Greater European governments

Preface

To take a second exposure on a photographic plate, in order to make the picture more accurate, is apt to have the opposite effect. Attempting to bring a description of social conditions or political institutions up to date is more often undertaken, but hardly with greater success; and when it is done in a hurry the defects are increased. Yet the demand for a book dealing in a moderate compass with the governments of the principal belligerents in Europe came so suddenly that it could be met only by using existing material with such few additions and corrections as seemed of primary importance. This volume is an abridgment of the author's " Government of England " which was published ten years ago, and of his " Governments and Parties in Continental Europe " published more than twenty years ago. Until this war the general traits of the political systems therein portrayed had altered little; and although some changes that have occurred since the war have been incorporated, there has been no attempt to cover the conditions brought about by the war. The object has been to show how those governments operate normally in time of peace, not how they have adjusted themselves to intense military stress.

While it is believed that all important alterations that have taken place in the governments of the countries

IV PREFACE

described since the original publication have been referred to in the notes or embodied in the text, doubtless some minor ones have been passed unheeded; and the lack of time has prevented a revision and carrying down to the present day of the authorities cited in the notes. The purpose of the book is to serve an immediate end: that of giving to the members of the War Aims Course in the Students' Army Training Corps, and to the many people in this country who take for the first time an interest in foreign nations, a picture of the principal governmental systems in Europe.

The writer desires to thank the Macmillan Company for the permission to use extracts from the " Government of England "; and Dean Henry A. Yeomans of Harvard College for revising the chapters on France and Italy.

Cambridge, Massachusetts November 5, 1918

Chapter I Pace

Sources of the English Constitution 3

The Relation of Law and Custom 4

Powers of the Crown 5

Legislative Power 5

Executive Power 7

Wide Extent of the Royal Power 9

Powers of the Crown exercised by Ministers 10

The King can do no Wrong n

The Nature of Modern Responsibility 13

The King must Follow the Advice of Ministers 14

For WTiat Acts Ministers are Responsible 15

Utility of Monarchy . 17

Nature of the Cabinet 19

The Need of Unity and Secrecy in the Cabinet 20

The Prime Minister 22

The Cabinet and the Ministry 22

The Executive Departments 23

The Permanent Civil Service 24

Appointment by Competitive Examination 26

Lay Chief and Expert Subordinate 27

The Relation between Them 27

CHAPTER II The Reform Acts 29

The Act of 1918 30

The Constituencies : Boroughs and Counties 30

The Universities 31

The Franchise: Parliamentary for Men 32

The Local Franchise for Men 32

The Franchise for Women 33

Candidates and Elections 34

V

VI CONTENTS

The Commons' House 35

The Speaker 35

The Committees 36

The Committee of the Whole 37

Select Committees 38

Standing or Grand Committees 40

Procedure on Public Bills . 41

Procedure on Money Bills 42

The Budget 45

The Public Accounts 45

Framing Legislative Questions 47

Private Members' Bills 49

The Cabinet's Control of Legislation 50

The Commons' Control over Administration 51

Criticism and Censure 52

Parliament the Inquest of the Nation 54

Private Bill Legislation 55

The House of Lords 57

The Powers of the House of Lords 59

The Act of 191 1 60

The Cabinet and the Country 61

Chapter III England: Party

Parties during the War 6s

Parties in Modern Government 64

Party and the Parliamentary System 64

Party Votes in Parliament 66

Chapter IV England: Local Government

The Areas of Local Government 69

Borough Councils 71

The Mayor 73

The Permanent Officials 73

Their Position 74

Benefits of their Influence 76

CONTENTS VU

CHAPTER V The British Empire 77

Proportion of Races 77

Distribution of the European Elements 78

Revenue 79

Forms of Colonial Government 80

The Self- Governing Colonies 80

Colonial Federations 82

The Relation to England 82

The Crown Colonies 85

India 86

The Civil Service of India . . 87

India is not a Nation 88

The Native States 89

Egypt 90

Imperial Federation 90

CHAPTER VI Origin of Parliamentary Government 93

Parliamentary Government on the Continent 97

The French Constitution 98

History of its Creation 99

The Constitutional Laws 101

Amendments 102

The Chamber of Deputies 104

Scrutin de Liste and Scrutin d'Arrondissement 105

The Chamber a Tumultuous Body 107

The Senate 108

Its Functions no

Its Actual Influence in

The President of the Republic 115

His Personal Authority 117

The Conseil d'Etat 119

The Ministers 120

Their Responsibility to the Chambers 121

Their Enormous Power 121 viii CONTENTS

Local Government 122

The Prefect 124

The General Council 125

The Arrondissement and the Canton 127

The Commune 128

Paris 130

Legislative Powers of the Executive 131

Decrees and Ordinances 131

Appropriations 133

Judicial Powers of the Executive 134

Early Royal Power in England 135

The Judicial System in England 135

The Royal Power in France 137

The Judicial System in France 138

Doctrine of the Separation of Powers 140

The Administrative Courts 143

The Court of Conflicts 147

The State of Siege 148

Effect on the Executive 149

CHAPTER VII Parties in Popular Government 151

The Parliamentary System and Parties 152

Many Groups in France 155

The Lack of Political Consensus 158

French Political Opinions Theoretical 161

Effects of French Political Mechanism 164

The Method of Electing Deputies 164

The Committees in the Chambers 167

Interpellations 172

Jealousy and Distrust of the Ministers 178

Results of the Condition of Parties 181

The Cabinet a Coalition and therefore Weak 182

Political Use of Offices 184

Deputies and their Committees 185

The Deputies and their Constituents 188

Prospects of the Republic 189

CONTENTS IX

CHAPTER VIII ITALY The Union of Italy 197

The Statuto 198

The King 200

The Ministers 201

The Senate 202

The Chamber of Deputies 204

Contrast between Theory and Practice 210

The Ordinance Power 211

The Civil Service 213

Local Government 214

The Judicial System 216

The Courts and the Officials 217

Administrative Law 218

Administrative Courts 220

Weakness of the Judicial System 222

The Church 223

Church and State 224

The Monastic Orders 226

The Pope 227

The Law of the Papal Guarantees 228

Difficulty of the Question 230

Chapter IX Germany: Structure Of The Empire

Former Subdivision of Germany 233

The Growth of Prussia 234

The Germanic Confederation 235

The Attempt at Union in 1848-49 236

Bismarck 238

The Constitutional Conflict 238

The North German Confederation 240

The Constitution of the Empire 242

Nature of the Confederation 243

The Privileges of Prussia 245

Privileges of the Other States 248

The Empire and the Old Confederation 249

X CONTENTS

The Reichstag 251

The Committee System 253

The Powers of the Reichstag 254

The Right of Dissolution 255

Interpellations 256

The Bundesrath 257

Character of the Bundesrath 259

Its Internal Organization 262

Powers of the Bundesrath 264

Privacy of Meetings . . 267

Actual Influence of the Bundesrath 268

The Kaiser 269

His Powers as Kaiser and King 270

The Chancellor 272

His Functions 274

His Substitutes 275

The Judiciary 276

The Reichsgericht 276

Character of the Federal System 277

Chapter X Germany: The Several States

Prussia: The Constitution and the King 279

The Ministers and the Bureaucracy 280

The Landtag 282

The Three-Class System of Election 283

Prussian Local Government 286

Bavaria 286

Wurtemberg, Baden, and Hesse 288

Saxony 289

The Small Monarchies 291

The Two Mecklenburgs 293

Hamburg, Bremen, and Liibeck 293

Alsace-Lorraine 295

TheActofi9ii 297

CONTENTS xi

Chapter XI Germany: Comments On The Political System

The Position of the Chancellor 299

Why not Responsible to the Reichstag 301

Parties in Germany 302

Parties in the Landtags 304

Class Strife an Obstacle to Popular Government 305

The Growth of Discontent 307

Democracy would Involve Organic Changes 308

CHAPTER XII Austria: Provinces and Races 310

The Constitution 312

The Emperor 313

The Reichsrath 313

The Provinces 315

The Race Question 316

Hungary: The Races 318

The King 320

The Parliament 321

The Dual Monarchy 322

The Delegations s 2 3

The Customs Union 325

The Joint Ministers 325

Bosnia and Herzegovina 327

The Character of the Union 328

CHAPTER I Sources of the English Constitution

The English constitution — speaking, of course, of its form, not its content — differs from those of most other European nations more widely in method of expression than in essential nature and legal effect. They have been created usually as a result of a movement to change fundamentally the political institutions of the country, and the new plan has naturally been embodied in a document; but since the Restoration England has never revised her frame of government as a whole, and hence has felt no need of codifying it. The national political institutions are to be found in statutes, 1 in customs which are enforced and developed by the courts and form a part of the common law, and in customs strictly so called which have no legal validity whatever and cannot be enforced at law. These last are very appropriately called by Professor Dicey the conventions of the constitution. The two chief peculiarities of the English constitution are: first, that no laws are ear-marked as constitutional — all laws can be changed by Parliament, and hence it is futile to attempt to draw a sharp line between those laws which do and those which do not form a part of the constitution; second, the large part played by customary rules, which are carefully followed, but which are

1 Boutmy in his Etudes de droit constitutionel (ist ed., p. 9) adds treaties or quasi- treaties (the Acts of Union), and solemn agreements such as the Bill of Rights. But all these are in legal effect simply statutes.

entirely devoid of legal sanction. Customs or conventions of this kind exist, and in the nature of things must to some extent exist, under all governments. In the United States where they might, perhaps, be least expected, they have transformed the presidential electors into a mere machine for registering the popular vote in the several states, and this is only the most striking of the instances that might be cited. 1 England is peculiar, not because it has such conventions, but because they are more abundant and allpervasive than elsewhere. The most familiar of them is, of course, the rule that the king must act on the advice of his ministers, while they must resign or dissolve Parliament when they lose the confidence of the majority in the House of Commons. It is impossible, however, to make a precise list of the conventions of the constitution, for they are constantly changing by a natural process of growth and decay; and while some of them are universally accepted, others are in a state of uncertainty.

The Relation of Law and Custom

The relation between law and custom in the English government is characteristic. From the very fact that the law consists of those rules which are enforced by the courts, it follows that the law — including, of course, both the statutes and the common law — is perfectly distinct from the conventions of the constitution; is quite independent of them, and is rigidly enforced. The conventions do not abrogate or obliterate legal rights and privileges, but merely determine how they shall be exercised. The legal forms are scrupulously observed, and are as requisite for the validity of an act as if custom had not affected their use. The power of the crown, for example, to refuse its consent to 1 Bryce, American Commonwealth, ch. xxxiv.

bills passed by the two houses of Parliament is obsolete, yet the right remains legally unimpaired. The royal assent is given to such bills with as much solemnity as if it were still discretionary, and without that formality a statute would have no validity whatever. The most notable example of this is the way in which the actual exercise of the royal power has been transferred from the king to Parliament. The House of Commons gradually drew his authority under its control ; but it did so without seriously curtailing the legal powers of the crown, and thus the king legally enjoys most of the attributes that belonged to his predecessors, although the exercise of his functions has passed into other hands. If the personal authority of the monarch has become a shadow of its former massiveness, the government is still conducted in his name, and largely by means of the legal rights attached to his office. With a study of the crown, therefore, a description of English government most fittingly begins.

Powers of the Crown

The authority of the English monarch may be considered from different points of view, which must be taken up in succession; the first question being what power is legally vested in the crown; the second, how much of that power can practically be exercised at all; the third, how far the power of the crown actually is, or may be, used in accordance with the personal wishes of the king, and how far its exercise is really directed by his ministers; the fourth, how far their action is in turn controlled by Parliament.

Legislative Power

All legislative power is vested in the King in Parliament; that is, in the king acting in concert with the two houses. Legally, every act requires the royal assent, and, indeed, the houses can transact business only during the pleasure of the crown, which summons and prorogues them, and can at any moment dissolve the House of Commons. But it is important to note that by itself, and apart from Parliament, the crown has to-day, within the United Kingdom, no inherent legislative power whatever. This was not always true, for legislation has at times been enacted by the crown alone in the form of ordinances or proclamations; but the practice may be said to have received its death-blow from the famous opinion of Lord Coke, " that the King by his proclamation cannot create any offence which was not an offence before, for then he may alter the law of the land." l The English crown has, therefore, no inherent power to make ordinances for completing the laws, such as is possessed by the chief magistrate in France and other continental states. This does not mean that it cannot make regulations for the conduct of affairs by its own servants, by Orders in Council, for example, establishing regulations for the management of the army, or prescribing examinations for entrance to the civil service. These are merely rules such as any private employer might make in his own business, and differ entirely in their nature from ordinances which have the force of law, and are binding quite apart from any contract of employment.

Power to make ordinances which have the force of law and are binding on the whole community is, however, frequently given to the crown 2 by statute, notably in matters affecting public health, education, etc., and the practice is constantly becoming more and more extensive, until at present the rules made in pursuance of such powers — known as " statutory orders " — are published every year in a

1 Coke's Reports, xii. 76.

2 Or more strictly to the Crown in Council.

ENGLAND: CROWN AND CABINET J

volume similar in form to that containing the statutes. Some of these orders must be submitted to Parliament, but go into effect unless within a certain time an address to the contrary is passed by one of the houses, while others take effect at once, or after a fixed period, and are laid upon the tables of the houses in order to give formal notice of their adoption.

Executive Power

The crown is at the head of the executive branch of the central government, and carries out the laws, so far as their execution requires the intervention of any national public authority. In fact all national executive power, whether regulated by statute, or forming strictly a part of the prerogative, that is the ancient inherent royal authority, is exercised in the name of the crown, and by its authority, except when directly conferred by statute upon some officer of the crown, and in this case, as we shall see, it is exercised by that officer as a servant of the crown, and under its direction and control. Legally some of the executive powers are indeed vested in the Crown in Council — that is, in the king acting with his Privy Council — but as the Council has no independent authority, and consists, for practical purposes, of the principal ministers appointed by the crown, even these powers may be said to reside in the crown alone.

All national public officers, except some of the officials of the houses of Parliament, and a few hereditary dignitaries whose duties are purely ceremonial, 1 are appointed directly by the crown or by the high state officials whom it has itself appointed; and the crown has also the right to remove them, barring a small number whose tenure is during good

1 Such as the hereditary Earl Marshal and Grand Falconer.

behavior. Of these last by far the most important are the judges, the members of the Council of India, and the Controller and Auditor General, no one of whom has any direct part in the executive government of the kingdom. 1 Now the right to appoint and remove involves the power to control; and, therefore, it may be said in general that the whole executive machinery of the central government of England is under the direction of the crown.

The crown furthermore authorizes under the sign manual the expenditure of public money in accordance with the appropriations made by Parliament, and then expends the money. It can grant charters of incorporation, with powers not inconsistent with the law of the land, so far as the right to do so has not been limited by statute. The crown grants all pardons, creates all peers, and confers all titles and honors. As head of the Established Church of England it summons Convocation with a license to transact business specified in advance. It virtually appoints the archbishops, bishops and most of the deans and canons, and has in its gift many rectorships and other livings. As head of the army and navy it raises and controls the armed forces of the nation, and makes regulations for their government, subject, of course, to the statutes and to the passage of the Annual Army Act. It represents the empire in all external relations, and in all dealings with foreign powers. It has power to declare war, make peace, and conclude treaties, save that, without the sanction of Parliament, a treaty cannot impose a charge upon the people, or change the law of the land, and it is doubtful how far without

1 On the power of removal from an office held during good behavior, and on the effect of the provision that the three classes of officers mentioned above may be removed upon the address of both houses of Parliament, see Anson, Law and Custom of the Constitution, ii. 213-215. The references to Anson are to the 3d ed. of vol. i. (1897); the 2d ed. of vol. ii. (1896).

that sanction private rights can be sacrificed or territory ceded. 1

Just as Parliament has often conferred legislative authority upon the crown, so it has conferred executive power in addition to that possessed by virtue of the prerogative. Statutes of this kind have become very common during the last half century in relation to such matters as local government, public health, pauperism, housing of the workingclasses, education, tramways, electric lighting and a host of other things. Even without an express grant of authority, supervisory powers have often been conferred upon the crown by means of appropriations for local purposes which can be applied by the government at its discretion, and hence in accordance with such regulations as it chooses to prescribe. This has been true, for example, of the subsidies in aid of the local police, and of education. By such methods the local authorities, and especially the smaller ones, have been brought under the tutelage of the crown to an extent quite unknown in the past.

Wide Extent of the Royal Power

All told, the executive authority of the crown is, in the eye of the law, very wide. " It would very much surprise people," as Bagehot remarked in his incisive way, " if they were only told how many things the Queen could do without consulting Parliament. . . . Not to mention other things, she could disband the army (by law she cannot engage more than a certain number of men, but she is not obliged to engage any men) ; she could dismiss all the officers, from the General Commanding-in-Chief downwards; she could

1 Cf. Anson, Law and Custom, ii. 297-299; Dicey, Law of the Constitution, p. 393. Heligoland was ceded to Germany by treaty in 1890, subject to the assent of Parliament, which was given by 53-54 Vic, c. 32.

IO GREATER EUROPEAN GOVERNMENTS

dismiss all the sailors too; she could sell off all our ships of war and all our naval stores; she could make a peace by the sacrifice of Cornwall, and begin a war for the conquest of Brittany. She could make every citizen in the United Kingdom, male or female, a peer; she could make every parish in the United Kingdom a ' university ' ; she could dismiss most of the civil servants; she could pardon all offenders. In a word, the Queen could by prerogative upset all the action of civil government within the government." x We might add that the crown could appoint bishops, and in many places clergymen, whose doctrines were repulsive to their flocks; could cause every dog to be muzzled, every pauper to eat leeks, every child in the public elementary schools to study Welsh; and could make all local improvements, such as tramways and electric light, well-nigh impossible.

Powers of the Crown Exercised by Ministers

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; but it is no longer used in accordance with the personal wishes of the sovereign. By a gradual process his authority has come more and more under the control of his ministers, until it is now almost entirely in the hands of the cabinet, which is responsible to Parliament and through Parliament to the nation. The cabinet is to-day the mainspring of the whole political system, and the clearest method of explaining the 1 English Constitution, 2d ed. (Amer.), Introd., p. 31.

ENGLAND: CROWN AND CABINET II

relations of the different branches of the government to each other is to describe in succession their relations with the cabinet.

The King can Do no Wrong

The doctrine that " the King can do no wrong " had its beginnings as far back as the infancy of Henry III, and by degrees it grew until it became a cardinal principle of the constitution. Legally it means that he cannot be adjudged guilty of wrong-doing, and hence that no proceedings can be brought against him. He cannot be prosecuted criminally, or, without his own consent, sued civilly in tort or in contract in any court in the land. 1 But clearly if the government is to be one of law, if public officers like private citizens are to be subject to the courts, if the people are to be protected from arbitrary power, the servant who acts on behalf of the crown must be held responsible for illegal conduct from the consequences of which the king himself is free. Hence the principle arose that the king's command is no excuse for a wrongful act, and this is a firmly established maxim of the Common Law in both civil and criminal proceedings. 2 To prevent royal violations of the law,

1 If a person has a claim against the crown for breach of contract, or because his property is in its possession, he may bring a Petition of Right, and the crown on the advice of the Home Secretary will order the petition indorsed " Let right be done," when the case proceeds like an ordinary suit.

2 Anson, ii. 4, 5, 42, 43, 278, 279, 476-480. But a servant of the crown is not liable on its contracts, for he has made no contract personally, and he cannot be compelled to carry out the contracts of the crown. Gidley v. Lord Palmerston, 3 B. & B., 284. The rule that the sovereign cannot be sued has been held to prevent a possessory action against a person wrongfully in the possession of land as agent of the crown : Doe d. Legh. v. Roe, 8 M. & W., 579. It would seem that in such a case the courts might have held that as the king could do no wrong, the wrongful act, and consequently the possession, was not his; in other words, that the agency could not be set up as a defense to the wrongful act. Compare United States v. Lee, 106 U. S., 196, where land had been illegally seized by the government of the United States.

however, it is not enough to hold liable a servant who executes unlawful orders, if the master still has power to commit offenses directly. A further step must be taken by restraining the crown from acting without the mediation of a servant who can be made accountable ; and for this reason Edward IV was informed that he could not make an arrest in person. 1 But, as the kings and queens are not likely to be tempted into personal assaults and trespasses, the principle that they can act only through agents has had little importance from the point of view of their liability at law, although it is a matter of vital consequence in relation to their political responsibility.

The doctrine that the king can do no wrong applies not only to legal offenses, but also to political errors. The principle developed slowly, as a part of the long movement that has brought the royal authority under the control of public opinion; not that the process was altogether conscious, or the steps deliberately planned, but taking constitutional history as a whole, we can see that it tended to a result, and in speaking of this it is natural to use terms implying an intent which the actors did not really possess. To keep the crown from actual violations of law was not always easy, but it was far more difficult to prevent it from using its undoubted prerogatives to carry out an unpopular policy. Parliament could do something in a fitful and intermittent way by refusing supplies or insisting upon the redress of particular grievances, but that alone was not enough to secure harmony between the crown and the other political forces of the day. There could, in the nature of

1 Coke, Inst. (4th ed.), ii. 186-187. " Hussey Chief Justice reported, that Sir John Markham said to King E. I. that the King could not arrest any man for suspition of Treason, or Felony, as any of his Subjects might, because if the King did wrong, the party could not have his Action." E. I. is a mistake for E. IV.

things, be no appropriate penalty for royal misgovernment. In the Middle Ages, indeed, a bad king or a weak king might lose his throne or even his life; but in more settled times such things could not take place without a violent convulsion of the whole realm — a truth only too well illustrated by the events of the seventeenth century. An orderly government cannot be founded on the basis of personal rule tempered by revolution. Either the royal power must be exercised at the personal will of the monarch, or else other persons who can be made accountable must take part in his acts of state.

The Nature of Modern Responsibility

The effort to fasten upon a particular person the actual responsibility for each public act of the crown by compelling some officer to put his approval of it on record, has been superseded by the general principle that the responsibility must always be imputed to a minister. Although ignorant of the matter at the time it occurred, he becomes answerable if he retains his post after it comes to his knowledge ; and even though not in office when the act was done, yet if he is appointed in consequence of it, he assumes with the office the responsibility for the act. This happened to Sir Robert Peel in 1834. Believing, as every one at that time did believe, that the king had arbitrarily dismissed Lord Melbourne's cabinet, he said, " I should by my acceptance of the office of First Minister become technically, if not morally, responsible for the dissolution of the preceding government, although I had not the remotest concern in it." 1 The rule is so universal in its operation " 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 1 Mahon and Cardwell, Memoirs by Sir Robert Peel, ii. 31.

Parliament for his public conduct." 1 A minister is now politically responsible for everything that occurs in his department, whether countersignature or seal is affixed by him or not; and all the ministers are jointly responsible for every highly important political act. A minister whose policy is condemned by Parliament is no longer punished, he resigns; and if the affair involves more than his personal conduct or competence, if it is of such moment that it ought to have engaged the attention of the cabinet, his colleagues resign with him. Thus punitive responsibility has been replaced by political responsibility, and separate has been enlarged to joint responsibility.