VII. (p. 143)…

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 elections 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 role 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 elections generales anglaises (janvier 1906), in Annales des Sciences Politiques, March, 1906; E. de Noirmont, Les elections anglaises de janvier 1906; les resultats generaux 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. Levy, 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 elections 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 elections de decembre 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 elections 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 role 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).]

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 mediaeval 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 Beruecksichtigung der fuer Schottland und Irland geltenden Sonderheiten (Tuebingen, 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 Encyclopaedia 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 mediaeval, 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 L100 in Common Law cases and L500 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 L1,500.]

*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 L100 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 systeme 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 regime 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 regime. 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 mediaeval 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, Staedteverwaltung 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.]

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 Wuerttemberg 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 curiae, 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; Wuerttemberg, 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 Luebeck, in 1846. In a number of the states mentioned, including Bavaria, Baden, Wuerttemberg, 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 revolution 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 Fuerstentag--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, Wuerttemberg, 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 Praesidium, 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 Generale, 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 Vertraegen 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 Begruendung 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 Aufloesung d. alten bis zur Errichtung d. neuen Kaiserreichs (Stuttgart, 1903-1905); and M. L. Van Deventer, Cinquante annees de l'histoire federale 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 Wuerttemberg 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 Roenne, 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'Ecole Libre des Sciences Politiques, July, 1888; ibid., Etudes 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 Wuerttemberg; 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 Aelterer Linie, Reuss Juengerer Linie, Lippe, and Schaumburg-Lippe; and the three free cities of Hamburg, Bremen, and Luebeck. 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., Tuebingen, 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., Tuebingen, 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 (Tuebingen, 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, Sec. 7-10; Lebon, Etudes 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'hegemonie prussienne, in Annales de l'Ecole 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 Wuerttemberg 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 Wuerttemburg 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, Secs. 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. Wuerttemberg and Bavaria, for example, retain on this basis the administration of posts and telegraphs within their boundaries, and Wuerttemberg, 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) Wuerttemberg retain to-day only their posts at Vienna, St. Petersburg, and the Vatican.

[Footnote 296: Laband, Das Staatsrecht des deutschen Reiches, Secs. 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.]

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 Bundespraesidium, 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 Bundespraesident, 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 lese majeste 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, Lese Majeste, 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 Wuerttemberg 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, Secs. 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 Praesidenten 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 Buelow 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, Secs. 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, Sec. 40; L. Dupriez, Les ministres dans les principaux pays d'Europe et d'Amerique, 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, Wuerttemberg 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, Secs. 27-31; A. Lebon, Etudes 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).]