XI. (p. 223)…

XI. (p. 223)

THE IMPERIAL GOVERNMENT: REICHSTAG, PARTIES, JUDICIARY

I. COMPOSITION OF THE REICHSTAG--ELECTORAL SYSTEM

In complete contrast with the Bundesrath, which is a purely federal institution, the Reichstag is broadly national. It represents, not the states, nor yet the people of the states, but the people of the Empire as a whole. From what has been said regarding the preponderance of the autocratic principle in the German system it follows that there is no room in that system for a parliamentary chamber of the nature of the British House of Commons or of the French Chamber of Deputies. None the less, restricted as are its functions, the Reichstag is one of the world's most vigorous and interesting legislative bodies.

*235. Allotment of Seats.*--Members of the Reichstag are chosen for a term of five years,[327] by direct and secret ballot, at an election which takes place on a given day throughout the entire Empire. The number of seats, fixed tentatively by the constitution of 1871 at 382, was, by law of June 25, 1873, providing for the election of fifteen members from Alsace-Lorraine, increased to 397; and it thereafter remained unchanged. The electoral "circles," or districts, each of which returns one member, were laid out originally in such a way as to comprise 100,000 inhabitants each, and also in such a manner that no district would embrace portions of two or more states. Since 1871 there has been no redistricting of the Empire, and the populations comprising the various constituencies have become grossly unequal. Berlin, with more than two million people, is still entitled to but six seats; and the disproportion in other great cities and densely inhabited regions is almost as flagrant.[328] There has long been demand for a redistribution of seats; but, by reason of the proneness of urban constituencies to return to the Reichstag socialists or other radicals, the Government has never been willing to meet the (p. 224) demand. By states, the 397 seats are distributed as follows: Prussia, 236; Bavaria, 48; Saxony, 23; Wuerttemberg, 17; Alsace-Lorraine (Imperial territory), 15; Baden, 14; Hesse, 9; Mecklenburg-Schwerin, 6; Saxe-Weimar, 3; Oldenburg, 3; Brunswick, 3, Hamburg, 3; Saxe-Meiningen, 2; Saxe-Coburg-Gotha, 2; Anhalt, 2; and all others, one each. As in the American House of Representatives, a state is entitled to one member regardless of its population.

[Footnote 327: The term, originally three years, was made five by a law of 1888. The modification went into effect with the Reichstag elected in February, 1890.]

[Footnote 328: In Conservative East Prussia the average number of voters in a district is 121,000; in Socialist Berlin it is 345,000. Twelve of the most populous districts represented in the Reichstag contain 1,950,000 voters; twelve of the least populous, 170,000. The district of Schaumburg-Lippe has but 9,891.]

*236. Time and Method of Elections.*--Electoral procedure is regulated by the Election Law of May 31, 1869, amended in minor particulars at subsequent dates, and extended in 1871 and in 1873 to the southern states and to Alsace-Lorraine respectively. Elections are held uniformly throughout the Empire on a day fixed by the Emperor. In the event of a dissolution prior to the end of the five-year term an election is required to take place within a period of sixty days, and the new Reichstag must be convened not later than ninety days after the dissolution.[329] For election on the first ballot an absolute majority of the votes cast within the circle, or district, is required. If no candidate obtains such a majority, there follows a second balloting (Stichwahl) a fortnight later, when choice is made between the two candidates who upon the first occasion polled the largest number of votes. In the event of a tie, decision is by lot.[330] Secrecy of the ballot is specially safeguarded by regulations enacted April 28, 1903. Each voter, upon appearing at the polls, is furnished with an envelope and a white voting-paper bearing an official stamp. In a compartment arranged for the purpose in the polling room he marks his ballot and incloses it in the envelope. As he leaves the room he hands the envelope to the presiding officer or deposits it in a voting urn. Once elected, a member, according to constitutional stipulation, is a representative, not of the constituency that chose him, but of the people of the Empire as a whole, and he may not be bound by any order or instruction.[331]

[Footnote 329: Art. 25. Dodd, Modern Constitutions, I., 333.]

[Footnote 330: By reason of the multiplicity of parties the number of second ballotings required is invariably large. In 1890 it was 138; in 1893, 181; in 1898, 185; in 1903, 180; in 1907, 158; and in 1912, 191. It is calculated that the effect of forty per cent of the second ballotings is to prevent the election of the candidate obtaining originally the largest number of votes. The arrangement operates to the advantage principally of the National Liberals, the Radicals, and other essentially moderate parties, and to the disadvantage especially of the Social Democrats. On this subject see A. N. Holcombe, Direct Primaries and the Second Ballot, in American Political Science Review, Nov., 1911.]

[Footnote 331: Art. 29. Dodd, Modern Constitutions, I., 333.]

*237. The Franchise.*--The franchise is broadly democratic. (p. 225) Every male who, possessing citizenship in the Empire, has completed his twenty-fifth year is entitled to vote in the district in which he has his domicile, provided his name appears on the registration lists. He is not required to be a citizen of the state in which he votes. The only exceptions to the general rule of universal manhood suffrage arise from the disfranchisement of persons under guardianship, bankrupts, beneficiaries of public charity, persons suffering judicial deprivation in respect to certain of their rights as citizens, and persons in active service in the army and navy. Any male citizen, possessed of the right to vote, twenty-five years of age or over, and a resident of a state of the Empire during at least one year, is eligible as a candidate. He is not required to be a citizen of the state from which he aspires to be elected.[332]

[Footnote 332: On the German Imperial electoral system see Howard, The German Empire, Chap. 5; Lebon, Etudes sur l'Allemagne politique, 70-83; ibid., Etude sur la legislation electorale de l'empire d'Allemagne, in Bulletin de Legislation Comparee, 1879; G. Below, Das parlamentarische Wahlrecht in Deutschland (Berlin, 1909); and M. H. Nezard, L'Evolution du suffrage universel en Prusse et dans l'Empire allemand, in Revue du Droit Public, Oct.-Dec., 1904.]

*238. Privileges of Members.*--Solicitous lest if members of the Reichstag should be entitled to remuneration for their services the poorer classes would arrive at a preponderance in the chamber, Bismarck insisted in season and out upon the non-payment of representatives, and by the constitution of 1871 salaries were specifically forbidden.[333] During the eighties the Imperial Court of Appeal ruled that the payment of socialist members by their supporters was illegal,[334] though such payment has been in recent times not unknown. Again and again measures providing for the payment of all members from the Imperial treasury were passed in the Reichstag, only to be thrown out by the Bundesrath. May 21, 1906, such a measure was at last enacted by both chambers, providing for a payment of 3,000 marks a session (with a deduction of twenty-five marks for each day's absence), and in addition free passes over German railways during, and for eight days before and after, sessions. Upon the taking effect of this measure, Germany became one of the several European countries in which, within years comparatively recent, the members of the popular legislative chamber have been given a right to public compensation. Special privileges enjoyed by members are of the customary sort. No member may at any time be held legally to account outside the chamber by reason of his utterances or his votes within it. Unless taken (p. 226) in the commission of a misdemeanor, or during the ensuing day, a member may not be arrested for any penal offense, or for debt, without the consent of the chamber; and at the request of the chamber all criminal proceedings instituted against a member, and any detention for judicial investigation or in civil cases, must be suspended during a session.[335]

[Footnote 333: "The members of the Reichstag, as such, shall draw no salary or compensation." Art. 32. Dodd, Modern Constitutions, I., 334.]

[Footnote 334: Cf. the Osborne Judgment of 1909 in England (see p. 127).]

[Footnote 335: Arts. 30 and 31. Dodd, Modern Constitutions, I., 334.]

II. ORGANIZATION AND POWERS OF THE REICHSTAG

*239. Sessions and Officers.*--The constitution stipulates that the Reichstag and the Bundesrath shall meet annually. Beyond this, and the further requirement that the Reichstag shall never be in session when the Bundesrath is not, the Imperial Government is left entirely free in respect to the convening of the representative body.[336] The summons is issued by the Emperor and the sessions are opened by him, in person or by proxy. By him the assembly may be prorogued (though not more than once during a session, and never for a longer period than thirty days without its own consent); by him also, with the assent of the Bundesrath, it may be dissolved.[337] The chamber validates the election of its members, regulates its own procedure and discipline, and elects its president, vice-presidents, and secretaries.[338] Under standing orders adopted February 10, 1876, the president and vice-president are chosen at the opening of the first session following a general election for a temporary term of four weeks, and upon the expiration of this period an election takes place for the remainder of the session. At the opening of each succeeding session an election of these officials for the session takes place at once. The secretary is chosen at the beginning of each session for the entire session.

[Footnote 336: Mention has been made of the regulation that, following a dissolution prior to the end of the five-year term, the chamber shall be convoked within ninety days. It will be recalled, also, that the Bundesrath may be convoked without the Reichstag.]

[Footnote 337: Nominally by a resolution of the Bundesrath, with the consent of the Emperor. Art. 24. Dodd, Modern Constitutions, I., 333.]

[Footnote 338: Art. 27. Ibid.]

*240. Abtheilungen and Committees.*--At the opening of a session the entire membership of the Reichstag is divided by lot into seven Abtheilungen, or bureaus, as nearly equal as it is possible to make them. The bureaus of the French Chamber of Deputies are reconstituted once a month, and those of the Italian once in two months, but those of the Reichstag are maintained unchanged throughout a session, unless upon motion of as many as thirty members the body decides upon a fresh distribution. The functions of the bureaus comprise, in the main, (p. 227) the passing upon the credentials of members of the chamber and the designating of members of committees. There is in the Reichstag but one standing committee--that on elections. It is perpetuated throughout a session. All other committees are made up, as occasion requires, by the appointment by ballot of an equal number of members by each of the seven bureaus; although, in point of fact, the preparation of committee lists falls largely to the party leaders of the chamber. The function of committees is the preliminary consideration of measures and the reporting of them and of evidence relating to them, to the chamber, Bills are not, however, in all cases referred to committees.

*241. Methods of Business.*--Measures proposed for enactment pass through the three readings which have come to be customary among modern legislative assemblies. Debate is carried on under regulations closely resembling those which prevail in the British House of Commons and distinctly less restrictive than those in vogue in the French Chamber of Deputies. Members of the Bundesrath, to whom is assigned a special bench, possess the right to appear and to speak at pleasure. Debaters address the chamber from the tribune or from their seats as they choose, and they speak whenever they can secure the recognition of the presiding official, not, as in France, in the hard and fast order indicated by a previously prepared written list. Like the Speaker of the House of Commons, the president of the Reichstag is a strictly non-partisan moderator. A fixed tradition of the office is that during debate the chair shall recognize alternately the supporters and the opponents of the measure under consideration. As a general rule, closure of debate may be ordered upon the initiative of thirty members.

Unlike the sittings of the Bundesrath, which take place invariably behind closed doors, those of the Reichstag are, by constitutional provision, public. Under the standing orders, however, the body may go into secret session, on motion of the president, or of ten members. Publicity is further assured by the constitutional stipulation that "no one shall be held responsible for truthful reports of the proceedings of the public sessions of the Reichstag."[339] Measures are carried by absolute majority; and, while discussion may proceed in the absence of a quorum, no vote or other action is valid unless there is present a majority of the full membership of the body, that is, since 1873, 199.

[Footnote 339: Art. 22. Dodd, Modern Constitutions, I., 333.]

*242. Powers.*--The legislative power of the Empire is vested in the Reichstag and the Bundesrath conjointly, and a majority of the votes of both bodies is necessary for the enactment of a law. So declares the constitution. The legislative functions of the popular chamber (p. 228) are, however, in practice distinctly subordinate to those of the Bundesrath. The Reichstag possesses no such power of legislative initiative and discretion as is possessed by the popular chambers of Great Britain, France, Italy, and the United States. Its consent is necessary for the enactment of every law, for the adoption of every constitutional amendment, and for the ratification of every treaty affecting matters within the domain of Imperial legislation. But bills, including those relating to finance, originate ordinarily with the Chancellor and the Bundesrath; the procedure followed in the shaping of revenue and military measures puts the Reichstag distinctly at a disadvantage; and, at the best, the part which the chamber can play in the public policy of the Empire is negative and subsidiary. It can block legislation and discuss at length the policy of the Government, but it is not vested by the constitution with power sufficient to make it an effective instrument of control. It is within the competence of the Bundesrath, with the assent of the Emperor, to dissolve the popular chamber at any time, and, as has been pointed out, such action is taken without an iota of the ministerial responsibility which in other nations ordinarily accompanies the right of dissolution. On several occasions since 1871 the Reichstag has been dissolved with the sheer intent of putting an end to its obstructionism.[340]

[Footnote 340: Lowell, Governments and Parties, I., 257.]

The standing orders of the chamber make mention of the right of interpellation, and resort is occasionally had to this characteristic continental legislative practice. There are no ministers, however, to whom an interpellation may be addressed except the Chancellor, and even he has no right to appear in the Reichstag save as a member of the Bundesrath. The consequence is that interpellations are addressed, in practice, to the Bundesrath. It is only where the parliamentary system prevails, as in France and Italy, that the device of interpellation can be made to assume much importance. The possibility of a larger opportunity for interpellation, which should involve the right of the chamber to adopt resolutions declaring satisfaction or dissatisfaction with the answer made, was warmly, but on the whole inconclusively, discussed in the Reichstag in 1912.[341]

[Footnote 341: On the Reichstag see Howard, The German Empire, Chap. 5; A. Lebon, Le Reichstag allemand, in Annales de l'Ecole Libre des Sciences Politiques, April, 1889; ibid., Etudes sur l'Allemagne politique, Chap. 2; Laband, Das Staatsrecht des deutschen Reiches, Secs. 32-38; H. Robalsky, Der deutsche Reichstag (Berlin, 1897); G. Leser, Untersuchungen ueber das Wahlpruefungsrecht des deutschen Reichstags (Leipzig, 1908). There is a full discussion of German methods of legislation in Laband, op. cit., Secs. 54-59.]

III. THE RISE OF POLITICAL PARTIES (p. 229)

In Germany, as in continental countries generally, the number of political groups is legion. Many are too small and unstable to be entitled properly to the designation of parties; and, in truth, of even the larger ones none has ever become so formidable numerically as to acquire a majority in the popular chamber. For the enactment of measures the Government is obliged to rely always upon some sort of coalition, or, at best, upon the members of a group which for the time being holds the balance between two opposing alignments.

*243. Conservatives and Progressives.*--The party situation of the present day has been reached in consequence of the gradual disintegration of the two great political groups with which Prussia entered upon the period of Bismarck's ministry; and to this day the parties of the German Empire and those of the Prussian kingdom are largely identical.[342] The two original Prussian groups were the Conservatives and the Fortschritt, or Progressives, of which the one comprised, throughout the middle portion of the nineteenth century, the supporters of the Government and the other its opponents. The Conservatives were pre-eminently the party of the landed aristocracy of northern and eastern Germany. During twenty years prior to 1867 they dominated completely the Prussian court and army. Following the Austrian war of 1866, however, the Conservative ascendancy was broken and there set in that long process of party dissolution by which German political life has been brought to its present confused condition. To begin with, each of the two original parties broke into two distinct groups. From the Conservatives sprang the Frei Conservativen, or Free Conservatives; from the Fortschritt, the National-Liberal-Partei, or National Liberals. In the one case the new group comprised the more advanced element of the old one; in the other, the more moderate; so that, in the order of radicalism, the parties of the decade following 1866 were the Conservatives, the Free Conservatives, the National Liberals, and the Fortschrittspartei, or Radicals. Among these four groups Bismarck was able to win for his policy of German unification the support of the more moderate, that is to say, the second and third. The ultra-Conservatives clung to the particularistic regime of earlier days, and with them the genius of "blood and iron" broke definitely in 1866. The Free Conservatives comprised at the outset simply those elements of the original (p. 230) Conservative party who were willing to follow Bismarck.

[Footnote 342: To so great an extent is this true that, having described in this place the parties of the Empire, it will not be necessary subsequently to allude at length to those of Prussia.]

*244. Rise and Preponderance of the National Liberals.*--Similarly among the Progressives there was division upon the attitude to be assumed toward the Bismarckian programme. The more radical wing of the party, i.e., that which maintained the name and the policies of the original Fortschritt, refused to abandon its opposition to militarism and monarchism, opposed the constitution of 1867 for its illiberality, and withheld from Bismarck's government all substantial support. The larger portion of the party members, however were willing to subordinate for a time to Bismarck's nationalizing projects the contest which the united Fortschritt had long been waging in behalf of constitutionalism. The party of no compromise was strongest in Berlin and the towns of east Prussia. It was almost exclusively Prussian. The National Liberals, on the contrary, became early an essentially German, rather than simply a Prussian, party. Even before 1871 they comprised, in point both of numbers and of power, the preponderating party in both Prussia and the Confederation as a whole; and after 1871, when the Nationalists of the southern states cast in their lot with the National Liberals, the predominance of that party was effectually assured. Upon the National Liberals as the party of unity and uniformity Bismarck relied absolutely for support in the upbuilding of the Empire. It was only in 1878, after the party had lost control of the Reichstag, in consequence of the reaction against Liberalism attending the great religious contest known as the Kulturkampf, that the Chancellor was in a position to throw off the not infrequently galling bonds of the Liberal alliance.

*245. The Newer Groups: the Centre.*--Meanwhile the field occupied by the various parties that have been named was, from an early date, cut into by an increasing number of newly organized parties and groups. Most important among these were the Clericals, or Centre, and the Social Democrats. The origins of the Centre may be traced to the project which was formulated in December, 1870, to found a new party, a party which should be essentially Catholic, and which should have for its purpose the defense of society against radicalism, of the states against the central government, and of the schools against secularization. A favorite saying of the founders was that "at the birth of the Empire Justice was not present." The party, gaining strength first in the Rhenish and Polish provinces of Prussia and in Bavaria, was able in the elections of 1871 to win a total of sixty seats. Employed by the Catholic clergy during the decade that followed to maintain the cause of the papacy against the machinations of Bismarck, the party early struck root deeply; and by reason of (p. 231) the absolute identification in the public mind of its interests with the interests of the Catholic Church, ensuring its preponderance in the states of the south, and also by reason of the fact that it has always been more successful than any of its rivals in maintaining compactness of organization, it became, and has continued almost uninterruptedly to the present time, the strongest numerically of all political groups within the Reichstag.

*246. The Newer Groups: the Social Democrats.*--The Social Democratic party was founded in 1869 under the leadership of Wilhelm Liebknecht and August Bebel. In 1863 there had been organized at Leipzig, under the inspiration of the eloquent Marxist Ferdinand Lassalle, a Universal German Workingman's Association. Between the two bodies there was for a time keen rivalry, but at a congress held at Gotha, in May, 1875, they (together with a number of other socialistic societies) were merged in one organization, which has continued to this day to be known as the Social Democratic party. The development of socialism in the Empire between 1870 and 1880, in respect to both numbers and efficiency of organization, was phenomenal. At the parliamentary elections of 1871 the Social Democratic vote was 124,655 (three per cent of the total) and two Social Democrats were chosen to the Reichstag. In 1874 the popular vote was 351,952, and nine members were elected; in 1877 it was 493,288, and the number of successful candidates was twelve. By the Emperor William I. and by his chancellor; Bismarck, as indeed by the governing and well-to-do classes generally, the progress of the movement was viewed with frankly avowed apprehension. Most of the great projects of the Imperial Government were opposed by the Social Democrats, and the members of the party were understood to be enemies of the entire existing order, and even of civilization itself. Two attempts in 1878 upon the life of the Emperor, made by men who were socialists, but disavowed by the socialists as a body, afforded the authorities an opportunity to enter upon a campaign of socialist repression, and from 1878 to 1890 anti-socialist legislation of the most thoroughgoing character was regularly on the statute books and was in no slight measure enforced. At the same time that effort was being made to stamp out socialist propaganda a remarkable series of social reforms was undertaken with the deliberate purpose not only of promoting the public well-being, but of cutting the ground from under the socialists' feet, or, as some one has observed, of "curing the Empire of socialism by inoculation." The most important steps taken in this direction comprised the inauguration of sickness insurance in 1883, of accident insurance in 1884, and of old-age and invalidity insurance in 1889.

For a time the measures of the government seemed to accomplish (p. 232) their purpose, and the official press loudly proclaimed that socialism in Germany was extinct. In reality, however, socialism thrived on persecution. In the hour of Bismarck's apparent triumph the socialist propaganda was being pushed covertly in every corner of the Empire. A party organ known as the Social Democrat was published in Switzerland, and every week thousands of copies found their way across the border and were passed from hand to hand among determined readers and converts. A compact organization was maintained, a treasury was established and kept well filled, and with truth the Social Democrats aver to-day that in no small measure they owe their superb organization to the Bismarckian era of repression. At the elections of 1878 the party cast but 437,158 votes, but in 1884 its vote was 549,990 (9.7 per cent of the whole) and the contingent of representatives returned to the Reichstag numbered twenty-four. In 1890 the socialist vote attained the enormous total of 1,427,298 (19.7 per cent of the whole), and the number of representatives was increased to thirty-five. Repression was manifestly a failure, and in 1890 the Reichstag, with the sanction of the new emperor, William II., wisely declined to renew the statute under which proscription had been employed.

*247. Minor Parties.*--Aside from the Centre and the Social Democrats, the newer party groups in Germany--the Guelfs, the Poles, the Danes, the Alsatians, the Antisemites, etc.--are small and relatively unimportant. All are particularistic and irreconcilable; all are organized on the basis of local, racial, or religious interests. Apart, indeed, from the National Liberals and the Socialists, it cannot be said that any one of the German political groups, large or small, is broadly national, in either its tenets or its constituency. The Guelfs, or Hanoverische Rechtspartei, comprise the irreconcilables among the old Hanoverian nobility who refuse to recognize the validity of the extinction of the ancient Hanoverian dynasty by the deposing of George V. in 1866. As late as 1898 they returned to the Reichstag nine members. In 1903 they elected but five, and in 1907 their representation was reduced to a single deputy. In 1912 their quota became again five. The Poles comprise the Slavic voters of the districts of West Prussia, Posen, and Silesia, who continue to send to the Reichstag members who protest against the incorporation of the Poles in Prussia and in the Empire. At the elections of 1903 they secured sixteen seats, at those of 1907 twenty, and at those of 1912 eighteen. The Danes of northern Schleswig keep up some demand for annexation to Denmark, and measures looking toward Germanization are warmly resented; but the number of people concerned--not more than 150,000--is so small that their political power is almost nil. (p. 233) They have, as a rule, but a single spokesman in the Reichstag. The Alsatians comprise the autonomists of Alsace-Lorraine, and the Antisemites form a group whose original purpose was resistance to Jewish influence and interests.

IV. PARTY POLITICS AFTER 1878

*248. Shifting "Government" Parties.*--To rehearse here the details of German party history during the period since the Government's break with the Liberals in 1878 is impossible. A few of the larger facts only may be mentioned. Between 1878 and 1887 there was in the Reichstag no one great party, nor even any stable coalition of parties, upon which the Government could rely for support. For the time being, in 1879, Bismarck allied with the Centre to bring about the adoption of his newly-framed policy of protection and of the famous Frankenstein clause relative to the matricular contributions of the states.[343] The National Liberals, left in the lurch, broke up, and in 1881 the remnant of the party was able to obtain only forty-five seats. After the elections of that year the Centre commanded in the Reichstag a plurality of forty. The upshot was that, in the effort to procure the dependable support of the Centre, the Government gradually abandoned the Kulturkampf, and for a time the Centre virtually succeeded to the position occupied prior to 1878 by the National Liberals. The elections of 1887, however, again changed the situation. The Centre retained a plurality of some twenty seats, but the Conservatives, Free Conservatives, and National Liberals formed a coalition and between them obtained a total of 220 seats and, accordingly, the control of the Reichstag. Thereupon the Conservatives became the Government's principal reliance and the Centre dropped for a time into a position of neutrality. At the elections of 1890 the coalition, which in truth had been built up by the Government on the basis of a cartel, or agreement, suffered heavy losses. Of 397 seats it carried only 130,[344] while the Centre alone procured 116. Coincident with the overturn came the dismissal of Bismarck and the elevation to the chancellorship of General von Caprivi. Throughout his years of office (1890-1894) Caprivi was able to rely habitually upon the support of no single party or group of parties, and for the enactment of its measures the Government was obliged to seek (p. 234) assistance now in one quarter and now in another, according as circumstances dictated.

[Footnote 343: This measure provided that each year all proceeds from the Imperial customs and tobacco tax in excess of 130,000,000 marks should be distributed among the several states in proportion to their population. Its author was Frankenstein, a leader of the Centre.]

[Footnote 344: Conservatives 65, Free Conservatives 24, National Liberals 41.]

*249. The Agrarian Movement and the Rise of the Bloc.*--Two or three developments of the period stand out with some distinctness. One was the break-up, apparently for all time, of the Fortschrittspartei, or Radical party, in consequence of the elections of 1893. A second was the rise of the Government's prolonged contest with the Agrarians. The Agrarian group, of which indeed one hears as early as 1876, comprised principally the grain-growing landholders of northern and eastern Germany. By treaties concluded in 1892-1894 with Austria-Hungary, Italy, Belgium, Russia, and other nations, German import duties on grain were considerably reduced in return for advantages given to German manufacturers. Low duties meant cheap foodstuffs, and in the negotiation of these treaties the Government found itself supported with enthusiasm not only by the Centre, but also by the Social Democrats and the surviving Radicals. The Conservatives were divided. Those of Agrarian sympathies (especially the Prussian landholders) allied themselves with the forces of opposition. But the remainder gave the Government some measure of support. And from this last-mentioned fact arose a final political development of large significance during the Caprivi period, namely, the creation of that bloc, or affiliation, of Centre and Conservatives (popularly referred to as the "blue-black" bloc) upon which the Government was destined regularly to rely through upwards of a decade and a half. During the chancellorship of Prince Chlodwig Hohenlohe-Schillingsfuerst (1894-1900) the struggle with the Agrarians was continued and the preponderance of the bloc became an established fact. Finally, should be mentioned the rapidly accelerating growth of the Social Democracy. In 1893 the popular party cast a total of 1,876,738 votes and elected forty-four representatives. In 1896 its vote was 2,007,076 and the number of members elected was fifty-seven. In 1903 its vote rose to the enormous proportions of 3,008,000 (24 per cent of the total, and larger than that of any other single party), and the quota in the Reichstag was increased to seventy-nine.

*250. The Elections of 1903 and 1907.*--At the elections of 1903 the bloc suffered numerically a loss of strength. The Centre obtained 102 seats, the Conservatives 53, and the Free Conservatives, or "Party of the Empire," 22--an aggregate of only 177. By deft management, however, Chancellor von Buelow (1900-1908) contrived to play off through several years the opposing forces, and so to preserve, for all practical purposes, the working efficiency of the Government coalition. The elections of January, 1907, brought on by a dissolution of the Reichstag after the refusal of that body to vote the (p. 235) Government's colonial estimates, were of interest principally by reason of the continued show of strength of the Centre and the falling off of the Social Democrats in their representation in the Reichstag. In the practical working out of political forces it had come about that the Centre occupied in the chamber a pivotal position of such consequence that the Government was in effect absolutely dependent upon the vote of that party for the enactment of its measures. Naturally enough, the party, realizing its power, was prone to put its support upon a contractual basis and to drive with the Government a hard bargain for the votes which it commanded. While hardly in a position to get on without Clerical assistance, the Government in 1907 would have been willing enough to see the Centre's power and independence broken. Not only, however, did the Centre not lose seats by that contest; it in fact realized a gain of two. On the other hand, there was compensation for the Government in the fact that the Social Democrats fell back. They polled a total of 3,250,000 popular votes, as compared with 3,008,000 in 1903; but by reason of the antiquated distribution of seats which prevails in the Empire, the unusual vote polled by other parties, and also the unusual co-operation of the party groups opposed to the Social Democrats, their representation in the Reichstag was cut from 79 to 43.[345]

[Footnote 345: The total number of popular votes cast in the election was 10,857,000, of which number government candidates received 4,962,000, and opposition candidates 5,895,000. The numerical strength of the various elements composing the Reichstag consequent upon the elections of 1903 and 1907 was as follows:

1903 1907 Seats Seats gained lost

Centre 102 104 2 0 Conservatives 53 58 5 0 Free Conservatives 22 22 0 0 National Liberals 51 56 5 0 Social Democrats 79 43 0 36 Radicals 42 50 8 0 Antisemites and Economic Union 22 30 8 0 Poles 16 20 4 0 Liberal Union 10 13 3 0 Volkspartei (Democrats of South) 6 7 1 0 Alsatians 10 7 0 3 Guelfs or Hanoverians 5 1 0 4 Danes 1 1 6 0 Independents 0 7 7 0

Total 397 397 43 43]

V. PARTIES SINCE 1907 (p. 236)

*251. The Buelow Bloc.*--The period covered by the life of the Reichstag elected in 1907 was remarkable in German political history chiefly by reason of the prolonged struggle for the establishment of parliamentary government which took place within it--a struggle which had its beginning, indeed, in the deadlock by which the dissolution of 1906 was occasioned, which reached its climax in the fiscal debates of 1908-1909, and which during the years that followed gradually subsided, leaving both the status of parties and the constitutional order of the Empire essentially as they were at the beginning. Even before the dissolution of 1906 the Conservative-Centre bloc was effectually dissolved, principally by the defection of the Centre, and through upwards of three years it was replaced by an affiliation, known commonly as the "Buelow bloc," of the Conservatives and the Liberals. This combination, however, was never substantial, and in the course of the conflict over the Government's proposed budget of November, 1908, there was a return to the old alignment, and throughout ensuing years the Conservative-Clerical bloc remained a preponderating factor in the political situation.

*252. The Elections of 1912: Parties and Issues.*--The Reichstag of 1907 was dissolved at the termination of its five-year period, and in January, 1912, there was elected a new chamber, the thirteenth since the creation of the Empire. The contest was pre-eminently one of measures rather than of men, but the public interest which it excited was extraordinary. Broadly, the line was drawn between the Government and the parties of the bloc, on the one hand, and the more purely popular parties, especially the National Liberals, the Radicals, and the Social Democrats, on the other;[346] and the issues were chiefly such as were supplied by the spirit, purposes, and methods of Chancellor von Bethmann-Hollweg and his Conservative-Clerical allies. Of the alleged reactionism of the Government parties there was widespread complaint. They were held responsible for the fiscal reform of 1909 which imposed burdens unduly heavy on industry and commerce, while sparing land and invested capital; they were charged with re-establishing the yoke of the Catholic Centre upon the Lutheran (p. 237) majority; and they were reproached for having failed to redeem their promise to liberalize the antiquated franchise arrangements of Prussia. The Conservatives in particular were attacked on the ground of their continued monopoly of patronage and of power. On the whole, however, the most important of practical issues was that of the tariff. Throughout a twelvemonth discontent occasioned by the high cost of living had been general and the Government had been besought by municipalities, workingmen's organizations, and political societies to inaugurate a project for the reduction of the duties imposed upon imported foodstuffs. The demand was in vain and the country was given to understand by the Chancellor that the Government, under Conservative-Agrarian mastery, would stand or fall with "protection for the nation's work" as its battle-cry. Upon this question the National Liberals, being protectionist by inclination, stood with the Government, but the Radicals, the Social Democrats, and some of the minor groups assumed an attitude of clear-cut opposition.

[Footnote 346: The gravest abuse in connection with the conduct of campaigns and elections in Germany is the pressure which the Government brings to bear systematically upon the enormous official population and upon railway employees (alone numbering 600,000) to vote Conservative, or, in districts where there is no Conservative candidate, Centrist. This pressure is applied through the local bureaucratic organs, principally the Landrath of the Kreis, who not uncommonly is a youthful official of noble origin, related to some important landed family, and a rigid Conservative. It has been estimated that official influence controls a million votes at every national election.]

*253. The Results and Their Significance.*--The total number of candidates in the 397 constituencies was 1,428. The Social Democrats alone had a candidate in every constituency, a fact which emphasizes the broadly national character which that party has acquired. The National Liberals had candidates in 200 constituencies, the Centre in 183, the Radicals in 175, and the Conservatives in 132. A second ballot was required in 191 constituencies, or nearly one-half of the whole number. The final results of the election justified completely the general expectation of observers that the Social Democrats would realize enormous gains. The appeal of von Bethmann-Hollweg for solidarity against the Socialists had no such effect as did the similar appeal of von Buelow in 1907. The tactfulness and personal hold of the Chancellor was inferior to that of his predecessor, and the mass of the nation was aroused in 1912 as it was not upon the earlier occasion. The results may be tabulated as follows:

Seats Seats acquired at dissolution by elections of 1912

Centre 103 90 Conservatives 58 45 Free Conservatives 25 13 Social Democrats 53 110 National Liberals 51 44 Radicals 49 41 Poles 20 18 Antisemites and Economic Union 20 11 Guelfs or Hanoverians 1 5 Alsatians, Danes, and Independents 16 20 ___ ___ Total 397 397

Two of the three parties of the Left, i.e., the National Liberals (p. 238) and the Radicals, suffered substantial losses, but the victory of the Social Democrats was so sweeping that there accrued to the Left as a whole a net gain of forty-two seats.[347] On the other hand, the three parties of the bloc lost heavily--in the aggregate thirty-eight seats. The number of popular votes cast for candidates of the bloc was approximately 4,500,000; that for candidates of the Left approximately 7,500,000.[348] In Berlin, five of whose six constituencies were represented already by Social Democrats, there was a notable attempt on the part of the socialists to carry the "Kaiser district" in which is located the Kaiserhof, or Imperial residence, and the seat of the Government itself. The attempt failed, but it was only at the second ballot, and by the narrow margin of seven votes, that the socialist candidate was defeated by his Radical opponent. As has been pointed out, the parties of the Left are entirely separate and they are by no means able always to combine in action upon a public question. The ideal voiced by the publicist Naumann, "from Bassermann to Bebel," meaning that the National Liberals under the leadership of Bassermann should, through the medium of the Radicals, amalgamate for political purposes with the Social Democrats under Bebel, has not as yet been realized. None the less there has long been community of interest and of policy, and the elections of 1912 made it possible for the first time for a combination of the three groups and their allies to outweigh decisively any combination which the parties of the bloc and their allies can oppose. Before the election there was a clear Government majority of eighty-nine; after it, an opposition majority of, at the least, fourteen. When, in February, 1912, the new Reichstag was opened, it was only by the most dexterous tactics on the part of the bloc that the election of the socialist leader Bebel to the presidency of the chamber was averted.

[Footnote 347: Many of the socialist victories were, of course, at the expense of the National Liberals and Radicals.]

[Footnote 348: The number of electors inscribed on the lists was 14,236,722. The number who actually voted was 12,188,337. The exact vote of the Social Democrats was 4,238,919; of the National Liberals, 1,671,297; of the Radicals, 1,556,549; of the Centre, 2,012,990; and of the Conservatives, 1,149,916.]

*254. The Parties To-day: Conservatives and Centre.*--The principal effect of the election would seem to be to accentuate the already manifest tendency of Germany to become divided between two great hostile camps, the one representative of the military, bureaucratic, agrarian, financial classes and, in general, the forces of resistance to change, the other representative of modern democratic forces, extreme and in principle even revolutionary. Leaving out of account the minor particularist groups, the most reactionary of existing parties is the Conservatives, whose strength lies principally in (p. 239) the rural provinces of Prussia along the Baltic. The most radical is the Social Democrats, whose strength is pretty well diffused through the states of the Empire but is massed, in the main, in the cities. Between the two stand the Centre, the Radicals, and the National Liberals. The Centre has always included both an aristocratic and a popular element, being, indeed, more nearly representative of all classes of people in the Empire than is any other party. Its numerical strength is drawn from the peasants and the workingmen, and in order to maintain its hold in the teeth of the appeal of socialism it has been obliged to make large concessions in the direction of liberalism. At all points except in respect to the interests of the Catholic Church it has sought to be moderate and progressive, and it should be observed that it has abandoned long since its irreconcilable attitude on religion. Geographically, its strength lies principally in the south, especially in Bavaria.

*255. The Social Democrats.*--Nominally revolutionary, the German Social Democracy comprises in fact a very orderly organization whose economic-political tenets are at many points so rational that they command wide support among people who do not bear the party name. Throughout a generation the party has grown steadily more practical in its demands and more opportunist in its tactics. Instead of opposing reforms undertaken on the basis of existing institutions, as it once was accustomed to do, in the hope of bringing about the establishment of a socialistic state by one grand coup, it labors for such reforms as are adjudged attainable and contents itself with recurring only occasionally and incidentally to its ultimate ideal. The supreme governing authority of the party is a congress composed of six delegates from each electoral district of the Empire, the socialist members of the Reichstag, and the members of the party's executive committee. This congress convenes annually to regulate the organization of the party, to discuss party policies, and to take action upon questions submitted by the party members. Nominally, the principles of the party are those of Karl Marx, and its platform is the "Erfurt programme" of 1891, contemplating the abolition of class government and of classes themselves, the termination of every kind of exploitation of labor and oppression of men, the destruction of capitalism, and the inauguration of an economic regime under which the production and distribution of goods shall be controlled by the state exclusively. The Radical Socialists, i.e., the old-line members of the party, cling to these time-honored articles of faith. But the mass of the younger element of the party, ably led by Edward Bernstein--the "Revisionists," as they call themselves--consider that the Marxist doctrines are in numerous respects erroneous, and they are insisting that the Erfurt programme shall be overhauled and brought into (p. 240) accord with the practical and positive spirit of the party to-day. Except Bebel and Kautsky, every socialist leader of note in Germany at the present time is identified with the revisionist movement.[349] The political significance of this situation arises from the fact that the "new socialists" stand ready to co-operate systematically with progressive elements of whatsoever name or antecedents. Already the socialists of Baden, Wuerttemberg, and Bavaria have voted for the local state budgets and have participated in court functions, and upon numerous occasions they have worked hand in hand, not only at elections but in the Reichstag and in diets and councils, with the National Liberals and the Radicals. For the future of sane liberalism in Germany this trend of the party in the direction of co-operative and constructive effort augurs well. At the annual congress held at Chemnitz in September, 1912, the issue of revisionism was debated at length and with much feeling, but an open breach within the party was averted and Herr Bebel was again elected party president. It was shown upon this occasion that the party membership numbered 970,112, a gain of 133,550 during the previous year. It need hardly be observed that of the millions of men who in these days vote for Social Democratic candidates for office hardly a fourth are identified with the formal party organization.[350]

[Footnote 349: Herr Bebel died August 13, 1913.]

[Footnote 350: Two important works of recent date dealing with the history and character of political parties in Germany are C. Grotewald, Die Parteien des deutschen Reichstags. Band I. Der Politik des deutschen Reiches in Einzeldarstellungen (Leipzig, 1908); and O. Stillich, Die politischen Parteien in Deutschland. Band I. Die Konservativen (Leipzig, 1908), Band II. Der Liberalismus (Leipzig, 1911). The second is a portion of a scholarly work planned to be in five volumes. A brief treatise is F. Wegener, Die deutschkonservative Partei und ihre Aufgaben fuer die Gegenwart (Berlin, 1908). An admirable study of the Centre is L. Goetze, Das Zentrum, eine Konfessionelle Partie; Beitraege zur seiner Geschichte (Bonn, 1906). The rise of the Centre is well described in L. Hahn, Geschichte des Kulturkampfes (Berlin, 1881). On the rise and progress of the Social Democracy see E. Milhaud, La democratie socialiste allemande (Paris, 1903); C. Andler, Origines du socialisme d'etat en Allemagne (Paris, 1906); E. Kirkup, History of Socialism (London, 1906); W. Sombart, Socialism (New York, 1898); W. Dawson, Bismarck and State Socialism (London, 1891); J. Perrin, The German Social Democracy, in North American Review, Oct., 1910. Under the title "Chroniques politiques" there is printed in the Annales (since 1911 the Revue) des Sciences Politiques every year an excellent review of the current politics of Germany, as of other European nations. Other articles of value are: M. Caudel, Les elections allemandes du 16 juin, 1898, et le nouveau Reichstag, in Annales de l'Ecole Libre des Sciences Politiques, Nov., 1898; J. Hahn, Une election au Reichstag allemand, in Annales des Sciences Politiques, Nov., 1903; G. Isambert, Le parti du centre en Allemagne et les elections de janvier-fevrier 1907, ibid., March, 1907; P. Matter, La crise du chancelier en Allemagne, ibid., Sept., 1909; A. Marvaud, La presse politique allemande, in Questions Diplomatiques et Coloniales, March 16 and April 1, 1910. There are valuable chapters on German politics in W. Dawson, The Evolution of Modern Germany (London, 1908) and O. Eltzbacher (or J. Ellis Barker), Modern Germany, her Political and Economic Problems (new ed., London, 1912). For a sketch of party history during the period 1871-1894 see Lowell, Governments and Parties, II., Chap. 7. An excellent survey of the period 1906-1911 is contained in P. Matter, D'un Reichstag a l'autre, in Revue des Sciences Politiques, July-Aug., 1911. On the elections of 1912 see G. Blondel, Les elections au Reichstag et la situation nouvelle des partis, in Le Correspondant, Jan. 25, 1912; J. W. Jenks, The German Elections, in Review of Reviews, Jan., 1912; A. Quist, Les elections du Reichstag allemand, in Revue Socialiste, Feb. 15, 1912; and W. Martin, La crise constitutionelle et politique en Allemagne, in Revue Politique et Parlementaire, Aug. 10, 1912.]

VI. LAW AND JUSTICE (p. 241)

*256. Dual Character.*--Upon the subject of the administration of justice the Imperial constitution of 1871 contained but a single clause, by which there was vested in the Empire power of "general legislation concerning the law of obligations, criminal law, commercial law and commercial paper, and judicial procedure." By an amendment adopted December 20, 1873, the clause was modified to read, "general legislation as to the whole domain of civil and criminal law, and of judicial procedure."[351] Each of the federated states has always had, and still has, its own judicial system, and justice is administered all but exclusively in courts that belong to the states. These courts, however, have been declared to be also courts of the Empire, and, to the end that they may be systematized and that conditions of justice may be made uniform throughout the land, the federal government has not hesitated to avail itself of the regulative powers conferred in 1871 and amplified in 1873 in the constitutional provisions which have been cited.

[Footnote 351: Art. 4. Dodd, Modern Constitutions, I., 328.]

*257. Diversity of Law Prior to 1871.*--In the first place, there has been brought about within the past generation a unification of German law so thoroughgoing in character as to be worthy of comparison with the systematization of the law of France which was accomplished through the agency of the Code Napoleon. In 1871 there were comprised within the Empire more than two score districts each of which possessed an essentially distinct body of civil and criminal law; and, to add to the confusion, the boundaries of these districts, though at one time coincident with the limits of the various political divisions of the country, were no longer so. The case of Prussia was typical. In 1871 the older Prussian provinces were living under a Prussian code promulgated in 1794; the Rhenish provinces maintained the Code Napoleon, established by Napoleon in all Germany west of the Rhine; in the Pomeranian districts there were large survivals of Swedish law; while the territories acquired after the war of 1866 had each its (p. 242) indigenous legal system. Two German states only in 1871 possessed a fairly uniform body of law. Baden had adopted a German version of the Code Napoleon, and Saxony, in 1865, had put in operation a code of her own devising. At no period of German history had there been either effective law-making or legal codification which was applicable to the whole of the territory contained within the Empire. In the domain of the civil law, in that of the criminal law, and in that of procedure the diversity was alike obvious and annoying.

*258. Preparation of the Codes.*--German legal reform since 1871 has consisted principally in the formation and adoption of successive codes, each of which has aimed at essential completeness within a given branch of law. The task had been begun, indeed, before 1871. As early as 1861 the states had agreed upon a code relating to trade and banking, and this code had been readopted, in 1869, by the Confederation of 1867.[352] In 1869 a code of criminal law had been worked out for the Confederation, and in 1870 a code relating to manufactures and labor. Upon the establishment of the Empire, in 1871, there was created a commission to which was assigned the task of drawing up regulations for civil procedure and for criminal procedure, and also a plan for the reorganization of the courts. Beginning with a scheme of civil procedure, published in December, 1872, the commission brought in an elaborate project upon each of the three subjects. The code of civil procedure, by which many important reforms were introduced in the interest of publicity and speed, was well received. That relating to criminal procedure, proposing as it did to abolish throughout the Empire trial by jury, was, however, vigorously opposed, and the upshot was that all three reports were referred to a new commission, by which the original projects relating to criminal procedure and to the organization of the courts were completely remodelled. In the end the revised projects were adopted. October 1, 1879, there went into effect a group of fundamental laws under which the administration of justice throughout the Empire has been controlled from that day to the present. The most important of these was the Gerichtsverfassungsgesetz, or Law of Judicial Organization, enacted January 27, 1877; the Civilprozessordnung, or Code of Civil Procedure, of January 30, 1877; and the Strafprozessordnung, or Code of Criminal Procedure, of February 1, 1877.

[Footnote 352: It was replaced by a new code May 10, 1897.]

It remained only to effect a codification of the civil law. A committee constituted for the purpose completed its work in 1887, and the draft submitted by it was placed for revision in the hands of a new commission, by which it was reported in 1895. In an amended form the Civil Code was approved by the Reichstag, August 18, 1896, and (p. 243) it was put in operation January 1, 1900. Excluding matters pertaining to land tenure (which are left to be regulated by the states), the Code deals not only with all of the usual subjects of civil law but also with subjects arising from the contact of private law and public law.[353]

[Footnote 353: A convenient manual for English readers is E. M. Borchard, Guide to the Law and Legal Literature of Germany (Washington, 1912), the first of a series of guides to European law in preparation in the Library of Congress.]

*259. The Inferior Courts.*--By these and other measures it has been brought about that throughout the Empire justice is administered in tribunals whose officials are appointed by the local governments and which render decisions in their name, but whose organization, powers, and rules of procedure are regulated minutely by federal law. The hierarchy of tribunals provided for in the Law of Judicial Organization comprises courts of four grades. At the bottom are the Amtsgerichte, of which there are approximately two thousand in the Empire. These are courts of first instance, consisting ordinarily of but a single judge. In civil cases their jurisdiction extends to the sum of three hundred marks; in criminal, to matters involving a fine of not more than six hundred marks or imprisonment of not over three months. In criminal cases the judge sits with two Schoeffen (sheriffs) selected by lot from the jury lists. Besides litigious business the Amtsgerichte have charge of the registration of land titles, the drawing up of wills, guardianship, and other local interests.

Next above the Amtsgerichte are the 173 district courts, or Landgerichte, each composed of a president and a variable number of associate judges. Each Landgericht is divided into a civil and a criminal chamber. There may, indeed, be other chambers, as for example a Kammer fuer Handelssachen, or chamber for commercial cases. The president presides over a full bench; a director over each chamber. The Landgericht exercises a revisory jurisdiction over judgments of the Amtsgerichte, and possesses a more extended original jurisdiction in both civil and criminal matters. The criminal chamber, consisting of five judges (of whom four are necessary to convict), is competent, for example, to try cases of felony punishable with imprisonment for a term not exceeding five years. For the trial of many sorts of criminal cases there are special Schwurgerichte, or jury courts, which sit under the presidency of three judges of the Landgerichte. A jury consists of twelve members, of whom eight are necessary to convict.

Still above the Landgerichte are the Oberlandesgerichte, of which there are twenty-eight in the Empire, each consisting of seven judges. The Oberlandesgerichte are courts of appellate jurisdiction largely. Each is divided into a civil and a criminal senate. There is a (p. 244) president of the full court and a similar official for each senate.[354]

[Footnote 354: In Bavaria alone there is an Oberste Landesgericht, with twenty-one judges. Its relation to the Bavarian Oberlandesgerichte is that of an appellate tribunal.]

*260. The Reichsgericht.*--At the apex of the system stands the Reichsgericht (created by law of October i, 1879), which, apart from certain administrative, military, and consular courts,[355] is the only German tribunal of an exclusively Imperial, or federal, character. It exercises original jurisdiction in cases involving treason against the Empire and hears appeals from the consular courts and from the state courts on questions of Imperial law. Its members, ninety-two in number, are appointed by the Emperor for life, on nomination of the Bundesrath, and they are organized in six civil and four criminal senates. Sittings are held invariably at Leipzig, in the kingdom of Saxony.

[Footnote 355: The highest administrative court is the Oberverwaltungsgericht, whose members are appointed for life. Under specified conditions, the "committees" of circles, cities, and districts exercise inferior administrative jurisdiction. For the adjustment of disputed or doubtful jurisdictions there stands between the ordinary and the administrative tribunals a Gerichtshof fuer Kompetenz-konflikte, or Court of Conflicts, consisting of eleven judges appointed for life.]

All judges in the courts of the states are appointed by the sovereigns of the respective states. The Imperial law prescribes a minimum of qualifications based on professional study and experience, the state being left free to impose any additional qualifications that may be desired. All judges are appointed for life and all receive a salary which may not be reduced; and there are important guarantees against arbitrary transfer from one position to another, as well as other practices that might operate to diminish the judge's impartiality and independence.[356]

[Footnote 356: On the German judiciary see Howard, The German Empire, Chap. 9; Laband, Das Staatsrecht des deutschen Reiches, Secs. 83-94; C. Morhain, De l'empire allemand (Paris, 1886), Chap. 9.]

XII. (p. 245)

THE CONSTITUTION OF PRUSSIA-THE CROWN AND THE MINISTRY

I. THE GERMAN STATES AND THEIR GOVERNMENTS

*261. Variations of Type.*--Within the bounds of Germany to-day there are twenty-five states and one Imperial territory with certain attributes of statehood, Alsace-Lorraine. During the larger portion of the nineteenth century each of these states (and of the several which no longer exist) was possessed of substantial sovereignty, and each maintained its own arrangements, respecting governmental forms and procedure. Under the leadership of Prussia, as has been pointed out, the loose Confederation of 1815 was transformed, during the years 1866-1871, into an Imperial union, federal but yet vigorous and indestructible, and to the constituted authorities of this Empire was intrusted an enormous aggregate of governmental powers. The powers conferred were, however, not wholly abstracted from the original prerogatives of the individual states. In a very appreciable measure they were powers, rather, of a supplementary character, by virtue of which the newly created central government was enabled to do, on a broadly national scale, what, in the lack of any such central government, there would have been neither means of doing, nor occasion for doing, at all. Only at certain points, as, for example, in respect to the levying of customs duties and of taxes, was the original independence of the individual state seriously impaired by the terms of the new arrangement.

The consequence is that, speaking broadly, each of the German states maintains to this day a government which is essentially complete within itself. No one of these governments covers quite all of the ground which falls within the range of jurisdiction of a sovereign state; each is cut into at various points by the superior authority of the Empire; but each is sufficiently ample to be capable of continuing to run, were all of the other governments of Germany instantly to be blotted out.[357] Of the twenty-five state governments, three--those of the free cities of Bremen, Hamburg, and Luebeck--are aristocratic (p. 246) republics; all the others are monarchies. Among the monarchies there are four kingdoms: Prussia, Bavaria, Saxony, and Wuerttemberg; six grand-duchies: Baden, Hesse, Mecklenburg-Schwerin, Mecklenburg-Strelitz, Oldenburg, and Saxe-Weimar; five duchies: Anhalt, Brunswick, Saxe-Altenburg, Saxe-Coburg-Gotha, and Saxe-Meiningen; and seven principalities: Lippe, Schwarzburg-Rudolstadt, Schwarzburg-Sonderhausen, Schaumburg-Lippe, Reuss Aelterer Linie, Reuss Juengerer Linie, and Waldeck-Pyrmont.

[Footnote 357: The best survey in English of the governments of the German states is that in Lowell, Governments and Parties, I., Chap. 6. Fuller and more recent is G. Combes de Lestrade, Les monarchies de l'empire allemand (Paris, 1904). The most elaborate treatment of the subject is to be found in an excellent series of studies edited by H. von Marquardsen and M. von Seydel under the title Handbuch des Oeffentlichen Rechts der Gegenwart in Monographien (Freiburg and Tuebingen, 1883-1909). A new series of monographs, comprising substantially a revision of this collection, is at present in course of publication by J. C. B. Mohr at Tuebingen. The texts of the various constitutions are printed in F. Stoerk, Handbuch der deutschen Verfassungen (Leipzig, 1884).]

*262. The Preponderance of Prussia.*--From whatever angle one approaches German public affairs, the fact that stands out with greatest distinctness is the preponderant position occupied by the kingdom of Prussia. How it was that Prussia became the virtual creator of the Empire, and how it is that Prussia so dominates the Imperial government that that government and the Prussian are at times all but inextricable, has already been pointed out.[358] Wholly apart from the sheer physical fact that 134,616 square miles of Germany's 208,780, and 40,163,333 people of the Empire's 64,903,423, are Prussian, the very conditions under which the Imperial organization of the present day came into being predetermined that Prussia and things Prussian should enjoy unfailing pre-eminence in all that pertains to German government and politics. Both because they are extended immediately over a country almost two-thirds as large as France, and because of their peculiar relation to the political system of the Empire, the institutions of Prussia call for somewhat detailed consideration.

[Footnote 358: See pp. 200-201, 207.]

II. THE RISE OF CONSTITUTIONALISM IN PRUSSIA

*263. Regeneration in the Napoleonic Period.*--By reason of the vacillating policies of her sovereign, Frederick William III., the successive defeats of her armies at Jena, Auerstaedt, and elsewhere, and the loss, by the treaty of Tilsit in 1807, of half of her territory, Prussia realized from the first decade of the Napoleonic period little save humiliation and disaster. Through the years 1807-1815, however, her lot was wonderfully improved. Upon the failure of the Russian expedition of Napoleon in 1812, Frederick William (p. 247) shook off his apprehensions and allied himself openly with the sovereigns of Russia and Austria. The people rose en masse, and in the titanic struggle which ensued Prussia played a part scarcely second in importance to that of any other power. At the end she was rewarded, through the agency of the Congress of Vienna, by being assigned the northern portion of Saxony, Swedish Pomerania, her old possessions west of the Elbe, the duchies of Berg and Julich, and a number of other districts in Westphalia and on the Rhine. Her area in 1815 was 108,000 square miles, as compared with 122,000 at the beginning of 1806; but her loss of territory was more than compensated by the substitution that had been made of German lands for Slavic.[359] The homogeneity of her population was thereby increased, her essentially Germanic character emphasized, and her capacity for German leadership enhanced.

[Footnote 359: L. A. Himly, Histoire de la formation territoriale des etats de l'Europe centrale, 2 vols. (Paris, 1876), I., 93-110.]

It was not merely in respect to territory and population that the Prussia of 1815 was different from the Prussia of a decade earlier. Consequent upon the humiliating disasters of 1806 there set in a moral regeneration by which there was wrought one of the speediest and one of the most thoroughgoing national transformations recorded in history. In 1807 Frederick William's statesmanlike minister Stein accomplished the abolition of serfdom and of all legal distinctions which separated the various classes of society.[360] In 1808 he reformed the municipalities and gave them important powers of self-government. By a series of sweeping measures he reconstructed the ministerial departments, the governments of the provinces, and the local administrative machinery, with the result of creating an executive system which has required but little modification to the present day. In numerous directions, especially in relation to economic conditions, the work of Stein was continued by that of the succeeding minister, Prince Hardenberg. By Scharnhorst and Gneisenau the military regime was overhauled and a body of spiritless soldiery kept in order by fear was converted into "a union of all the moral and physical energies of the nation." By Wilhelm von Humboldt the modern Prussian school system was created; while by Fichte, Arndt, and a galaxy of other writers there was imparted a stimulus by which the patriotism and aspiration of the Prussian people were raised to (p. 248) an unprecedented pitch.[361]

[Footnote 360: It is to be observed that while Stein was officially the author of this reform, the substance of the changes introduced had been agreed upon by the king and his advisers before Stein's accession to office (October 4, 1807). The Edict of Emancipation was promulgated October 9, 1807. It made the abolition of serfdom final and absolute on and after October 8, 1810.]

[Footnote 361: E. Meier, Reform der Verwaltungsorganisation unter Stein und Hardenberg (Leipzig, 1881); J. R. Seeley, Life and Times of Stein, 3 vols. (Boston, 1879), Pt. III., Chaps. 3-4, Pt. V., Chaps. 1-3.]

*264. Obstacles to the Establishment of a Constitution.*--Such an epoch of regeneration could not fail to be a favorable period for the growth of liberal principles of government. In June, 1814, and again in May, 1815, King Frederick William promised, through the medium of a cabinet order, to give consideration to the question of the establishment of a constitution in which provision should be made not merely for the estates of the provinces but also for a national diet. After the Congress of Vienna the task of framing such a constitution was actually taken in hand. But the time was not ripe. Liberalism had gained headway as yet among only the professional classes, while the highly influential body of ultra-conservative landholders were unalterably opposed. Between the eastern provinces, still essentially feudal in spirit, and the western ones, visibly affected by French revolutionary ideas, there was, furthermore, meager community of interest. So keen was the particularistic spirit that not infrequently the various provinces of the kingdom were referred to in contemporary documents as "nations." Among these provinces some retained the system of estates which had prevailed throughout Germany since the Middle Ages, but in some of those which had fallen under the control of Napoleon the estates had been abolished, and in others they were in abeyance. In a few they had never existed. Votes were taken in the assemblages of the estates by orders, not by individuals, and the function of the bodies rarely extended beyond the approving of projects of taxation. Within the provinces there existed no sub-structure of popular institutions capable of being made the basis of a national parliamentary system.

Notwithstanding these deterring circumstances, it is not improbable that some sort of constitution might have been established but for the excesses of the more zealous Liberals, culminating in the murder of the dramatist Kotzebue in 1819, whereby the king was thrown into an attitude, first of apprehension, and finally of uncompromising reaction. By assuming joint responsibility for the Carlsbad Decrees of October 17, 1819, he surrendered completely to the regime of "stability" which all the while had been urged upon him by Metternich. June 11, 1821, he summoned a commission to organize a system of provincial estates;[362] but at the same time the project of a national constitution and a national diet was definitely abandoned. Under (p. 249) repression Prussian liberalism languished, and throughout the remainder of the reign, i.e., to 1840, the issue of constitutionalism was not frequently raised. In Prussia, as in Austria, the widespread revolutionary demonstrations of 1830 elicited little response.

[Footnote 362: The system was created by royal patent June 5, 1823.]

*265. The Diet of 1847.*--Upon the accession of Frederick William IV., son of Frederick William III., in 1840, the hopes of the Liberals were revived. The new sovereign was believed to be a man of advanced ideas. To a degree he was such, as was manifested by his speedy reversal of his father's narrow ecclesiastical policy, and by other enlightened acts. But time demonstrated that his liberalism was not without certain very definite limits. February 13, 1847, he went so far as to summon a Vereinigter Landtag, or "united diet," of Prussia, comprising all members of the existing eight provincial assemblies, and organized in two chambers--a house of lords and a house containing the three estates of the knights, burghers, and peasants. But the issue was unhappy. As Metternich had predicted, the meeting of the Diet but afforded opportunity for a forceful reassertion of constitutional aspirations, and the assemblage refused to sanction loans upon which the sovereign was bent until its representative character should have been more completely recognized. The king, on his part, declared he would never allow "to come between Almighty God in heaven and this land a blotted parchment, to rule us with paragraphs, and to replace the ancient, sacred bond of loyalty." The deadlock was absolute, and, June 26, the Diet was dissolved.

*266. The Revolution of 1848.*--The dawn of constitutionalism was, however, near. The fundamental law under which Prussia still is governed was a product--one of the few which endured--of the widespread revolutionary movement of 1848. Upon the arrival in Berlin of the news of the overthrow of Louis Philippe (February 24) at Paris and of the fall of Metternich (May 13) at Vienna, the Prussian Liberals renewed with vigor their clamor for the establishment in Prussia of a government of a constitutional type. The demand was closely related to, yet was essentially distinct from, the contemporary project for the inauguration of a new constitutional German Empire. As was proved by the vagaries of the Frankfort Parliament (May, 1848, to June, 1849), conditions were not yet ripe for the creation of a closely-knit empire;[363] and one of the reasons why this was true was that a necessary step toward that culmination was only now about to be taken, i.e., the introduction of constitutional government in the important kingdom of Prussia. Apprehensive lest (p. 250) the scenes of violence reported from Paris should be re-enacted in his own capital, Frederick William acquiesced in the demands of his subjects in so far as to issue letters patent, May 13, 1848, convoking a national assembly[364] for the consideration of a proposed constitution. Every male citizen over twenty-five years of age was given the right to participate in the choice of electors, by whom in turn were chosen the members of this assembly. May 22, 1848, the assembly met in Berlin and entered upon consideration of the sketch of a fundamental law which the king laid before it. The meeting was attended by disorders in the city, and the more radical deputies further inflamed public feeling by persisting in the discussion of the abolition of the nobility, and of a variety of other more or less impracticable and revolutionary projects. The king took offense because the assembly presumed to exercise constituent functions independently and, after compelling a removal of the sittings to the neighboring city of Brandenburg, he in disgust dissolved the body, December 5, and promulgated of his own right the constitutional charter which he had drawn.

[Footnote 363: See p. 198.]

[Footnote 364: Known technically as Versammlung zur Vereinbarung der preussischen Verfassung.]

*267. Formation of the Constitution.*--At an earlier date it had been promised that the constitution to be established should be "agreed upon with an assembly of the nation's representatives freely chosen and invested with full powers;" but it had been suggested to the king that the way out of the existing difficulty lay in issuing a constitutional instrument independently and subsequently allowing the Landtag first elected under it to submit it to a legislative revision, and this was the course of procedure which was adopted.[365] Elections were held and, February 26, 1849, the chambers were assembled. Having recognized formally the instrument of December 5, 1848, as the law of the land, the two bodies addressed themselves forthwith to the task of revising it. The result was disagreement and, in the end, the dissolution of the lower house. The constitution of 1848 had been accompanied by an electoral law establishing voting by secret ballot and conferring upon all male citizens equal suffrage. Upon the dissolution of 1849 there was promulgated by the king a thoroughgoing modification of this democratic measure, whereby voting by ballot was abolished and parliamentary electors were divided into three classes whose voting power was determined by property qualifications or by (p. 251) official and professional status. In other words, there was introduced that peculiar three-class system which was already not unknown in the Prussian municipalities, and which, in both national and city elections, persists throughout the kingdom to the present day. In the elections which were held in the summer of 1849 in accordance with this system the democrats refused to participate. The upshot was that the new chambers, convened August 7, 1849, proved tractable enough, and by them the text of the constitution, after being discussed and revised article by article, was at last accorded formal approval. On the last day of January, 1850, the instrument was duly promulgated at Charlottenburg.[366] By Austria, Russia, and other reactionary powers persistent effort was made during the ensuing decade to influence the king to rescind the concession which he had made. He refused, however, to do so, and, with certain modifications, the constitution of 1850 remains the fundamental law of the Prussian kingdom to-day.[367]

[Footnote 365: The confusion of constitutional and ordinary statutory law inherent in this arrangement has influenced profoundly the thought of German jurists.]

[Footnote 366: On the establishment of constitutionalism in Prussia see (in addition to works mentioned on p. 201) P. Matter, La Prusse et la revolution de 1848, in Revue Historique, Sept.-Oct., 1902; P. Devinat, Le mouvement constitutionnel en Prusse de 1840 a 1847, ibid., Sept.-Oct. and Nov.-Dec., 1911; Klaczko, L'agitation allemande et la Prusse, in Revue des Deux Mondes, Dec., 1862, and Jan., 1863; C. Bornhak, Preussische Staats-und Rechtsgeschichte (Berlin, 1903); H. von Petersdorff, Koenig Friedrich Wilhelm IV. (Stuttgart, 1900); and H. G. Prutz, Preussische Geschichte, 4 vols. to 1888 (Stuttgart, 1900-1902). For full bibliography see Cambridge Modern History, XI., 893-898.]

[Footnote 367: As is true in governmental systems generally, by no means all of the essential features of the working constitution are to be found in the formal documents, much less in the written constitution alone. In Prussia ordinances, legislative acts, and administrative procedure, dating from both before and after 1850, have to be taken into account continually if one would understand the constitutional order in its entirety.]

*268. Nature of the Constitution.*--The constitution of Prussia is modelled upon that of Belgium. Provisions relating to the powers of the crown, the competence of the chambers, and the functions of the ministers are reproduced almost literally from the older instrument. None the less, the two rest upon widely differing bases. The Belgian fundamental law begins with the assertion that "all powers emanate from the nation." That of Prussia voices no such sentiment, and the governmental system for which it provides has as its cornerstone the thoroughgoing supremacy of the crown.[368] The Liberals of the mid-century period were by no means satisfied with it; and, sixty years after, it stands out among the great constitutional documents of the European world so conspicuous by reason of its disregard of fundamental democratic principle as to justify completely the (p. 252) charges of anachronism which reformers in Prussia and elsewhere are in these days bringing against it. It provides for the responsibility of ministers, without stipulating a means whereby that responsibility may be enforced. There is maintained under it one of the most antiquated and undemocratic electoral systems in Europe. And, as is pointed out by Lowell, even where, on paper, it appears to be liberal, it is sometimes much less so than its text would lead one to suppose. It contains, for example, a bill of rights, which alone comprises no fewer than forty of the one hundred eleven permanent articles of the instrument.[369] In it are guaranteed the personal liberty of the subject, the security of property, the inviolability of personal correspondence, immunity from domiciliary visitation, freedom of the press, toleration of religious sects, liberty of migration, and the right of association and public meeting. But there is an almost total lack of machinery by which effect can be given to some of the most important provisions relating to these subjects. Some guarantees of what would seem the most fundamental rights, as those of public assemblage and of liberty of teaching, are reduced in practice to empty phrases.[370]

[Footnote 368: Dupriez, Les Ministres, I., 350.]

[Footnote 369: Arts. 3-42. Robinson, Constitution of the Kingdom of Prussia, 27-34.]

[Footnote 370: Lowell, Governments and Parties, I., 286.]

The process of constitutional amendment in Prussia is easy. With the approval of the king, an amendment may at any time be adopted by a simple majority of the two legislative chambers, with the special requirement only that an amendment, unlike a statute, must be voted upon twice, with an interval of three weeks between the two votes. During the first ten years of its existence the constitution was amended no fewer than ten times. Of later amendments there have been six, but none more recent than that of May 27, 1888. The Prussian system of amendment by simple legislative process was incorporated, in 1867, in the fundamental law of the North German Confederation (except that in the Bundesrath a two-thirds vote was required); and in 1871 it was perpetuated in the constitution of the Empire.[371]

[Footnote 371: There is an annotated English version of the Prussian constitution, edited by J. H. Robinson, in the Annals of the American Academy of Political and Social Science, Supplement, Sept., 1894. The original text will be found in F. Stoerk, Handbuch der deutschen Verfassungen (Leipzig, 1884), 44-63; also, with elaborate notes, in A. Arndt, Die Verfassungs-Urkunde fuer den preussischen Staat nebst Erganzungs-und Ausfuehrungs-Gesetzen, mit Einleitung, Kommentar und Sachregister (Berlin, 1889). The principal treatises on the Prussian constitutional system are H. Schulze, Das preussisches Staatsrecht, auf Grundlage des deutschen Staatsrechtes (Leipzig, 1872-1874); ibid., Das Staatsrecht des Koenigreichs Preussen, in Marquardsen's Handbuch (Freiburg, 1884); L. von Roenne, Das Staatsrecht der preussischen Monarchie (Leipzig, 1881-1884); and H. de Grais, Handbuch der Verfassung und Verwaltung in Preussen und dem deutschen Reiche (11th ed., Berlin, 1896). A good brief account is that in A. Lebon, Etudes sur l'Allemagne politique, Chap. 4.]

III. THE CROWN AND THE MINISTRY (p. 253)

*269. Status of the Crown.*--At the head of the state stands the king, in whom is vested the executive, and a considerable share in the legislative, power. The crown is hereditary in the male line of the house of Hohenzollern, following the principle of primogeniture. An heir to the throne is regarded as attaining his majority on the completion of his eighteenth year. It has been pointed out that the German Emperor, as such, has no civil list. He has no need of one, for the reason that in the capacity of king of Prussia he is entitled to one of the largest civil lists known to European governments. Since the increase provided for by law of February 20, 1889, the "Krondotations Rente," as it appears in the annual Prussian budget, aggregates 15,719,296 marks; besides which the king enjoys the revenues from a vast amount of private property, comprising castles, forests, and estates in various parts of the realm. There are also certain special funds the income from which is available for the needs of the royal family.

*270. Powers.*--The powers of the crown are very comprehensive.[372] It is perhaps not too much to say that they exceed those exercised by any other European sovereign. The king is head of the army and of the church, and in him are vested, directly or indirectly, all functions of an executive and administrative character. All appointments to offices of state are made by him immediately or under his authority. The upper legislative chamber is recruited almost exclusively by royal nomination. And all measures, before they become law, require the king's assent; though, by reason of the sovereign's absolute control of the upper chamber, no measure of which he disapproves can ever be enacted by that body, so that there is never an occasion for the exercise of the formal veto. To employ the language of a celebrated German jurist, the king possesses "the whole and undivided power of the state in all its plenitude. It would, therefore, be contrary to the nature of the monarchical constitutional law of Germany to enumerate all individual powers of the king.... His sovereign right embraces, on the contrary, all branches of the government. Everything which is decided or carried out in the state takes place in the name of the king. He is the personified power of the state."[373] (p. 254) Except in so far as the competence of the sovereign is expressly limited or regulated by the constitution, it is to be regarded as absolute.

[Footnote 372: They are enumerated in articles 45-52 of the constitution. Robinson, Constitution of the Kingdom of Prussia, 36-37.]

[Footnote 373: Schulze, Preussisches Staatsrecht, I., 158.]

*271. The Ministry: Composition and Status.*--The organization of the executive--the creation of ministerial portfolios, the appointment of ministers, and the delimitation of departmental functions--rests absolutely with the king, save, of course, for the necessity of procuring from the Landtag the requisite appropriations. Beginning in the days of Stein with five, the number of ministries was gradually increased until since 1878 there have been nine, as follows: Foreign Affairs;[374] the Interior; Ecclesiastical, Educational, and Sanitary Affairs; Commerce and Industry; Finance; War; Justice; Public Works; and Agriculture, Public Domains, and Forests. Each ministry rests upon an essentially independent basis and there has been little attempt to reduce the group to the uniformity or symmetry of organization that characterizes the ministries of France, Italy, and other continental monarchies. Departmental heads, as well as subordinates, are appointed with reference solely to their administrative efficiency, not, as in parliamentary governments, in consideration of their politics or of their status in the existing political situation. They need not be, and usually are not, members of either of the legislative chambers.

[Footnote 374: The Minister of Foreign Affairs is at the same time the Minister-President of Prussia and the Chancellor of the Empire. On the functions of the various ministries see Dupriez, Les Ministres, I., 448-462.]

For it is essential to observe that in Prussia ministers are responsible only to the sovereign, which means that the parliamentary system, in the proper sense, does not exist. The constitution, it is true, prescribes that every act of the king shall be countersigned by a minister, who thereby assumes responsibility for it.[375] But there is no machinery whereby this nominal responsibility can be made, in practice, to mean anything. Ministers do not retire by reason of an adverse vote in the Landtag; and, although upon vote of either legislative chamber, they may be prosecuted for treason, bribery, or violation of the constitution, no penalties are prescribed in the event of conviction, so that the provision is of no practical effect.[376] Every minister possesses the right to appear on the (p. 255) floor of either chamber, and to be heard at any time when no member of the house is actually speaking. In the exercise of this privilege the minister is the immediate spokesman of the crown, a fact which is apt to be apparent from the tenor of his utterances.

[Footnote 375: Art. 44.]

[Footnote 376: Art. 61. Robinson, Constitution of the Kingdom of Prussia, 40. In the words of a German jurist, "the anomaly continues to exist in Prussia of ministerial responsibility solemnly enunciated in the constitution, the character of the responsibility, the accuser and the court specified, and at the same time a complete lack of any legal means by which the representatives of the people can protect even the constitution itself against the most flagrant violations and the most dangerous attacks." Schulze, Preussisches Staatsrecht, II., 694.]

*272. The Ministry: Organization and Workings.*--The Prussian ministry exhibits little solidarity. There is a "president of the council of ministers," who is invariably the Minister for Foreign Affairs and at the same time the Chancellor of the Empire, but his functions are by no means those of the corresponding dignitary in France and Italy. Over his colleagues he possesses, as president, no substantial authority whatsoever.[377] In the lack of responsibility to the Landtag, there is no occasion for an attempt to hold the ministry solidly together in the support of a single, consistent programme. The ministers are severally controlled by, and responsible to, the crown, and the views or policies of one need not at all be those of another. At the same time, of course, in the interest of efficiency it is desirable that there shall be a certain amount of unity and of concerted action. To attain this there was established by Count Hardenberg a Staats-Ministerium, or Ministry of State, which occupies in the Prussian executive system a position somewhat similar to that occupied in the French by the Council of Ministers.[378] The Ministry of State is composed of the nine ministerial heads, together with the Imperial secretaries of state for the Interior, Foreign Affairs, and the Navy. It holds meetings at least as frequently as once a week for the discussion of matters of common administrative interest, the drafting of laws or of constitutional amendments, the supervision of local administration, and, in emergencies, the promulgation of ordinances which have the force of law until the ensuing session of the Landtag. There are certain acts, as the proclaiming of a state of siege, which may be performed only with the sanction of this body. The fact remains, none the less, that, normally, the work of the several departments is carried on independently and that the ministry exhibits less cohesion than any other in a state of Prussia's size and importance. It is to be observed that there is likewise a Staatsrath, or Council of State (dating originally from 1604 and revived in (p. 256) 1817), composed of princes, high officials of state, ministers, judges, and other persons of influence designated by the crown. It may be consulted on legislative proposals, disputes as to the spheres of the various ministries, and other important matters. In barrenness of function, however, as in structure, it bears a close resemblance to-day to the British Privy Council.[379]

[Footnote 377: The office of Chancellor was discontinued with the death of Hardenberg and that of Minister-President substituted. The Chancellor possessed substantial authority over his colleagues. Since 1871, the Minister-President has been a Chancellor, but of the Empire, not of Prussia.]

[Footnote 378: The Staats-Ministerium was called into being, to replace the old Council of State, by an ordinance of October 27, 1810. Its functions were further elaborated in cabinet orders of June 3, 1814, and November 3, 1817. The constitution of 1850 preserved it and assigned it some new duties.]

[Footnote 379: On the organization and functions of the Prussian ministry see Dupriez, Les Ministres, I., 345-462; von Seydel, Preussisches Staatsrecht, 91-104; von Roenne, Das Staatsrecht der preussischen Monarchie, 4th ed., III.; Schulze, Das preussische Staatsrecht, II.]

*273. Subsidiary Executive Bodies.*--Two other executive organs possess considerable importance. These are the Oberrechnungskammer, or Supreme Chamber of Accounts, and the Volkswirthschaftsrath, or Economic Council. The Oberrechnungskammer has existed continuously since 1714. Its function is the oversight and revision of the finances of the departments, the administration of the state debt, and the acquisition and disposal of state property. Its president is appointed by the crown, on nomination of the Staats-Ministerium. Its remaining members are designated by the crown on nomination of its own president, countersigned by the president of the Staats-Ministerium. All enjoy the tenure and the immunities of judges, and the body collectively is responsible, not to the Ministry of State, but to the crown immediately. In status and function it resembles somewhat closely the French Cour des Comptes. The same group of men, with additional members appointed by the Bundesrath, serves as the Chamber of Accounts of the Empire. The Volkswirthschaftsrath consists of seventy-five members named by the king for a term of five years. Its business is to give preliminary consideration to measures vitally affecting large economic interests, to determine what should be Prussia's position in the Bundesrath upon these measures, and to recommend to the crown definite courses of action regarding them. Its function is purely consultative.

XIII. (p. 257)

THE PRUSSIAN LANDTAG--LOCAL GOVERNMENT

I. COMPOSITION OF THE LANDTAG

*274. The House of Lords: Law of 1853.*--Legislative authority in the kingdom of Prussia is shared by the king with a national assembly, the Landtag, composed of two chambers, of which the upper is known as the Herrenhaus, or House of Lords, and the lower as the Abgeordnetenhaus, or House of Representatives. Under the original provisions of the constitution, the House of Lords was composed of (1) adult princes of the royal family; (2) heads of Prussian houses deriving directly from the earlier Empire; (3) heads of families designated by royal ordinance, with regard to rights of primogeniture and lineal descent; (4) 90 members chosen by the principal taxpayers of the kingdom; and (5) 30 members elected by the municipal councils of the larger towns. By law of May 7, 1853, this arrangement was set aside and in its stead it was enacted that the chamber should be made up entirely of persons appointed by the crown in heredity or for life; and, on the authorization of this measure, there was promulgated, October 12, 1854, a royal ordinance by which the composition of the body was fixed substantially as it is to-day. The act of 1853 forbids that the system thus brought into operation be further modified, save with the assent of the Landtag; but this does not alter the fact that the present composition of the Prussian upper house is determined, not by the constitution of the kingdom, but by royal ordinance authorized by legislative enactment.

*275. The House of Lords To-day.*--The component elements of the House of Lords to-day are: (1) princes of the royal family who are of age; (2) scions of the Hohenzollern-Hechingen, Hohenzollern-Sigmaringen, and sixteen other once sovereign families of Prussia; (3) heads of the territorial nobility created by the king, and numbering some fifty members; (4) a number of life peers, chosen by the king from among wealthy landowners, great manufacturers, and men of renown; (5) eight titled noblemen appointed by the king on the nomination of the resident landowners of the eight older provinces of the kingdom; (6) representatives of the universities, of religious bodies, and of towns of over 50,000 inhabitants, presented by these various organizations respectively, but appointed ultimately by the king; and (7) an (p. 258) indefinite number of members, chosen by the king for life on any ground whatsoever, and under no restriction except that peers must have attained the age of thirty years.

The composition of the chamber is thus extremely complex. There are members ex-officio, members by royal appointment, members by hereditary right. But the appointing power of the crown is so comprehensive that the body partakes largely of the character of a royal creation. Its membership is recruited almost exclusively from the rigidly conservative landowning aristocracy, so that in attitude and policy it is apt to be in no degree representative of the mass of the nation, at least of the industrial classes. As a rule, though not invariably, it is ready to support cordially the measures of the crown. In any event, through exercise of the unrestricted power of creating peers, the crown is in a position at all times to control its acts. The number of members varies, but is ordinarily about 300.[380]

[Footnote 380: Lebon, Etudes sur l'Allemagne politique, 187-197.]

*276. The House of Representatives.*--The Abgeordnetenhaus, or House of Representatives, consists of 443 members--362 for the old kingdom, 80 added in 1867 to represent the newly acquired provinces, and one added in 1876 to represent Lauenburg. Representatives are elected for a five-year term, and every Prussian is eligible who has completed his thirtieth year, who has paid taxes to the state during as much as three years, and whose civil rights have not been impaired by judicial sentence. Every Prussian who has attained his twenty-fifth year, and who is qualified to vote in the municipal elections of his place of domicile, is entitled to participate in the choice of a deputy. At first glance the Prussian franchise appears distinctly liberal. It is so, however, only in the sense that comparatively few adult males are excluded from the exercise of it. In its actual workings it is one of the most undemocratic in Europe.

*277. The Electoral System.*--Representatives are chosen in electoral districts, each of which returns from one to three members--as a rule, two. There has been no general redistribution of seats since 1860 (although some changes were made in 1906), so that in many districts, especially in the urban centers whose growth has fallen largely within the past fifty years, the quota of representatives is grossly disproportioned to population. Until 1906 the entire city of Berlin returned but nine members, and its quota now is only twelve.[381] The enfranchised inhabitants of the district do not, moreover, vote (p. 259) for a representative directly. The essential characteristics of the Prussian electoral system are, first, that the suffrage is indirect, and, second, that it is unequal. The precise method by which a representative is elected[382] may be indicated as follows: (1) each circle, or district, is divided into a number of Urwahlbezirke, or sub-districts; (2) in each Urwahlbezirk one Wahlman, or elector, is allotted to every 250 inhabitants; (3) for the choosing of these Wahlmaenner the voters of the sub-district are divided into three classes, arranged in such a fashion that the first class will be composed of the payers of direct taxes, beginning with the largest contributors, who collectively pay one-third of the tax-quota of the sub-district, the second class will include the payers next in importance who as a group pay the second third, and the last class will comprise the remainder; (4) each of these classes chooses, by absolute majority, one-third of the electors to which the Urwahlbezirk is entitled; finally (5) all the electors thus chosen in the various Urwahlbezirke of the district come together as an electoral college and choose, by absolute majority, a representative to sit in the Abgeordnetenhaus at Berlin.[383]

[Footnote 381: Prior to 1906 the Berlin representatives were chosen in four electoral districts, but in the year mentioned the city was divided into twelve single-member constituencies.]

[Footnote 382: As stipulated in articles 69-75 of the constitution. Robinson, The Constitution of the Kingdom of Prussia, 42-44.]

[Footnote 383: In the event that, between elections, a seat falls vacant, a new member is chosen forthwith by this same body of Wahlmaenner without a fresh appeal to the original electorate of the district.]

*278. Origins and Operation of the System.*--The principal features of this unique system were devised as a compromise between a thoroughgoing democracy based on universal suffrage and a government exclusively by the landholding aristocracy. The three-class arrangement originated in the Rhine Province where, by the local government code of 1845, it was put in operation in the elections of the municipalities. In the constitution of 1850 it was adopted for use in the national elections, and in subsequent years it was extended to municipal elections in virtually all parts of the kingdom, so that it came to be a characteristic and well-nigh universal Prussian institution. It need hardly be pointed out that the scheme throws the bulk of political power, whether in municipality or in nation, into the hands of the men of wealth. In not fewer than 2,214 Urwahlbezirke a third of the direct taxes is paid by a single individual, who therefore comprises alone the first electoral class; and in 1703 precincts the first class consists of but two persons. In most cases the number of the least considerable taxpayers who in the aggregate pay the last third of the tax-quota is relatively large. Taking the kingdom as a whole, it was estimated in 1907 that approximately (p. 260) three per cent of the electorate belonged to the first class, about 9.5 per cent to the second, and the remaining 87.5 to the third. In the individual precinct, as in the nation at large, the little group at the top, however, possesses precisely as much political weight as the large group at the bottom, because it is entitled to choose an equal number of Wahlmaenner. The result is a segregation of classes which, whatever its merits at certain points, is of very questionable utility as a basis of government.

The effect politically is to give an enormous advantage to the conservative and agrarian interests and to deprive the socialists and other popular elements all but completely of representation. At the elections of 1903 the Social Democrats put forth effort for the first time in an organized way to win seats in the Landtag. Under the system which has been described a total of 324,157 Conservative votes sufficed to elect 143 representatives, but 314,149 Social Democratic votes did not secure the return of a single member. In the Imperial elections of the same year, conducted under a scheme of equal suffrage, the popular party sent to the Reichstag eighty members. At the Prussian elections of 1908 a Social Democratic vote which comprised approximately twenty-four per cent of the total popular vote yielded but seven members in a total of 443. So glaringly undemocratic is the prevailing system that even that arch-aristocrat, Bismarck, was upon one occasion moved to denounce the three-class arrangement as "the most miserable and absurd election law that has ever been formulated in any country."[384]

[Footnote 384: For a brief exposition of the practical effects of the system, especially on political parties, see Lowell, Governments and Parties, I., 305-308. The system as it operates in the cities is described in Munro, The Government of European Cities, 128-135, and in R. C. Brooks, The Three-Class System in Prussian Cities, in Municipal Affairs, II., 396ff. Among special treatises may be mentioned H. Nezard, L'Evolution du suffrage universel en Prusse et dans l'Empire allemand (Paris, 1905); I. Jastrow, Das Dreiklassensystem (Berlin, 1894); R. von Gneist, Die nationale Rechtsidee von den Staenden und das preussische Dreiklassensystem (Berlin, 1904); and G. Evert, Die Dreiklassenwahl in den preussischen Stadt-und Landgemeinden (Berlin, 1901).]

II. THE MOVEMENT FOR ELECTORAL REFORM

*279. The Programme Formulated.*--Throughout more than a generation there has been in Prussia persistent agitation in behalf of electoral reform. In 1883, and again in 1886, the lower chamber debated, but rejected, a project for the substitution of the secret ballot for the existing viva voce method of voting. In 1883 the Social Democratic party proclaimed its purpose to abstain from voting until the (p. 261) inequalities arising from "the most wretched of all electoral systems" should have been removed. Gradually there was worked out a programme of reform to which socialists, Liberals, and progressives of various schools gave adherence, wholly or in part, comprising four principal demands: (1) the abolition of discriminations against the small taxpayer; (2) the introduction of the secret ballot; (3) the replacing of indirect by direct elections; and (4) a redistribution of seats. And these are to-day the objects chiefly sought by the reform elements.

*280. The Efforts of 1906 and 1908.*--In 1906 a bill raising the number of representatives from 433 to 443 and making provision for a slight redistribution of seats was carried, but a Radical amendment providing for direct and universal suffrage and the secret ballot was opposed with vigor by the Government and failed of adoption. In January, 1908, there were notable socialist demonstrations throughout the country in behalf of the establishment of equal manhood suffrage. Prince von Buelow, while admitting the existing system to be defective, opposed the introduction in Prussia of the electoral system of the Empire, alleging that it would not be compatible with the interests of the state and maintaining that every sound reform of the franchise must retain and secure the preponderance of the great mass of the middle class, and therefore must aim at the establishment of an equitable gradation in the weight of the various classes of votes. It was added that the Government would consider whether this object might best be attained by basing the franchise entirely upon the amount of taxes paid by the voter, or by taking into account age, educational attainments, or other qualifications. When the Radicals introduced in the lower chamber a resolution declaring for equal manhood suffrage the Clericals and the Poles supported it, but the Conservatives and National Liberals of all shades stood by the Government, and the resolution was overwhelmingly rejected. The elections of June, 1908, at which, as has been pointed out, seven Social Democratic members were returned, demonstrated that even under existing electoral arrangements dissatisfaction could find some expression. The National Liberals and the Free Conservatives, who had been outspoken in opposition to the extension of the suffrage, lost, respectively, twelve and four seats. When, however, the Radical resolution reappeared it again was thrown out.

*281. The Project of 1910.*--By popular demonstrations in Berlin and in other important towns throughout the kingdom, the Government was brought to the conviction that it was not expedient to maintain too long its hitherto inflexible attitude. In a speech from the (p. 262) throne, January 11, 1910, the sovereign announced the early introduction of a measure for electoral reform, and a month later it became the unwelcome duty of the new Chancellor, von Bethman-Hollweg, to lay the Government's project before the chambers. Instantly it was evident, not only that the proposal had been prepared entirely under bureaucratic direction, but that the real purpose of the Government was to carry through the Landtag an electoral bill designed to appease the reformers without yielding the essential features of the existing system. The project provided, in brief: (1) that the tripartite system be retained, though the quota of taxes admitting to the first class should be reduced to a uniform level of five thousand marks (no weight being given to payment beyond that amount), and voters of specified degrees of education, or occupying certain official positions, or having served a stipulated number of years in the army or navy, should be assigned to the higher classes, with but incidental regard to their tax contributions: (2) that viva voce voting be retained; (3) that the choice of electors be by districts rather than by Urwahlbezirke; and (4) that direct voting be substituted for indirect. There was no mention of redistribution, and the secret ballot was specifically withheld. The rearrangement of classes did not touch the fundamental difficulty, and the only demand of the reformers which was really met was that for direct elections. In his speech in defense of the measure the Chancellor frankly admitted that the Government was irrevocably opposed to a suffrage system based on democratic principles.

The scheme was ridiculed by the liberal elements. In protest against the nonchalance with which the door had been shut in their faces the working classes in Berlin and elsewhere entered upon a fresh series of demonstrations by reason of which the Government was embarrassed through several weeks. In the Landtag the Conservative and Free Conservative parties, comprising the Government majority, stood solidly for the bill, in the conviction that if there must be change at all those changes which the bill proposed would be less objectionable than those which were being urged by the radicals. The Centre wavered, while the National Liberals, the Poles, the Social Democrats, and the Progressive People's Party stood firmly in opposition. February 13 the bill was referred in the lower house to a committee, by which it was reported so amended as to provide for the secret ballot but not for direct elections. March 16, by a vote of 283 to 168, the measure in this amended form, was passed by the chamber, all parties except the Conservatives and the Centre voting against it. April 29 the bill was passed in the upper chamber, by a vote of 140 to 94, in the form in which originally it had been introduced. All (p. 263) efforts on the part of the Government to bring the lower house to an acceptance of the original measure proved fruitless, and the upshot was that, May 27 following, the project was withdrawn from the chambers. The overhauling of the antiquated electoral system in Prussia, both national and municipal, remains a live issue, but agreement upon a definite project of reform is apparently remote. The problem is enormously complicated by the virile traditions of aristocratic, landed privilege which permeate the inmost parts of the Prussian political system. In respect to redistribution, too, a fundamental obstacle lies in the consideration that such a step on the part of Prussia would almost of necessity involve a similar one on the part of the Empire. In both instances the insuperable objection, from the point of view of the Government, arises from the vast acquisition of political power which would accrue from such reform to the socialists and other radical parties.[385]

[Footnote 385: P. Matter, La reforme electorale en Prusse, in Annales des Sciences Politiques, Sept., 1910; C. Brocard, La reforme electorale en Prusse et les partis, in _Revue Politique et Parlementaire_, Feb., 1912.]

III. ORGANIZATION AND FUNCTIONS OF THE LANDTAG

*282. Sessions and Privileges of Members.*--The maximum life of a Landtag is five years; but the lower house may at any time be dissolved by the crown. A dissolution must be followed by the election of a new chamber within sixty days, and the ensuing session is required to begin within three months. The power of dissolution is not infrequently exercised, and there have been instances of the dissolution of a newly elected chamber, by reason of its objectionable political character, before it had been convened for so much as a single sitting. According to law the Landtag must be convoked in regular session every year, during the period between the beginning of November and the middle of the following January.[386] It may be called in extraordinary session at any time. Without its own consent, it may not be adjourned for more than thirty days, or more than once during a session. Save in the event of the necessity of making provision for a regency, the chambers sit separately; but the two must be convoked, opened, adjourned, and prorogued simultaneously.

[Footnote 386: Art. 76.]

Each chamber passes upon the qualifications of its members; each elects it own presidents, vice-presidents, and secretaries; and each regulates its own discipline and order of business. Sittings of both chambers are public, save when, on proposal of the president or of ten members, it is decided to close the doors. Members are regarded (p. 264) as representatives of the population of the kingdom as a whole. They may not be bound by any sort of instructions; nor may they be called to account legally for votes cast, or for statements made, in the fulfillment of their legislative functions. Unless taken in the act, or within twenty-four hours thereafter, no member of either house may, without the consent of that house, be arrested or submitted to examination for any penal offense. Members of the lower house receive, and must accept, travelling expenses and a daily allowance of fifteen marks during sessions.

At the beginning of each sitting the House of Lords is divided into five Abtheilungen, or sections, and the House of Representatives into seven. In the lower house the division is made by lot; in the upper, by the president. In both instances it is made once for an entire session, not monthly as in France, or bi-monthly as in Italy. The function of the Abtheilungen is to appoint committee members, and, in the lower house, to make preliminary examination of election returns. In each house there are eight standing committees. For the consideration of particular measures special committees are constituted as occasion demands.

*283. Powers.*--The Landtag is, of course, primarily a legislative institution. But the powers of independent deliberation which it exercises are distinctly inferior to those exercised by the British House of Commons, by the French Chamber of Deputies, or by any one of a half score of other European parliamentary bodies. This fact arises from the relatively preponderating influence which is exerted by the Government in its proceedings. In theory each chamber possesses the right to initiate legislation; in practice, virtually all bills are introduced by the Government, and the chambers content themselves with discussion and the proposing of amendments. It not infrequently happens that, as in the case of the Electoral Reform Bill of 1910, the lower house so emasculates a measure as to compel the Government to withdraw it. But, speaking broadly, it may be said that the legislative acts of Prussia are projected and formulated by the crown and the ministers and merely ratified by the Landtag. There is still some question as to whether the stipulation that all laws require the assent of the two houses covers, under every circumstance, the appropriation of money. In practice, appropriations are regularly voted in the chambers, and in fact it is required that the budget and all fiscal measures shall be presented first to the lower house and shall be accepted or rejected as a whole by the upper; but during the years immediately preceding the Austrian war of 1866 the Government asserted and exercised the power of collecting and expending the revenues of the state on the basis of standing laws, thus virtually (p. 265) suspending the legislative appropriating power, and the question has never been finally settled by Prussian jurists as to whether such a thing might not again be done.[387]

[Footnote 387: Lowell, Governments and Parties, I., 298.]

On the side of administration the powers of the Landtag are but nominal. Under provisions of the constitution each chamber has a right to present memorials to the king; to refer to the ministers documents addressed to it, and to demand explanations respecting complaints made therein; and to appoint commissions for the investigation of subjects for its own information. The right of interpellation is expressly recognized. But, as has been pointed out, the ministers are not in practice responsible to the legislative chambers, and neither they nor the king himself can be compelled to give heed, unless they so desire, to legislative protests, demands, or censure. Where a parliamentary system does not exist, the influence of the legislative branch upon matters of administration is likely to be confined to the simple assertion of opinion.

IV. LOCAL GOVERNMENT: ORIGINS AND PRINCIPLES[388]

[Footnote 388: The judicial system of Prussia, regulated in common with that of the other states by Imperial law, is described in Chapter 11, pp. 241-244. Articles 86-97 of the Prussian constitution deal with the subject of the judiciary, but many of their provisions have been rendered obsolete by Imperial statutes.]

*284. The Measures of Stein and Hardenberg.*--The origins of the local governmental regime prevailing in the kingdom of Prussia to-day antedate, to some extent, the nineteenth century, but in large part they are to be traced to the period of the Stein-Hardenberg ministries. By the memorable Municipal Edict (Staedt-Ordnung) of November 19, 1808, Stein set up a complete municipal system, with burgomasters, executive boards, and town councils (all elective), and swept away the oligarchy of the guilds, broadened the franchise, and conferred upon the towns almost complete independence, even in the matter of taxation. An edict of 1831 inaugurated a revival of the right of the central authorities to supervise local taxation and introduced a number of other changes, but, on the whole, the municipal arrangements of the present day are based upon the edict of Stein. More immediately, they rest upon an act of 1853, applied originally only to the six eastern provinces of the kingdom, but eventually extended to the others. Aside from its introduction of the three-class electoral system, and a few other matters, this law follows closely the measure of 1808 and but consolidates and extends pre-existing arrangements.[389] Neither Stein nor Hardenberg touched the (p. 266) constitution of the country communes, but the extension, during the Napoleonic occupation, of the French communal system into all the Prussian territories west of the Elbe prepared the way for the essentially uniform system which was established by the Westphalian and Rhineland Edicts of 1841 and 1845. Edicts of 1807 and 1811 abolished the aristocratic basis of the ancient circles (Kreise), and after 1815 the circle as a unit of local government next above the commune was extended to all the conquered or reconquered territories. The revival of the old provincial organization was begun also in 1815, when the kingdom was divided into ten provinces; and in the same year there were established twenty-six government districts (Regierungsbezirke), two or three within each province, each under the control of one of the government boards (Regierungen) whose creation had been begun in 1808.[390]

[Footnote 389: The text of the law of 1853 is printed in the appendix of A. W. Jebens, Die Staedtverordneten (Berlin, 1905).]

[Footnote 390: E. Meier, Die Reform der Verwaltungsorganisation unter Stein und Hardenberg (Leipzig, 1881).]

*285. The Reforms of Bismarck.*--Throughout the middle portion of the nineteenth century the administrative system, modified but slightly by legislative enactment, continued to present a curious combination of elements which were popular and elements which were narrowly bureaucratic and, in some instances, essentially feudal. Beginning in 1872, Bismarck addressed himself to the task of co-ordinating, strengthening, and to a certain extent liberalizing, the local institutions of the kingdom. The ends at which he aimed principally were the abolition of conditions by which it was made possible for the whole machinery of local government to be captured from time to time by a single social class for its own benefit, and the establishment of a system under which all classes of the population might be admitted to participation in the management of purely local affairs. In the course of the reform which was carried through numerous features of English local institutions were copied with some closeness. In a number of scholarly volumes appearing between 1863 and 1872 the genius of these institutions had been convincingly expounded by the jurist Rudolph Gneist, whose essential thesis was that the failure of parliamentary government in Prussia and the success of it in Great Britain was attributable to the dissimilarity of the local governmental systems of the two countries;[391] and by these writings the practical proposals with which Bismarck came forward were given important theoretic basis. Neither Gneist nor Bismarck sympathized with the ideals of democracy, but both believed that the local (p. 267) administrative authorities should be made to include not only a paid, expert bureaucracy but a considerable element of unpaid lay or non-official persons, drawn, however, principally from the large landowners and taxpayers. The obstacles to be overcome, arising from public indifference, the opposition of the existing bureaucracy, the apprehensions of the Conservatives, and sectional differences and antipathies, were enormous, but by proceeding slowly and in a conciliatory spirit the Government was able eventually to execute the larger portion of its plans. The first enactments, for the circles in 1872 and for the provinces in 1875, were applied only to those provinces which had formed the old monarchy, but during the ensuing ten years similar measures were extended to the remainder of the kingdom, and, finally, after the dismissal of Bismarck, the task was rounded out by a great Landgemeinde-Ordnung issued for the seven eastern provinces in 1891. By this series of enactments the administrative methods and machinery of the kingdom were reduced to substantially the character which they to-day possess.

[Footnote 391: The most important of Gneist's works in this connection are: Geschichte des self-government in England (1863); Verwaltung, Justiz, Rechtsweg (1867); Die preussische Kreis-Ordnung (1871); and Der Rechtsstaat (1872).]

*286. Principles of the Administrative System.*--Although the system is still one of the most complicated in Europe, it is infinitely simpler than once it was, and the bureaucratic forces in it, if still predominant, have been subjected to a variety of important restraints. The principles which underlie it have been summarized by an English writer as follows: "The first is the careful distinction drawn between those internal affairs in which the central government is thought to be directly concerned, and those which are held to be primarily of only local interest. The former group includes, besides the army, the state taxes and domains, ecclesiastical affairs, police (in the wide Prussian meaning of the term), and the supervision of local authorities; whilst roads, poor relief, and a number of miscellaneous matters are left to the localities. These two groups are kept carefully separate, even when they are entrusted to the same authority. Secondly, the work of the central government is 'deconcentrated,' that is, the country is divided into districts (which may or may not be coincident with the areas of local self-government), in each of which there is a delegation of the central authority, doing its work, and thereby lessening the pressure upon the departmental offices in Berlin. Something like this deconcentration is found in the educational organization of France, and also in the office of the Prefect, but it is far more elaborate, and the machinery much more complex, in Prussia. Thirdly the comparative independence of the executive from the deliberative authority, and the predominance of the officials, which characterize the central government of Prussia, repeat themselves throughout the whole of local government. And, finally, in all except the (p. 268) largest of the Prussian areas of local self-government, the executive agents of the locality, elected by it, are also the representatives of the central government; as such they are members of the bureaucracy and controlled by it, and in consequence they naturally look to the center for guidance and direction in regard to local affairs. Therefore, whilst it would be inaccurate to say that local self-government, as understood in England, does not exist in Prussia, it is true that self-government there is weak, that it is not so much the exercise of the will of the locality within limits prescribed (for the protection of the whole community) by the central power, as the exercise of the will of the latter by the locality. In fact, the bureaucracy rules; and it is fortunate for Prussia that hitherto the bureaucracy has remained intelligent and respective of new ideas."[392]

[Footnote 392: Ashley, Local and Central Government, 130-132.]

At the same time it is to be observed that, while the professional, life-long holders of office continue to preponderate as in no other important country of western Europe, the class of non-professionals is large and constantly increasing. As a rule, the first class is salaried, the second is not; the non-professionals being simply citizens who, moved by considerations of a civic and social nature, give their services without prospect of pecuniary reward. The principle of the system is, as Ashley characterizes it, that of government by experts, checked by lay criticism and the power of the purse, and effectively controlled by the central authorities. And, although the details of local governmental arrangements vary appreciably from state to state, this principle, which has attained its fullest realization in Prussia, may be said to underlie local government throughout the Empire in general.

V. LOCAL GOVERNMENT: AREAS AND ORGANS

*287. The Province.*--Aside from the cities, which have their special forms of government, the political units of Prussia, in the order of their magnitude, are: (1) the Provinz, or province; (2) the Regierungsbezirk, or district; (3) the Kreis, or circle; (4) the Amtsbezirk, or court jurisdiction; and (5) the Gemeinde, or commune. Of these, three--the first, third, and fifth--are spheres both of the central administration and of local self-government; two--the second and fourth--exist for administrative purposes solely. Of provinces there are twelve: East Prussia, West Prussia, Brandenburg, Pomerania, Silesia, Posen, Westphalia, Saxony, Hanover, the Rhine Province, Schleswig-Holstein, and Hesse-Nassau.[393] Unlike the French and (p. 269) Italian departments, the Prussian provinces are historical areas, of widely varying extent and, in some instances, of not even wholly continuous territory. Thus Hanover is, geographically, the kingdom once united with the crown of Great Britain, Schleswig-Holstein comprises the territories wrested from Denmark in 1864, Saxony is the country taken from the kingdom of Saxony at the close of the Napoleonic wars, and Posen represents Prussia's ultimate acquisition from the Polish partitions of the eighteenth century.

[Footnote 393: For all practical purposes the city of Berlin and the district of Hohenzollern form each a province. If they be counted, the total is fourteen.]

In the organization of the province the separation of functions relating to the affairs of the kingdom (Staatsgeschaefte) from those which relate only to matters of a local nature is carried out rigidly. In the circle, as will appear, the two sets of functions are discharged by the same body of officials; in the district, the functions performed are wholly of a national, rather than a local, character; but in the province there are not merely two sets of functions but two entirely separate groups of officials.

*288. Provincial Organs of the Central Administration.*--For the administration of affairs of general interest, such as police, education, and religion, the organs within the province are (1) the Oberpraesident, or chief president, appointed by the king to represent the central government in the management of all such matters as concern the entire province or reach beyond the jurisdiction of a single Regierungsbezirk administration,[394] and (2) the Provinzialrath, a provincial council consisting of, besides the Oberpraesident or his representative as presiding officer, one professional member appointed for an indefinite tenure by the Minister of the Interior and five ordinary citizen members elected, usually for a term of six years, by the provincial Ausschuss, or committee. The Oberpraesident is the immediate agent of the ministry, as is the prefect in France, though he is a more dignified and important functionary than his French counterpart. None the less, by virtue of the fact that most of the Oberpraesident's acts are valid only after having been accorded the assent of a body the majority of whose members are chosen within the province, the bureaucratic aspect of his position is subjected to a highly important limitation.

[Footnote 394: Schulze, Das Staatsrecht des Koenigreichs Preussen, 63.]

*289. Provincial Organs of Self-Government.*--By the side of this official group stands another, quite independent of it, for the control of affairs of purely local concern. Its organs comprise: (1) the Provinzialausschuss, or provincial committee, consisting of from seven to fourteen members elected for six years by the provincial (p. 270) Landtag, not necessarily, but almost invariably, from its own membership; (2) a Landeshauptmann or Landesdirektor, a salaried executive official elected by the Landtag for six or twelve years and confirmed by the crown; and (3) the Provinziallandtag, or provincial assembly. The Landeshauptmann is the executive, the Provinzialausschuss the consultative, organ of local self-administration; the Provinziallandtag is the provincial legislature. Members of the Landtag are elected for six years (one-half retiring every three years) by the diets of the circles, and they comprise, as a rule, local administrative officials of the circles, large landowners, and other well-to-do persons. Sessions are convoked by the crown at least every two years.[395] The Landtag's functions are comprehensive. They include the supervision of charities, highways, and industry; the voting of local taxes and the apportionment of them among the circles; the enactment of local laws; the custody of provincial property; the election of the Landeshauptmann and the members of the provincial committee; and the giving of advice on provincial matters at the request of the central government. The Landtag is in practice less independent, however, than this enumeration of powers might seem to imply. All of its legislation requires the assent of the king; most of its fiscal arrangements must be submitted to one or more of the ministers; and the body itself may be dissolved at any time by the crown.

[Footnote 395: Towns of twenty-five thousand inhabitants or more may, by ministerial decree, be set off as separate circles. In such circles Landtag members are chosen by the municipal officials.]

*290. The Government District.*--Each province is divided into a number of Regierungsbezirke, or districts, of which there are now thirty-five in the kingdom.[396] Unlike the province, the district exists for purposes of general administration only. It therefore has no organs of self-government. Its Regierung, or "administration," consists of a body of professional, salaried officials, appointed by the crown and having at its head the Regierungspraesident, who is, on the whole, the most important official in the Prussian local service. The subjects that fall within the jurisdiction of the functionaries of the district, including taxation, education, religion, forests, etc., are very comprehensive, and the work of administration is carried on chiefly through "colleges," or boards. For the management of police and the supervision of local bodies there exists a Bezirksausschuss, or district committee, composed of the Regierungspraesident, two (p. 271) other persons appointed by the crown, and four members elected by the Provinzialausschuss for six years. A very important function which this body has possessed since 1883 is that of sitting, under the presidency of one of its members appointed for his judicial qualifications, as the administrative court of the district.[397]

[Footnote 396: The province of Schleswig-Holstein, however, contains but a single district. The largest number of districts in a province is six, in Hanover.]

[Footnote 397: The immediate legal basis of the organization of the district is the Landesverwaltungsgesetz of 1883.]

*291. The Circle.*--In the Kreis, or circle, as in the province, there exist two sharply distinguished sets of governmental functions, the general and the local; but for the administration of both there is a single hierarchy of officials. The number of circles within the kingdom is about 490, with populations varying from 20,000 to 80,000. Each includes all towns lying within it which have a population of less than 25,000. A town of over 25,000 is likely to be created, by ministerial order, a circle within itself, in which case the functions of government are exercised by the municipal authorities.[398] The essential organs of government within the Landkreise, or country circles, are three: the Landrath, the Kreisausschuss, and the Kreistag. The Landrath is appointed for life by the crown, on nomination frequently by the Kreistag, or diet. He superintends all administrative affairs, general and local, within the circle; fulfills the functions of chief of police; presides over the Kreisausschuss and Kreistag; and, in general, occupies within the circle the place occupied within the province by the Oberpraesident. Associated with him, and organized under his presidency, is the Kreisausschuss, or circle committee, composed of six unofficial members elected by the Kreistag for six years. In addition to its consultative functions, the Kreisausschuss sits as an administrative court of lowest grade.

[Footnote 398: Approximately one hundred towns have been so constituted.]

The Kreistag is the legislative body of the circle. Its members, numbering at least twenty-five, are elected for a term of six years by three Verbaende, or colleges, the first being made up of the cities, the second of the large rural taxpayers, the third of a complicated group of rural interests in which the smaller taxpayers and delegates of the communal assemblies preponderate.[399] The Kreistag is a body of substantial importance. It chooses, directly or indirectly, all the elective officials of the circle, of the district, and of the province; it creates local officers and regulates their functions; it enacts legislation of a local nature; and it votes the taxes required for both its own and the provincial administration.

[Footnote 399: For a fuller statement of the electoral system see Lowell, Governments and Parties, I., 325.]

*292. The Commune.*--The smallest of Prussian governmental units (p. 272) is the Gemeinde, or commune.[400] Of communes there are two distinct types, the rural (Landgemeinde) and the urban (Stadtgemeinde). The governments of the rural communes (some 36,000 in number) are so varied that any general description of them is virtually impossible. They rest largely upon local custom, though reduced at some points to a reasonable uniformity under regulating statutes such as were enacted for the communes of eight of the twelve provinces in the Landgemeinde-ordnung of 1891.[401] There is invariably an elective Schulze, or chief magistrate. He is assisted ordinarily by from two to six aldermen (Schoeffen) or councillors. And there is generally a governing body (Gemeindevertretung), composed of elected representatives, when there are as many as forty qualified electors,--otherwise the people acting in the capacity of a primary assembly (Gemeindeversammlung),--for the decision of matters relating to local schools, churches, highways, and similar interests. It is to be observed, however, that most of the rural communes are so small that they have neither the financial resources nor the administrative ability to maintain a government of much virility. Such action as is taken within them is taken almost invariably with the approval of, and under the guidance of, the authorities of the circle, principally the Landrath.[402]

[Footnote 400: The Amtsbezirk is essentially a judicial district. See p. 243. In the eastern provinces it is utilized also for purposes of police administration.]

[Footnote 401: For an annotated edition of this important instrument see F. Keil, Die Landgemeinde-ordnung (Leipzig, 1890).]

[Footnote 402: On Prussian local government see Lowell, Governments and Parties, I., 308-333; F. J. Goodnow, Comparative Administrative Law (2d ed., New York, 1903), I., 295-338; and Ashley, Local and Central Government (London, 1906), 125-186, 263-287. Fuller accounts are contained in Schulze, Das preussische Staatsrecht, I., 436-538; K. Stengel, Organisation der preussischen Verwaltung, 2 vols. (Berlin, 1884); C. Bornhak, Preussisches Staatsrecht, 3 vols. (Freiburg, 1888-1890), and Hue de Grais, Handbuch der Verfassung und Verwaltung in Preussen, etc. (17th ed., Berlin, 1906). Texts of local government acts are printed in G. Anschutz, Organisations-gesetze der innern Verwaltung in Preussen (Berlin, 1897). The best description in English of Prussian municipal government is that in Munro, The Government of European Cities, 109-208. A good brief sketch is Ashley, Local and Central Government, 153-164. The best account of some length in German is H. Kappleman, Die Verfassung und Verwaltungsorganisation der preussischen Staedte, in Schriften des Vereins fuer Sozialpolitik (Leipzig, 1905-1908), vols. 117-119. Mention may be made of A. Shaw, Municipal Government in Continental Europe (New York, 1895), Chaps. 5-6; E. J. James, Municipal Administration in Germany (Chicago, 1901); and Leclerc, La Vie municipale en Prusse, in _Annales de l'Ecole Libre des Sciences Politiques_, Oct., 1888. For ample bibliography see Munro, op. cit., 389-395.]

In their governmental arrangements the urban communes exhibit more uniformity than do the rural, though occasionally among them there is wide variation. The usual organs comprise (1) the Stadtrath, (p. 273) an executive body consisting of a burgomaster and a number of assistants, elected for six, nine, or twelve years, or even for life, and (2) the Stadtverordnete, or municipal council, chosen for from three to six years, as a rule by an electorate identical with that which returns the members of the lower branch of the Prussian Landtag.

XIV. (p. 274)

THE MINOR GERMAN STATES--ALSACE-LORRAINE

*293. Essential Similarity of Political Institutions.*--The preponderance of Prussia among the twenty-five states comprised within the German Empire is such as to lend the governmental system of that kingdom an interest and an importance which attaches to the political arrangements of no one of the remaining members of the federation. No description of German governments would be adequate, none the less, which should ignore wholly the minor states. A number of these states, especially Bavaria, Baden, Wuerttemberg, and Saxony, are of considerable size, and the populations which are governed within them approximate, or exceed, the populations of certain wholly independent European nations, as Norway, Denmark, Switzerland, Portugal, and several of the states of the southeast. It would be unnecessary, however, even were it possible, to describe in this place twenty-five substantially independent German governmental systems. Despite no inconsiderable variation, there are many fundamental features which they, or the majority of them, possess in common. All save three--Hamburg, Bremen, and Luebeck--are monarchies. All save two--Mecklenburg-Schwerin and Mecklenburg-Strelitz--have written constitutions[403] and elective legislative chambers. In every one of the monarchies the total lack of anything in the nature of ministerial responsibility to a parliamentary body leaves the way open for the maintenance of vigorous and independent royal authority, and it is not too much to say that in all of them, as is pre-eminently true in Prussia, the principle of autocracy lies at the root of both the organization and the methods of government. Local governmental arrangements and systems of administration of justice have been copied, in most instances, from Prussia. It will suffice to speak very briefly, first of a few of the more important monarchies, and subsequently of the city-state republics.

[Footnote 403: The texts of these constitutions, in the form in which they existed in 1884, are printed in Stoerk, Handbuch der deutschen Verfassungen. Even in the Mecklenburgs there are certain written instruments by which the curiously mediaeval system of government there prevailing is in a measure regulated.]

I. THE MORE IMPORTANT MONARCHIES (p. 275)

*294. Bavaria: Crown and Ministry.*--After Prussia, the most important of the German states, in point both of area and of population, is the kingdom of Bavaria. The constitution at present in operation in Bavaria was promulgated May 26, 1818, though it has undergone no slight modification through the process of amendment since that date.[404] The original instrument replaced a fundamental law of May, 1808, devised by the king of Bavaria in imitation of the constitution given some months before by Napoleon to the kingdom of Westphalia; and even the present frame of government bears unmistakable evidence of French influence. The functions and prerogatives of king and ministers are substantially what they are in Prussia.[405] In addition to the Ministry of State, consisting of the seven heads of departments, there is an advisory Staatsrath, or Council of State, comprising, besides the ministers, one prince of the royal blood and eight other members. In accordance with royal proclamation important acts of the government require the countersignature of all of the ministers. This, of itself, does not imply any larger measure of ministerial subordination than exists elsewhere in German governments, but it is worth observing that during a prolonged period, especially after 1869, there was persistent effort on the part of the Clericals to inject into the Bavarian system the principle of ministerial responsibility in the parliamentary sense of the phrase, and that although the attempt was by no means wholly successful, it is true that in Bavaria the ministers occupy in practice a somewhat less independent position than in other German monarchies. The device of interpellation, for example, not only exists in theory; it means something, as elsewhere in Germany it does not, in actual operation. If a minister will not answer an interpellation that is addressed to him, he is obliged by law at least to give reasons for his refusal.[406]

[Footnote 404: Among amendments the most notable have been that of March 9, 1828, relating to the composition of the upper legislative chamber; those of June 4, 1848, and March 21, 1881, by which was modified the composition of the lower house; and that of April 8, 1906, whereby direct elections were substituted for indirect.]

[Footnote 405: The crown is hereditary in the house of Wittelbach, by which it was acquired as early as 1180. From 1886, the king, Otto I., being insane, the powers of the sovereign were exercised by the prince regent Luitpold, until his death December 12, 1912.]

[Footnote 406: Lowell, Governments and Parties, I., 338.]

*295. The Bavarian Landtag.*--The Landtag of Bavaria consists of two chambers. The upper, designated officially as the Kammer der Reichsrate ("chamber of the council of the Empire"), is composed of princes (p. 276) of the royal family, crown dignitaries, high ecclesiastics, hereditary nobles, and life members appointed by the crown--in all, some eighty-five to ninety persons. The lower chamber, or Abgeordnetenkammer, consists of 163 members. By law of 1881 the class system of voting in Bavaria was replaced by an equal suffrage extended to all males paying a direct tax. Elections continued to be indirect until 1906, when provision was made for elections by direct and secret ballot.[407] Deputies are chosen for a term of six years and are apportioned in such a manner that, normally, there is one for every 38,000 people. Every male inhabitant is entitled to vote who at the time of the election has completed his twenty-fifth year, has been a Bavarian citizen during at least one year, and has paid to the state a direct tax during at least the same period. The Landtag must be summoned not less frequently than once every three years.[408] The budget is made up on a two-year basis, so that sessions are held, in point of fact, biennially.

[Footnote 407: Grassman, Die bayerische Landtagswahlgesetz vom 8 April, 1906, in Jahrbuch des Oeffentlichen Rechts der Gegenwart, I., 242. A law of April 15, 1908, introduced the principle of proportional representation in Bavarian municipal elections.]

[Footnote 408: M. von Seydel, Das Staatsrecht des Koenigreichs Bayern, (Freiburg, 1888), in Marquardsen's Handbuch; E. Junod, La Baviere et l'Empire allemande, in Annales de l'Ecole Libre des Sciences Politiques, Apr. 15, 1892.]

*296. Saxony: Crown and Ministry.*--Third among the states of the Empire in population, though fifth in area, is the kingdom of Saxony. The present Saxon constitution was promulgated September 4, 1831, under the influence of the revolutionary movements of 1830. By it a monarchy governed under a mediaeval system of estates was converted into a monarchy governed, at least nominally, under a modern representative regime. In point of fact, however, the inauguration of constitutionalism tempered the actual authority of the monarch very slightly. The king is still in every sense the supreme authority within the state.[409] He appoints and dismisses ministers at will, issues ordinances with the force of law, and exercises far-reaching control over the processes of legislation. Upon the failure of the chambers to vote supplies which are held to be essential, he may even collect and expend revenues for a year on no authority apart from his own. For purposes of administrative supervision there are ministers of War, Finance, Justice, Foreign Affairs, the Interior, and Education, and the ministers collectively comprise a Gesammt-Ministerium, or ministry of state. Measures of the crown are countersigned by a minister; but there is no means by which a minister may be forced out of office against the will of the (p. 277) king by a hostile legislative chamber.

[Footnote 409: The crown is hereditary in the Albertine line of the house of Wettin, with reversion to the Ernestine line, of which the duke of Saxe-Weimar is now the head. The present sovereign is Frederick August III.]

*297. The Saxon Legislative Chambers.*--The Saxon legislature (Standeversammlung) consists of two houses. The upper, designated simply as the First Chamber, is a composite body consisting of forty-six members, in addition to a variable number of adult princes of the royal house. The membership comprises, principally, (1) important prelates; (2) certain university officials; (3) proprietors of great estates, twelve elected and ten appointed by the crown for life: (4) the first magistrates of Dresden and Leipzig; (5) six burgomasters of other cities, designated by the king; and (6) five nobles named for life by free choice of the king. The lower house consists of ninety-one deputies, of whom forty-three are elected by the towns and forty-eight by the rural communes. At one time members were chosen by direct secret ballot under a general and equal suffrage based upon a small tax qualification. Fear of socialism led, however, to the adoption, in 1896, of a new system under which the tax qualification was retained, indirect elections were substituted for direct and public voting for the secret ballot, and a three-class scheme was brought into operation which threw political preponderance into the hands of the well-to-do scarcely less effectively than does the three-class arrangement in Prussia.

After prolonged agitation the reactionary measure of 1896 was replaced by a comprehensive electoral law of May 5, 1909 by which direct and secret voting was re-established and the interests of property were sought to be safeguarded by a newly devised system of plural votes. As the law now stands (1) all males who have attained the age of twenty-five and who pay direct taxes are entitled to one vote; (2) men owning two hectares of land, or paying a tax upon an annual income of 1,250, 1,400, or 1,600 marks, according, respectively, as such income is drawn from land, public office, or general sources, and men who have passed certain examinations, are entitled to two votes; (3) voters paying taxes yearly, as above, upon an income of 1,600, 1,900, or 2,200 marks, or who possess four hectares of land, or who as teachers, engineers, artists, or writers earn an income of 1,900 marks, possess three votes; (4) persons paying a tax, as above, on an income of 2,200, 2,500, or 2,800 marks, or owning eight hectares of land, have four votes; and (5) every person belonging to the first, second, or third of these classes is allotted an additional vote when he attains the age of fifty, the total number of votes possessed by one elector never exceeding four. Curiously enough, at the first elections held under this law, in October, 1909, the socialists, (p. 278) who previously were represented by but a single member, gained twenty-five seats, or upwards of a third of the entire number. The chambers must be summoned by the king at least once in two years. Both may propose measures, but in practice leadership in the business of legislation is left very largely to the king and ministry.[410]

[Footnote 410: O. Mayer, Das Staatsrecht des Koenigreichs Sachsen (Tuebingen, 1909).]

*298. Wuerttemberg: Crown and Ministry.*--The constitution of the kingdom of Wuerttemberg was promulgated, following prolonged political controversy, September 25, 1819. At the head of the state is the king, whose powers are in some respects even larger than those belonging to other German sovereigns.[411] It is required that all political acts, except the bestowing of titles of nobility, shall be performed only with the sanction in writing of a minister; but, by reason of the king's absolute control of the ministry, this constitutes no invasion of the crown's essential prerogative. Of ministers there are six. These collectively comprise the Ministry of State, and they, together with certain appointive councillors, likewise constitute the Geheimerrath, or Privy Council, which the sovereign consults at pleasure.

[Footnote 411: The reigning sovereign is William II.]

*299. The Assembly of Estates: Proportional Representation.*--The legislative body of Wuerttemberg is known as the Standeversammlung, or Assembly of Estates. The upper chamber,--the Standesherren, or House of Lords,--consists of princes of the royal family; other princes, under varying conditions; knights; ecclesiastical dignitaries; and members appointed by the crown, in part according to stipulated conditions and in part without reference to any necessary consideration of birth, wealth, or religious affiliation. The Abgeordnetenhaus, or House of Deputies, consists of ninety-two members chosen for a term of six years, as follows: one from each of the administrative divisions (Oberamtsbezirke); six from Stuttgart and one from each of six other important towns; nine from the Neckar and Jagst circle; and eight from the Black Forest and Danube circle. Election is by direct and secret ballot, on a basis of universal suffrage for males over twenty-five years of age. By constitutional amendment of July 16, 1906, there was introduced a scheme of proportional representation under which the six deputies of Stuttgart and the seventeen of the Neckar and Jagst and the Black Forest and Danube circles are distributed among the several political groups in approximate proportion to the numerical strength attained by these groups at the polls. This system, an innovation in Germany, was tested in the elections of December, 1906, and January, 1907, and was by most persons adjudged satisfactory.[412]

[Footnote 412: J. Fontaine, La representation proportionnelle en Wuerttemberg, in Revue Politique et Parlementaire, Jan., 1911; ibid., La representation proportionnelle en Wuerttemberg (Paris, 1909).]

The remaining sixty-nine representatives are chosen still in (p. 279) single member districts. Prior to the amendment of 1906, the chamber was made up of seventy members chosen popularly and of twenty-three who sat as representatives of privileged or corporate interests--thirteen chosen by the landowning nobility, nine dignitaries of the Protestant and Catholic churches, together with the Chancellor of the University of Tuebingen.[413]

[Footnote 413: G. Combes de Lestrade, Monarchies de l'Empire allemand, 181; L. Gaupp, Das Staatsrecht des Koenigreichs Wuerttemberg (Freiburg and Tuebingen, 1884), in Marquardsen's Handbuch; W. Bazille, Das Staats-und Verwaltungsrecht des Koenigreichs Wuerttemberg (Hanover, 1908), in Bibliothek des Oeffentlichen Rechts der Gegenwart. The monograph of Gaupp, revised by him in 1895 and by K. Goez in 1904, has been re-issued as essentially a new volume by Goez (Tuebingen, 1908).]

*300. The Government of Baden.*--In July, 1808, a constitutional edict was promulgated in Baden in imitation of the fundamental law which Napoleon in the previous year had bestowed upon the kingdom of Westphalia. August 22, 1818, this instrument was replaced by the constitution at present in operation. Executive power is vested in the grand-duke, with the customary provision for ministerial countersignature. Legislative power is shared by the monarch with a Landstaende of two houses. Under a liberalizing law of August 24, 1904, the upper chamber consists of princes of the reigning family, nobles occupying hereditary seats, members appointed for four years by the grand-duke, and representatives of a variety of ecclesiastical, educational, and other corporate interests. The lower house is composed of seventy-three representatives elected for four years (twenty-four by the towns and forty-nine by the rural districts) by male citizens over twenty-five years of age. Direct election was substituted for indirect in 1904. Half of the membership of the lower chamber is renewed every two years. In Baden there has been rather more progress than in the majority of German states toward liberal and responsible government.[414]

[Footnote 414: Lowell, Governments and Parties, I., 345; K. Schenkel, Das Staatsrecht des Grossherzogthums Baden (Freiburg and Tuebingen, 1884), in Marquardsen's Handbuch.]

II. THE LESSER MONARCHIES AND THE CITY REPUBLICS

*301. Monarchical Variations.*--With relatively unimportant exceptions, the governments of the remaining seventeen German monarchies exhibit features substantially similar to those of the governments that (p. 280) have been described. In each of the states, except the two grand-duchies of Mecklenburg-Schwerin and Mecklenburg-Strelitz, there is a written constitution, promulgated, in most instances, during the second or third quarter of the nineteenth century.[415] Executive power in each is vested in the monarch; legislative power in the monarch and a Landtag, or assembly. The assembly consists ordinarily of a single chamber, varying in membership from twelve to forty-eight; and in most instances the members are chosen, at least in part, on a basis of manhood suffrage. In some states, as the principality of Lippe, the three-class electoral system prevails; and elections are still very commonly indirect. The trend toward liberalism is, however, all but universal, and within recent years numbers of important changes, e.g., the substitution of direct for indirect elections in Oldenburg and in Saxe-Weimar in 1909, have been brought about. In the curiously intertwined grand-duchies of Mecklenburg the common Landtag remains a typically mediaeval assemblage of estates, based, in the main, on the tenure of land.[416]

[Footnote 415: The dates of the original promulgation of constitutions at present in operation are: Saxe-Weimar, 1816; Hesse, 1820; Saxe-Meiningen, 1829; Saxe-Altenburg, 1832; Brunswick, 1832; Lippe, 1836; Oldenburg, 1852; Waldeck, 1852; Saxe-Coburg-Gotha, 1852; Reuss Juengerer Linie, 1852 and 1856; Schwartzburg-Rudolstadt, 1854; Schwartzburg-Sonderhausen, 1857; Anhalt, 1859; Reuss Aelterer Linie, 1867; and Schaumburg-Lippe, 1868.]

[Footnote 416: Repeated attempts to bring about a modernization of the Mecklenburg constitutional system have failed. Several times the liberal elements in the Reichstag have carried a proposal that to the Imperial constitution there should be added a clause requiring that in every state of the Empire there shall be an assembly representative of the whole people. On the ground that such an amendment would comprise an admission that the constitutions of the states are subject to revision at the hand of the Empire, the Bundesrath has invariably rejected the proposal. In 1907 the grand-duke of Mecklenburg-Schwerin inaugurated a movement for political reform, and in 1908 there was drafted a constitution providing for the establishment of a Landtag whose members should be chosen in part by the landed, industrial, professional, and official classes and in part by manhood suffrage. Late in 1909 the Ritterschaft (i.e., the estate comprising owners of knights' fees) rejected the proposal, as, indeed, it had rejected similar ones on earlier occasions.]

*302. Hamburg.*--The three free cities of Hamburg, Bremen, and Luebeck are survivals of the ancient Hanseatic League. All have republican forms of government, differing in only minor details. The constitution of Hamburg came into operation January 1, 1861, and was revised in 1879 and in 1906. The principal organs of government are the Senate and the Buergerschaft, or House of Burgesses. The Senate consists of eighteen members elected for life by the House of Burgesses, but in accordance with an indirect method so devised that the Senate itself exercises a preponderating influence in the elections. A senator (p. 281) is privileged to retire, if he so desires, at the end of a six-year period, or at the age of seventy. Of the eighteen, half must have studied finance or law, while of the remaining nine at least seven must belong to the class of merchants. The House of Burgesses is composed of 160 members, elected for six years by voters whose qualifications are based upon property, taxpaying, or position. An electoral law of March 5, 1906, introduced the principle of proportional representation, but failed to break the dominance of the well-to-do classes in the chamber. Half of the membership is renewed triennially. The service is unpaid and, under ordinary circumstances, compulsory.

The larger portion of the executive authority is vested in the Senate. After the fashion of the prince of a monarchical state, this body appoints officials, designates and instructs the delegate in the Bundesrath, issues ordinances, and supervises administration.[417] One senator is placed at the head of each of the nine executive departments. In matters of legislation the powers of the Senate and of the Buergerschaft are concurrent. Both bodies possess the right of legislative initiative, and all laws, treaties, and fiscal arrangements must receive the assent of both. The lower chamber elects and maintains a Buergerausschuss, or Committee of the Burgesses, consisting of twenty-five members, whose business it is to watch over the proceedings of the Senate and the administration of the laws. The sessions of both Senate and Buergerschaft are irregular but frequent.

*303. Luebeck and Bremen.*--The government of Luebeck rests upon a constitution proclaimed December 30, 1848, but revised in later years upon a number of occasions. The system is essentially similar to that in operation in Hamburg, the principal differences being that in Luebeck the full membership of the Buergerschaft (120) is elected by the citizens directly and that the Buergerausschuss, of thirty members, performs larger and more independent functions. The constitution of Bremen dates from March 5, 1849, but was revised in 1854, 1875, and three times subsequently. As in Luebeck, the Buergerschaft, of 150 members, is elected by all of the citizens, but under a class system according to which citizens who have studied at a university return fourteen members; the merchants, forty; the mechanics and manufacturers, twenty; and all other citizens who have taken the burgher oath, the remaining seventy-six. The Senate consists of fourteen members.

[Footnote 417: The presiding officer of the Senate is a burgomaster, chosen for one year by the senators from their own number. The burgomaster as such, however, possesses no administrative power.]

III. ALSACE-LORRAINE (p. 282)

*304. Original Problem of Organization.*--By the terms of the Peace of Frankfort, May 10, 1871, France ceded to Germany the province of Alsace and a portion of that of Lorraine--an aggregate of 5,605 square miles of hotly disputed territory whose population, while in considerable measure German, was none the less predominantly French. The position assigned the newly acquired territory within the Empire was anomalous. It was determined by two principal considerations: first, the fact that the districts comprised conquered territory inhabited by a discontented people and liable both to domestic disorder and foreign invasion; and, second, the further fact that the newly established Empire consisted of a federation of semi-autonomous states, into which subordinate territory acquired by war could not easily be made to fit. The annexed lands might conceivably have been erected, in 1871, into the twenty-sixth state of the Empire; but in no quarter was this policy so much as suggested. They might have been incorporated with one of the existing states, or divided among two or more of them; but this would have involved friction at a time when the stability of the new regime was not yet assured. The only course that to the statesmen and jurists of the day appeared feasible was to hold the new territories as the joint property of the states, under the sovereign control of the Imperial Government; and the arrangement hit upon in the execution of this policy was perpetuated, with modification only of administrative machinery, from 1871 until almost the present day.

*305. The Imperial Basis of Government.*--Prior to the enactment of the controverted Alsace-Lorraine Constitution Bill of 1911 Alsace-Lorraine was not a member of the German federation, but was, on the contrary, a mere dependency--a Reichsland, or Imperial territory. Beginning with a virtual dictatorship on the part of the Emperor, established under act of June 9, 1871, the governmental arrangements within the territory passed through a number of stages of elaboration. In the main, the organs of government employed until 1911, and a large proportion of those still in operation, were created, or perpetuated, by the constitutional statute of July 4, 1879. By this instrument the sovereignty of the territories was vested specifically in the Empire; the exercise of that sovereignty was vested in the Kaiser, acting alone or in conjunction with the Bundesrath. The Kaiser was represented personally at Strassburg, as he still is, by a Statthalter, or governor-general, whose powers were such as the Emperor might from time to time intrust to him. At Strassburg (p. 283) also was a ministry, with a secretary of state at the head, and with under-secretaries, appointed by the Kaiser, in charge of four departments; likewise a council of state, which was a purely advisory body made up of the secretary and under-secretaries, certain judicial officials, and from eight to twelve members specially appointed by the Kaiser for a term of three years.

*306. The Landesausschuss.*--Such privileges of self-government as were possessed by the inhabitants of the territory arose from the peculiar and complicated arrangements which were devised for legislation. In 1874 an Imperial decree called into being a Landesausschuss, or Territorial Committee. This body consisted originally of thirty members--ten elected in each of the three districts of Upper Alsace, Lower Alsace, and Lorraine. Its function at the outset was merely to give expert advice on subjects pertaining to local legislation and taxation. By law of 1877, however, it was intrusted with power to initiate legislation in matters pertaining solely to the territory. Measures of any sort designed for Alsace-Lorraine exclusively were enabled to be carried through by enactment in the Territorial Committee, provided they received the assent of the Bundesrath and were duly promulgated by the Emperor. The Committee was enlarged until it consisted of fifty-eight members, thirty-four of whom were elected by the assemblies of the three districts from their own membership, four others being chosen by the communal councils of Strassburg, Metz, Kolmar, and Muelhausen, and twenty elected by indirect suffrage from the twenty-three circles into which the territories were divided.

*307. Legislative Processes.*--Several conditions, however, operated to impose upon what might appear a fairly liberal system some very serious limitations. In the first place, there was no possibility of legislation which was wholly within the control of the inhabitants of the territory. The laws applicable solely to Prussia are made exclusively in Prussia, by Prussian authorities, and in like manner those of every other one of the confederated states. But those of Alsace-Lorraine, while they might be enacted in a provincial legislative chamber, acquired no validity until they should have been approved by the Empire through its agents, the Bundesrath and the Kaiser. In the second place, the method of legislation which has been mentioned did not occupy the field alone. With insignificant exceptions, any measure which might be enacted in the fashion described might be enacted in either of two other ways, in neither of which did the inhabitants of the territory have any appreciable influence. A measure might take the form of a simple decree of (p. 284) the Kaiser with the consent of the Bundesrath and Reichstag; or, in the case of an ordinance having the provisory force of law, it might be promulgated by the Kaiser with the consent of the Bundesrath alone. The fact that in practice the Territorial Committee ordinarily did participate in the legislative process was largely offset by the exceeding cumbersomeness and indirectness of the system. The normal procedure in the making of a law for the territory involved at least eight steps; (1) the projet was drawn up by the Statthalter; (2) it was approved by the Council of State at Strassburg; (3) it was transmitted, through the Imperial Chancellor, to the Kaiser; (4) if he approved, it was sent to Strassburg to receive the Statthalter's countersignature; (5) it was laid before the Bundesrath, the members of which, being but delegates, ascertained from their respective sovereigns how they should vote; (6) if all had gone well, the Territorial Committee, at Strassburg, passed the measure through the usual three readings; (7) it was returned to the Bundesrath again to be approved; and (8) it was promulgated by the Emperor--provided he did not see fit to veto and withhold it, as he had an entire right to do. Even if such roundabout law-making were to be considered in itself satisfactory there remained the disquieting condition that the Territorial Committee rested on no basis more substantial than a body of Imperial decrees capable at any time of being altered, or even revoked. Not merely was it altogether lacking in the independence of action enjoyed by the diets of the federated states; its very existence was precarious.

*308. The Movement for Autonomy.*--Throughout a prolonged period there was in the territory insistent demand for the grant of a more independent status, to involve the eventual placing of Alsace-Lorraine on a footing of constitutional equality with Saxony, Bavaria, and the other confederated states. Within very few years after the annexation there sprang up, within the Territorial Committee first of all, a group of "autonomists," led by the secretary of state Baron Zorn von Bulach, who insisted in season and out upon statehood for the conquered territory, and within a decade the campaign gained momentum until it enlisted the support of men of all political faiths and became the principal rallying issue of Alsatian sentiment and enthusiasm. Until within recent years the tension of the international situation was alone sufficient to restrain the Imperial Government from according the demand favorable consideration. With the passing of time the danger of international conflict in which Alsace-Lorraine should be involved was, however, perceptibly diminished, and the way was to this extent cleared for a readjustment of the territory's anomalous status on the merits of the purely administrative and constitutional questions involved.

The programme of the autonomists, as it finally assumed shape, (p. 285) embraced four fundamental points: (1) the elevation of Alsace-Lorraine to membership in the German Empire, with all the rights and immunities commonly possessed by existing members; (2) the vesting of the executive authority in an independent head of the state, whether a king of a newly established line, a regent appointed for life, or even a president of a republic; (3) the establishment within the state of a full-fledged legislative body, with powers equivalent to those exercised by the Landtags of the existing states; and (4) the elimination of Kaiser, Bundesrath, and Reichstag from all legislation which concerns Alsace-Lorraine exclusively. Taking their stand on the situation as it was, and accepting the union with Germany with such grace as they could muster and assuming that it is to be permanent, the exponents of autonomy proposed to make the best of a state of things not of their choosing.

*309. The Government Bill of 1910.*--Under pressure of persistent public demand, the Imperial Government prepared an elaborate measure upon the subject, which, after having been approved by the Bundesrath, was submitted to the Reichstag, December 17, 1910. Although Chancellor von Bethmann-Hollweg had declared unreservedly for reform, the Government's proposals fell far short of the demands of the autonomist leaders. The cardinal features of the Imperial programme, were, in brief: (1) Alsace-Lorraine should remain a dependency of the Empire; (2) sovereign authority therein should continue to be exercised by the Kaiser, as the representative of the states, through his accustomed agent, the Statthalter at Strassburg; (3) the legislative functions of the Bundesrath and Reichstag in matters pertaining exclusively to Alsace-Lorraine should be terminated; and (4) such legislation should thereafter be enacted by a bicameral diet at Strassburg. The members of the upper chamber of this diet, not to exceed thirty-six, were in part to sit by ex-officio right, but some were to be named by chambers of commerce and other professional and business organizations, and a maximum of one-half might be appointed by the Emperor, on nomination of the Bundesrath. The sixty members of the lower house were to be chosen by manhood suffrage, but electors over thirty-five years of age were to have two votes, and those over forty-five three.

*310. The Bill Amended and Adopted, 1911.*--By those whose object was the procuring of statehood for Alsace-Lorraine, this plan was pronounced inadmissible. It did not alter the legal status of the territory; neither, it was alleged, did it give promise of increased local independence in law-making or administration. Conservatives, on the other hand, objected to the provision which was made for manhood suffrage. After being debated in the Reichstag the measure was (p. 286) referred to a special committee, by which amendments were reported to the effect that the territory should be created a state of the Empire and the Statthalter should be appointed for life. The second of these amendments the Government refused positively to accept, but it was agreed finally that the territory should be recognized as substantially a state of the Empire, and, as such, should be allowed three votes in the Bundesrath. Since 1879 the Statthalter had been authorized to send to the Bundesrath four "commissioners" who might speak when the subject under consideration touched the affairs of Alsace-Lorraine, but might not vote. Since under the new arrangement the three members representing Alsace-Lorraine were to be appointed and instructed by the Statthalter, who is himself practically the delegate of the king of Prussia, the Bundesrath insisted upon and obtained the special stipulation (1) that the votes of Alsace-Lorraine should not be counted in favor of the Prussian view of any question except when Prussia should be able to procure a majority without such votes and (2) that they should not be counted for or against any proposal to amend the Imperial constitution. The revised bill was passed in the Reichstag, May 26, 1911, and in accordance with a decree of August 26 the new constitution was put in operation September 1.

*311. The Governmental System To-day.*--Supreme executive authority is lodged, as before, in the Emperor. It is exercised, in the main, by the Statthalter, who is appointed by, and holds office at the pleasure of, the Emperor. In the Statthalter are vested all the rights and privileges in Alsace-Lorraine that hitherto have been held and exercised by the Imperial Chancellor. He appoints and instructs the plenipotentiaries in the Bundesrath, and Imperial orders and decrees have legal effect only when signed by him. All laws require the assent of the Emperor and the two chambers of the diet, and the budget of the year must be laid first before the lower chamber and must be accepted or rejected in its entirety by the upper one. The Emperor has the right to summon, to adjourn, and to dissolve the chambers simultaneously. Members of the popular branch are elected by direct and secret ballot and majority vote by all male German citizens twenty-five years of age who have resided in Alsace-Lorraine at least three years; except that a residence of one year qualifies teachers and occupants of official posts. The plural voting proposal contained in the Government bill of 1910 was abandoned. The first chamber elected under the new system--that chosen in October, 1911--contained twenty-five Centre members, eleven Socialists, ten members of the National Alsace-Lorraine group,[418] eight Liberal Democrats, and (p. 287) six Independents. The independent attitude promptly assumed by the body elicited from the Emperor, in May, 1912, a threat that the new constitution might be abrogated and Alsace-Lorraine incorporated with Prussia. The incident provoked a storm of criticism, and, outside the rabid Pan-German press, the Imperial pronouncement was commented upon everywhere adversely.[419]

[Footnote 418: The party which had contended most vigorously for Alsatian autonomy.]

[Footnote 419: On the organization of Alsace-Lorraine prior to 1911 see Howard, The German Empire, Chap. 10; Laband, Das Staatsrecht des deutschen Reiches, Secs. 67-69; P. Gerber, La condition de l'Alsace-Lorraine dans l'Empire allemand (Lille, 1906), and L'Administration en Alsace-Lorraine, in Revue du Droit Public, Oct.-Dec, 1909. On the problem of reform and the legislation of 1911 see R. Henry, La question d'Alsace-Lorraine, in Questions Diplomatiques et Coloniales, Feb. 1 and March 16, 1904; P. Braun, Alsace-Lorraine--La reforme de la constitution, ibid., Nov. 16, 1905, and Jan. 1, 1906; Alsace-Lorraine en 1908, ibid., March 1, 1909; Alsace-Lorraine--les preludes d'une lutte nationale, ibid., April 16, 1910; La constitution d'Alsace-Lorraine, ibid., March 16, 1911; A. Wetterle, L'Autonomie de Alsace-Lorraine, in Le Correspondant, Aug. 25, 1910, La nouvelle loi constitutionnelle de l'Alsace-Lorraine, ibid., June 10, 1911, and Les elections en Alsace-Lorraine, ibid., Nov. 25, 1911; Eccard, L'Autonomie de l'Alsace-Lorraine, in Revue Politique et Parlementaire, Nov. 10, 1910: G. Bruck, Die Reform der Verfassung von Elsass Lothringen, in Annalen des deutschen Reichs, 1911, I; and P. Heitz, La loi constitutionnelle de l'Alsace-Lorraine du 31 mai, 1911, in Revue du Droit Public, July-Sept., 1911, containing French translations of the documents. See also Annual Register for 1911, 328-332.]

Chapter XV

CONSTITUTIONS SINCE 1789

I. A CENTURY OF POLITICAL INSTABILITY

Among European states of the first order there is but a single republic. In Great Britain the conspicuous success with which monarchy has been tempered with democracy has left the partisans of the republican style of government slender ground upon which to stand. Russia has as yet but partially emerged from a political status in which monarchy is both natural and inevitable. Germany and Italy, in days comparatively recent, achieved nationality through processes absolutely conditioned upon monarchical leadership. And it is all but inconceivable that the heterogeneous nationalities of Austria-Hungary should thus long have been held together by any force less tangible and commanding than the personality of a common sovereign. Although in some of these instances the functions ordinarily associated with monarchy are more nominal than actual, the fact remains that in no one of the greater European states, save France, has it as yet been found expedient, or possible, to dispense with royalty as an agency of public authority.

*312. The Multiplicity of Constitutions.*--The chain of circumstances by which the people of France have been brought to their present republican form of government constitutes one of the most remarkable chapters in the history of modern Europe. After centuries of governmental centralization, under conditions which enabled monarchy to do its best, and its worst, there came the gigantic disruption of 1789, inaugurating a series of constitutional changes by which was imparted to the political history of the French nation in the nineteenth century a more unsettled character than that exhibited by the public economy of any other European state. France to-day is governed under her eleventh constitution since the fall of the Bastille. All but one of the eleven have been actually in operation, during a longer or a shorter period. But, prior to the fundamental law at present in effect, no one of these instruments attained its twentieth year. Once having cut loose from her ancient moorings, the nation became through many decades the plaything of every current (p. 290) that swept the political sea. It is only within our own generation that she appears definitely to have righted herself for a prolonged and steady voyage. The constitutional system of the Third Republic is a product, not of orderly evolution, but of disruption, experimentation, compromise. It represents a precarious balance which has been struck between those forces of radicalism and conservatism, of progress and reaction, for whose eternal conflict France pre-eminently has furnished a theatre since 1789. Its connection with the remoter past is very much less direct and fundamental than is that of the governmental system of England, Russia, Austria-Hungary, or the Scandinavian states. At certain points, however, as will appear, this connection is vital. And the relation of the constitution of 1871-1875 to the several instruments by which it was more immediately preceded is essential to be observed, because this body of fundamental law comprises but the latest in a series of devices through which France since 1789 has sought orderliness and stability in public affairs. Some of these devices were shaped under the preponderating influence of radical democracy, some under that of monarchical reaction; but all are of interest and importance. For the purpose in hand it will be sufficient to review briefly the principal aspects of the several constitutional systems whose devising or operation has contributed with some directness to the political institutions and experience of the France of to-day.

II. THE REVOLUTIONARY AND NAPOLEONIC ERA

*313. The Constitution of 1791.*--During the decade which elapsed between the outbreak of the Revolution and the establishment of the Consulate there were in actual operation in France two successive constitutions: that of September 3, 1791, which was in effect subverted by the uprising of August 10, 1792, and that of 5 Fructidor of the Year III. (August 22, 1795), terminated by the coup d'etat of 18 Brumaire of the Year VIII. (November 9, 1799). The instrument of 1791, essentially a compilation of measures voted during the years 1789-1791, was prepared by a committee appointed by the National Assembly, September 15, 1789.[420] It was shaped, in the main, by men who were desirous of preserving the form while destroying the substance of monarchy. At the head of the state was allowed to remain the king, shorn, however, of many of his accustomed prerogatives and obliged to exercise under stringent restraint the few that were left him. "King of the French," he henceforth was to be, "by the grace of God and the will of the nation." The legislative body (Corps (p. 291) legislatif) was made to consist of a single chamber whose 745 members, chosen for a two-year term according to a system of indirect suffrage, were distributed among the eighty-three newly created departments upon the three-fold basis of extent, population, and contribution of direct taxes.[421] Only male citizens who had attained the age of twenty-five, and whose annual payment of direct taxes was the equivalent of three days' labor, were entitled to participate in the choice of the electors, by whom, in turn, were chosen the deputies. The powers of the legislative body were ample. In respect to measures generally, the king possessed only a suspensive veto; that is to say, any measure passed by three successive legislatures acquired, without the royal sanction, the force of law. Fiscal measures might not be vetoed at all. The king was given no power to prorogue or to dissolve the legislative chamber, and without the assent of that body no proclamation of war, and no treaty, was valid. To it the ministers in charge of the six executive departments were made absolutely responsible. In conformity with prevailing ideas of the sovereignty of the people and the separation of powers, provision was made that all judges should be elected popularly, as also all local administrative authorities.[422]

[Footnote 420: A constitutional committee of five had been appointed the previous July 14; but, its recommendation proving unacceptable to the Assembly, it had resigned, September 11.]

[Footnote 421: Of the whole number of deputies, 247 were apportioned according to departmental areas and 249 according each to population and tax quotas.]

[Footnote 422: The texts of all French constitutions and fundamental laws since 1789 are printed in several collections, of which the best is L. Duguit et H. Monnier, Les constitutions et les principales lois politiques de la France depuis 1789 (Paris, 1898). Other serviceable collections are F. Helie, Les constitutions de la France (Paris, 1880) and E. Pierre, Organisation des pouvoirs publics; recueil des lois constitutionnelles et organiques (Paris, 1902). For English versions see F. M. Anderson, The Constitutions and other Select Documents illustrative of the History of France, 1789-1907 (2d ed., Minneapolis, 1908). The various constitutions are excellently summarized in M. Block, Dictionnaire general de la politique, 2 vols. (Paris, 1884), I., 494-518. For the text of the constitution of 1791 see Duguit et Monnier, 1-35; Helie, 268-294; Anderson, 58-95. For summary, Block, I., 494-497. Dupriez, Les Ministres, II., 253-269; Cambridge Modern History, VIII., Chap. 7.]

*314. The Constitution of the Year I. (1793).*--The constitution of 1791 was in operation rather less than a twelvemonth. The Corps legislatif elected under it, after precipitating war with Austria, gave way before the rising demand for the abolition of monarchy, called into being a constituent convention of 782 members, and voted its own dissolution.[423] September 21, 1792, the Convention met and decreed the abolition of the monarchy and the establishment of a republic.[424] Mindful for the time of the purpose of its (p. 292) creation, the new assembly appointed, October 11, a committee of nine to which was intrusted the task of drafting a republican constitution. February 15, 1793, the committee reported, and June 24 the Convention adopted an ultra-republican frame of government, the principal features of which were an executive council consisting of twenty-four members chosen by the legislative body from candidates named by the secondary electors of the departments; a unicameral Corps legislatif chosen indirectly by manhood suffrage for one year, with power to enact "decrees," but only to propose "laws"; and an arrangement whereby projected laws were to be communicated to primary assemblies of citizens to be voted upon after the principle of the referendum.[425]

[Footnote 423: The members of the Convention were elected by manhood suffrage, one of the last acts of the Legislative Body having been the repeal of the tax qualification required by the constitution of 1791.]

[Footnote 424: September 22 was reckoned the first day of the Year I. of French liberty, and the fundamental law of June 24, 1793, was known as the constitution of the Year I. For an illuminating sketch of the rise of the republic see H. A. L. Fisher, The Republican Tradition in Europe (New York, 1911), Chap. 4.]

[Footnote 425: Text in Duguit et Monnier, Les Constitutions, 66-78; Helie, Les Constitutions, 376-384; Anderson, Constitutions, 171-184. Summary in Block, Dictionnaire General, 497-498.]

*315. The Constitution of the Year III. (1795).*--By reason of the intensity of party strife within the Convention, and the critical condition of affairs generally, the constitution of 1793, although duly ratified by the people, was never put in operation. On the basis of a decree of December 4, 1793, the Convention maintained through upwards of two years a revolutionary provisional government, and when, finally, in October, 1795, the body passed out of existence, it left behind it in the Constitution of the Year III. an instrument of government essentially different from the proposed instrument of 1793. The Constitution of the Year III. was framed under a hurried order of the Convention by a committee of eleven. The Convention adopted the committee's plan with but few modifications, and when the project was submitted to a popular vote it was approved by the overwhelming majority of 1,057,390 to 49,997. September 23, 1795, the new frame of government was solemnly promulgated.

The instrument of 1795, like that of 1791, was introduced by a Declaration of the Rights of Man and of the Citizen, in which were stated succinctly the fundamental principles of the Revolution. Legislative power was henceforth to be vested in two chambers conjointly--a Council of Five Hundred and a Council of Elders--the members of which should be chosen by the same electors, but under differing conditions of eligibility. The term of members of both chambers was fixed at three years, and one-third of the membership was renewable annually. The franchise was broader than under the (p. 293) constitution of 1791, being extended now to all citizens over twenty-one years of age who were able to read and write and who followed a trade or were liable to direct taxation; but the earlier system of indirect election by means of electoral colleges was retained. Upon the lower chamber alone was conferred the right of initiating legislation. The Elders, whose number was fixed at 250, might approve or reject, but were not permitted to amend, any measure submitted to them. Executive power was vested in a Directory consisting of five members chosen for a term of five years, one member retiring annually. Directors were selected by the Council of Elders from a double quota of nominees offered by the Council of Five Hundred. Aside from its creation of a plural, republican executive, the most notable feature of the constitution was its provision for the establishment of a bicameral legislative system, until now generally opposed by French reformers.[426]

[Footnote 426: For the text of the constitution of 1795 see Duguit et Monnier, Les Constitutions, 78-118; Helie, Les Constitutions, 436-466; Anderson, Constitutions, 212-254. Summary in Block, Dictionnaire General, 498-500. Cambridge Modern History, VIII., Chap. 13; G. Dodu, Le parlementarisme et les parlementaires sous la Revolution, 1789-1799; origines du regime representatif en France (Paris, 1911); Fisher, Republican Tradition in Europe, Chap. 5.]

*316. The Constitution of the Year VIII. (1799): Electoral System.*--The constitution of the Year III. continued in operation from October, 1795, to Napoleon's coup d'etat of 18 Brumaire of the Year VIII. (November 9, 1799). In the course of a month and a half following the event mentioned there was drawn up a new fundamental law, prepared in the first instance largely by Napoleon and Sieyes, put into final shape by two commissions composed each of twenty-five members of the old Councils, and subsequently ratified by popular vote.[427] Amended from time to time by important organic enactments, the Constitution of the Year VIII. (December 13, 1799) comprised the fundamental law under which Napoleon ruled France until his abdication in 1814.

[Footnote 427: In favor of the new constitution there were cast 3,011,007 votes; against it, 1,562.]

The new instrument, in ninety-five articles, was much briefer than the one which it replaced,[428] but the scheme of government for which it made provision was distinctly more complicated than that previously in operation. In the main, the Napoleonic constitution dealt with three subjects: the electoral system, the assemblies, and the executive. Nominally there was established a system of thoroughgoing manhood (p. 294) suffrage. But the conditions under which electoral powers were to be exercised rendered the plan very much less democratic than on the surface it appeared to be. The scheme was one devised by Sieyes under the designation of "lists of notables." In each communal district citizens twenty-one years of age and inscribed on the civil register were authorized to choose one-tenth of their number to comprise a "communal list." Those named on the communal list were to choose in their department a tenth of their number, who formed a "departmental list." And, similarly, those whose names appeared on the departmental list were to choose a tenth of their number, who formed a "national list." From these three lists in order were to be chosen, largely by the Senate, the public officials of the districts, the departments, and the nation. No electoral scheme has ever been devised which, while grounded upon the principle of manhood suffrage, more effectually withdraws from the people the actual choice of public officials, local as well as national.[429]

[Footnote 428: The constitution of the Year III., containing 377 articles, is one of the lengthiest documents of the sort on record.]

[Footnote 429: Under this system the primary electors numbered about 5,000,000; the district notables, 500,000; the departmental notables, 50,000; and the national list, 5,000.]

*317. Constitution of the Year VIII: Organs of Government.*--Of national governmental bodies there were four. One was the Tribunate, consisting of 100 members, one-fifth of whom were renewable every year. The function of the Tribunate was to discuss, but not necessarily to vote upon, legislative measures. A second was the Corps legislatif, or Legislative Body, of 300 members, one-fifth being renewed annually. To this assembly was committed the power to vote upon, but not to debate, legislative measures. A third was the Senate, consisting at the outset of sixty life members, to be increased through a period of ten years to eighty. The Senate was authorized to pass upon the constitutionality of laws and to choose the Tribunes, the Legislators, and the Consuls from the national list. Its own ranks were to be recruited by co-optation from triple lists of candidates presented by the Tribunate, the Legislative Body, and the First Consul. Finally, there was the Council of State, whose organization was left purposely indefinite. Its members were appointed by the First Consul, and their business consisted principally in the preparation and advocacy of legislative and administrative measures.

If under this scheme the legislative organs were weak, the executive authority was notably strong. Powers of an executive character were vested in three consuls, appointed by the Senate for ten years and indefinitely eligible. Upon the First Consul was conferred power to promulgate the laws, to appoint all civil and military officials, and to do many other things of vital importance. Upon the second and (p. 295) third consuls was bestowed simply a "consultative voice." Provision was made for a ministry, and under the letter of the constitution no act of the government was binding unless performed on the warrant of a minister. But in point of fact the principle of irresponsibility permeated the Napoleonic regime from the First Consul himself to the lowliest functionary. The conferring upon Napoleon, in 1802, of the consulship for life, and the conversion of the Consulate, in 1804, into the Empire, but concentrated yet more fully in the hands of a single man the whole body of governmental authority in France.[430]

[Footnote 430: The text of the constitution of the Year VIII. is in Duguit et Monnier, Les Constitutions, 118-129; Helie, Les Constitutions, 577-585; and Anderson, Constitutions, 270-281. Summary in Block, Dictionnaire General, I., 500-505. Cambridge Modern History, IX., Chap. 1.]

III. FROM THE RESTORATION TO THE REVOLUTION OF 1848

*318. The Constitutional Charter, 1814.*--May 3, 1814,--three weeks after Napoleon's signature of the Act of Abdication,--the restored Bourbon king, Louis XVIII., entered Paris. Already the Senate had formulated a document, commonly known as the "Senatorial Constitution," wherein was embraced a scheme for a liberalized Bourbon monarchy.[431] Neither the instrument itself nor the authorship of it was acceptable to the new sovereign, and by him the task of drafting a constitution was given over to a commission consisting of three representatives of the crown, nine senators, and nine members of the Legislative Body. The task was accomplished with despatch. June 4 the new instrument, under the name of the Constitutional Charter, was adopted by the two chambers, and ten days later it was put in operation. With some modification, principally in 1830, it remained the fundamental law of France until the revolution of 1848.

[Footnote 431: Duguit et Monnier, Les Constitutions, 179-182; Anderson, Constitutions, 446-450; Block, Dictionnaire General, I., 505-506.]

The governmental system provided for in the Charter was in a number of respects more liberal than that which had prevailed during the dominance of Napoleon. At the head of the state stood the king, inviolable in person, in whose hands were gathered the powers of issuing ordinances, making appointments, declaring war, concluding treaties, commanding the armies, and initiating all measures of legislation. But there was established a bicameral legislature, by which the king's ministers might be impeached, and without whose assent no law might be enacted and no tax levied. The upper house, or Chamber of Peers, was composed of a variable number of members named by the crown in heredity or for life.[432] The lower, or Chamber (p. 296) of Deputies, consisted of representatives elected in the departments for a term of five years, one-fifth retiring annually.[433] Provision was made for the annual assembling of the chambers; and although the proposing of laws was vested exclusively in the crown, it was stipulated that either house might petition the king to introduce a measure relating to any specific subject. The Charter contained a comprehensive enumeration and guarantee of the civil rights of French citizens.[434]

[Footnote 432: By law of December 29, 1831, it was stipulated that only life peers might thereafter be appointed, and the king was required to take all appointees from a prescribed list of dignitaries. Duguit et Monnier, Les Constitutions, 231-232.]

[Footnote 433: A law of June 9, 1824, stipulated that thereafter the Chamber of Deputies should be elected integrally for a period of seven years. Duguit et Monnier, Les Constitutions, 211.]

[Footnote 434: The text of the Charter of 1814 may be found in Duguit et Monnier, Les Constitutions, I., 183-190; Helie, Les Constitutions, 884-890; and, in English translation, in Anderson, Constitutions, 457-465, and University of Pennsylvania Translations and Reprints, I., No. 3. Summary in Block, Dictionnaire General, I., 506-508. Cambridge Modern History, IX., Chap. 18.]

*319. The Electoral System.*--The Charter prescribed the qualifications required of voters and of deputies, but did not define the manner in which deputies should be chosen. The lack was supplied by an election law enacted February 5, 1817. The system established was that of scrutin de liste. Under it the electors--men of a minimum age of thirty who paid each year a direct tax of at least three hundred francs--were required to assemble in the principal town of the department and there choose the full quota of deputies to which the department was entitled. The system proved of distinct advantage to the liberal elements, whose strength lay largely in the towns, and in 1820 when the conservative forces procured control and inaugurated a general reaction a measure was adopted, though only after heated debate, by which the arrangement was completely altered. The membership of the Chamber was increased from 258 to 430 and for the principle of scrutin de liste was substituted that of scrutin d'arrondissement. Each arrondissement became a single-member district and the electors were permitted to vote for one deputy only. In this manner 258 of the members were chosen. The remaining 172 were elected at the chief departmental towns by the voters of the department who paid the most taxes, an arrangement under which some twelve thousand of the wealthier electors became possessed of a double vote. Voting was by ballot, but the elector was required to write out his ballot in the presence of an appointee of the government and to place it in his hands unfolded.[435]

[Footnote 435: Duguit et Monnier, Les Constitutions, 206-209; Helie, Les Constitutions, 934-936.]

*320. Liberalizing Changes in 1830-1831.*--Upon the enforced (p. 297) abdication of Charles X. in 1830 a parliamentary commission prepared a revision of the Charter, which, being adopted, was imposed upon the new sovereign, Louis Philippe, and was continued in operation through the period of the Orleanist monarchy. The preamble of the original document, in which language had been employed which made it appear that the Charter was a grant from the crown, was stricken out. Suspension of the laws by the sovereign was expressly forbidden. Each chamber was given the right to initiate legislation, the responsibility of the ministers to the chambers was proclaimed, and the sessions of the Peers, hitherto secret, were made public. The integral renewal of the Deputies, established in 1824, was continued, but the term of membership was restored to five years. The minimum age of electors was reduced from thirty to twenty-five years, and of deputies from forty to thirty. Subsequently, April 19, 1831, a law was passed whereby the suffrage--so restricted at the close of the Napoleonic regime that in a population of 29,000,000 there had been, in 1814, not 100,000 voters--was appreciably broadened. The direct tax qualification of three hundred francs was reduced to one of two hundred, and, for certain professional classes, of one hundred. By this modification the number of voters was doubled, though the proportion of the enfranchised was still but one in one hundred fifty of the total population, and it would be a mistake to regard the government of the Orleanist period as in effect more democratic than that by which it was preceded. At the most, it was a government by and for the well-to-do middle class.[436]

[Footnote 436: For the act of the Chambers relative to the modification of the Constitutional Charter and to the accession of Louis Philippe, see Duguit et Monnier, Les Constitutions, 213-218; Helie, Les Constitutions, 987-992; and Anderson, Constitutions, 507-513. The electoral law of 1831 is in Duguit et Monnier, 219-230. Cambridge Modern History, X., Chap. 15; G. Weill, La France sous la monarchic constitutionnelle, 1814-1848 (new ed., Paris, 1912).]

IV. THE SECOND REPUBLIC AND THE SECOND EMPIRE

*321. The Republican Constitution of 1848.*--With the overthrow of the Orleanist monarchy, in consequence of the uprising of February 24, 1848, France entered upon a period of aggravated political unsettlement. Through upwards of five years the nation experimented once more with republicanism, only at the end of that period to emerge a monarchy, an empire, and the dominion of a Bonaparte. By the provisional government which sprang from the revolution a republic was proclaimed tentatively and the nation was called upon to elect, under a system of direct manhood suffrage, an assembly to frame a constitution. The elections--the first of their kind in the history of (p. 298) France--were held April 23, 1848, and the National Constituent Assembly, consisting of nine hundred members, eight hundred of whom were moderate republicans, met May 4 in Paris. During the summer the draft of a constitution prepared by a committee of eighteen, was duly debated, and November 4 it was adopted by a vote of 739 to 30.

The Constitution of 1848 declared the Republic to be perpetual and the people to be sovereign. It asserted, furthermore, that the separation of powers is the first condition of a free government. In respect to the organs of government it provided, in the first place, for a legislative assembly consisting of a single chamber of 750 members[437] chosen integrally for three years, directly by secret ballot on the principle of departmental scrutin de liste, and by electors whose only necessary qualifications were those of age (twenty-one years) and of non-impairment of civil rights.[438] Executive powers were vested in a president of the Republic, elected for a term of four years by direct and secret ballot, and by absolute majority of all votes cast in France and Algeria. Under stipulated conditions, e.g., if no candidate should receive an absolute majority and at the same time a total of at least two million votes, the president was required to be chosen by the Assembly from the five candidates who had polled the largest votes. Save after a four-year interval, the president was ineligible for re-election. Upon him were bestowed large powers, including those of proposing laws, negotiating and ratifying treaties with the consent of the Assembly, appointing and dismissing ministers and other civil and military officers, and disposing of the armed forces. With respect to the functions and powers of the ministers the constitution was not explicit, and whether the instrument might legitimately be interpreted to make provision for a parliamentary system of government was one of the standing issues throughout the days of its duration.[439]

[Footnote 437: Including representatives of Algeria and the colonies.]

[Footnote 438: Electoral law of March 15, 1849. Duguit et Monnier, Les Constitutions, 247-265.]

[Footnote 439: Dupriez, Les Ministres, II., 308-312. The text of the Constitution of 1848 is in Duguit et Monnier, Les Constitutions, 232-246; Helie, Les Constitutions, 1102-1113; and Anderson, Constitutions, 522-537. Summary in Block, Dictionnaire General, I., 510-513. Cambridge Modern History, XI., Chap. 5; V. Pierre, Histoire de la republique de 1848, 2 vols. (Paris, 1873-1878); P. de la Gorce, Histoire de la deuxieme republique francaise, 2 vols. (Paris, 1887); E. Spuller, Histoire parlementaire de la deuxieme republique (Paris, 1893); Fisher, Republican Tradition in Europe, Chap. 8.]

*322. From Republic to Empire.*--December 10, 1848, Louis Napoleon, nephew of the first Napoleon, was chosen president by an overwhelming vote, and ten days later he assumed office. In May, 1849, an (p. 299) Assembly was elected, two-thirds of whose members were thoroughgoing monarchists; so that, as one writer has put it, both the president and the majority of the Assembly were, by reason of their very being, enemies of the constitution under which they had been elected.[440] The new order, furthermore, failed completely to strike root throughout the nation at large. In this state of things the collapse of the Republic was but a question of time. By an electoral law of May 31, 1850, requiring of the elector a fixed residence of three years instead of six months, the suffrage arrangements of 1849 were subverted and the electorate was reduced by three millions, or virtually one-third.[441] December 2, 1851, occurred a carefully planned coup d'etat, on which occasion the Assembly was dissolved, the franchise law of 1849 was restored, and the people, gathered in primary assemblies, were called upon to intrust to the President power to revise the national constitution.[442] December 20, by a vote of 7,439,216 to 640,737, the people complied. Thereafter, though continuing officially through another year, the Republic was in reality dead. November 7, 1852, the veil was thrown off. A senatus-consulte decreed a re-establishment of the Empire,[443] and by a plebiscite of eleven days later the people, by a vote of 7,824,189 to 253,145, sanctioned what had been done. December 2, Napoleon III. was proclaimed Emperor of the French.

[Footnote 440: Hazen, Europe since 1815, 201.]

[Footnote 441: The text of this measure is in Duguit et Monnier, Les Constitutions, 265-268, and Helie, Les Constitutions, 1149-1150. H. Laferriere, La loi electorale du 31 mai 1850 (Paris, 1910).]

[Footnote 442: Anderson, Constitutions, 538-543.]

[Footnote 443: Duguit et Monnier, Les Constitutions, 290-292; Anderson, Constitutions, 560-561.]

*323. The Imperial Constitution, 1852.*--Meanwhile, March 29, 1852, there had been put in operation a constitution,[444] nominally republican, but in reality strongly resembling that in force during the later years of Napoleon I. The substitution, later in the year, of an emperor for a president upon whom had been conferred a ten-year term was but a matter of detail. A senatus-consulte of December 25, made all of the necessary adjustments, and the constitution of 1852, with occasional modifications, remained the fundamental law of France until the collapse of the Empire in 1870. Upon the emperor were conferred very extended powers. His control of the administrative system was made practically absolute. He commanded the army and navy, decided upon war and peace, concluded treaties, and granted pardons. He alone possessed the power of initiating legislation and of promulgating the laws. To him alone were all ministers responsible, and of (p. 300) such parliamentarism as had existed formerly there remained not a vestige, Of legislative chambers there were two: a Corps legislatif of 251 members elected by direct manhood suffrage every six years, and a Senate composed of cardinals, admirals, and other ex-officio members, and of a variable number of members appointed for life by the emperor. The powers of the Senate, exercised invariably in close conjunction with the head of the state, were of some importance, but those of the popular chamber were so restricted that the liberal arrangements which existed respecting the suffrage afforded but the appearance, not the reality, of democracy.[445]

[Footnote 444: Drawn up by a commission of five, under date of January 14, 1852.]

[Footnote 445: The text of the constitution of 1852 is in Duguit et Monnier, Les Constitutions, 274-280; Helie, Les Constitutions, 1167-1171; Anderson, Constitutions, 543-549. Summary in Block, Dictionnaire General, I., 513-515. Cambridge Modern History, XI., Chaps. 5, 10.]

*324. Constitutional Alterations, 1869-1870.*--Throughout upwards of two decades the illusion of popular government was maintained as well as might be. The country was prosperous and the government, if illiberal, was on the whole enlightened. Discontent, none the less, was not infrequently in evidence, and during especially the second half of the reign the Emperor found it expedient more than once to make some concession to public sentiment. In the later sixties he was compelled to moderate the laws which dealt with the press and with political meetings, and in 1869-1870 he was brought to the point of approving a series of measures which gave promise of altering in an important manner the entire governmental system. One was a senatus-consulte of September 8, 1869, whereby the sittings of the Senate were made public, the Legislative Body was given the right to elect all of its own officials, and the parliamentary system was nominally re-established.[446] By reason of the fact, however, that ministers were not permitted to be members of either the Legislative Body or the Senate, and that they were declared still to be responsible to the crown, the effects of the last-mentioned feature of the reform were inconsiderable. By a senatus-consulte of April 20, 1870, (approved by a plebiscite of May 8 following) there were adopted still more important constitutional changes. In the first place, the Senate, which hitherto had been virtually an Imperial council, was erected into a legislative chamber co-ordinate with the Legislative Body, and upon both houses was conferred the right of initiating legislation. In the second place, the provision that the ministers should be dependent solely upon the emperor was stricken from the constitution, thus clearing the way for a more effective realization of the parliamentary system of government. Finally, it was (p. 301) stipulated that the constitution should thereafter be modified only with the express approval of the people.[447] These reforms, however, were belated. They came only after the popularity of the Emperor had been strained to the breaking point, and by reason of the almost immediate coming on of the war with Prussia there was scant opportunity for the testing of their efficacy.

[Footnote 446: Text in Duguit et Monnier, Les Constitutions, 307-308; Helie, Les Constitutions, 1314-1315; and Anderson, Constitutions, 579-580.]

[Footnote 447: The text of the measure of April 20, 1870, is in Duguit et Monnier, Les Constitutions, 308-314; Helie, Les Constitutions, 1315-1327; and Anderson, Constitutions, 581-586. Cambridge Modern History, XI., Chap. 17; H. Berton, L'evolution constitutionnelle du second empire (Paris, 1900). An important larger work is P. de la Gorce, Histoire du second empire, 7 vols. (Paris, 1894-1905).]

V. THE ESTABLISHMENT OF THE THIRD REPUBLIC

*325. The National Assembly.*--The present French Republic was instituted under circumstances which gave promise of even less stability than had been exhibited by its predecessors of 1793 and 1848.[448] Proclaimed in the dismal days following the disaster at Sedan, it owed its existence, at the outset, to the fact that, with the capture of Napoleon III. by the Prussians and the utter collapse of the Empire, there had arisen, as Thiers put it, "a vacancy of power." The proclamation was issued September 4, 1870, when the war with Prussia had been in progress but seven weeks.[449] During the remaining five months of the contest the sovereign authority of France was exercised by a Provisional Government of National Defense, with General Trochu at its head, devised in haste to meet the emergency by Gambetta, Favre, Ferry, and other former members of the Chamber of Deputies. Upon the capitulation of Paris, January 28, 1871, elections were ordered for a national assembly, the function of which was to decide whether the war should be prolonged and what terms of peace should be accepted at the hands of the victorious Germans. There was no time in which to frame a new electoral system. Consequently the electoral procedure of the Second Republic, as prescribed by the (p. 302) law of March 15, 1849, was revived,[450] and by manhood suffrage there was chosen, February 8, an assembly of 758 members, representative of both France and the colonies. Meeting at Bordeaux, February 12, this body, by unanimous vote, conferred upon the historian and parliamentarian Thiers the title of "Chief of the Executive Power," without fixed term, voted almost solidly for a cessation of hostilities, and authorized Thiers to proceed with an immediate negotiation of peace.

[Footnote 448: The best account of the beginnings of the Third Republic is that in G. Hanotaux, Histoire de la France contemporaine, 4 vols. (Paris, 1903-1909), I. There is an English translation of this important work by J. C. Tarver. A recent book of value is A. Bertrand, Les origines de la troisieme republique, 1871-1876 (Paris, 1911). Mention may be made also of E. Zevort, Histoire de la troisieme republique, 4 vols. (Paris, 1896-1901), I.; C. Duret, Histoire de France de 1870 a 1873 (Paris, 1901); A. Callet, Les origines de la troisieme republique (Paris, 1889); F. Littre, L'etablissement de la troisieme republique (Paris, 1880); L. E. Benoit, Histoire de quinze ans, 1870-1885 (Paris, 1886); F. T. Marzials, Leon Gambetta (London, 1890); and P. B. Ghensi, Gambetta: Life and Letters (New York, 1910). There is an interesting interpretation in Fisher, Republican Tradition in Europe, Chap. 11.]

[Footnote 449: Duguit et Monnier, Les Constitutions, cxvi.]

[Footnote 450: Most of the disqualifications for voting which were enumerated in the law of 1849 were declared inapplicable in the present election.]

*326. The Problem of a Permanent Government.*--Pending a diplomatic adjustment, the Assembly was disposed to defer the establishment of a permanent governmental system. But the problem could not long be kept in the background. There were several possible solutions. A party of Legitimists, i.e., adherents of the old Bourbon monarchy, was resolved upon the establishment of a kingdom under the Count of Chambord, grandson of the Charles X. who had been deposed at the revolution of 1830. Similarly, a party of Orleanists was insistent upon a restoration of the house of Orleans, overthrown in 1848, in the person of the Count of Paris, a grandson of the citizen-king Louis Philippe. A smaller group of those who, despite the discredit which the house of Bonaparte had suffered in the war, remained loyal to the Napoleonic tradition, was committed to a revival of the prostrate empire of the captive Napoleon III. Finally, in Paris and some portions of the outlying country there was uncompromising demand for the definite establishment of a republic.[451] In the Assembly the monarchists outnumbered the republicans five to two, and, although the members had been chosen primarily for their opinions relative to peace rather than to constitutional forms, the proportion throughout the nation was probably about the same. The republican outlook, however, was vastly improved by the fact that the monarchists, having nothing in common save opposition to republicanism, were hopelessly disagreed among themselves.[452]

[Footnote 451: G. Weill, Histoire du parti republicain en France de 1814 a 1870 (Paris, 1900).]

[Footnote 452: Of pure Legitimists there were in the Assembly about 150; of Bonapartists, not over 30; of Republicans, about 250. The remaining members were Orleanists or men of indecisive inclination. At no time was the full membership of the Assembly in attendance.]

*327. The Rivet Law, 1871.*--As, from the drift of its proceedings, the royalist character of the Assembly began to stand out in unmistakable relief, there arose from republican quarters vigorous opposition to the prolonged existence of the body. Even before the signing of the Peace of Frankfort, May 10, 1871, there occurred a clash between the Assembly and the radical Parisian populace, the upshot of which (p. 303) was the bloody war of the Commune of April-May, 1871.[453] The communards fought fundamentally against state centralization, whether or not involving a revival of monarchy. The fate of republicanism was not in any real measure bound up with their cause, so that after the movement had been suppressed, with startling ruthlessness, by the Government, the political future of the nation remained no less in doubt than previously it had been. Thiers continued at the post of Chief of the Executive, and the Assembly, clothed by its own assumption with powers immeasurably in excess of those it had been elected to exercise, and limited by no fixed term, gave not the slightest indication of a purpose to terminate its career. Rather, the body proceeded, August 31, 1871, to pass, by a vote of 491 to 94, the Rivet law, whereby the existing regime was to be perpetuated indefinitely.[454] By this measure unrestricted sovereignty, involving the exercise of both constituent and legislative powers, was declared by the Assembly to be vested in itself. Upon the Chief of the Executive was conferred the title of President of the French Republic; and it was stipulated that this official should thereafter be responsible to the Assembly, and presumably removable by it. A quasi-republic, with a crude parliamentary system of government, thereafter existed de facto; but it had as yet absolutely no constitutional basis.

[Footnote 453: In March the Assembly had transferred its sittings from Bordeaux to Versailles.]

[Footnote 454: Duguit et Monnier, Les Constitutions, 315-316; Anderson, Constitutions, 604-606.]

*328. Failure of the Monarchist Programmes.*--This anomalous condition of things lasted many months, during the course of which Thiers and the Assembly served the nation admirably through the promotion of its recovery from the ravages of war. More and more Thiers, who had begun as a constitutional monarchist, came to believe in republicanism as the style of government which would divide the French people least, and late in 1872 he put himself unqualifiedly among the adherents of the republican programme. Thereupon the monarchists, united for the moment in the conviction that for the good of their several causes Thiers must be deposed from his position of influence, brought about in the Assembly a majority vote in opposition to him, and so induced his resignation, May 24, 1873.[455] The opponents of republicanism now felt that the hour had come for the termination of a governmental regime which had by them been regarded all the while as purely (p. 304) provisional. The monarchist Marshal MacMahon was made President, a coalition ministry of monarchists under the Orleanist Duke of Broglie was formed, and republicanism in press and politics was put under the ban. Between the Legitimists and the Orleanists there was worked out an ingenious compromise whereby the Bourbon Count of Chambord was to be made king under the title of Henry V. and, he having no heirs, the Orleanist Count of Paris was to be recognized as his successor. The whole project was brought to naught, however, by the persistent refusal of the Count of Chambord to give up the white flag, which for centuries had been the standard of the Bourbon house. The Orleanists held out for the tricolor; and thus, on what would appear to most people a question of distinctly minor consequence, the survival of the Republic was for the time determined.[456]

[Footnote 455: Anderson, Constitutions, 622-627; A. Lefevre Pontalis, L'Assemblee nationale et M. Thiers, in Le Correspondant, Feb. 10, 1879; A. Thiers, Notes et Souvenirs de 1870 a 1873 (Paris, 1903); J. Simon, Le gouvernement de M. Thiers (Paris, 1878); E. de Marcere, L'Assemblee nationale de 1871 (Paris, 1904).]

[Footnote 456: Marquis de Castallane, Le dernier essai de restauration monarchique de 1873, in Nouvelle Revue, Nov. 1, 1895.]

In the hope that eventually they might gain sufficient strength to place their candidate on the throne without the co-operation of the Legitimists, the Orleanists joined with the Bonapartists and the republicans, November 20, 1873, in voting to fix the term of President MacMahon definitely at seven years.[457] By the Orleanists it was assumed that if within that period an opportunity should be presented for the establishment of the Count of Paris upon the throne, the President would clear the way by retiring. The opportunity, however, never came, and the septennial period for the French presidency, established thus by monarchists in their own interest, was destined to pass into the permanent mechanism of a republican state.

[Footnote 457: Duguit et Monnier, Les Constitutions, 319; Anderson, Constitutions, 630.]

VI. THE CONSTITUTION OF TO-DAY

*329. Circumstances of Formation.*--Meanwhile the way was opening for France to acquire what for some years she had lacked completely, i.e., a constitution. May 19, 1873, the minister Dufaure, in behalf of the Government, laid before the Assembly projets of two organic measures, both of which, in slightly amended form, passed in 1875 into the permanent constitution of the Republic. May 24 occurred the retirement of President Thiers, and likewise that of Dufaure, but in the Assembly, the two proposed measures were none the less referred to a commission of thirty. Consideration in committee was sluggish, and the Assembly itself was not readily roused to action. During the twelvemonth that followed several projets were brought forward, and there was desultory discussion, but no progress. In the summer of (p. 305) 1874 a new commission of thirty was elected and to it was intrusted the task of studying and reporting upon all of the numerous constitutional laws that had been suggested. The majority of this commission, monarchist by inclination, contented itself with proposing, in January, 1875, a law providing simply for the continuance of the existing "septennate." Only after earnest effort, and by the narrow vote of 353 to 352, were the republican forces in the Assembly able to carry an amendment, proposed by the deputy Wallon, in which was made definite provision for the election of the President of the Republic, and therefore, by reasonable inference, for the perpetuity of the Republic itself.[458]

[Footnote 458: Anderson, Constitutions, 633.]

Before the year 1875 was far advanced the Assembly threw off its lethargy and for the first time in its history addressed itself systematically to the drafting of a national constitution. To this course it was impelled by the propaganda of Gambetta and other republican leaders, by fear on the part of the Legitimists and Orleanists that the existing inchoate situation would lead to a Bonapartist revival, and by a new modus operandi which was cleverly arranged between the republicans and the Orleanists. Convinced that an Orleanist monarchy was, at least for a time, an impossibility, and preferring a republic to any alternative which had been suggested, the Orleanist members of the Assembly gave their support in sufficient numbers to the programme of the republicans to render it at last possible to work out for the nation a conservatively republican constitutional system.

*330. Texts and General Nature.*--Of the organic laws which comprise the constitution of France to-day five which date from 1875 are of principal importance: (1) that of February 24, on the Organization of the Senate; (2) that of February 25,--the most important of all,--on the Organization of the Public Powers; (3) that of July 16, on the Relations of the Public Powers; (4) that of August 3, on the Election of Senators; and (5) that of November 30, on the Election of Deputies. Collectively, these measures are sometimes referred to as the "constitution of 1875." Other and later constitutional enactments of considerable importance include (1) the law of July 22, 1879, relating to the seat of the Executive Power and of the two Chambers at Paris; (2) the law of December 9, 1884, amending existing organic laws on the Organization of the Senate and the Election of Senators; and (3) laws of June 16, 1885, and February 13 and July 17, 1889, respecting the Election of Deputies.[459]

[Footnote 459: The original texts of these documents are printed in Duguit et Monnier, Les Constitutions, 319-350, and Helie, Les Constitutions, 1348-1456. For English versions see Dodd, Modern Constitutions, I., 286-319; C. F. A. Currier, Constitutional and Organic Laws of France, in _Annals of the American Academy of Political and Social Science_, March, 1893, supplement; and Anderson, Constitutions, 633-640. Albert Duc de Broglie, Histoire et Politique: Etude sur la constitution de 1875 (Paris, 1897); R. Saleilles, The Development of the Present Constitution of France, in Annals of Amer. Academy, July, 1895.]

Springing from the peculiar conditions which have been described, (p. 306) the handiwork of a body in which only a minority felt the slightest degree of enthusiasm for it, the constitution of the French Republic is essentially unlike any instrument of government with which the English-speaking world is familiar. It differs from the British in having been put almost wholly into written form. It differs from the American in that it consists, not of a single document, but of many, and in that it emanated, not from a great constituent assembly, charged with the specific task of formulating a governmental system, but from a law-making body which in truth had never been formally intrusted by the nation with even the powers of legislation proper, and had merely arrogated to itself those functions of constitution-framing which it chose to exercise.[460] It consists simply of organic laws, enacted chiefly by the provisional Assembly of 1871-1875, but amended and amplified to some extent by the national parliament in subsequent years. Unlike the majority of constitutions that went before it in France, it is not orderly in its arrangement or comprehensive in its contents. It is devoid of anything in the nature of a bill of rights,[461] and concerning the sovereignty of the people it has nothing to say. Even in respect to many essential aspects of governmental organization and practice it is mute. It contains no provision respecting annual budgets, and it leaves untouched the entire field of the judiciary. The instrument lays down only certain broad lines of organization; the rest it leaves to be supplied through the channels of ordinary legislation.

[Footnote 460: Among French writers upon constitutional law there has been no small amount of difference of opinion as to whether the National Assembly is to be regarded as having been entitled to the exercise of constituent powers. For a brief affirmative argument see Duguit et Monnier, Les Constitutions, cxvii. Cf. Dicey, Law of the Constitution, 121, note.]

[Footnote 461: It is to be observed, however, that many authorities agree with Professor Duguit in his contention that although the individual rights enumerated in the Declaration of Rights of 1789 are passed without mention in the constitutional laws of 1875, they are to be considered as lying at the basis of the French governmental system to-day. Any measure enacted by the national parliament in contravention of them, says Professor Duguit, would be unconstitutional. They are not mere dogmas or theories, but rather positive laws, binding upon not only the legislative chambers but upon the constituent National Assembly. Traite de droit constitutionnel (Paris, 1911), II., 13.]

*331. Amendment.*--It was the desire of all parties in 1875 that (p. 307) the constitutional laws should be easy of amendment, and indeed most men of the time expected the governmental system which was being established to undergo, sooner or later, fundamental modification. The process of amendment is stipulated in the law of February 25, 1875.[462] Amendments may be proposed by the President of the Republic or by either of the chambers of Parliament. When, by a majority of votes in each, the Senate and Chamber of Deputies declare a revision of the constitutional laws necessary, the two chambers are required to be convened in the character of a National Assembly, and amendments are adopted by absolute majority of this composite body. Contrary to earlier French practice, the exercise of constituent and of ordinary legislative powers is thus lodged in the same body of men, the only difference of procedure in the two instances arising from the temporary amalgamation of the chambers for constituent purposes. The sole limitation that has been imposed upon the revising powers of the Assembly is contained in a clause adopted in an amendment of August 14, 1884, which forbids that the republican style of government be made the subject of a proposed revision. In point of fact, amendments have been few, although some, as that of December 9, 1884, modifying the methods of electing senators and those of June 16, 1885, and February 13 and July 17, 1889, re-establishing single districts for the election of deputies and prohibiting multiple candidatures, have been of a high degree of importance.

[Footnote 462: Art. 8. Dodd, Modern Constitutions, I., 288.]