolution of the elected portion of the chamber by
the crown, the quota is renewed integrally.[856]
[Footnote 856: Arts. 20-26. Dodd, Modern
Constitutions, II., 203-206.]
*683. The Congress of Deputies: Composition and Election.*--The lower
legislative chamber is composed of deputies chosen directly by the
inhabitants of the several electoral districts into which the kingdom
is divided. From the adoption of the present constitution until 1890
the franchise was restricted severely by property qualifications. (p. 618)
A reform bill which became law June 29, 1890, however, re-established
in effect the scheme of manhood suffrage which had been in operation
during the revolutionary epoch 1869-1875. Under the provisions of a
law of August 8, 1907, by which the electoral system was further
regulated, the franchise is conferred upon all male Spaniards who have
attained the age of twenty-five, who have resided in their electoral
district not less than two years, and who have not been deprived
judicially of their civil rights.[857] Except, indeed, in the case of
certain judicial officials and of persons more than seventy years of
age, the exercise of the voting privilege is, as in Belgium and in
some of the Austrian provinces, compulsory. The constitution requires
that there shall be at least one deputy for every 50,000 inhabitants.
The total membership of the Congress is at present 406. In the
majority of districts but a single deputy is chosen, but in
twenty-eight of the larger ones two or more are elected by _scrutin de
liste_, with provision for the representation of minorities. In
districts in which two or three deputies are to be chosen, each
elector votes for one fewer than the number to be elected; in
districts where from four to seven are to be chosen, the elector votes
for two fewer than the total number; and where the aggregate number is
eight to ten, or more than ten, he votes for three or four fewer,
respectively. Any Spaniard who is qualified for the exercise of the
suffrage is eligible for election, and for indefinite re-election, as
a deputy, save that no member of the clergy may be chosen. The term of
membership is five years, though by reason of not infrequent
dissolutions the period of service is actually briefer. As is true
also of senators, deputies receive no pay for their services.[858]
[Footnote 857: There is the customary regulation
that soldiers and sailors in active service may not
vote.]
[Footnote 858: J. Vila Serra, Manual de elecciones
de Diputados a Cortes (Valencia, 1907); J. Lon y
Albareda, Nueva ley electoral de 8 de Agosto de
1907, comentada (Madrid, 1907); M. Vivanco y L. San
Martin, La reforma electoral (Madrid, 1907).]
*684. Sessions and Status of the Chambers.*--The Cortes, consisting thus
of the Senate and the Congress of Deputies, is required by the
constitution to be convened by the crown in regular session at least
once each year. Extraordinary sessions may be held, and upon the death
or incapacitation of the sovereign the chambers must be assembled
forthwith. To the crown belongs the power not only to convene, but
also to suspend and to terminate the sessions, and to dissolve,
simultaneously or separately, the Congress and the elective portion of
the Senate. In the event, however, of a dissolution, the sovereign is
obliged to convene the newly constituted Cortes within the space of
three months. Except when it devolves upon the Senate to exercise (p. 619)
its purely judicial functions, neither of the chambers may be
assembled without the other. In no case may the two chambers sit as a
single assembly, or deliberate in the presence of the sovereign. Each
body is authorized to judge the qualifications of its members and to
frame and adopt its own rules of procedure. The Senate elects its
secretaries, but its president and vice-president are designated, for
each session, and from the senators themselves, by the crown. The
Congress, on the other hand, elects from its membership all of its own
officials. Sessions of both chambers are public, though "when secrecy
is necessary" the doors may be closed. A majority of the members
constitutes a quorum, and measures are passed by a majority vote. No
senator or deputy may be held to account by legal process for any
opinion uttered or for any vote cast within the chamber to which he
belongs; and, save when taken in the commission of an offense, a
member is entitled to all of the safeguards against arrest and
judicial proceedings which are extended customarily to members of
legislative bodies in constitutional states.[859]
[Footnote 859: It is to be observed that these
guarantees are not quite absolute. During the
crisis of 1904 the Maura government required the
Congress to suspend the legislative immunity of no
fewer than 140 members, and for the first time
since 1834 deputies were handed over to the courts
to be tried for offenses of a purely political
character.]
*685. Functions and Powers of the Cortes.*--The function of the Cortes
is primarily legislative. Each chamber shares with the crown the right
to initiate measures, and no proposal can become law until it has
received the sanction of the two houses. Rejection of a bill by either
chamber, or by the crown, precludes the possibility of a reappearance
of the project during the continuance of the session. Measures
relating to taxation and to the public credit must be presented, in
the first instance, in the Congress of Deputies, and it is made the
specific obligation of the Government every year to lay before that
body for examination and approval a budget of revenues and
expenditures. Only upon authority of law may the Government alienate
property belonging to the state, or borrow money on the public credit.
Under Spanish constitutional theory the Cortes is the agent of the
sovereign nation. It is authorized, therefore, not only to discharge
the usual functions of legislation but also to do three other things
of fundamental importance. In the first place, it receives from the
sovereign, from the heir-apparent, and from the regent or regency of
the kingdom, the oath of fidelity to the constitution and the laws. In
the second place, under provisions contained within the constitution,
it elects the regent or regency and appoints a guardian for a (p. 620)
minor sovereign. Finally, to maintain the responsibility of ministers
to the lower chamber, and, through it, to the nation, the Congress is
authorized to impeach, and the Senate to try, at any time any member
of the Government.[860]
[Footnote 860: Arts. 32-47. Dodd, Modern
Constitutions, II., 207-209. On the Cortes may be
consulted, in addition to the constitutional
treatises mentioned on pp. 612-613, A. Borrego,
Historia de las Cortes de Españo durante el siglo
XIX. (Madrid, 1885), and A. Pons y Umbert,
Organizaciôn y funcionamento de las Cortes segun
las constituciones españolas y reglamentacion de
dicho cuerpo colegislador (Madrid, 1906).]
VI. POLITICAL PARTIES
*686. Party Groups After 1869.*--Since the dawn of constitutionalism
political life in Spain has comprised much of the time a sheer game
between the "ins" and the "outs", in which issues have counted for
little and the schemings of the caciques, or professional wire-pullers
and bosses, have counted for well-nigh everything. For the exercise of
independent popular judgment upon fundamental political questions
aptitude has been meager and opportunity rare. Political parties there
have been, and still are, and certain of them have exhibited distinct
power of survival. Yet it must be observed that even the stablest of
them are essentially the creatures of the political leaders and that
at no time have they exhibited the broadly national rootage of
political parties in other states of western Europe.
Party cleavages in Spain had their beginning early in the nineteenth
century, but for the origins of the groups which share in an important
manner nowadays in the politics of the kingdom it is not necessary to
return to a period more remote than that of the revolution of 1868.
Subsequent to the expulsion of Queen Isabella at least four groups
were thrown into more or less sharp relief. One was the Carlists,
supporters of the claims of Don Carlos and, in respect to political
principle, avowed absolutists. A second comprised the Republicans, led
by Castelar, whose demand for the establishment of a republic,
rejected in 1869, carried the day upon the breakdown of the Amadeo
monarchy four years later. Between the Carlists, on the one hand, and
the Republicans, on the other, stood the mass of the political
leaders, and, so far as may be judged, of the nation also. All were
agreed upon the general principle of constitutional monarchy. But upon
the precise nature of the government which had been established and of
the public policy which ought to be pursued there was, and could be,
little agreement. The consequence was a sharp-cut cleavage, by which
there were set off in opposition to each other two large parties,
the Conservatives and the Liberals; and, save for the brief (p. 621)
ascendancy of the Republicans in 1873-1874, it is these two parties
which have shared between them the government of the kingdom from the
establishment of the limited monarchy in 1869 to the present day. Both
of these leading parties have been pledged continuously to maintain
the constitution and all of the popular privileges--freedom of speech,
liberty of the press, safety of property, the right of establishing
associations, and the like--guaranteed by that instrument. Upon the
_methods_ by which these things shall be maintained the parties
originally divided and still are disagreed. Fundamentally, the policy
of the Liberals is to commit the guardianship of public privileges to
the courts of justice, while that of the Conservatives is to retain it
rather in the hands of the ministerial and administrative authorities.
In the normal course of development the Liberal party has tended to
draw to itself those liberal elements generally which are satisfied to
rely upon legal means for the realization of their purposes, e.g.,
the free-traders, the labor forces, and many of the socialists.
Similarly the Conservative party has attracted a considerable
proportion of the reactionaries, especially the Ultramontanes, by whom
special stress is placed upon the maintenance of peace with the
Vatican, and many representatives of the old Moderate party which was
swept out of existence by the overturn of 1868.
*687. Liberals and Conservatives: Cánovas and Sagasta.*--The first
public act of Alfonso XII., following his proclamation as king,
December 29, 1874, was to call to his side in the capacity of premier
Cánovas del Castillo, by whom was formed a strong Conservative
ministry. Consequent upon the convocation of the Cortes of 1876 and
the adoption of the new constitution of that year, the various groups
of Liberals were drawn into a fairly compact opposition party,
supporting the Alfonsist dynasty and the new constitutional régime,
but proposing to labor, by peaceful means, for the restoration of as
many as possible of the more liberal features of the constitution of
1869. It is of interest to observe that the party, in its earlier
years, was encouraged by Cánovas, on the theory that there would be
provided by it a natural and harmless outlet for inevitable
ebullitions of the liberal spirit. Under the able leadership of
Sagasta the development of the party was rapid, and in 1881 Cánovas
determined to give the country a taste of Liberal rule. Following a
collusive "defeat" the premier retired, whereupon Sagasta was
designated premier and a Liberal ministry was established which held
office somewhat more than two years. By the Republicans and other
radical forces the ministry of Sagasta was harassed unsparingly, just
as had been that of Cánovas, and the actual working policies of (p. 622)
the two differed in scarcely any particular. Within the Liberal ranks,
indeed, a "dynastic Left" became so troublesome that Sagasta, after
two years, yielded office to the leader of the disaffected elements,
Posada Herrera. The only effect of the experiment was to demonstrate
that between the Conservatives led by Cánovas and the Liberals led by
Sagasta there was no room for a third party.
In 1885 Cánovas returned to power, but for only a brief interval, for
upon the establishment of the regency of Queen Christina, following
the death of Alfonso XII., November 25, 1885, Sagasta was called upon
to form the first of a series of ministries over which he presided
continuously through the ensuing five years. In the memorable Pact of
El Pardo it had been agreed between the Liberal and Conservative
leaders that each would assist the other in the defense of the dynasty
and of the constitution, and although Sagasta had avowed the intention
of reintroducing certain principles of the constitution of 1869 he was
pledged to proceed in a cautious manner and a conciliatory spirit. The
elections of 1884 yielded a substantial Conservative majority in both
chambers of the Cortes. None the less the Conservatives accorded the
Liberal government their support, until by the elections of 1886 the
Liberals themselves acquired control of the two houses. Throughout
three years Castelar and the more moderate Republicans co-operated
actively with the Government in the re-introduction of jury trial, the
revival of liberty of the press, and a number of other liberal
measures; but the Government was annoyed continually by attacks and
intrigues participated in by both the less conciliatory Republicans
and the Carlists. The crowning achievement of the Sagasta ministry was
the carrying through of the manhood suffrage act of June 29, 1890.
Within a month after the promulgation of the suffrage law the regent
gave Sagasta to understand that the time had arrived for a change of
leaders. The Cánovas ministry which was thereupon established endured
two and a half years, and was given distinction principally by its
introduction, in 1892, of the thoroughgoing protectionist régime which
prevails in Spain to-day. The Conservatives falling into discord,
Cánovas resigned, December 8, 1892; and at the elections of the
following year the Conservatives carried only one hundred seats in the
Chamber. During the period from December, 1892, to March, 1895,
Sagasta was again at the helm.
*688. The American War and Ministerial Changes, 1895-1902.*--Between
1895 and 1901 there was a rapid succession of ministries, virtually
all of which were both made and unmade by situations arising from (p. 623)
the war in Cuba and the subsequent contest with the United States. In
the hope of averting American intervention a new Cánovas government,
established in 1895, brought forward a measure for the introduction of
home rule in Cuba, but while the bill was pending, Cánovas was
assassinated, August 9, 1897, and the proposition failed. The new
Conservative cabinet of General Azcarraga soon retired, and although
the Sagasta government which succeeded recalled General Weyler from
Cuba and inaugurated a policy of conciliation, the situation had got
beyond control and war with the United States ensued. By the
succession of Spanish defeats the popularity of the Liberal régime was
strained to the breaking point, and at the close of the war Sagasta's
ministry gave place to a ministry formed by the new Conservative
leader Silvela. The elections of April 16, 1899, yielded the
Silvelists a majority and the ministry, reconstituted September 28 of
the same year, retained power until March 6, 1901. At that date the
Liberals gained the upper hand once more; and, with two brief
intervals, Sagasta remained in office until December 3, 1902. Within
scarcely more than a month after his final retirement, the great
Liberal leader passed away.
*689. Parties Since the Death of Sagasta.*--A second Silvela ministry,
established December 6, 1902, brought the Conservatives again into
power. This ministry, which lasted but a few months, was followed
successively by four other Conservative governments, as follows: that
of Villaverde, May, 1903, to December, 1903; that of Antonio Maura y
Montanes, December, 1903, to December, 1904; the second of General
Azcarraga, December, 1904, to January, 1905; and the second of
Villaverde, from January, 1905, to June, 1905. Of these the most
virile was that of Maura, a former Liberal, whose spirit of
conciliation and progressiveness entitled him to be considered one of
the few real statesmen of Spain in the present generation.
Following the death of Sagasta the Liberals passed through a period of
demoralization, but under the leadership of Montero Rios they
gradually recovered, and in June, 1905, the government of Villaverde
was succeeded by one presided over by Rios. At the elections of
September 10, 1905, the Ministerialists secured 227 seats and the
Conservatives of all groups but 126 (the remainder being scattered);
but discord arose and, November 29 following, the cabinet of Rios
resigned. Upon the great ecclesiastical questions of the day--civil
marriage, the law of associations, and the secularization of
education--both parties, but especially the Liberals, were disrupted
completely, and during the period of but little more than a year between
the retirement of Rios and the return to power of Maura, January 24,
1907, no fewer than five ministries sought successively to grapple (p. 624)
with the situation. Under Maura a measure of stability was restored.
The premier, although a Catholic, was moderately anti-clerical. His
principal purpose was to maintain order and to elevate the plane of
politics by a reform of the local government. At the elections of
April 21, 1907, the Conservatives won a victory so decisive that in
the Congress they secured a majority of 88 seats over all other groups
combined.[861] The fall of the Maura ministry, October 21, 1909, came
in consequence largely of the Moroccan crisis, but more immediately
by reason of embarrassment incident to the execution of the
anarchist-philosopher Señor Ferrer. The Liberal ministry of Moret,
constituted October 22, 1909, lacked substantial parliamentary support
and was short-lived. February 9, 1910, there was established under
Canalejas, leader of the democratic group, a cabinet representative of
various Liberal and Radical elements and made up almost wholly of men
new to ministerial office.[862]
[Footnote 861: The exact distribution of seats was
as follows: Conservatives, 256; Liberals, 66;
Solidarists, 53; Republicans, 32; Democrats, 9;
Independents, 8.]
[Footnote 862: November 12, 1912, Premier Canalejas
was assassinated. He was succeeded by the president
of the Congress of Deputies, Alvaro de Romanones,
under whom the Liberal ministry was continued in
office.]
*690. The Elections of 1910.*--The first important act of Canalejas was
to persuade the sovereign, as Moret had vainly sought to do, to
dissolve the Cortes, to the end that the Liberal ministry might appeal
to the country. The elections were held May 10. They were of peculiar
interest by reason of the fact that now for the first time there was
put into operation an electoral measure of the recent Maura government
whereby it is required that every candidate for a seat in the lower
chamber shall be placed in nomination by two ex-senators, two
ex-deputies, or three members of the general council of the province.
This regulation had been opposed by the Republicans and by the radical
elements generally on the ground that it put in the hands of the
Government power virtually to dictate candidacies in many electoral
districts, and the results seemed fairly to sustain the charge. May 1,
in accordance with a provision of the law, 120 deputies--upwards of
one-third of the total number to be chosen--were declared elected, by
reason of having no competitors. Of these 70 were Liberals, 39 were
Conservatives, and the remainder belonged to minor groups. In the
districts in which there were contests the Government also won
decisively a few days later, as it did likewise in the senatorial
elections of May 15. The results of the elections, as officially
reported, may be tabulated as follows:
(p. 625)
CONGRESS
OF
DEPUTIES
| Elected indirectly
| by the people, May 15
| |
| | Elected by
| | the corporations,
| | etc., May 15
| | |
| | | SENATE
| | | Total elected
| | | |
| | | | Immovable portion
| | | | of Senate
| | | | |
| | | | | Grand
| | | | | Total
| | | | | |
Liberals 229 92 11 103 70 173
Dissenting Liberals 0 3 0 3 0 3
Conservatives 107 35 7 42 77 119
Republicans 40 3 1 4 0 4
Carlists 9 4 0 4 2 6
Regionalists 8 4 1 5 0 5
Integrists 7 0 0 0 0 0
Independents 5 1 1 2 16 18
Socialists 1 0 0 0 0 0
Catholics 0 5 0 5 8 13
___ ___ ___ ___ ___ ___
406 147 21 168 173[863] 341
[Footnote 863: Some seats vacant.]
*691. Republicanism and Socialism.*--Among other accounts, the elections
of 1910 were notable by reason of the return to the Congress for the
first time of a socialist member. In Madrid, as in other centers of
population, the Government concluded with the Conservatives an
_entente_ calculated to hold in check the rising tide of socialism and
republicanism. Under the stimulus thus afforded the Socialists at last
responded to the overtures which the Republicans had long been making,
and the coalition which resulted was successful in returning to
Parliament the Socialist leader Iglesias, together with an otherwise
all but unbroken contingent of Republicans. In Barcelona and elsewhere
Republican gains were decisive. None the less the Republican forces
continue to be so embarrassed by factional strife as to be not really
formidable. The Socialists, however, exhibit a larger degree of unity.
As in Italy, France, and most European countries, they are growing
both in numbers and in effectiveness of organization. In Spain, as in
Italy, the historic parties which have been accustomed to share
between them the control of the state have, in reality, long since
lost much of the vitality which they once possessed. The terms
"Liberal" and "Conservative" denote even less than once they did
bodies of men standing for recognized political principles, or even
for recognized political policies. The field for the development of
parties which shall take more cognizance of the nation's actual
conditions and be more responsive to its demands seems wide and, on
the whole, not unpromising.[864]
[Footnote 864: On political parties in Spain two
older works are A. Borrego, Organizaciôn de los
Partidos (Madrid, 1855) and El Partido Conservador
(Madrid, 1857). Two valuable books are E. Rodriguez
Solis, Historia del partido republicano español
(Madrid, 1893) and B. M. Andrade y Uribe, Maura und
di Konservativen Partei in Spanien (Karlsruhe,
1912). The subject is sketched excellently to 1898
in Clarke, Modern Spain, Chaps. 14-16. In the
domain of periodical literature may be mentioned A.
Marvaud, Les élections espagnoles de mai 1907, in
_Annales des Sciences Politiques_, July, 1907; C.
David, Les élections espagnoles, in _Questions
Diplomatiques et Coloniales_, May 16, 1907; A.
Marvaud, Un aspect nouveau du Catalanisme, ibid.,
June 16, 1907; La situation politique et financière
de l'Espagne, ibid., Dec. 16, 1908; La rentrée des
Cortes et la situation en Espagne, ibid., June 16,
1910. A well-informed sketch is L. G. Guijarro,
Spain since 1898, in _Yale Review_, May, 1909.]
VII. THE JUDICIARY AND LOCAL GOVERNMENT (p. 626)
*692. Law and Justice.*--The law of Spain is founded upon the Roman law,
the Gothic common law, and, more immediately, the Leyes de Toro, a
national code promulgated by the Cortes of Toro in 1501. By the
constitution it is stipulated that the same codes shall be in
operation throughout all portions of the realm and that in these codes
shall be maintained but one system of law, to be applied in all
ordinary civil and criminal cases in which Spanish subjects shall be
involved. The civil code which is at present in operation was put in
effect throughout the entire kingdom May 1, 1889. The penal code dates
from 1870, but was amended in 1877. The code of civil procedure was
put in operation April 1, 1881, and that of criminal procedure, June
22, 1882. A new commercial code took effect August 22, 1885.
"The power of applying the laws in civil and criminal cases," says the
constitution, "shall belong exclusively to the courts, which shall
exercise no other functions than those of judging and of enforcing
their judgments."[865] What courts shall be established, the
organization of each, its powers, the manner of exercising them, and
the qualifications which its members must possess, are left to be
determined by law. The civil hierarchy to-day comprises tribunals of
four grades: the municipal courts, the courts of first instance, the
courts of appeal, and the Supreme Court at Madrid. The justices of the
peace of the municipal courts are charged with the registration of
births and deaths, the preparation of voting lists, the performance of
civil marriage, and the hearing of petty cases to the end that
conciliation, if possible, may be effected between the litigants. No
civil case may be brought in any higher court until effort shall have
been made to adjust it in a justice's tribunal. In each of the 495
_partidos judiciales_, or judicial districts, of the kingdom is a
court of first instance, empowered to take cognizance of all causes,
both civil and criminal. From these tribunals lies appeal in civil
cases to fifteen _audiencias territoriales_. By a law of April 20,
1888--the measure by which was introduced the use of the jury in (p. 627)
the majority of criminal causes--there were established forty-seven
_audiencias criminales_, one in each province of the kingdom, and
these have become virtually courts of assize, their sessions being
held four times a year. Finally, at Madrid is established a Supreme
Court, modelled on the French Court of Cassation, whose function it is
to decide questions relating to the competence of the inferior
tribunals and to rule on points of law when appeals are carried from
these tribunals. Cases involving matters of administrative law,
decided formerly by the provincial councils and the Council of State,
are disposed of now in the _audiencias_ and in the fourth chamber of
the Supreme Court.[866]
[Footnote 865: Art. 76. Dodd, Modern Constitutions,
II., 213.]
[Footnote 866: G. Marin, La jurisdiction
contentieuse administrative en Espagne, in _Revue
du Droit Public_, Oct.-Dec., 1906.]
Justice is administered in the name of the king. All judgments must be
pronounced in open court, and by the constitution it is guaranteed
specifically that proceedings in criminal matters shall be public. In
every tribunal the state is represented by _abogados fiscales_ (public
prosecutors) and counsel nominated by the crown. Magistrates and
judges, appointed by the crown, may not be removed, suspended, or
transferred, save under circumstances minutely stipulated in the
organic judicial laws. But judges are responsible personally for any
violation of law of which they may be guilty.
*693. Local Government: the Province and the Commune.*--Prior to 1833
the Spanish mainland comprised thirteen provinces, by which were
preserved in a large measure both the nomenclature and the
geographical identity of the ancient kingdoms and principalities from
which the nation was constructed. In the year mentioned the number of
provinces was increased to forty-seven, at which figure it remains at
the present day. The essential agencies of government in the province
are two--the governor and the _diputacion provincial_, or provincial
council. The governor is appointed by the crown and it is his
function, under the direction of the Minister of the Interior, to
represent the central government in the provincial council and in the
general administrative business of the province. The provincial
council is composed of members chosen by the voters of the province,
which means, under the law of June 28, 1890, all male Spaniards of the
age of twenty-five. Under the presidency of the governor the body
meets yearly, and in the intervals between sessions it is represented
by a _commission provinciale_, or provincial committee, elected
annually. The size of the council varies roughly according to the
population of the province.
The smallest governmental unit is the commune, and the number of (p. 628)
communes in the kingdom is approximately 8,000. In each is an
_ayuntamiento_, or council, the members of which, varying in number
from five to thirty-nine, are elected for four years (one-half
retiring biennially) by those residents of the commune who are
qualified to vote for members of the provincial councils. To serve as
the chief executive officer of the municipality the _ayuntamiento_
regularly elects from its own number an _alcalde_, or mayor, although
in the larger towns appointment of the mayor is reserved to the crown.
*694. Principles of Local Control.*--After stipulating that the
organization and powers of the provincial and municipal councils shall
be regulated by law, the constitution lays down certain fundamental
principles to be observed in the enactment of such legislation. These
are (1) the management of the local interests of the province and the
commune shall be left entirely to the respective councils; (2) the
estimates, accounts, and official acts of these bodies shall
invariably be made public; (3) the fiscal powers of the councils shall
be so determined that the financial system of the nation may never be
brought in jeopardy; and (4) in order to prevent the councils from
exceeding their prerogatives to the prejudice of general and
established interests the power of intervention shall be reserved to
the sovereign and, under certain circumstances, to the Cortes.[867]
The theory, carried over from the liberal constitution of 1869, is
that within the spheres marked out for them by law the provinces and
the municipalities are autonomous. And it undoubtedly is true that,
compared with the system in operation prior to 1868, the present
régime represents distinct decentralization. None the less it must be
said that in practice there is ever a tendency on the part of the
central authorities to encroach upon the privileges of the local
governing agencies, and through several years there has been under
consideration a reorganization of the entire administrative system in
the direction of less rather than more liberalism. In 1909 a Local
Administration bill devised by the recent Maura ministry was adopted
by the lower chamber of the Cortes. This measure, which was combatted
with vigor by the Liberal party, proposed to enlarge the fiscal
autonomy of the communes, but at the same time to modify the
provincial and municipal electoral system by the establishment of an
educational qualification, by the admission of corporations to
electoral privileges, and by otherwise lessening the weight of the
vote of the individual citizen. In the Senate the measure met
determined opposition, and as yet its fate is uncertain.[868]
[Footnote 867: Art. 84. Dodd, Modern Constitutions,
II., 215.]
[Footnote 868: J. Gascon y Marin, La réforme du
régime local en Espagne, in _Revue du Droit
Public_, April-June, 1909.]
CHAPTER XXXIV (p. 629)
THE GOVERNMENT OF PORTUGAL
I. A CENTURY OF POLITICAL DEVELOPMENT
*695. The Napoleonic Subjugation and the Constitution of 1820.*--The
government of Portugal at the opening of the nineteenth century was no
less absolute than was that of Spain, The Cortes was extinct, and
although Pombal, chief minister during the period 1750-1777, had
caused all Portuguese subjects to be made eligible to public office
and had introduced numerous economic and administrative reforms,
nothing had been permitted to be done by which the unrestricted
authority of the crown might be impaired. The country was affected but
slightly by the Revolution in France. In 1807, however, it fell prey
to Napoleon and the royal family was obliged to take refuge in the
dependency of Brazil. With the aid of the English the power of the
conqueror was broken in 1808, and through a number of years the
government was administered nominally by a commission designated by
the absentee regent, Dom John, though actually by a British
dictatorship. In 1815 Brazil was raised to the rank of a co-ordinate
kingdom, and from that year until 1822 the official designation of the
state was "the United Kingdom of Portugal, Brazil, and the Algarves."
In 1816 the mad queen Maria I. died and the regent succeeded to the
affiliated thrones as John VI. His original intention was to remain in
America, but in 1820 a general revolt in Portugal culminated in the
calling of a national assembly by which there was framed a
constitution reproducing the essentials of the Spanish instrument of
1812, and by this turn of events the sovereign was impelled, in 1821,
to set sail for the mother country, leaving as regent in Brazil his
son Dom Pedro. Fidelity to the new constitution was pledged perforce,
but the elements of reaction gathered strength swiftly, and before the
close of 1823 the instrument was abrogated. The only tangible result
of the episode was the creation of a constitutional party which
thereafter was able much of the time to keep absolutism upon the
defensive.[869]
[Footnote 869: In the meantime a revolt which was
impending in Brazil at the time of King John's
withdrawal had run its course. September 7, 1822,
the regent Dom Pedro, who freely cast in his lot
with the revolutionists, proclaimed the country's
independence, and some weeks later he was declared
constitutional emperor. Protest from Lisbon was
emphatic, but means of coercing the rebellious
colony were not at hand, and, in 1825, under
constraint of the powers, King John was compelled
to recognize the independence of his transoceanic
dominion.]
*696. The Constitutional Charter of 1826: Miguelist Wars.*--The (p. 630)
death of John VI., March 10, 1826, precipitated a conflict of large
importance in the history of Portuguese constitutionalism. The heir to
the throne was Dom Pedro, Emperor of Brazil, who as sovereign of
Portugal, assumed the title Pedro IV. Having inaugurated his reign by
the grant of a constitutional charter whereby there was introduced a
parliamentary system of government on the pattern of that in operation
in Great Britain, the new king, being unwilling to withdraw from
America, made over the Portuguese throne to his seven-year-old
daughter, Dona Maria da Gloria, with the stipulation that when she
should come of age she should be married to her uncle, Dom Miguel, in
whom meanwhile the regency was to be vested. Amid enthusiasm the
_Carta Constitucional_ was proclaimed at Lisbon, July 31, 1826, and in
August there was established a responsible Liberal ministry under
Saldanha. When, however, in 1828, the regent at length arrived in
Portugal, a clerical and absolutist counter-revolution was found to be
under way, and by the reactionary elements he was received, not as
regent, but as king. By a Cortes of the ancient type, summoned in the
stead of the parliament provided for in the Charter, Dom Miguel was
tendered the crown, which, in violation of all the pledges he had
given, he made haste to accept. That he might vindicate the claims of
his daughter, the Emperor Pedro, in April, 1831, abdicated his
Brazilian throne and, repairing to Portugal, devoted himself
unsparingly to the task of deposing the usurper. The outcome of the
wars which ensued was that in 1834 Dom Miguel was overthrown and
banished perpetually from the kingdom. Until his death, in September
of the same year, Pedro acted as regent for his daughter, and under
his comparatively enlightened rule the Charter of 1826 was restored
and the state was set once more upon the path of reform. Upon his
death the Princess Maria assumed the throne as Maria II.[870]
[Footnote 870: Cambridge Modern History, X., Chap.
10; Lavisse et Rambaud, Histoire Générale, X.,
Chap. 6; H. M. Stephens, Portugal (New York, 1903),
Chap. 18. A general treatise covering the period is
W. Bollaert, The Wars of Succession of Portugal and
Spain from 1821 to 1840 (London, 1870).]
*697. Nominal Constitutionalism, 1834-1853.*--The reign of Queen Maria
(1834-1853) was a period of factional turbulence. There were now three
political groups of principal importance: the Miguelists, representing
the interests of the repudiated absolutist régime; the Chartists, who
advocated the principles of the moderate constitution (that of 1826)
at the time in operation; and the Septembrists,[871] who were (p. 631)
attached rather to the principles of the radical instrument of
1821-1822. By all, save perhaps the Miguelists, the maintenance of a
constitution of some type was regarded as no longer an open question.
In 1836 the Septembrists stimulated a popular rising in consequence of
which the constitution of 1822 was declared again in effect until a
new one should have been devised, and, April 4, 1838, there was
brought forward under Septembrist auspices an instrument in which it
was provided that an elected senate should take the place of the
aristocratic House of Peers for which the Charter provided, and that
elections to the House of Deputies should thenceforth be direct. In
1839, however, a moderate ministry was constituted with Antonio
Bermudo da Costa Cabral as its real, though not its nominal, head, and
by a pronunciamento of February 10, 1842, the Charter was restored to
operation. Costa Cabral (Count of Thomar after 1845) ruled
despotically until May, 1846, when by a combination of Miguelists,
Septembrists, and Chartists he was driven into exile.[872] The
Chartist ministry of Saldanha succeeded. In 1849 it was replaced by a
ministry under the returned Thomar, but by a rising of April 7, 1851,
Thomar was again exiled. At the head of a moderate coalition Saldanha
governed peacefully through the next five years (1851-1856). The
period was marked by two important developments. July 5, 1852, a
so-called "Additional Act" revised the Charter by providing for the
direct election of deputies, the decentralization of the executive,
the creation of representative municipal councils, and the abolition
of capital punishment for political offenses. A second fact of
importance was the amalgamation, in 1852, of the Septembrists and the
Chartists to form the party of Regeneradores, or Regenerators, in
support of the Charter in its new and liberalized form.
[Footnote 871: So called from the _coup d'état_ of
September, 1836, mentioned shortly.]
[Footnote 872: E. Bavoux, Costa Cabral; notes
historiques sur sa carrière et son ministère
(Paris, 1846).]
*698. Party Rivalries: the Rotativos.*--In the constitutional history of
the kingdom the reign of Pedro V. (1853-1861) possesses slight
importance. There was less civil strife than during the preceding
generation, but ministries took office in rapid succession and little
improvement was realized in practical political conditions. The period
covered by the more extended reign of Luiz I. (1861-1889) was of the
same character, save that its later years were given some distinction
by certain developments in the party situation. The death of the old
Chartist leader Saldanha in 1876 was followed, indeed, by the
appearance of a political alignment that was essentially new. Already
the Regeneradores, representing the Chartist-Septembrist coalition (p. 632)
of 1852, had disintegrated, and in 1877 the more radical elements of
the defunct party, known at first as the Historic Left, were
reorganized under the name of the Progressistas, or Progressives. The
new conservative elements, on the other hand, carried on the
traditions and preserved the name of the original Regeneradores. In
the Cortes the Progressistas assumed the position of a Constitutional
Left and the surviving Regeneradores that of a Conservative Right.
Both were monarchical and both were attached to the existing
constitution, differing only in respect to the amendments which they
would have preferred to introduce in that instrument. Of remaining
parties two were of importance, i.e., the Miguelists, representing
still the interests of absolutism, and the Republicans, who first
acquired definite party organization in 1881.
Between 1877 and 1910 the Regeneradores and the Progressistas shared
in rotation the spoils of office with such regularity that the two
acquired popularly the nickname of the _rotativos_. Both were
dominated by professional politicians whose skill in manipulating
popular elections was equalled only by their greed for the spoils of
victory. Successful operation of a parliamentary system presupposes at
least a fairly healthy public opinion. But in Portugal, upwards of
four-fifths of whose inhabitants are illiterate,[873] there has been
no such favoring condition, and the opportunity for the demagogue and
the cacique has been correspondingly tempting. Parties have been
regularly mere cliques and party politics only factional strife.
Throughout the period corruption was abundant and such public feeling
as existed was stifled systematically. Elections were supervised in
every detail by the provincial governors; agents of the Government
were employed to instruct the people in their choice of
representatives; and the voters did habitually precisely what they
were told to do. No one ever expected an election to show results
adverse to the Government. Especially unscrupulous was the manner in
which the preponderating parties obstructed systematically the
election of Republican and Independent deputies. As late as 1906 but
one Republican was returned to the Cortes, although it was a matter of
common knowledge that in many constituencies the party commanded a
clear majority.
[Footnote 873: By official calculation, 78.6 per
cent in 1900.]
*699. The Dictatorship of Franco, 1906-1908.*--From June, 1900, to
October, 1904, the Regeneradores were in power, with Ribeiro as
premier. During this period two national elections, in 1900 and in
1904, yielded the controlling party substantial majorities. From
October, 1904, the Progressive ministry of Luciano de Castro occupied
the field, but in the spring of 1906 there took place a series of
ministerial crises in the course of which Ribeiro returned for a (p. 633)
brief interval to power. The election of April 26, 1906, gave the
Regeneradores 113 seats, the Progressistas 30, and the Republicans 1.
The ministerial changes by which this election was accompanied
prepared the way for the establishment of the régime known in recent
Portuguese history as the _dictadura_, or dictatorship. The new
premier, João Franco, was one of the abler and more conscientious men
in public life. Originally a Regenerator, as early as 1901 he had led
a secession from the party, and in 1903 he had organized definitely a
third party, the Liberal Regenerators, whose avowed end was the
establishment in Portugal of true parliamentarism. In 1906 a "Liberal
Concentration" was effected between Franco's followers and the
Progressistas, led by Castro, and the outcome was the calling, May 19,
1906, of Franco to the premiership. That office he assumed with the
determination to introduce and to carry through an elaborate programme
of sorely needed fiscal and administrative reforms. If possible, his
methods were to be entirely constitutional; if not, as nearly so as
might prove practicable. The Cortes elected April 26 met June 6 and,
being found unpromising, was dissolved. During the campaign which
followed the Regenerador party, to which Franco nominally belonged,
split, the Franquistas, or supporters of the premier, taking the name
of New Regenerators. The returns yielded by the election of August 12
were: New Regenerators, 73 seats; Progressives, 43; Old Regenerators,
23; Republicans, 4; with scattering seats distributed among other
groups.
The sitting of the Cortes which began September 29, 1906, was one of
the stormiest on record. In May, 1907, when the Government seemed on
the point of collapse and it was supposed that Franco would resign,
the indomitable premier effected a _coup d'état_ whereby the ministry
was reconstituted, the Cortes was dissolved, and several important
bills which were pending were proclaimed to have acquired the force of
law. During the ensuing twelvemonth the government was that of a
benevolent but uncompromising dictatorship. Supported by the king, the
army, and a considerable body of partisans, Franco succeeded in
carrying through the major portion of his reform programme. But he was
opposed by the Republicans, by the professional politicians of the
older parties, and by the entire hierarchy of administrative and
judicial officials who shrank from impending investigation. His task
was enhanced tremendously by the growing unpopularity of King Carlos,
and in defense of the sovereign it was found necessary to deprive the
House of Peers of its judicial functions, to replace the district and
municipal councils by commissions named by the crown, and, in short,
to suspend virtually all remaining vestiges of popular government, (p. 634)
as well as the various guarantees of individual liberty.
*700. Restoration of Normal Conditions.*--February 1, 1908, when the
situation bordered on revolution, King Carlos and the crown prince
Louis Philippe were assassinated and the dictatorship of Franco was
brought abruptly to an end. The king's second son, who succeeded under
the title of Manoel II., called together an extraordinary junta of
ministers and party leaders, at whose instigation the imperious
premier resigned and withdrew from the country; whereupon, under the
premiership of Admiral Ferreira do Amaral, there was formed a
coalition ministry, representative of all of the monarchist parties.
The administrative commissions created by Franco were dissolved; the
civil list, concerning which there had been grave controversy, was
reduced; the House of Peers was reconstituted; the election of a new
Cortes was ordered; and parliamentary institutions, suspended for a
year, were revived. The various reforms, on the other hand, for which
the dictator had been responsible were brought likewise to an end. The
election of April 5, attended by grave disorders, yielded the
Government a decisive majority and, April 29, the new sovereign
formally opened the first Cortes of his reign and took oath to support
the constitution. In the Chamber the old balance between the
Regeneradores and the Progressistas reappeared. Of the former there
were 61; of the latter, 59. The Republicans had 7 seats; a group of
"Nationalists," 3; the Independents, 1; and the "Amaralists," detached
supporters of the ministry, 17. Before the end of the year the
Government lost its majority, and December 24 a new coalition cabinet
was made up by Campos Henriques, a former minister of justice.[874]
[Footnote 874: On the political history of Portugal
since the establishment of constitutionalism see
Cambridge Modern History, XI., Chap. 20, XII.,
Chap. 10; and Lavisse et Rambaud, Histoire
Générale, XI., Chap. 9, XII., Chap, 9. A
serviceable general work is J. P. Oliveira Martins,
Historia de Portugal (4th ed., Lisbon, 1901). An
older and more detailed treatise is H. Schaefer,
Geschichte von Portugal (2d ed., Hamburg, 1874),
and a useful survey is R. de Vezeley, Le Portugal
politique (Paris, 1890). For a good brief survey of
Portuguese party politics see A. Marvaud, La crise
en Portugal et les élections d'avril 1908, in
_Annales des Sciences Politiques_, July, 1908.]
II. THE GOVERNMENT OF THE KINGDOM
*701. The Constitution.*--Before speaking of the revolution of 1910, in
consequence of which the monarchy was overthrown and the present
republic was established, it is desirable that brief allusion be made
to the governmental system of the earlier régime. The fundamental law
in operation in 1910 was the _Carta Constitucional_ of 1826, (p. 635)
remodelled and liberalized by numerous amendments. The revision
accomplished by the Additional Act of 1852 has been mentioned. An
amendment of July 24, 1885, provided for the gradual extinction of the
right of hereditary peers to sit in the upper house and for the
representation, in the Deputies, of minorities; while three amendments
of importance during the reign of Carlos I. (1889-1908) were: (1) that
of March 28, 1895, whereby the number of deputies was reduced from 180
to 120 and the qualifications requisite for the exercise of the
suffrage were overhauled; (2) that of September 25 of the same year
whereby the elective portion of the House of Peers was abolished; and
(3) that of August 8, 1901, by which the conditions of election to the
House of Deputies were revised. In its final form the constitution was
an instrument of unusual length, comprising eight "titles" and 145
articles, some of which were very comprehensive.[875]
[Footnote 875: The text of the constitution was
published by the state under the title of Carta
Constitucional da Monarchia Portugueza ... e
Diplomas Correlativos (Lisbon, 1890). An annotated
translation is in Dodd, Modern Constitutions, II.,
145-179. An excellent treatise is J. J. Tavares de
Medeiros, Das Staatsrecht des Königsreichs Portugal
(Freiburg, 1892), in Marquardsen's Handbuch.
Important Portuguese works include L. P. Coimbre,
Estudios sobre a Carta Constitucional de 1814 e
Acto Addicional de 1852 (Lisbon, 1878-1880), and
Coelho da Rocha, Ensaio sobre a Historia do Governo
e da Legislaçao de Portugal.]
*702. The Crown and the Ministry.*--Provision was made for the exercise
of four distinct categories of powers, i.e., executive, moderative,
legislative, and judicial. Of these the first two were lodged in the
sovereign, the third in the sovereign and Cortes conjointly, and the
fourth in tribunals established under provision of the constitution.
The crown was vested permanently in the descendants of Dona Maria II.,
of the House of Braganza, and, in default thereof, in the nearest
collateral line. The succession was regulated on the principle of
primogeniture, with preference to the male line, and during a
sovereign's minority the regency devolved upon the nearest relative,
according to the order of succession, who had attained the age of
twenty-five. Associated with the sovereign was a ministry and a
council of state. The ministry consisted of a premier, usually without
portfolio, and a variable number of heads of departments (in 1910,
seven),[876] and it was a principle of the constitution that, the
crown being legally irresponsible, no executive act might be adjudged
valid unless signed by one or more of the members of the ministerial
group. For all of their acts the ministers were responsible nominally
to the Cortes, although in point of fact the turbulent state of (p. 636)
politics rendered such responsibility nearly impossible to enforce.
The council of state was a body composed of the crown prince (when of
the age of eighteen) and of twelve men appointed by the king for life,
usually from present or past ministers. It was required that the
council be consulted in all affairs of weight and in general measures
of public administration, especially those relating to the declaration
of war, the conclusion of peace, and the conduct of diplomatic
negotiations.[877]
[Footnote 876: Foreign Affairs, Interior, Finance,
Justice and Worship, War, Marine and Colonies, and
Public Works.]
[Footnote 877: Arts. 107-112. Dodd, Modern
Constitutions, II., 168-169.]
Aside from participation in legislation, the powers of the crown
(exercised at least nominally through the intermediary of the
ministers and councillors) were, as has been said, of two categories,
executive and moderative. The powers of an executive character were of
the usual sort, i.e., the appointment of civil, military, and
ecclesiastical officials; the conduct of foreign relations; the
promulgation of the laws, and of decrees, instructions, and
regulations requisite to the proper execution of the laws; the
ordering, not less frequently than quadrennially, of an election of a
new Cortes; and the supervision, in conformity with the constitution,
of "all things which bear upon the internal and external security of
the state."[878] Among modern constitutions those of Portugal and
Brazil are unique in the distinction drawn between powers that are
executive and powers that are "moderative." Under the head of
moderative powers the Portuguese constitution vested in the crown the
nomination of peers, the convening of the Cortes in extraordinary
session, approval of the measures of the Cortes to the end that they
might acquire the force of law, the proroguing and adjourning of the
Cortes and the dissolving of the House of Deputies, the appointing and
dismissing of ministers, the granting of amnesties, and the remitting
or reducing of penalties imposed upon offenders by judicial sentence.
The theory was that these were powers which the sovereign exercised in
the capacity of mediator between the several organs of the
governmental system, and by the constitution it was declared that this
moderative power was the keystone of the entire political
organization. The distinction, however, while from a certain point of
view logical enough, does not appear to have possessed much practical
importance.
[Footnote 878: Arts. 75-77. Ibid., II., 162-164.]
*703. The Cortes.*--Powers of a legislative character were vested in the
sovereign conjointly with a parliament of two chambers, the _Camara
dos Pares_, or House of Peers, and the _Camara dos Deputados_, or
House of Deputies. Collectively, the two houses were known as the
_Cortes Feraes_, or, more briefly, the Cortes. Until 1885 the House of
Peers consisted of members of two classes, those who sat by (p. 637)
hereditary right and those who were nominated by the crown for life.
By the constitutional amendment of July 24, 1885, hereditary peerages
were put in the way of gradual abolition and it was stipulated that
when they should have been extinguished the chamber should be composed
of princes of the royal blood, the archbishops and bishops of Portugal
proper, 100 members appointed by the king for life, and 50 members
elected every new parliament by the lower chamber. By amendment of
September 25, 1895, however, the 50 elective peerages were abolished
and the number of royal appointees was reduced to 90. In 1910,
therefore, the chamber was made up of (1) princes of the royal blood
who had attained the age of twenty-five; (2) surviving peers whose
hereditary right antedated 1885, together with their immediate
successors; (3) the Patriarch of Lisbon and the archbishops and
bishops of the continental territory of the kingdom; and (4) the 90
life peers nominated by the crown. In the nomination of peers the
crown was restricted only by the requirement that members must have
attained the age of forty and must be able to meet a considerable
property qualification.
The House of Deputies, as regulated by the law of August 8, 1901, was
composed of 155 members, of whom 148 represented the 26 electoral
circles of Portugal, the Azores, and Madeira,[879] and 7 represented
the colonies. By amendment of 1885 provision was made for the
representation of minorities, and of the 155 members in 1910, 35 sat
as minority representatives. This result was attained through an
arrangement whereby in circles which elected more than one deputy each
elector voted for one or two fewer than the number of seats to be
filled. Deputies were chosen by direct election, and in the choice all
male citizens twenty-one years of age were entitled to participate,
provided they paid taxes aggregating 500 _reis_ (about 56 cents)
annually or were able to read and write. Convicts, beggars, bankrupts,
domestic servants, workingmen permanently employed by the state, and
soldiers and sailors below the rank of commissioned officer were
disqualified. In point of fact, the prevalence of poverty and of
illiteracy operated to confine the franchise within very narrow
limits. Peers, naturalized aliens, persons not qualified to vote, and
certain employees of the state were ineligible for election, and
deputies were required to possess an income of not less than 400
milreis ($425) annually, or to be graduates of a professional,
secondary, or higher school. After 1892 no deputies, save those
representing the colonies, were paid salaries.
[Footnote 879: The Azores and Madeira are regarded
as integral parts of the nation.]
Sessions of the Cortes were required to be opened by the crown on (p. 638)
the second day of January of each year. According to the amendment of
July 24, 1885, a regular session lasted three months and each Cortes,
unless sooner dissolved, lasted three years. The president and
vice-president of the House of Peers were appointed by the crown;
likewise the corresponding officials of the House of Deputies, from a
list of five nominees presented by that body. Each chamber was
authorized to choose its own secretaries, to pass upon the qualifications
of its members, and to frame its rules of procedure. Except at times
when the welfare of the state demanded secrecy, sessions were required
to be public. To the lower chamber was committed the initiative in all
matters pertaining to taxation, the recruiting of troops, the
investigation of the administrative offices, and the consideration of
propositions submitted by the executive. Upon it, likewise, was
conferred exclusive power to impeach ministers and councillors of
state. The right to initiate measures in general was vested in each of
the two houses, as well as in the Government. Ministers were
privileged to attend legislative sessions and to participate in
debate. It was required that the sovereign should give or refuse his
approval of every measure within a month after it should have been
presented to him.[880]
[Footnote 880: Arts. 45-62. Dodd, Modern
Constitutions, II., 156-159.]
*704. The Judiciary and Local Government.*--The judicial hierarchy
consisted of 193 courts of first instance, one in each of an equal
number of _comarcas_, or districts; three courts of appeal, sitting at
Lisbon, Oporto, and Ponta Delgada (in the Azores); and a Supreme Court
at Lisbon. Judges were appointed by the crown, and were irremovable
save in consequence of judicial sentence. In the trial of criminal
cases the English jury system was in vogue, although it operated but
indifferently. The functions of the Supreme Court were those of
hearing appeals from the inferior tribunals, trying cases involving
judges of the appellate courts and members of the diplomatic corps,
and deciding conflicts of jurisdiction.[881]
[Footnote 881: Arts. 118-131. Ibid., II., 169-171.]
Early in the nineteenth century continental Portugal was divided for
administrative purposes into six provinces, delimited in a large
measure in accordance with the physical configuration of the country.
In 1836 the province ceased to be an administrative unit and, after a
period of readjustment, there was established by law of March 18,
1842, an administrative hierarchy which in its more important aspects
has survived to the present day. Under that measure the realm was
divided into 21 districts (17 continental and 4 insular), 292
_concelhos_, or communes (263 continental and 29 insular), and 3,690
_freguezias_, or parishes (3,788 continental and 172 insular). (p. 639)
Until 1910 the government of the district was vested in a commission
consisting of two members appointed by the central authorities and
three elected triennially by delegates from the communal councils. Of
the two centrally appointed members, one, the governor, presided over
the commission; the other was an administrative auditor. Among the
functions of the commission was that of sitting as an administrative
court. The commune was governed by a mayor, appointed by the central
authorities on nomination of the governor of the district, and a
council of five to fifteen members elected on a single ticket by the
communal voters. The council was presided over, not by the mayor, but
by one of its own members. The governing agencies of the parish were
an elected council (_junta de parochia_), presided over by the parish
priest, and the _regidor_, named by the district governor to represent
the interests of the central government. Throughout the entire system
the preponderating fact was the thoroughgoing centralization which,
through the governors, mayors, and _regadores_, the authorities at
Lisbon were able to maintain.
III. THE REVOLUTION OF 1910
*705. Political Unsettlement, 1908-1910.*--The period of two and a half
years which elapsed between the accession of Manoel II., in February,
1908, and his deposition, in October, 1910, was one of continued
political stress. The sovereign was youthful, inexperienced, and
lacking in political training. His advisers were divided in their
counsels and impelled largely by selfish motives, and in the teeth of
rapidly spreading republican and socialist propaganda the old dynastic
parties kept up unremittingly their unseemly recriminations. In
February, 1909, the king called into consultation the leaders of the
various monarchist groups and sought to impress upon them the
necessity of co-operation, and when the Cortes was convened, March 1,
the Speech from the Throne announced optimistically a programme of
constructive legislation, embracing, among other things, the enactment
of more liberal press laws, a reform of primary education, and a
readjustment of taxation. Within the Cortes, however, it was found
impossible to carry any one of the measures proposed and, March 29,
the Henriquez ministry, after only three months in office, resigned.
During the remainder of the year three successive ministries were set
up: that of General Sebastiano Telles, which lasted only from April 11
until May 4; that of Wencelao de Lima, extending from May 4 to
December 21; and that of Beirao, which continued from December 21 to
early June of the following year. The De Lima cabinet was formed from
elements which stood largely outside the swirl of party politics, (p. 640)
but the Republican and Regenerador opposition was so intense that
nothing could be accomplished by it. The Beirao government by which it
was succeeded was composed entirely of Progressives. The Speech from
the Throne at the convening of the Cortes, January 2, 1910, ignored
completely the grim realities of the political situation. Ostensibly
to afford the Beirao ministry an opportunity to formulate a programme,
the session was adjourned until March 3, at which time the members
reassembled, only to be sent back again to their homes until June 1.
At the second reassembling the ministry was opposed with such
virulence that it at once retired and, after some delay, the
Regeneradors came into power under Teixeira de Sousa. The Cortes was
dissolved and a national election, accompanied by grave disorders, was
held, August 28. At the election the Regeneradors obtained 80 seats,
the Progressives 43, the Republicans 14 (twice as many as they had
ever obtained before), and the Independents 2.[882] The new Cortes
assembled September 23; but two days later it was adjourned until
December 12, and, in point of fact, it never sat again.
[Footnote 882: Ten of the fourteen Republican
deputies were elected in Lisbon. The popular vote
in that city was: Republicans, 15,104; Monarchists
of all parties, 9,108. In 1908 the numbers were
13,074 and 10,982 respectively.]
*706. Overthrow of the Monarchy.*--During many months a plot had been
ripening in Republican circles looking toward the deposition of the
king, the overthrow of the monarchy, and the proclamation of a
republic. By reason of the confusion and repression which prevailed
perennially in Portuguese politics, the actual strength, numerically
and otherwise, of republicanism in the kingdom in 1910 cannot be
known. But it is sufficiently clear that the propaganda of the past
thirty years had borne much fruit and that among the artisan, trader,
and small burgher classes, and especially in the ranks of the army and
the navy, the enemies of the monarchy had come to be numerous and
influential. The leaders of the republican movement represented, on
the whole, the best educated and most progressive elements of the
country--largely lawyers, physicians, journalists and other men of the
professions and of business. In the later summer of 1910 various
intimations of a far-reaching revolutionary plot were received by the
Government and the date (September 14) which was at one time fixed for
the insurrection proved an impracticable one because the authorities
became aware of the project and subverted the republican plans by
ordering the warships on that day to quit the Tagus. Within official
circles it was generally assumed that the revolutionists, balked once,
would return to the project. The crash came, however, at a moment (p. 641)
when the Government was entirely off its guard, and its effects were
unexpectedly summary. The immediate incident by which it was
precipitated was the assassination in Lisbon, October 3, of a
distinguished Republican member of the Cortes, Dr. Miguel Bombarda.
Whether justly or not, the assassination was interpreted by the
populace as a political crime, and to the disaffected elements of the
army and navy the occasion seemed ripe for the execution of the
contemplated _coup_. October 4 open revolt broke out among the
national troops, and during the ensuing forty-eight hours a handful of
soldiers and sailors, aided by armed civilians, acquired the mastery
of the capital, put the king to flight, won over the country to their
cause, and proclaimed the establishment of a republican form of
government. The revolutionists were organized, the royalists were not,
and the defeat of the latter was complete. It was also substantially
bloodless. King Manoel, and the queen-mother Amelia, contriving an
escape from the royal palace, made their way to Eraceira, and thence
to Gibraltar. Subsequently they were conveyed to England.
*707. Measures of the Provisional Government.*--Meanwhile, October 5,
there was established at Lisbon a provisional government composed of
nine ministers and presided over by the scholar and litterateur,
Theophile Braga. The members of this government were drawn principally
from the group of Republican deputies representing the Lisbon
constituencies. A few had held high office under the monarchy, but
most of them, including Braga, were men of little or no experience in
administrative work. The flight of the king and the collapse of the
monarchist cause cleared the way for a speedy establishment of the new
order, and without awaiting a formal remodelling of the constitution,
the Braga government proceeded to carry into execution a number of
features of the Republican programme. October 7 it promised amnesty to
political and press exiles, the revocation of various illiberal press
and judicial laws, the suppression of summary magisterial powers, and
a long list of other administrative and judicial reforms. October 18
it abolished the monarchy and proscribed forever the royal house of
Braganza. On the same day it abolished likewise the Council of State
and the House of Peers, together with all hereditary titles and
privileges. In the course of further measures of reform relating to
public finance, agriculture, education, religion, and social welfare,
it issued a new electoral law and effected arrangements for the
convening of a national assembly to which should be committed the task
of framing a republican constitution. The electoral decree of March
15, 1911, conferred the franchise upon all Portuguese citizens of the
age of twenty-one who under the monarchy were entitled to its
exercise, and upon all, in addition, who were able to read and (p. 642)
write, barring soldiers, bankrupts, and ex-convicts. The two cities,
Lisbon, and Oporto, were created electoral districts in each of which
eight members were to be chosen by _scrutin de liste_ after the
Belgian, or d'Hondt, plan of proportional representation, and the
remainder of the country (including the colonies) was divided into
districts in each of which four members were to be chosen, also with
provision for the representation of minorities.
*708. The Constitution Framed and the Government Organized.*--The
elections to the Constituent Assembly took place May 28, 1911. There
were no monarchist candidates and, there having been neither time nor
occasion for the appearance of serious differences among the
Republicans, the event was attended by little excitement and by no
disorder. In many districts the candidates approved by the Provisional
Government were unopposed. The Assembly was convened June 19. By
unanimous vote of its 192 members the decree by which the monarchy had
been abolished and the Braganza dynasty banished was enacted into law,
whereupon the body addressed itself to the framing of a budget and the
adoption of organic laws relating to the nature and manner of exercise
of the political powers of the republic. A draft of the constitution,
framed by the Republican leaders, was read to the delegates July 3,
and August 18 it was voted, amid general acclamations, almost without
modification. The presidential election was fixed for August 23. Of
the two principal candidates, Dr. Manoel Arriaga represented the more
moderate wing of the Republican element, Dr. Machado Santos (the
provisional president) the more radical. Dr. Arriaga was elected by a
vote of 121 to 86. August 24 the Assembly terminated its proceedings
and the new constitution was put in operation. The first cabinet,
presided over by João Chagas, was announced at the beginning of
September. It was at this point that France, Spain, and a number of
other European powers for the first time recognized officially the
republic's existence. The difficulties encountered by the new
régime--royalist invasions, outbreaks of disaffection, strikes, lack
of funds--were numerous. Not the least serious was the inevitable rise
of differences among the Republicans themselves. During the autumn of
1911 the Moderates split into two rival groups, and the more important
of them, led by Dr. Almeida, definitely withdrew its support from the
Government. The result was a ministerial crisis, and November 7 the
Chagas cabinet resigned. The new "ministry of concentration" formed by
the radical Vasconcellos was composed of eight members divided almost
equally between the Moderates and the Democrats. In more recent days
the lines of party cleavage have tended to be accentuated and the (p. 643)
stability, if not the existence, of the republic to be increasingly
menaced. In June, 1912, a new ministry was constituted under Leite, in
which all of the groups in the lower chamber were represented. There
is reason to apprehend that, in the event of the survival of the
republic, the outcome will be at best but the resuscitation, under
other names and forms, of the long-endured rotativist régime.
IV. THE CONSTITUTION OF 1911
*709. Constitutional Guarantees: Amendment.*--Aside from five articles
of a temporary nature, the constitution of 1911 is arranged in
eighty-two articles, grouped in seven "titles" or divisions. The two
divisions of principal length are those which relate to the rights and
liberties of the individual and the organs and exercise of sovereign
power. The guarantees extended the individual comprise a bill of
rights hardly paralleled in comprehensiveness among the constitutions
of European nations. To Portuguese citizens and to aliens resident in
the country are pledged full liberty of conscience, freedom of speech,
freedom of the press, liberty of association, inviolability of
domicile and of property, the privilege of the writ of habeas corpus,
privacy of correspondence, and freedom of employment and of trade save
only when restriction is required for the public good. Law is declared
to be uniform for all and no public privilege may be enjoyed by reason
of birth or title. No one may be required to pay a tax which has not
been levied by the legislative chambers or by an administrative
authority specifically qualified by law, and, save in case of
enumerated offenses of serious import, no one may be imprisoned except
upon accusation according to the forms of law. No one may be compelled
to perform an act, or to refrain from the performance of an act,
except by warrant of law.
The constitution is subject to amendment under regulations of a
somewhat curious character. Revision of the fundamental law may be
undertaken normally by Congress at the end of every decennial period,
the Congress whose mandate coincides with the period of revision being
endowed automatically with constituent powers and the process of
revision differing in no respect from that of ordinary legislation. At
the end of a five-year period from the date of promulgation, however,
amendment may be undertaken, providing two-thirds of the members of
the chambers sitting jointly vote favorably. Under all circumstances
amendments must be specific rather than general, and in no case may an
amendment be received or debated which has for its object the
abolition of the republican form of government.
*710. The President and the Ministry.*--Sovereignty is lodged in (p. 644)
the nation, and the organs of the sovereign will are the independent
but supposedly harmonious executive, legislative, and judicial
authorities. The powers of the executive are exercised by the
President and the ministers. The President is chosen by the two houses
of Congress assembled in joint session sixty days prior to the
expiration of the presidential term. Voting is by secret ballot and a
two-thirds majority is required for election, although in default of
such a majority choice is made on the third ballot by simple plurality
between the two candidates receiving the largest number of votes. If
the office falls vacant unexpectedly the chambers choose in the same
manner a president to complete the unexpired term. The term is four
years, and after retiring from office an ex-president may not be
re-elected for a full term prior to the lapse of four more years. Only
native Portuguese citizens at least thirty-five years of age are
eligible. Without the permission of Congress the President may not
absent himself from the national territory, and he may be removed from
office by the vote of two-thirds of the members of the chambers
sitting jointly. The duties of the President are, among other things,
to negotiate treaties and to represent the nation in its external
relations generally, to appoint and dismiss the ministers and public
officials, to summon the Congress in extraordinary session, to
promulgate the laws of Congress, together with the instructions and
regulations necessary for their enforcement, and to remit and commute
penalties. If two-thirds of the members of the chambers so request,
projected treaties of alliance must be laid before Congress, and the
appointment and suspension of public officials may be effected only on
proposal of the ministers. Every act of the President must be
countersigned by at least one minister, and every minister is
responsible politically and legally for all acts which he countersigns
or executes. One member of the ministerial group, designated by the
President, exercises the functions of premier. Ministers may be
members of Congress, and in any case they are privileged to appear in
the chambers to defend their acts. Among offenses for which ministers
may be held to account in the ordinary tribunals the constitution
specifies all acts which tend to subvert the independence of the
nation, the inviolability of the constitution and of the republican
form of government, the political and legal rights of the individual,
the internal peace of the country, or the probity of administrative
procedure. The penalty imposed for guilt in respect to any of these
offenses is removal from office and disqualification to hold office
thereafter.[883]
[Footnote 883: Provisions relating to the executive
are contained in Arts. 36-55.]
*711. Congress.*--The exercise of legislative power is vested (p. 645)
exclusively in Congress. There are two houses, the Council of
Municipalities, or senate, and the National Council, or chamber of
deputies. The members of both are chosen by direct vote of the people.
Senators are elected for six years, one-half of the body retiring
triennially. Each district returns three members, but to assure the
representation of minorities electors are permitted to vote for but
two. Members of the Chamber of Deputies are chosen for three years.
Senators must be at least thirty-five years of age and deputies
twenty-five. Congress is required to meet in regular session each year
on the second day of December. The period of a session is four months,
and a prorogation or an adjournment may be ordered only by the
chambers themselves. Extraordinary sessions may be convoked by
one-fourth of the members or by the President. Each chamber is
authorized to judge the qualifications of its members, to choose its
president and other officers, and to fix its rules of procedure. The
presiding official at joint sessions is the elder of the two
presidents. Members are accorded the usual privileges of speech and
immunities from judicial process, and they are guaranteed compensation
at rates to be regulated by law.
The functions and powers of the chambers are enumerated in much
detail. Most important among them is the enactment, interpretation,
suspension, and abrogation of all laws of the republic. Still more
comprehensive is the power to supervise the operation of the
constitution and of the laws and "to promote the general welfare of
the nation." More specifically, the chambers are authorized to levy
taxes, vote expenditures, contract loans, provide for the national
defense, create public offices, fix salaries, regulate tariffs, coin
money, establish standards of weights and measures, emit bills of
credit, organize the judiciary, control the administration of national
property, approve regulations devised for the enforcement of the laws,
and elect the President of the republic. To the Chamber of Deputies is
accorded the right to initiate all measures relating to taxes, the
organization of the forces on land and on sea, the revision of the
constitution, the prorogation or adjournment of legislative sessions,
the discussion of proposals made by the President, and the bringing of
actions against members of the executive department. Initiative in
respect to all other matters may be taken by any member of either
branch of Congress or by the President of the republic. A measure
which is adopted by a majority vote in each of the two houses is
transmitted to the President to be promulgated as law. The President
possesses not a shred of veto power. He is required to promulgate
within fifteen days any measure duly enacted; if he fails to do so,
the measure takes effect none the less. When the chambers fall into
disagreement regarding proposed changes in a bill, or when one (p. 646)
chamber rejects a bill outright, the subject is debated and a decision
is reached in joint session.
*712. The Judiciary and Local Government.*--The organs of judicial
administration comprise courts of first instance, courts of appeal,
and a supreme tribunal sitting at the capital. Judges are appointed
for life, but may be removed from office in accordance with procedure
to be established by law. The employment of the jury is optional with
the parties in civil cases but obligatory in all criminal cases of
serious import. With respect to local government the constitution goes
no further than to lay down certain general principles and to enjoin
that the actual working arrangements be regulated by subsequent
legislation. Among the principles enumerated are the immunity of the
local authorities from intervention on the part of the central
executive power, the revision of the acts of the public officials in
administrative tribunals, the fiscal independence of the local
governmental units, and, finally, the employment for local purposes of
both proportional representation and the referendum.[884]
[Footnote 884: A French translation of the
Portuguese constitution of 1911 will be found in
_Revue du Droit Public_, Oct.-Dec, 1911. Various
aspects of the revolution of 1910 and of subsequent
developments are discussed in E. J. Dillon,
Republican Portugal, in _Contemporary Review_,
Nov., 1910; R. Recouly, La république en Portugal,
in _Revue Politique et Parlementaire_, Nov. 10,
1910; W. Archer, The Portuguese Republic, in
_Fortnightly Review_, Feb., 1911; and A. Marvaud,
Les débuts de la république portugaise, in _Annales
des Sciences Politiques_, March-April and May-June,
1911. The subject is covered briefly in V. de B.
Cunha, Eight Centuries of Portuguese Monarchy
(London, 1911), and A. Marvaud, Le Portugal et ses
colonies; étude politique et économique (Paris,
1912).]
INDEX (p. 647)
_Abgeordnetenhaus._ See Prussia and Austria.
Administration, development in Great Britain, 176-179;
present system, 180-191;
development of Prussian system, 265-273;
in France under Old Régime, 341-342;
during Revolutionary and Napoleonic era, 342-343;
present system, 345-351;
in Italy, 383-385;
in Austria, 485-488;
in Hungary, 506-507;
in Holland, 532-533;
in Belgium, 550-551;
in Denmark, 569;
in Norway, 588;
in Sweden, 601;
in Spain, 627-628;
in Portugal, 638-639, 646.
Alsace-Lorraine, original organization, 282;
the Landesausschuss, 283;
movement for autonomy, 284;
bill of 1910, 285;
present governmental system, 286-287.
_Ausgleich_. See Austria-Hungary.
Austria:--
--_Abgeordnetenhaus_, composition, 466;
electoral system to 1873, 466-467;
Taaffe bill of 1893, 467-468;
electoral law of 1896, 468;
electoral law of 1907, 469-471;
electoral qualifications and procedure, 471-472;
sessions and procedure, 472-473;
powers, 473-474.
--Administration, of province, 485-487;
of commune, 487-488.
--Amendment, of constitution, 461.
--_Ausgleich_, established, 458-459;
and political parties, 475-476;
nature, 509.
--Babenbergs, 442.
--Badeni, electoral bill, 468;
ministry, 479.
--Beck, carries electoral reform, 469-470.
--Bienerth, ministry, 482.
--Bohemia, language question in, 480.
--Charles V., 443.
--Christian Socialist Party, 483.
--Citizens, rights of, 462.
--Civil list, 464.
--Commune, organization, 487-488.
--Constitution, promulgated in 1848, 454;
abrogated, 455;
experiments of 1860-1861, 456-457;
texts, 460;
style of government, 460-461;
amendment, 461.
--Courts, ordinary, 483-484;
administrative, 484-485.
--Crown. See Emperor.
--Diet, provision for in constitution of 1848, 454.
--Diploma of 1860, 456.
--Elections, original system, 466;
law of 1873, 467;
Taaffe bill of 1893, 467-468;
law of 1896, 468;
law of 1907, 469-471;
qualifications and procedure, 471-472;
of 1901, 481;
of 1907, 481-482;
of 1911, 482-483.
--Emperor, status, 463;
powers, 464;
relation with ministries, 464.
--Franchise, law of 1873, 467;
Taaffe bill of 1893, 467-468;
law of 1896, 468;
law of 1907, 469-471;
present system, 471-472.
--Francis I., proclaimed emperor of Austria, 445.
--Francis Joseph I., accession, 455;
constitutional projects, 456-457;
and Compromise of 1867, 459;
encourages electoral reform, 469.
--Gautsch, promises electoral reform, 469;
ministries, 480-481.
--German Liberal Party, rise, 476;
rule, 476-477;
in the opposition, 477-478;
return to power, 478-479.
--Germans, in Empire, 475.
--Hapsburgs, 442.
--_Herrenhaus_, composition, 465;
organization and powers, 466;
sessions and procedure, 472-473.
--House of Lords. See _Herrenhaus_.
--House of Representatives. See _Abgeordnetenhaus_.
--Hungary, establishment of power in, 443;
encroachment in, 449-450;
suppression of revolution in, 455-456;
constitutional experiments with, 457-458;
_Ausgleich_ established, 458-459.
--Italians, in Empire, 475.
--Joseph II., reforms, 444.
--Judiciary. See Courts.
--Karlowitz, Peace of, 443, 448.
--Körber, ministry, 480-481.
--_Landesausschuss_, 485.
--_Landtag_, of province, 485-487.
--Maria Theresa, development of autocracy under, 444.
--Metternich, policies, 450-451;
combats liberalism, 452;
fall, 453.
--Ministry, composition, 464;
responsibility, 464-465.
--Parliament, composition, 465-466;
electoral system, 466-472;
sessions and procedure, 472-473;
powers, 473-474.
--Parliamentarism, nature of, 464-465;
nadir of, 480-481.
--Parties, centralism and federalism, 475-476;
rule of German Liberals, 476-477;
during Taaffe ministry, 477-478;
return of German Liberals to power, 478-479;
and parliamentary deadlock, 480-481;
and elections of 1907 and 1911, 481-483.
--Patent of 1861, 457.
--Plural Vote, under law of 1896, 468.
--Pragmatic Sanction, promulgated, 499.
--Province, executive officials, 485;
_Landtag_, 485-487.
--Race, political significance of, 470, 474-475, 479-480.
--_Reichsgericht_, 484.
--_Reichsrath_. See _Herrenhaus_ and _Abgeordnetenhaus_.
--Revolution of 1848, constitutionalism established, 454;
reaction, 455-456.
--Russia, intervenes in Austria, 455.
--Slavs, in Empire, 475.
--Social Democratic Party, demands for electoral reform, 469-470;
victory in 1911, 483.
--Succession, rules of, 449, 463.
--Taaffe, electoral bill of 1893, 467-468;
ministry, 477-478.
--Universal Suffrage Law, adoption, 469-470;
racial and geographical distribution of seats, 470;
electoral qualifications and procedure, 471-472.
--Vienna, Congress of, rôle of Austria in, 450.
--_Vorsteher_, 487.
Austria-Hungary (see also Austria and Hungary):--
--_Ausgleich_ established, 458-459;
nature, 509.
--Bosnia, annexation, 514;
constitution, 515;
governmental system, 515-516;
electoral arrangements, 516.
--Contributions. See Finances.
--Delegations, composition and sessions, 513;
powers, 513-514.
--Emperor, status, 510.
--Finance, ministry of, 511;
arrangements concerning, 512.
--Foreign Affairs, ministry of, 510.
--Herzegovina, annexation, 514;
constitution, 515;
government and electoral system, 515-516.
--King. See Emperor.
--Ministry, of foreign affairs, 510;
of war, 511;
of finance, 511.
--War, ministry of, 511.
Baden, granted a constitution, 197;
special privileges, 208;
governmental system, 279.
Bavaria, made a kingdom, 194;
granted a constitution, 197;
special privileges, 208;
governmental system, 275-276.
Belgium:--
--Administration, organization of province, 550-551;
organization of commune, 551.
--Amendment, process, 535.
--_Arrondissement_, electoral unit, 543-545;
judicial unit, 549.
--Austrian Netherlands, annexed to France, 517-518;
incorporated in United Netherlands, 519.
--Catholic Party, and electoral reform, 540-541;
and proportional representation, 542-543;
and elections of 1906-1910, 545-546;
triumph in 1912, 546-547.
--Commune, organization, 551.
--Conservative Party, and electoral reform, 540-541.
--Constitution, of 1815, 519-520;
of 1831 promulgated, 534;
democratic character, 534-535;
amendment, 535.
--Council, of province, 550.
--Court of Cassation, 549.
--Courts, organization and functions, 549-550.
--Crown, status and privileges, 536;
relation with ministry, 536-537;
powers, 537-538.
--Elections, earlier arrangements, 539-540;
law of 1893, 540-541;
franchise to-day, 541-542;
adoption of proportional representation, 543-545;
of 1906-1910, 545-546;
of 1912, 546-547.
--Franchise, prior to 1893, 539-540;
law of 1893, 540-541;
system to-day, 541-542;
demand for further reform, 547-548.
--Holland, separation from, 520-521.
--House of Representatives, composition, 539;
earlier electoral arrangements, 539-540;
electoral law of 1893, 540-541;
franchise to-day, 541-542;
organization and procedure, 548-549.
--Independence, declared, 520;
recognized, 521.
--Jury, use of, 550.
--Leopold I., crowned king, 521.
--Liberal Party, and electoral reform, 540-541;
favors proportional representation, 543;
opposition to plural vote, 547.
--Ministry, composition, 536;
responsibility, 536-537.
--Parliament, composition and election of senators, 538-539;
composition of House of Representatives, 539;
electoral system, 539-542;
proportional representation, 543-545;
organization and procedure of chambers, 548-549.
--Parliamentarism, 536-537.
--Plural Vote, 541-542;
opposition of Liberals and Socialists, 547-548;
in province, 551.
--Proportional Representation, adopted, 543;
operation, 543-545.
--Province, organization, 550-551.
--Revolution of 1830, 520-521.
--Senate, composition and election, 538;
qualifications, 539;
organization, and procedure, 548-549.
--Socialists, lead movement for electoral reform, 540-541;
favor proportional representation, 543;
opposition to plural vote, 547-548.
Bismark, Otto von, and establishment of German Empire, 199-201;
attitude toward socialism, 231;
reform of Prussian local government, 266-267.
Bosnia. See Austria-Hungary.
_Bundesrath_. See Germany and Switzerland.
Cabinet. See England.
Canton, of France, 343, 348;
of Switzerland, 409-422.
Chamber of Deputies. See France, Italy, Hungary.
Civil List, in Great Britain, 51-52;
of king of Prussia, 253;
of king of Italy, 368.
Committees, in English Parliament, 123-137;
in Bundesrath, 220;
in Reichstag, 226;
in Prussian Landtag, 264;
in French Parliament, 325-327.
Commune, in Prussia, 272-273;
antiquity in France, 348;
organization, 344-351;
in Italy, 385;
in Switzerland, 422;
in Austria, 487-488;
in Holland, 533;
in Belgium, 551;
in Norway, 588;
in Spain, 627;
in Portugal, 638-639.
Congress. See Portugal.
Congress of Deputies. See Spain.
Constitution, development of English, 2-41;
nature of English, 41-47;
of German Confederation of 1815, 194-196;
of German Empire, 202-204;
of Prussia, 250-252;
succession in France from 1791, 290-300;
of Third Republic, 304-306;
succession in Italy, 354-361;
of Italy to-day, 360-367;
of Switzerland, 410-416, 431-432;
of Austria, 456-461;
of Hungary, 446-448, 489-490;
of Holland, 519-523;
of Belgium, 534-535;
of Denmark, 557-559;
of Norway, 574, 578-579;
of Sweden, 589;
succession in Spain, 604-608;
of Spain to-day, 611-612;
of Portuguese republic, 642-643.
Cortes. See Spain and Portugal.
County, English, 171-184.
Courts, in England, 171-175;
in Germany, 243-244;
in France, 337-341;
in Italy, 381-383;
in Austria, 483-485;
in Holland, 531-532;
in Belgium, 549-550;
in Denmark, 568-569;
in Norway, 587-588;
in Spain, 626-627;
in Portugal, 638, 646.
Croatia, government, 507-508.
Crown, in Great Britain, 48-59;
in German Empire, 210-214;
in Prussia, 252;
in Italy, 368-370;
in Austria, 463-464;
in Hungary, 491;
in Holland, 523-525;
in Denmark, 554-561;
in Norway, 578-585;
in Sweden, 570-571, 590-591;
in Spain, 613-615;
in Portugal, 635-636.
Delegations. See Austria-Hungary.
Denmark:--
--Administration, 569.
--Christensen, ministry, 566-567.
--Christian VIII., and reform, 556-567.
--Christian IX., yields to parliamentary principle, 562.
--Conservative Party, resists parliamentary principle, 560-562;
dominance, 565-566.
--Constitution, of 1848, 557;
of 1849 promulgated, 557;
revised in 1866, 558-559;
process of amendment, 559.
--Courts, general principles, 568;
organization, 568-569;
act of 1908, 569.
--Crown, development, 554-555;
opposition to reform, 556;
status, 559;
powers, 560;
relations with ministry, 560-561.
--Diet, of provinces, 556.
--Elections, present system, 563;
projected reform, 564;
of 1906, 567;
of 1910, 567-568.
--Estrup, ministry, 561-562, 565-566.
--Franchise, present system, 563;
movement for reform, 564.
--Frederick VI., creates diets, 556.
--_Folkething_, composition, 563;
elections, 563-564;
sessions and powers, 564-565.
--_Höjesteret_, 568.
--Holstein, 558.
--Judiciary. See Courts.
--Kalmar, union of, 553.
--Kiel, treaty of, 554.
--King. See Crown.
--_Kongelov_, 555, 557.
--_Landsthing_, composition, 562;
qualifications, 563;
sessions and powers, 564-565.
--Lauenburg, 558.
--Liberal Party, pressure for parliamentary system, 560-562;
advent to power, 566.
--Malmö, treaty of, 553.
--Ministry, composition, 560-561;
responsibility, 561-562;
of Estrup, 561-562, 565-566;
recent instability, 567-568.
--Norway, united with, 553;
separated from, 554.
--Parliament. See _Rigsdag_.
--Parliamentarism, 560-562.
--Parties, rise, 565;
during Estrup's ministry, 565-566;
advent of Liberals to power, 566;
since 1903, 566-568.
--Proportional Representation, in election of senators, 563.
--Radical Party, 567-568.
--Revolution of 1660, 554-555.
--_Rigsdag_, composition, 562-563;
electoral system, 563-564;
sessions and power, 564-565.
--_Rigsrad_, 554.
--Schleswig, 558.
--Social Democratic Party, 567-568.
Elections, of British House of Commons, 92-96;
of _Reichstag_, 224-225;
of Prussian _Abgeordnetenhaus_, 258-263;
under Revolutionary and Napoleonic constitutions, 293-294;
present system in France, 318-322;
in Italy, 376-378, 400-402;
in Switzerland, 423, 426-428, 435-437;
in Austria, 466-483;
in Holland, 526-530;
in Belgium, 539-547;
in Denmark, 563-568;
in Norway, 581-582, 587;
in Sweden, 592-596, 600;
in Spain, 617-618, 624-625;
in Portugal, 633-642.
England:--
--Act of Settlement (1701), 49.
--Administration. See Local Government.
--Admiralty Board, 62.
--Asquith, H., resolutions for reform of Lords, 108.
--Attainder, 130.
--Bill of Rights, 32.
--Borough, in fifteenth century, 23;
franchise before 1832, 79;
franchise extended in 1832 and 1867, 82-84;
redistribution of parliamentary seats, 85;
organization before 1832, 177-178;
reform by Municipal Corporations Act, 178;
kinds, 187;
authorities, 188;
council and its functions, 189.
--Budget, preparation, 136.
--Cabinet, origins, 37-38;
relations with Privy Council, 60;
relations with ministry, 61;
composition, 64;
size, 65;
selection of premier, 66;
selection of other members, 67-68;
political solidarity, 69;
responsibility, 70;
proceedings, 71-73;
central position, 74.
--Campbell-Bannerman, Liberal leader, 154;
premier, 157.
--Chamberlain, Joseph, and the Liberal Unionists, 151;
tariff reform programme, 155.
--Chancery, Court of, 17, 174.
--Charles I., parliaments of, 28.
--Charles II., restoration, 31;
rise of cabinet, 37.
--Chartists, 82-83.
--Civil List, 51-52.
--Committees, kinds, 123;
of whole, 123;
select and sessional, 124;
standing, 124-125;
procedure on public bills, 133-134;
on money bills, 135-136;
on private bills, 137.
--Common Law, 167-168.
--Common Pleas, Court of, 17, 174.
--Commonwealth, 29.
--_Commune Concilium_, 7.
--Conservative Party, origin of name, 147;
mid-century ministries, 148-150;
Salisbury ministries, 151-153;
defeat in 1906, 157;
signification of nomenclature, 162;
present-day issues, 163;
composition, 164.
--Constitution, Anglo-Saxon foundations, 2-5;
influenced by Norman Conquest, 6-8;
in the Tudor period, 18-26;
in the Stuart period, 26-33;
elements of stability and change, 34;
development since seventeenth century, 34-41;
elusiveness, 41;
law and conventions, 42-43;
flexibility and amendment, 44-47.
--Conventions, in English constitution, 43.
--Corn Laws, repeal, 147.
--Corrupt and Illegal Practices Act, 95-96.
--County, franchise before 1832, 79;
franchise broadened in 1832, 82;
franchise liberalized in 1867 and 1884, 84;
court of, 171;
organization before 1832, 176-177;
reform by Local Government Act of 1888, 180;
present administrative organization, 183;
council and its functions, 183-184.
--Court of Appeals, 174.
--Courts, beginnings of great tribunals, 17;
county, 171;
justices of the peace, 171-172;
High Court, 173;
Court of Appeals, 174;
House of Lords, 130;
Judicial Committee of Privy Council, 175.
--Cromwell, Oliver, 29-30.
--Crown, in Anglo-Saxon times, 3;
effects of Norman Conquest on, 6;
independence under the Tudors, 21;
character under early Stuarts, 26;
abolished in 1640, 30;
restoration, 30;
regulated by Bill of Rights, 32-33;
decreased powers since seventeenth century, 35;
theoretical position, 48;
rules of succession, 49;
regencies, 50;
privileges, 50-52;
the prerogative, 52;
executive powers, 53-55;
legislative powers, 55;
veto, 56;
relations with ministry, 56-57;
actual service, 58;
reasons for survival, 59.
--Disraeli, Benjamin, prime minister, 150.
--District, rural, 184;
urban, 186.
--District and Parish Councils Act of 1894, 180.
--Edward I., and rise of Parliament, 12-13.
--Edward II., statute concerning Parliament, 15.
--Elections, writs, 92;
time regulations, 92-93;
polling, 93;
the campaign, 94;
expenditures, 95-96.
--Elizabeth, strong government, 21;
development of Parliament under, 24-25.
--Equity, rules of, 169.
--Exchequer, Court of, 17, 62, 174.
--Franchise, in fifteenth century, 23;
in early nineteenth century, 79;
extended by Reform Act of 1832, 82;
demands of the Chartists, 82-83;
modified in 1867, 83-84;
liberalized in 1884, 84-85;
the system to-day, 86-88;
question of the plural vote, 89-90;
Franchise Bill of 1912, 90;
woman's suffrage, 91.
--Gentleman Usher of the Black Rod, 118.
--George III., attempted revival of royal power, 35.
--Gladstone, William E., leadership of Liberals, 148;
first ministry, 149;
second and third ministries, 151;
fourth ministry, 152.
--Great Council, 7.
--Henry I., charter, 7.
--Henry II., judicial measures, 8.
--Henry III., and beginnings of Parliament, 12.
--Henry VIII., strong government, 19.
--High Court of Justice, 173-174.
--House of Commons, origins, 13;
composition in 1485, 23;
changes in Tudor period, 24;
Apology of 1604, 27;
ascendancy over House of Lords, 36;
present composition, 77;
undemocratic character at opening of nineteenth century, 77-79;
electoral corruption, 80;
early demands for reform, 80;
Reform Act of 1832, 81-82;
Chartist agitation, 82-83;
Representation of the People Act of 1867, 83-84;
Representation of the
People Act of 1884, 84-85;
Redistribution of Seats Act of 1885, 85;
franchise and franchise questions to-day, 86-92;
electoral procedure and regulations, 92-96;
sessions, 117;
opening ceremonies, 117-118;
meeting place described, 118-120;
hours of sittings, 120;
officers, 121;
Speaker, 121-123;
quorum, 123;
committees, 123-125;
privileges, 126;
payment of members, 127;
procedure on public bills, 133-134;
on money bills, 135-136;
on private bills, 137-138;
provisional orders, 138;
rules, 139-141;
closure, 139;
the guillotine, 140;
votes and divisions, 140-141.
--House of Lords, origins, 13, 47;
composition in 1485, 22-23;
changes in Tudor period, 24;
abolished in 1640, 29;
restored in 1660, 31;
loss of priority to House of Commons, 36, 102;
composition, 97-101;
qualifications of members, 101;
number of members, 101;
question of reform, 102-103;
early reform proposals, 103-104;
conflicts with the Liberals, 104;
powers relating to money bills, 106;
rejection of Finance Bill of 1909, 107;
Liberal project of reform, 108;
Unionist proposals, 109;
adoption of Parliament Act of 1911, 110-111;
effects of the Act, 112-114;
sessions, 117;
opening ceremonies, 117-118;
sittings and attendance, 125;
officers, 125-126;
privileges, 127;
judicial functions, 130-132;
procedure, 141-142.
--Humble Petition and Advice, 30.
--Hundred, 4.
--Impeachment, 130.
--Independent Labor Party, 165.
--Instrument of Government, 29.
--Ireland, union of 1801, 40-41;
allotment of parliamentary seats, 85;
over-representation, 89;
representative peers, 98-99;
question of Home Rule, 150-152.
--James I., conception of monarchy, 26;
parliaments of, 28.
--James II., overthrown, 32.
--John, signs Magna Carta, 9;
holds council at Oxford, 12.
--Jury, use of, 171, 172.
--Justice of the Peace, functions, 171-172.
--King. See Crown.
--King's Bench, Court of, 17, 174.
--Labor Party, 165-167.
--Lansdowne Reconstruction Bill, 100.
--Law, origins, 167;
form, 168-169.
--Legislation, powers acquired by Parliament, 14-15.
--Liberal Party, conflict with House of Lords, 104;
and reform, 147;
regeneration under Gladstone, 148-149;
and Home Rule, 150;
secession of Unionists, 151;
rehabilitation, 156;
electoral triumph in 1906, 157;
mandate and performance, 158-159;
conflict with House of Lords, 159;
triumph in elections of 1910, 160;
carry Parliament Act of 1911, 110, 160;
signification of nomenclature, 162;
present-day issues, 163;
composition, 164.
--Liberal Unionists, origins, 151.
--Local Government Act of 1888, 180.
--Local Government Board, 180, 182.
--Local Government, periods in history, 176;
before 1835, 176-178;
mid-century confusion of areas, 179;
relations with central government, 181-182;
organization of administrative county, 183-184;
the rural district, 184;
rural and urban parish, 185;
urban district, 186;
boroughs and cities, 187-189;
London, 190-191.
--London, government, 190-191.
--Lord High Chancellor, 63.
--Lord Lieutenant, 172.
--Lords of Appeal, 99.
--Magna Carta, character and importance, 9.
--Ministry, appointment, 57, 66-69;
relation with Privy Council and Cabinet, 60-61;
Treasury, 62;
Admiralty Board, 62;
Lord High Chancellorship, 63;
the secretaries of state, 63-64;
the administrative boards, 64;
responsibility, 70, 128-130;
proceedings, 71-73.
--Money Bills, the Lords and, 106;
Liberal proposals concerning, 108;
disposition under Parliament Act of 1911, 112;
procedure upon, 135-136.
--Montfort, Simon de, parliaments of 1264 and 1265, 12.
--Municipal Corporation Act, 178.
--Newcastle Programme, 152.
--Parish, rural and urban, 185.
--Parliament, origins, 11;
Simon de Montfort's leadership, 12;
Model Parliament, 12-13;
bicameral principle established, 13;
fiscal and legislative powers, 14;
development of legislative process, 15;
composition in 1485, 23;
growth under Tudors, 24;
in Stuart period, 28-29;
experiments during Commonwealth and Protectorate, 29-30;
restoration in 1660, 31;
constituent powers, 45;
relations with crown, 55;
undemocratic character in early nineteenth century, 77-80;
Reform Act of 1832, 81-82;
Representation of the People Act of 1867, 83-84;
Representation of the People Act of 1884, 84-85;
Redistribution of Seats Act of 1885, 85;
franchise and franchise questions to-day, 86-92;
electoral procedure and regulations, 92-96;
composition of Lords, 97-101;
question of Lords reform, 102-109;
the Parliament Act of 1911, 110-114;
sessions, 117;
how opened, 117-118;
meeting place and sittings, 118-120;
officers and committees of Commons, 121-125;
organization of Lords, 125-126;
privileges of members, 126-127;
function of criticism, 128-130;
judicial functions, 130-132;
procedure on public bills, 133-134;
on money bills, 135-136;
on private bills, 137-138;
rules of Commons, 139-141;
procedure in Lords, 141-142.
--Parliament Act, origins, 106-110;
adoption, 110-111;
provisions, 112-113;
significance, 113-115.
--Parliamentarism, and parties, 143.
--Parties, beginnings, 38-39;
relation to parliamentary government, 143;
Tory ascendancy from 1783 to 1830, 145-146;
Liberals and reform, 147;
mid-century regeneration, 148-150;
rise of Liberal Unionists, 151;
Conservative ascendancy, 154-155;
Liberal revival, 156-157;
present significance of party names, 162;
current issues, 163-165;
labor and politics, 165-166.
--Plural Vote, 89-90.
--Poor Law, 178.
--Premier, selection, 66;
choice of colleagues, 67;
leadership, 72-73.
--Prince of Wales, 49.
--Private Legislation, 137-138.
--Privy Council, origins, 17;
under the Tudors, 19;
under Charles II., 37;
relations with ministry and cabinet, 60;
Judicial Committee as a court, 175.
--Protectorate, 29-30.
--Provisional Orders, 138.
--Poyning's Law, 40.
--Redistribution of Seats Act of 1885, 85-86.
--Referendum, Unionist proposal of, 109.
--Reform Act of 1832, 81-82.
--Regency, 50.
--Representation, beginnings of, 11.
--Representation of the People Act, of 1867, 83-84;
of 1884, 84-85.
--Rosebery, Lord, proposals for reform of Lords, 105, 108.
--Salisbury, Marquis of, first ministry, 157;
second ministry, 152;
third and fourth ministries, 153.
--Scotland, union of 1707, 39-40;
allotment of parliamentary seats, 85;
representative peers, 98-99.
--Shire, 5.
--Shire-moot, 5.
--Society for Constitutional Information, 81.
--Speaker, of House of Commons, history and functions, 121-123;
powers, 139.
--Star Chamber, Court of, 20.
--Stuarts, absolutism, 26;
overthrow, 29;
restored, 30;
finally expelled, 32.
--Supreme Court of Judicature, 173-175.
--Tariff Reform, rise and effects of issue, 155-156.
--Taxation, powers acquired by Parliament, 14, 22.
--Toleration Act, 33.
--Tory Party, rise, 39;
ascendancy from 1783 to 1830, 145-146.
--Township, 4.
--Treasury, 62.
--Tudors, popularity, 18;
relations with Parliament, 21.
--Unionists, position in Lords, 102-106.
--Westminster Palace, 116.
--Whig Party, rise, 39.
--William I., governmental policies, 6-7.
--William III., accession, 32.
--Witenagemot, 4.
--Woman's Suffrage, 91-92.
_Folkething_. See Denmark.
France:--
--_Adjoint_, 350.
--Administration, under Old Régime, 341-342;
overhauled in 1789-1791, 342;
revival of centralization, 343;
under Second Empire, 344;
changes under Third Republic, 345;
the department, 346-347;
the arrondissement, 347;
the canton, 348;
the commune, 348-351.
--Amendment, of constitution, 307, 327-328.
--Appeal, courts of, 338.
--_Arrondissement_, electoral unit, 318;
created, 343;
organization, 347.
--Assize, courts of, 338.
--Associations, law of, 331.
--_Ballottage_, 319.
--_Bloc_, rise, 331;
present condition, 332.
--Bonaparte, Napoleon, and constitution of the Year VIII., 293-295;
organization of local administration, 343.
--Bonapartists, policies in 1871-1875, 303-304.
--Bordeaux, National Assembly meets at, 302.
--Briand, A., programme of electoral reform, 322;
ministry, 332.
--Bureaus, in Parliament, 325-327.
--Canton, created, 342;
made a judicial unit, 343;
present character, 348.
--Cassation, Court of, 338-339.
--Catholic Party, rise, 338.
--Chamber of Deputies, composition, 317;
term and qualifications, 318;
electoral process, 319;
proposed electoral reform, 319-320;
the Briand programme, 322;
reform bill of 1912, 323-324;
sessions, 325;
officers, 325;
bureaus and committees, 326;
procedure, 326;
powers and functions, 327-329;
party strength in, 332.
--Church, legislation concerning, 331.
--Clemenceau, ministry, 331-332.
--_Code Civil_, 335-336.
--_Code Napoléon_, 335-336.
--Code of Civil Procedure, 336.
--Code of Commerce, 336.
--Code of Criminal Instruction, 336.
--Combes, ministry, 331.
--_Commission du Suffrage Universel_, 321, 323.
--Committees, in Parliament, 325-327.
--Commune, suppressed, 303;
continuity of, 342;
place in Napoleonic system, 343;
council made elective, 344;
under Second Empire, 344-345;
legislation concerning in 1884, 345;
present character, 348;
number and size, 348;
council, 348-349;
mayor and assistants, 349-350;
importance, 350-351.
--Concentration, policy of, 330.
--_Concordat_, abrogated, 331.
--_Conseil de préfecture_, 346.
--Conservative Party, after 1848, 329;
in control of Senate after 1876, 330;
changed character, 333.
--Constitution, of 1791, 290-291;
of the Year I., 291-292;
of the Year III., 292-293;
of the Year VIII., 293-295;
Constitutional Charter of 1814, 295-297;
of Second Republic, 297-298;
of Second Empire, 299-300;
of Third Republic, 304-306;
process of amendment, 305, 327-328.
--Constitutional Charter, 295-297.
--Convention, 292.
--_Corps législatif_, under constitution of 1791, 291;
under constitution of the Year VIII., 294.
--Council, of department, made elective, 344;
present character, 346-347.
--Council, of _arrondissement_, 347.
--Council, of commune, made elective, 344;
organization and functions, 348-349.
--Council of Elders, in constitution of the Year III., 292-293.
--Council of Five Hundred, in constitution of the Year III., 292-293.
--Council of State, composition and functions, 340.
--Courts, of justice of the peace, 337;
of first instance, 337;
of appeal and of assize, 338;
of Cassation, 338-339;
appointment and tenure of judges, 339;
administrative, 339-340;
Council of State, 340;
of Conflicts, 341.
--Department, created, 342;
organized by Napoleon, 343;
council made elective, 344;
under Second Empire, 344-345;
the office of prefect, 346;
the council, 346-347.
--Elections, under constitution of the Year VIII., 293-294;
under Constitutional Charter of 1814, 296;
_arrondissement_ as unit, 318;
conduct, 319;
ballottage, 319;
question of reform, 319-322;
the Briand programme, 322;
of 1906, 331;
of 1910, 332;
reform bill of 1912, 323-324.
--Electoral Reform. See Elections.
--Empire, Napoleonic, 295; Second French, 299-300.
--Extreme Left, in Chamber of Deputies, 332.
--First Instance, courts of, 337.
--Franchise, under Napoleonic system, 294;
under Constitutional Charter of 1814, 296-297;
present regulations, 317.
--Frankfort, Peace of, 302.
--_Généralité_, 342.
--Great Western Line, purchase of, 332.
--Impeachment, 309.
--_Intendant_, 342.
--Interpellation, 314.
--Jaurès, socialist leader, 334.
--_Journal Officiel_, 326.
--Judges, appointment and tenure, 339.
--Judiciary. See Court.
--_Juge de paix_, 337.
--Law, codification, 335-336;
character, 336-337;
administrative, 339.
--Left, in Chamber of Deputies, 332.
--Legislation, President's part in, 309-310;
processes, 326-327;
powers, 328-329.
--Legitimists, policies in 1871-1875, 303-305.
--MacMahon, Marshall, president, 304.
--Mayor, functions, 347-350.
--Millerand, Étienne, socialist member of ministry, 334.
--Ministry, place in governmental system, 311;
composition, 312;
responsibility, 312-313;
frequency of changes, 313;
interpellation, 314.
--Multiple Candidature Act, 318.
--Napoleon III., proclaimed emperor, 299.
--National Assembly, of 1871-1875, 302-303;
of Third Republic, election of President, 309, 328;
amendment of constitution, 327-328.
--Orleanists, policies in 1871-1875, 303-304.
--Pacification, policy of, 330.
--Parliament, establishment of bicameral system, 315;
original form of Senate, 315-316;
composition and election to-day, 316-317;
composition of Chamber of Deputies, 317-318;
question of electoral reform, 319-324;
sessions, 325;
officers, 325;
committees, 326;
procedure, 326;
powers and functions, 327-329.
--Parliamentarism, 313.
--Parties, multiplicity, 312-313;
development after 1848, 329;
situation after 1876, 330;
rise of Radicals, 330;
the _bloc_, 331;
rise of Socialists, 330-331, 333-334;
elections of 1906, 331;
elections of 1910, 332;
changes since 1871, 333.
--Penal Code, 336.
--Prefect, creation in 1800, 343;
appointment and functions, 346.
--Premier, position and powers, 312.
--President, title created, 303;
occupants of the office, 308;
election, 308, 328;
term, 309;
qualifications, 309;
salary and privileges, 309;
powers, 309-311;
relation with ministers, 311-312.
--Procedure, in Senate and Chamber of Deputies, 326-327.
--_Procureur_, 327.
--Progressive Party, rise, 331.
--Proportional Representation, movement for establishment of, 320-324.
--Province, abolished, 342.
--Prussia, war with, 301.
--Radical Party, rise, 330;
ascendancy, 331.
--_Ralliés_, 330.
--Republic, Second, 297-298;
Third established, 302-304.
--Republican Party, in 1848, 329;
control of Chamber of Deputies after 1876, 330.
--Right, in Chamber of Deputies, 332; present character, 333.
--Rivet Law, 302.
--Rouvier, ministry, 331.
--Sarrien, ministry, 331
--_Scrutin d'arrondissement_, established in 1820, 296;
re-established in 1889, 318;
proposed change from, 319-320.
--_Scrutin de liste_, established in 1817, 296;
election of senators by, 316;
advantages of, 319-320;
proposals to re-establish, 320-324.
--Senate, original form, 315-316;
composition and election to-day, 316-317;
sessions, 325;
officers, 325;
bureaus and committees, 325-326;
procedure, 326;
powers and functions, 327-329.
--Sieyès, electoral project, 294.
--Socialist Party, rise, 330;
gains, 331;
in Chamber of Deputies, 332;
growth and present character, 333-334.
--Thiers, Louis Adolph, made Chief of the Executive Power, 302;
made President of the French Republic, 303;
retirement, 303.
--Trade-unions, and socialism, 333-334.
--_Tribunal des Conflits_, 341.
--Veto, 310.
--Waldeck-Rousseau, ministry, 331;
Franchise, in Great Britain, in early nineteenth century, 79-81;
extension, 81-85;
present system, 85-88;
questions concerning, 88-91;
in German Empire, 224-225;
in Prussia, 258-260;
development in France, 294-297;
in France to-day, 317;
in Italy, 376-378;
in Switzerland, 426;
in Austria, 467-472;
in Holland, 526-528;
in Belgium, 539-548;
in Denmark, 563-564;
in Norway, 581-582;
in Sweden, 592-597;
in Spain, 617-618;
in Portugal, 637, 641.
Germany (see also Prussia and Austria):
--_Abgeordnetenhaus_, of Württemberg, 278.
--_Abtheilungen_, in German Reichstag, 226;
in Prussian Landtag, 264.
--Agrarian Party, 234.
--Alsace-Lorraine, original organization, 282;
the Landesausschuss, 283;
movement for autonomy, 284;
bill of 1910, 285;
present governmental system, 286-287.
--Amendment, of Imperial constitution, 209.
--_Amtsgericht_, 243.
--Antisemitic Party, 232.
--Army, 208.
--Austria, war with Prussia, 200.
--Baden, granted a constitution, 197;
special privileges, 208;
governmental system, 279.
--Bavaria, made a kingdom, 194;
granted a constitution, 197;
special privileges, 208;
governmental system, 275-276.
--Bebel, August, president of German Social Democratic party, 240.
--Bernstein, Edward, and the "revisionist" socialists, 239.
--Bismarck, Otto von, minister-president of Prussia, 199;
plan for reorganization of German Confederation, 200;
establishment of North German _Bund_, 200;
creation of the German Empire, 201;
and socialism, 231;
dismissed, 233;
and Prussian local government, 266-267.
--_Bloc_, 234.
--Bremen, governmental system, 281.
--Bülow, Count von, chancellor, 234;
and political parties, 236;
on electoral reform in Prussia, 261.
--_Bund_. See Confederation of 1815 and North German Confederation.
--_Bundeskanzleramt_, 216.
--_Bundesrath_, composition, 217;
legal character, 218;
sessions and procedure, 219;
committees, 220;
powers and functions, 221-222.
--Caprivi, General von, chancellor, 233.
--Carlsbad Decrees, 248.
--Centre Party, rise, 230;
pivotal position, 235;
present position, 236-240.
--Chancellor, appointment, 213;
legal position, 214;
functions and powers, 215-217.
--Civil List, of king of Prussia, 253.
--Confederation of 1815, formation, 195;
character, 195-197;
terminated, 200.
--Committees, in German Bundesrath, 220;
in Reichstag, 226; in Prussian Landtag, 264.
--Conservative Party, rise, 229;
varying fortunes, 233-234;
present position, 236-240.
--Constitution, of Confederation of 1815, 194-196;
grants in various states, 197;
grant in Prussia, 199;
of the Empire, 202-204;
process of amendment, 209;
of Prussia, 250-252.
--Courts, regulated by Law of Judicial.
Organization, 243;
inferior tribunals, 243;
_Reichsgericht_, 244.
--Crown. See Emperor.
--Elections, of members of Reichstag, 224-225.
--Emperor, title, 210;
legal position and privileges, 211;
powers, 211-213;
relations with Chancellor, 214.
--Empire, established, 201;
constitution, 202-203;
nature, 203-207.
--Erfurt Programme, 239.
--Frankfort, seat of Diet, 195;
parliament of 1848, 198;
the _Fürstentag_, 199.
--Gneist, Rudolph von, writings on government, 266.
--Gotha, congress at, 231.
--Guelf Party, 232.
--Hamburg, governmental system, 280-281.
--Hanoverian Party, 232.
--Hardenberg, Count von, establishes a ministry of state, 255.
--Holy Roman Empire, terminated, 193.
--_Kulturkampf_, 230.
--_Landgericht_, 243.
--_Landtag_, of Bavaria, 275-276.
--Law, character, 241-242.
--Legislation, powers, 221, 227-228;
methods, 219-220, 226-227.
--Lübeck, governmental system, 281.
--Metternich, Count, at Congress of Vienna, 195.
--Ministry, organization, 213-215.
--Napoleon I., changes wrought in Germany, 193-194.
--National Liberal Party, rise, 229;
preponderance, 230;
break-up, 233.
--North German Confederation, formation, 200;
converted into Empire, 201.
--_Oberlandesgericht_, 243.
--Parliamentarism, absence in German Empire, 213;
absence in Prussia, 254.
--Parties, rise, 229;
older alignments, 229-230;
more recent alignments, 230-232;
minor parties, 232-233;
rise of the _bloc_, 234;
recent developments, 236-240.
--Polish Party, 232.
--Privileges, of members of Reichstag, 225.
--Proportional Representation, in Württemberg, 278.
--Prussia, in Confederation of 1815, 194-195;
voting power in the Diet, 195-196;
Bismarck's ministry, 199;
war with Austria, 200;
leadership of North German _Bund_, 200;
creation of German Empire, 201;
pre-eminence and special privileges, 207-217;
position in _Bundesrath_, 218-219;
regeneration in Napoleonic period, 246-248;
repression of liberalism, 248;
diet of 1847, 249;
revolution of 1848, 249-250;
formation of constitution, 250.
--_Reichsgericht_, 244.
--_Reichsgesetzblatt_, 215.
--_Reichsland_. See Alsace-Lorraine.
--_Reichstag_, composition, 223;
electoral system, 224;
franchise, 225;
privileges of members, 225;
sessions and officers, 226;
committees, 226;
conduct of business, 227;
powers and franchise, 227-228.
--Revolution of 1848, in Germany, 198-199;
in Prussia, 249-250.
--Saxony, made a kingdom, 194;
granted a constitution, 197;
governmental system, 276-278.
--Social Democratic Party, rise, 231;
growth, 232;
triumph in 1912, 236-238;
present programme and character, 239-240;
strength in Prussia, 260-261.
--_Sonderrechte_, 208.
--_Standeversammlung_, of Saxony, 277.
--_Statthalter_, of Alsace-Lorraine, 286.
--Versailles, William I. proclaimed emperor at, 193.
--Vienna, Congress of, arrangements in Germany, 194.
--_Vorparlament_, of 1848, 198.
--William I., proclaimed German Emperor, 193.
--Württemberg, made a kingdom, 194;
granted a constitution, 197;
special privileges, 208;
governmental system, 278-279.
--Zollverein, rise, 197.
Great Britain. See England.
Hamburg, governmental system, 280-281.
_Herrenhaus_. See Prussia and Austria.
Herzegovina. See Austria-Hungary.
Holland:--
--Administration, organization of province, 532-533;
organization of commune, 533.
--Amendment, process, 523.
--Assembly, of province, 532.
--Batavian Republic, established, 518.
--Belgium, revolution in, 520;
independence of, 521.
--Commune, organization, 533.
--Conservative Party, 529-530.
--Constitution, granted by William I., 519;
revision, 521-522;
present character, 523;
process of amendment, 523.
--Council of commune, 533.
--Council of State, 524.
--Courts, 531-532.
--Crown, status and privileges, 523-524;
powers, 525.
--Elections, movement for reform, 526;
law of 1896, 527;
pending questions, 527-528;
of 1903, 529-530;
of 1909, 530.
--France, Holland annexed to, 518.
--Franchise, movement for liberalizing, 526;
law of 1896, 527;
pending questions, 527-528.
--High Court, 531.
--Judiciary, principles, 531;
courts, 531-532.
--Liberal Party, 529-530.
--Ministry, composition, 524;
powers, 525.
--Napoleon, relations with the Netherlands, 517-518.
--Parliament. See States-General.
--Parties, rise, 529;
present alignment, 520;
elections of 1909, 530.
--Province, organization, 532-533.
--States-General, composition of the houses, 526;
electoral system, 527-528;
organization and powers, 528-529;
political complexion, 530.
--Socialists, 529-530.
--Vienna, Congress of, arrangements respecting the Netherlands, 518.
--William I., king of the Netherlands, 518-519;
grants constitution, 519-520;
resists Belgian independence, 520-521;
abdicates, 521.
--Woman's suffrage, 527-528.
Holy Roman Empire, terminated, 193.
House of Commons. See England.
House of Lords. See England.
House of Representatives. See Belgium.
Hungary:--
--Administration, 506-507.
--Andrássy, introduces electoral reform bill, 495.
--Andrew II., promulgates Golden Bull, 446-447, 489.
--Árpáds, dynasty of, 447.
--Ausgleich, established, 458-459;
and Hungarian political parties, 500.
--Austria, establishment of control, 443;
encroachment by, 449-450;
suppresses revolution of 1848, 455-456;
constitutional experiments, 457-468;
Ausgleich established, 458-459.
--Bánffy, ministry, 502.
--_Banus_, of Croatia-Slavonia, 508.
--Chamber of Deputies, composition, 493;
electoral system, 493-494;
movement for electoral reform, 495-496;
electoral procedure, 497-498;
organization, 498;
powers, 499-500.
--Constitution, foundations, 446-447;
development, 447-448;
March Laws, 453-454, 489;
character, 490.
--County, origins, 506;
organization, 507.
--Courts, 505-506.
--Croatia, government, 507-508.
--Crown. See King.
--Deák, Francis, builds up Liberal party, 452;
voices demands of Hungary, 457;
retirement, 501.
--Elections, present franchise, 493-494;
movement for reform, 495;
reform bill of 1908, 495-497;
procedure, 497-498;
of 1905, 503.
--Franchise, present system, 493-494;
electoral reform bill of 1908, 495-497.
--Golden Bull, promulgated, 446-447, 489.
--Hedérváry, ministry, 504-505.
--Independence, proclaimed in 1849, 455.
--Judiciary. See Courts.
--King, status, 491.
--Law, 505.
--Liberal Party, origins, 452, 501-502;
demands in 1860-1861, 457;
ascendancy, 501, 502.
--Magyars, settlement in Europe, 445;
policies in 1848, 454;
number and domination of, 494.
--March Laws, promulgated, 453.
--Metternich, repressive policy, 452.
--Ministry, composition and status, 491-492.
--Mohács, battle of, 448.
--Parliament, composition, 492-493;
electoral system, 493-497;
organization and procedure, 497-498;
powers 499-500;
obstructionism in, 502-505.
--Parliamentarism, 498.
--Parties, and question of _Ausgleich_, 500;
rise of Liberals, 500-501;
era of parliamentary obstructionism, 502-505.
--Pragmatic Sanction, promulgated, 449.
--Revolution of 1848, 453-455.
--Settlement, 445.
--Slavonia, government, 507-508.
--Stephen I., receives crown from Pope, 446.
--Table of Magnates, composition, 492-493;
privileges, 493;
organization and procedure, 498;
powers, 499-500.
--Tisza, István, ministry, 503.
--Tisza, Kálman, ministry, 501-502.
--Turks, invasions of, 448.
--Wekerle, ministry, 504.
Initiative, in Switzerland, 421, 432-434.
Interpellation, in Prussian Landtag, 265;
in French Chamber of Deputies, 314;
in Italian Chamber of Deputies, 380.
Ireland, union of 1801, 40-41;
allotment of parliamentary seats, 85;
over-representation, 89;
representative peers, 98-99;
question of Home Rule, 150-152.
Italy:--
--Administration, patterned on French, 363;
nature and organization of province, 384;
nature and organization of commune, 385.
--Austria, influence in Italy in eighteenth century, 353;
position after 1815, 358;
helps suppress revolution of 1848, 361;
Piedmontese-French alliance against, 362;
loss of Venetia, 364.
--_Ballottaggio_, 378.
--Bissolati, political influence, 397.
--Bonaparte, Napoleon, and the Cisalpine Republic, 354;
overthrows Genoese oligarchy, 354;
wins at Marengo, 355;
supervises revision of Italian constitutions, 355-356;
crowned king of Italy, 356;
annexes Rome to France, 357;
prophecy of Italian unification, 359.
--Campo Formio, treaty of, 354.
--Cassation, courts of, 382.
--Catholics, political activities, 400-402.
--Cavour, Count, policies, 362.
--Chamber of Deputies, composition, 375;
franchise law of 1882, 376;
franchise to-day, 376-377;
electoral procedure, 378;
qualifications and privileges of members, 378-379;
organization, 379-380;
procedure, 380-381.
--Charles Albert I., becomes king of Piedmont, 360;
grants constitution in 1848, 360-361;
abdicates, 361.
--_Circondaro_, 383.
--Cisalpine Republic, 353-354.
--_Code Napoléon_, established in Italy, 357.
--Committees, of Parliament, 380.
--Commune, nature and organization, 385.
--Conservative Party, origins, 391;
lack of normal development, 398.
--Constitution, of Cispadane Republic, 354;
of Transpadane Republic, 354;
of Ligurian Republic, 355;
of Roman Republic, 355;
of Parthenopæan Republic, 355;
revisions in 1802-1803, 355-356;
of Napoleonic kingdom of Naples, 357;
proclaimed in Naples in 1820, 359;
proclaimed in Naples in 1848, 360-361;
granted in Piedmont in 1848, 360-361;
character of _Statuto_, 365-367.
--Council, of province, 384;
of commune, 385.
--Courts, patterned upon the French, 381;
ordinary tribunals, 381-382;
courts of cassation, 382;
administrative courts, 382-383.
--Crispi, ministries, 393, 394-395.
--Crown, status, 368;
civil list, 368;
powers and functions, 368-369;
relation with ministers, 370.
--Depretis, ministries, 392-393.
--Elections, development of laws regarding, 376;
franchise, 376-378;
procedure, 378;
Catholic participation in, 400-402;
of 1909, 402-403.
--Extreme Left, influence, 395;
groups of, 398.
--France, relations with Italy during Napoleonic period, 354-357;
allied with Piedmont, 362;
receives Savoy and Nice, 363;
withdrawal of troops from Rome, 364.
--Franchise, prior to 1882, 375;
law of 1882, 376;
present regulations, 376-377;
electoral reform, 377.
--Fortis, ministry, 396.
--Garibaldi, conquest of Sicily, 363.
--Genoa, government remodelled, 354.
--Giolitti, ministries, 394, 396-398.
--_Giunta_, of province, 384;
of commune, 385.
--Judiciary. See Courts.
--Italian Republic, 356.
--Interpellation, 380.
--Left, origins, 391;
dominance, 392-394;
prospects of harmony, 398.
--Liberal Party, in control, 395.
--Ligurian Republic, established, 354;
annexed to France, 356.
--Lombardy, Austria's position in, 353, 358;
annexed to Piedmont, 363.
--Lunéville, treaty of, 355.
--Luzzatti, ministry, 396.
--_Mandamento_, 381.
--Milan, Transpadane Republic inaugurated at, 354;
Napoleon crowned at, 356.
--Ministry, composition, 369;
organization and functions, 370-371;
ordinances, 371-372.
--Naples, invaded by French, 355;
Murat king of, 357;
revolution of 1820, 359;
revolution of 1848, 360-361;
annexed to kingdom of Italy, 363.
--Napoleon. See Bonaparte.
--Nice, ceded to France, 363.
--_Non Expedit_, purpose and effect, 400-401;
partial relaxation, 401-402.
--Novara, battle of, 361.
--Ordinances, 371.
--Papacy, and revolution of 1848, 360-361;
losses of territory to Piedmont, 362-363;
and of temporal dominion, 387;
Law of Papal Guarantees promulgated, 388;
prerogatives, 388-389;
relations with state, 389;
opposition to existing system, 390;
the _Non Expedit_, 400-402.
--Papal Guarantees, Law of, promulgated, 388;
contents and character, 388-389;
papal attitude toward, 390.
--Parliament, of united kingdom of Italy, 364;
composition, 372-373;
legislative weakness of Senate, 373;
proposed reform of Senate, 373-374;
composition of Chamber of Deputies, 375;
franchise, 376-377;
electoral procedure, 378;
qualifications and privileges of members, 378-379;
organization, 379-380;
procedure, 380-381.
--Parties, rise of, 391;
rule of Radicals, 392-394;
era of composite ministries, 395-398;
lack of real conservatives, 398-399;
groups of Extreme Left, 398;
rise of socialism, 399-400;
effects of the _Non Expedit_, 401-402;
elections of 1909, 402-403.
--Parthenopæan Republic, 355.
--Piedmont, incorporated with France, 355;
recovery in 1815, 358;
revolution of 1821, 360;
revolution of 1848, 360;
obtains constitution, 361;
accession of Victor Emmanuel II., 361;
ascendancy of, 362;
annexations of 1859-1860, 362.
--Pius IX., reforms, 360;
and revolution of 1848, 360-361;
loss of temporal dominion, 387;
rejects Law of Guarantees, 390.
--Plombières, agreement of, 362.
--Prefect, 384.
--Premier, appointment, 369-370.
--Pressburg, treaty of, 356.
--Province, nature and organization, 384.
--Radical Party, origins, 391;
dominance, 392-394.
--Republican Party, weakness, 399.
--Revolution of 1820-1821, 359;
of 1848, 360.
--Right, origins, 391;
loss of power, 392;
coalition with Left, 393.
--_Risorgimento_, 353.
--Roman Republic, 355.
--Rome, republic established in 1798, 355;
annexed to France, 357;
annexed to kingdom of Italy, 364;
becomes capital of kingdom, 364.
--Rudini, ministries, 394-395.
--Sardinia, kingdom of. See Piedmont.
--Savoy, ceded to France, 363.
--_Scrutinio di lista_, established in 1882, 376.
--Senate, composition, 372-373;
legislative weakness, 373;
proposed reform, 373-374;
privileges and powers, 375;
organization, 379;
procedure, 380-381.
--_Sindaco_, of commune, 385.
--Socialist Party, rise and character, 399-400.
--Sonnino, ministries, 396-397.
--_Statuto_, granted, 360;
character, 365, 366-367;
amendment, 365-366.
--Transpadane Republic, 354.
--Treaties, 369.
--Turin, kingdom of Italy proclaimed at, 364.
--_Uffici_, 380.
--Venice, ceded to Austria, 354;
annexed to kingdom of Italy, 364.
--Vienna, Congress of, settlement of Italian affairs, 358.
--Victor Emmanuel II., accession as king of Piedmont, 361;
building of Italian unity, 362-364.
--Zanardelli, ministry, 396.
_Landsthing_. See Denmark.
_Landtag_. See Prussia.
Law, of England, 167-169;
of Germany, 241-242;
of France, 335-339;
of Switzerland, 439;
of Hungary, 505.
London, government, 190-191.
Magna Carta, importance and character, 9.
Ministry, organization and status in Great Britain, 57-70;
proceedings, 71-73;
in German Empire, 213-215;
in Prussia, 254-256;
in France, 311-314;
in Italy, 369-372;
in Austria, 464-465;
in Hungary, 491-492;
in Holland, 524-525;
in Belgium, 536-537;
in Denmark, 560-568;
in Norway, 580-581;
in Sweden, 590-591;
in Spain, 615-616;
in Portugal, 635-636, 644.
Netherlands. See Holland.
_Non Expedit_, nature and effects, 400-402.
Norway:--
--Administration, organization, 588.
--_Amtsthing_, 588.
--Bernadotte, and union with Sweden, 554, 573-574.
--Commune, organization, 588.
--Conservative Party, 585-586.
--Constitution, of Eidsvold, 574;
present form, 578;
amendment, 579.
--Consular Service, question of, 576-577.
--County, organization, 588.
--Courts, organization, 587-588.
--Crown, restoration of independence, 578;
status, 580;
powers, 580-581;
question of veto, 584-585.
--Denmark, united with, 553, 572-573;
separated from, 554.
--Eidsvold, constitution of, 574.
--Elections, method, 581;
franchise, 581-582;
of 1909 and 1912, 587.
--_Formaend_, 588.
--Franchise, development, 581-582;
present system, 582.
--Haakon VII., crowned king, 578.
--_Höiesteret_, 587.
--Independence, movement for in 1813-1814, 574;
achieved, 577-578.
--Judiciary. See Courts.
--Kalmar, union of, 553.
--Karlstad, convention of, 578.
--Kiel, treaty of, 554, 573, 575.
--Liberal Party, growth, 585-586.
--_Lagthing_. See _Storthing_.
--Michelsen, ministry, 577.
--Ministry, composition, 580;
functions, 580-581.
--_Odelsthing_. See _Storthing_.
--Parliament. See _Storthing_.
--Parliamentarism, 581.
--Parties, history to 1905, 585-586;
status since 1905, 586-587.
--_Riksakt_, of 1815, 574-575.
--Social Democratic Party, 587.
--Steen, carries electoral reform, 581.
--_Storthing_, composition, 581;
electoral system, 581-582;
sessions and organization, 582;
powers and procedure, 583-584.
--Sverdrup, organizes first Liberal ministry, 585.
--Sweden, union with established, 574;
nature of union, 574-575;
friction with, 575-576;
question of consular service, 576-577;
separation from, 577-578.
--Union. See Sweden.
--Veto, power of, 584-585.
--Woman's Suffrage, status, 582.
Papacy. See Italy.
Parliament. See England, France, Italy, Austria, etc.
Parliamentarism, in Great Britain, 143;
in German Empire, 213;
in Prussia, 254;
in Austria, 464-465, 480-481;
in Hungary, 498;
in Belgium, 536-537;
in Denmark, 560-562;
in Norway, 581;
in Sweden, 591.
Parties, rise in England, 38-39;
history in England, 143-166;
in Germany, 229-240;
in France, 329-333;
in Italy, 391-402;
in Switzerland, 434-437;
in Austria, 475-483;
in Hungary, 500-505;
in Holland, 529-530;
in Denmark, 565-568;
in Norway, 585-587;
in Sweden, 592-600;
in Spain, 620-625;
in Portugal, 631-633, 639-642.
Plural vote, in England, 88-90;
in Austria, 468;
in Belgium, 550-551.
Portugal:--
--Administration, organization under monarchy, 638-639;
under republic, 646.
--Arriaga, Manoel, elected president, 642.
--Bonaparte, Napoleon, subjugation by, 629.
--Braga, Theophile, leader of provisional government, 641.
--Braganza, house of, proscribed, 641-642.
--Brazil, relation with, 629.
--Chagas, João, ministry, 642.
--Charter, of 1826, 630;
revised, 631.
--Chartist Party, 630-631.
--Commune, organization, 638-639.
--Congress, composition and powers, 645-646.
--Constitution, of 1826, 630;
revision of 1852, 631;
character under monarchy, 634-635;
of republic framed, 642-643;
nature, 643;
amendment, 643.
--Cortes, extinct at opening of nineteenth century, 629;
revival, 630-631;
party strength under monarchy, 633-634;
renewed in 1908, 634;
composition under monarchy, 636-638.
--Council of Municipalities, composition and powers, 645-646.
--Courts, under monarchy, 638;
under republic, 646.
--Crown, status prior to 1910, 635-636.
--_Dictadura_, of France, 633-634.
--District, organization, 638-639.
--Elections, of 1906, 633;
system prior to 1910, 637;
of 1910, 640;
provision for in decree of 1911, 641-642.
--Franchise, under monarchy, 637;
under decree of 1911, 642.
--Franco, dictatorship, 633-634.
--House of Deputies, under monarchy, 636-637.
--House of Peers, under monarchy, 636-637.
--Judiciary. See Courts.
--Liberal Concentration, of 1906, 633.
--Manoel II., overthrow, 641.
--Miguel, assumption of crown, 630.
--Ministry, status prior to 1910, 635-636;
under the republic, 644.
--National Council, composition and powers, 645-646.
--Parties, rivalries, 631-632;
dictatorship of Franco, 633-634;
elections of 1906, 633;
and revolution of 1910, 639-642.
--Pedro IV., contest with Miguelists, 630.
--Pombal, reforms, 629.
--President, status and powers, 644.
--Progressive Party, 631-634.
--Regenerador Party, 631-634.
--Revolution of 1910, origins, 639;
character and results, 640-641.
--_Rotativos_, 632-633.
--Septembrist Party, 631.
--Thomar, Count of, ministry, 631.
President, of France, 303-312;
of Switzerland, 422-424;
of Portugal, 644.
Proportional Representation, in Würtemberg, 278;
movement for in France, 320-324;
in Switzerland, 419, 433;
in Belgium, 543-545;
in Denmark, 563.
Province, in Prussia, 268-270;
in Italy, 384;
in Austria, 485-487;
in Holland, 532-533;
in Belgium, 550-551;
in Spain, 627.
Prussia (see also Germany and Austria):--
--_Abgeordnetenhaus_, composition, 258;
electoral system 258-260;
question of electoral reform, 260-263;
session and powers, 263-264.
--_Abtheilungen_, in Landtag, 264.
--Administration, reform measures of Stein and Hardenberg, 265;
reforms of Bismarck, 266;
general principles, 267;
the province and its government, 268-270;
the government district, 270-271;
the circle, 271-272;
the commune, 272-273.
--Amendment, of constitution, 252.
--_Amtsgerichte_, 243.
--Austria, war with, 200.
--_Bezirksausschuss_, 270.
--Charlottenburg, constitution promulgated at, 251.
--Circle. See _Kreis_.
--Civil List, 253.
--Committees, in Landtag, 264.
--Commune, organization, 272-273.
--Constitution, obstacles to establishment, 248;
promulgated, 250;
nature, 251;
amendment, 252.
--Crown, status and power, 252.
--Diet, of 1847, 249.
--Elections, present system, 258-260;
question of reform, 260-263.
--Franchise, 258-260.
--Frederick William III., and constitutionalism, 248-250.
--Hardenberg, reform measures, 247-265.
--_Herrenhaus_, original provisions of constitution concerning, 257;
law of 1853, 257;
composition to-day, 257-258.
--Interpellation, in _Landtag_, 265.
--Judiciary, 243-244.
--_Kreis_, organization, 271.
--_Kreisausschuss_, 271.
--_Kreistag_, 271.
--_Landeshauptmann_, 270.
--_Landgerichte_, 243.
--_Landrath_, 271.
--_Landtag_, composition, 257-258;
electoral system, 258-260;
electoral reform, 260-263;
sessions, 263;
powers, 264.
--Ministry, composition, 254;
organization and workings, 255-256;
subsidiary executive bodies, 256.
--Napoleon, and Prussia, 246-247.
--_Oberlandesgerichte_, 243.
--_Oberpräsident_, 269.
--_Oberrechnungskammer_, 256.
--_Regierungsbezirk_, organization, 270-271.
--_Regierungspräsident_, 270.
--Revolution of 1848, 249-250.
--_Schulze_, 272.
--Social Democratic Party, 260-261.
--_Stadtrath_, 273.
--Stein, reform measures, 247, 265;
and Prussian local government, 265.
--Parliamentarism, absence of, 254.
--Province, origins and number, 268-269;
organs of central administration, 269;
organs of self-government, 269-270.
--_Provinziallandtag_, 270.
--_Provinzialrath_, 269.
--_Volkswirthschaftsrath_, 256.
Referendum, Unionist proposal in Great Britain, 109;
in Swiss cantons, 419-420;
in Swiss federal government, 430-432.
_Reichsrath_. See Austria.
Republicanism, in France, 297-298, 302-304, 329-330;
in Italy, 399.
_Rigsdag_. See Denmark.
_Riksdag_. See Sweden.
Saxony, made a kingdom, 194;
granted a constitution, 197;
governmental system, 276-278.
Scotland, union of 1707, 39-40;
allotment of parliamentary seats, 85;
representative peers, 98-99.
Senate. See France, Italy, Belgium, Spain.
Social Democrats, in German Empire, 231-240;
in Prussia, 260-261;
in France, 330-334;
in Italy, 399-400;
in Switzerland, 434-436;
in Austria, 469-470, 483;
in Holland, 529-530;
in Belgium, 540-548;
in Norway, 587;
in Sweden, 593-595, 600;
in Spain, 625.
Spain:--
--Administration, organization, 627-628;
principles, 628.
--Alfonso XII., accession, 610.
--Amendment, of constitution, 611.
--_Ayuntamiento_, of commune, 628.
--Bonaparte, Napoleon, conquest by, 603-604.
--Cadiz, Cortes convoked at, 604.
--Cánovas del Castillo, ministries, 621-622.
--Carlists, 606, 609, 620.
--Commune, organization, 627.
--Congress of Deputies, composition and election, 617-618;
sessions and organization, 618-619;
powers, 619-620.
--Conservative Party, character, 621, 625;
governments of, 621-623.
--Constitution, of 1812 drawn up, 604;
rescinded by Frederick VII., 605;
of 1834, 607;
of 1837, 607;
of 1845, 607-608;
of 1869, 608;
of 1876, 611;
character and contents to-day, 611-612.
--Cortes, convened in 1810, 604;
drafts constitution of 1812, 604;
under constitution of 1812, 604;
under constitution of 1834, 607;
under constitution of 1837, 607;
under constitution of 1845, 608;
under constitution of 1869, 608-609;
establishes republic, 609;
re-establishes monarchy, 610;
adopts constitution of 1876, 611;
composition to-day, 616-618;
sessions and organization, 618-619;
powers, 619-620;
strength of parties, 624-625.
--Council, of province, 627;
of commune, 628.
--Courts, organization, 626-627.
--Crown, rules of succession, 613;
regencies, 613-614;
powers, 614-615.
--Elections, of senators, 617;
of deputies, 618;
of 1907 and 1910, 624-625.
--Espartero, regent, 607.
--_Estatuto Real_, of 1834, 607.
--Isabella II., accession, 606;
declared of age, 608;
abdicates, 608.
--Ferdinand VII., reign, 605-607.
--France, intervention, 605.
--Franchise, present system, 618.
--Governor, of province, 627.
--Judiciary. See Courts.
--King. See Crown.
--Law, 626.
--Liberal Party, character, 621, 625;
governments of, 621-623.
--Maria Christina, regency, 606-607;
abdicates, 607.
--Maura, ministries, 623-624.
--Ministry, composition, 615;
functions, 615-616.
--Parliament. See Cortes.
--Parties, beginnings, 620;
character of Liberals and Conservatives, 621-622;
since 1903, 623-624;
elections of 1910, 624-625;
republicans and socialists, 625.
--Pragmatic Sanction, of 1830, 606.
--Province, organization, 627.
--Regency, 613-614.
--Republic, established, 609;
abolished, 610.
--Republican Party, rise, 620;
present character, 625.
--Revolution of 1820, 605.
--Sagasta, ministries, 621-623.
--Salic Law, rescinded, 606.
--_Scrutin de liste_, in election of deputies, 618.
--Senate, composition, 616;
appointment and election, 616-617;
sessions and organization, 618-619.
--Serrano, regent, 609.
--Socialist Party, character of, 625.
--Succession, rules of, 613.
--Supreme Court, 626-627.
States-General. See Holland.
_Storthing_. See Norway.
Sweden:--
--Administration, organization, 601.
--Agricultural Party. See _Landtmannapartiet_.
--Amendment, process, 589.
--Bernadotte, and union with Norway, 554, 573-574.
--Conservative Party, and electoral reform, 592-596;
long tenure of power, 599-600.
--Consular Service, question of, 576-577.
--Constitution, character, 572, 589;
amendment, 589.
--Constitutional Committee, 598.
--County, organization, 601.
--Courts, organization, 600-601.
--Crown, early status, 570-571;
present basis, 590;
relations with ministry, 590-591.
--Elections, present system, 592;
movement for reform, 592-596;
of 1908 and 1911, 600.
--Franchise, present regulations, 592;
rise of movement for reform, 592-593;
Conservative proposal of 1904, 593-594;
Staaff project of 1906, 594-595;
law of 1907-1909, 595-596;
question of women's suffrage, 596;
bill of 1912, 596-597.
--Gustavus III., rehabilitation of monarchy, 571.
--Gustavus IV., abdicates, 572.
--_Högsta Domstolen_, organization and functions, 600-601.
--Independence, established, 570.
--Judiciary. See Courts.
--Karlstad, convention of, 578.
--Kiel, treaty of, 554, 573, 575.
--_Landsthing_, of county, 601.
--_Landtmannapartiet_, growth, 599.
--Liberal Party, and electoral reform, 592-596;
gains, 600.
--Lindman, project for electoral reform, 595.
--Ministry, composition, 590;
powers, 590-591.
--Norway, union with, 573-574;
nature of union, 574-575;
friction with, 575-576;
question of consular service, 576-577;
separation of, 577-578.
--Parliament. See _Riksdag_.
--Parliamentarism, 591.
--Parties, and electoral reform, 592-596;
military and tariff questions, 598-599;
history since 1891, 599-600.
--_Regerings-formen_, of 1809, promulgated, 572.
--_Riksakt_, of 1815, 574-575.
--_Riksdag_, original character, 591;
reorganization in 1866, 591;
composition of chambers, 591-595;
electoral system, 582;
movement for electoral reform, 592-596;
organization and procedure, 597;
powers, 597-598.
--Social Democratic Party, and electoral reform, 593-595;
gains, 600.
--Staaff, project for electoral reform, 594.
--_Statsrad_. See Ministry.
--Supreme Court. See _Högsta Domstolen_.
--Union. See Norway.
--Women's Suffrage, movement for, 596-597.
Switzerland:--
--Act of Mediation, 407.
--_Bezirksammann_, 422.
--_Bezirksrath_, 422.
--Bonaparte, Napoleon, promulgates Act of Mediation, 407.
--_Bundesgericht_, nature and functions, 437-438.
--_Bundesrath_. See Federal Council.
--Canton, constitutions liberalized, 409;
sovereignty, 412;
federal control, 412-413;
powers exercised concurrently with Confederation, 414-415;
variation of constitutions, 416;
the _Landesgemeinde_, 417-418;
the Greater Council, 418-419;
use of referendum, 419-420;
use of initiative, 421;
the executive Council of State, 421;
local administration, 422;
the judiciary, 422.
--Centralism, triumph in 1848, 410;
as a political issue, 434.
--Clerical Party, character, 434-435.
--Commune, 422.
--Confederation, origins, 405;
composition in later eighteenth century, 406;
erected into Helvetic Republic, 406;
remodelled in 1803, 407;
reorganized in 1815, 408;
constitution of 1848 and 1874, 410;
nature, 411-412;
control of cantons by, 412;
powers vested exclusively in, 413-414;
powers denied, 414-415;
general aspects, 415.
--Constitution, of Helvetic Republic, 406-407;
remodelled in 1803, 407;
of 1815, 408;
of cantons liberalized, 409;
of 1848, 410;
revision of 1874, 410;
nature of government established by, 411-416;
amendment, 431-432.
--Council of State, executive agency in cantons, 421.
--Council of the States, composition, 427;
compared with Senate of United States, 427-428;
powers, 428-429;
procedure, 429-430.
--Courts, of the cantons, 422;
absence of administrative tribunals, 425-426;
the _Bundesgericht_, 437-438;
Civil Code, 439.
--Diet, of Confederation in 1803-1815, 407;
after 1815, 408.
--Elections, of Federal Council, 423;
of National Council, 426;
of Council of the States, 428;
party conditions, 435-437.
--Federal Assembly, relations with Federal Council, 424-425;
composition, 426;
powers, 428-429;
procedure, 429-430.
--Federal Court. See _Bundesgericht_.
--Federalism, triumph of in 1803, 407;
in 1815, 408;
survival in present constitutional system, 411;
as a political issue, 434.
--Federal Pact, 408.
--Franchise, 426.
--_Gemeindeversammlung_, 422.
--Greater Council, of the canton, 418-419.
--Helvetic Republic, creation and character, 406-407.
--Initiative, employment in cantons, 421;
in the federal government, 432-434.
--Judiciary. See Courts.
--_Landammann_, 421-422.
--_Landesgemeinde_, 417-418.
--Law, 439.
--Left. See Radical Party.
--Liberal Party, character, 435.
--National Council, composition, 426;
organization, 427;
powers, 428-429;
procedure, 429-430.
--Parties, prolonged ascendancy of Radicals, 434;
alignments to-day, 434-435;
stability of groups, 435-436;
inactivity, 436-437.
--President, election and functions, 422-424.
--Proportional Representation, 419, 433.
--Radical Party, prolonged ascendancy, 434;
present character, 434-436.
--Referendum, origins, 419;
operation in cantons, 419-420;
optional form in federal government, 430-431;
obligatory form, 431-432.
--Right. See Clerical Party.
--Socialist Party, rise, 434-436.
--_Sonderbund_, 409.
--Vienna, Congress of, disposition of Swiss affairs, 408.
Table of Magnates. See Hungary.
Woman's Suffrage, in Great Britain, 91-92;
in Holland, 527-528;
in Norway, 582;
in Sweden, 596-597.
Württemberg, made a kingdom, 194;
granted a constitution, 197;
special privileges, 208;
governmental system, 278-279.
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Transcriber's note:
The listing in the index for "Switzerland, Bundesrath" refers the
reader "Switzerland, Federal Council", which is absent in the
original text.
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