governmental system can be adequate which does not take into account
the agencies and modes by which the powers of government are brought
close to the people, as well as those by which the people in greater
or lesser measure regulate locally their own public affairs. More
especially is this true in the instance of a government such as the
English in which local self-control is a fundamental rather than an
incidental fact. The history of local institutions in England covers
an enormous stretch of time, as well as a remarkable breadth of public
organization and activity, and by no means its least important phases
are those which have appeared in most recent times. Speaking broadly,
it may be said to fall into four very unequal periods. The first,
extending from the settlement of the Saxons to the Norman Conquest,
was marked by the establishment of the distinctive English units of
administration--shire, hundred, and township--and by the planting of
the principle of broadly popular local control. The second, extending
from the Conquest to the fourteenth century, was characterized by a
general increase of centralization and a corresponding decrease of
local autonomy. The third, extending from the fourteenth century to
the adoption of the Local Government Act of 1888, was pre-eminently a
period of aristocratic control of local affairs, of government by the
same squirearchy which prior to 1832, if not 1867, was accustomed to
dominate Parliament. The last period, that from 1888 to the present
time, has been notable in a special degree for the democratization and
systematization of local governing arrangements which has taken place
within it.
*186. County and Parish before 1832.*--The transformation by which the
institutions of local government have been brought to their present
status paralleled, and in a large measure sprang from, the
revolutionizing of Parliament during the course of the nineteenth
century. Two periods of change are especially noteworthy, the one
following closely the Reform Act of 1832 and culminating in the
adoption of the Municipal Corporations Act of 1835, the other following
similarly the Representation of the People Act of 1884 and (p. 177)
attaining fruition in the Local Government Act of 1888 and the
District and Parish Councils Act of 1894. At the opening of the
century rural administration was carried on principally in the shire
or county and the civil or "poor law" parish; urban administration in
the corporate towns, or municipal boroughs. The counties were
fifty-two in number. Most of them were of Saxon origin, although some
were the product of absorptions or delimitations which took place in
later centuries. The last to be added were those of Wales. Altered
often in respect to their precise functions, the counties retained
from first to last a large measure of importance, and at the beginning
of the nineteenth century they were still the principal areas of local
governing activity. From Saxon times to the fourteenth century the
dominating figure in county administration was the sheriff, but in the
reign of Edward III. justices of the peace were created into whose
hands during the ensuing five hundred years substantially all
administrative and judicial affairs of the county were drawn. These
dignitaries were appointed by the crown, chiefly from the ranks of the
smaller landowners and rural clergy, and as a rule they comprised in
practice a petty oligarchy whose conduct of public business was
inspired by aristocratic, far more than by democratic, ideals.
The principal division of the county was the civil parish, usually but
not always identical with the ecclesiastical parish. The governing
bodies of the parish were two--the vestry (either open to all
rate-payers or composed of elected representatives), which
administered general affairs, and the overseers of the poor who under
the Elizabethan statute of 1601 were empowered to find employment for
the able-bodied poor, to provide other forms of relief as should be
required, and to levy a local rate to meet the costs of their work.
Since the passage of Gilbert's Act of 1782 the parishes had been
arranged in groups for poor-law purposes, and boards of guardians
appointed by the justices of the peace had come to be the real
authorities in the administration of poor relief, as well as in most
other matters. The abuses arising from poor-law administration were
not infrequently appalling.
*187. The Borough before 1832.*--The corporate towns in England and
Wales numbered, in 1832, 246. They comprised population centers which,
on the basis of charters granted by the crown, had become distinct
areas of local government. They did not, however, stand entirely apart
from the county and parish organization. On the contrary, except in so
far as they were exempted specifically by the terms of their charters,
they were subject to the authority of the justices of the peace and of
the governing agencies of the parishes within whose jurisdiction they
were situated. Their style of government was determined largely (p. 178)
by the provisions of their charters, and since these instruments
exhibited a marked degree of variety, uniformity of organization was
entirely lacking. As a rule, however, the borough was a close
corporation, and the burgesses, or "freemen," in whom were vested
peculiar trading and fiscal rights and an absolute monopoly of the
powers of government, comprised but a small fraction of the general
body of citizens. The governing authority of the borough was the town
council, whose members were either elected by the freemen or recruited
by co-optation. Government was regularly oligarchical and
irresponsible; sometimes it was inefficient and corrupt.
*188. The New Poor Law (1834) and the Municipal Corporations Act
(1835).*--The reforms accomplished since 1832 within the domain of
parliamentary organization and procedure have been hardly more
remarkable than those wrought during the same period within the field
of local government. It must suffice to mention but the principal
steps by which the local governing system has been brought to its
present high degree of democracy and effectiveness. Among the subjects
to which the first reformed parliament addressed its attention was the
direful condition into which had fallen the relief of the poor, and
the initial stage of local government regeneration was marked by the
adoption of the Poor Law Amendment Act of 1834, abolishing outdoor
relief for the able-bodied, providing for the regrouping of parishes
in "poor-law unions," and establishing a national Poor Law Commission.
The administration of relief within the unions was intrusted all but
exclusively to newly created boards of guardians, composed in part of
the justices of the peace sitting _ex-officio_ and in part of members
specially elected by the rate-payers. The arrangements set up by the
act proved very successful and they survive almost intact at the
present day. The second notable change was that effected by the
Municipal Corporations Act of 1835. The enfranchising of large numbers
of the townspeople in 1832 led inevitably to demand for the
democratization of the aristocratic borough governments, and within
three years the demand was met in a statute so sweeping as to justify
the assertion that with its enactment the modern history of the
English town begins.[254] Sixty-nine of the old corporate towns, by
reason of their unimportance, were now deprived of the character of
boroughs. The city of London was not touched, but elsewhere all
municipal corporations were broadened so as to personify legally the
entire population of the borough. The time-honored municipal oligarchy
was broken down by the giving of the franchise to all rate-payers, the
town councils were made wholly elective, trading monopolies and
privileges were swept away, and a variety of other reforms were (p. 179)
introduced. With the adoption of this important measure, however, the
work of reform came for a time to a halt, and the widely assailed
system of county government through nominated magistrates in quarter
sessions survived until 1888.[255]
[Footnote 254: Lowell, Government of England, II.,
144.]
[Footnote 255: The history of the local
institutions of England prior to 1835 is related in
detail in two comprehensive works: H. A. Merewether
and A. J. Stephens, History of the Boroughs and
Municipal Corporations of the United Kingdom, 3
vols. (London, 1835) and S. and B. Webb, English
Local Government from the Revolution to the
Municipal Corporations Act, 3 vols. (London and New
York, 1904-1908). The first of these was written to
promote the cause of municipal reform, but is
temperate and reliable. The second is especially
exhaustive, volume 3 containing probably the best
existing treatment of the history of borough
government. For a brief sketch see May and Holland,
Constitutional History of England, II., Chap. 15.]
V. LOCAL GOVERNMENT REFORM, 1835-1912
*189. Mid-Century Confusion of Areas and Jurisdictions.*--Throughout the
earlier and middle portions of the Victorian period legislation
respecting local government was abundant, but it was special rather
than general. It pertained principally to the care of highways and
burial grounds, the laying out and organization of districts for the
promotion of sanitation, the establishment of "improvement act"
districts, and, notably, the erection and administration of school
districts under the Elementary Education Act of 1870. With each
successive measure the confusion of jurisdictions and agencies was
increased. The prevailing policy was to provide for each fresh need as
it arose a special machinery designed to meet that particular need,
and arrangements effected were seldom or never uniform throughout the
country, nor did they bear any logical relation to arrangements
already existing for other purposes. By 1871 the country, as Lowell
puts it, was divided into counties, unions, and parishes, and spotted
over with boroughs and with highway, burial, sanitary, improvement
act, school, and other districts, and of these areas none save the
parishes and unions bore any necessary relation to any of the
rest.[256] In the effort to adapt the framework of the administrative
system to the fast changing conditions of a rapidly growing population
Parliament piled act upon act, the result being a sheer jungle of
interlacing jurisdictions alike baffling to the student and subversive
of orderly and economical administration. It is computed that in 1883
there were in England and Wales no fewer than 27,069 independent local
authorities,[257] and that the rate-payer was taxed by eighteen
different kinds of rates.
[Footnote 256: Government of England, II., 135.]
[Footnote 257: These included the 52 counties, the
239 municipal boroughs, the 70 improvement act
districts, the 1,006 urban sanitary districts, the
577 rural sanitary districts, the 2,051 school
board districts, the 424 highway districts, the 853
burial board districts, the 649 poor-law unions,
the 14,946 poor-law parishes, the 5,064 highway
parishes not included in urban or highway
districts, and the 1,300 ecclesiastical parishes.
For the situation in 1888 see G. L. Gomme, Lectures
on the Principles of Local Government (London,
1897), 12-13.]
*190. Local Government Act of 1888 and District and Parish (p. 180)
Councils Act of 1894.*--Soon after the passage of the Elementary
Education Act of 1870 reform began to be attempted in the direction
both of concentration of local governing authority and the
readjustment and simplification of local governing areas. In 1871 the
Poor Law Board (which succeeded the Poor Law Commission in 1847) was
converted into the Local Government Board, with the purpose of
concentrating in a single department the supervision of the laws
relating to public health, the relief of the poor, and local
government; and when, in 1872, the entire country was divided into
urban and rural sanitary districts, the work was done deliberately in
such a fashion as to involve the least possible addition to the
existing complexities of the administrative system.[258] The two
measures, however, by which, in the main, order was brought out of
confusion were the Local Government Act of 1888 and the District and
Parish Councils Act of 1894. The first of these, referred to commonly
as the County Councils Act, was the sequel of the Representation of
the People Act of 1884 and was definitely intended to invest the newly
enfranchised rural population with a larger control of county affairs.
The act created sixty-two administrative counties (some coterminous
with pre-existing counties, others comprising subdivisions of them)
and some three score "county boroughs," comprising towns of more than
50,000 inhabitants.[259] In each county and county borough there was
set up a council, at least two-thirds of whose members were elective,
and to this council was transferred the administrative functions of
the justices of the peace, leaving to those dignitaries of the old
régime little authority save of a judicial character. The
democratization of rural government accomplished by the Conservative
ministry of Lord Salisbury in 1888 was supplemented by the provisions
of the District and Parish Councils Act, carried by a Liberal ministry
in 1894.[260] This measure provided (1) that every county should be
divided into districts, urban and rural, and every district into (p. 181)
parishes, and (2) that in every district and in every rural parish
with more than three hundred inhabitants there should be an elected
council, while in the smallest parishes there should be a primary
assembly of all persons whose names appear on the local government and
parliamentary register. To the parish councils and assemblies were
transferred all of the civil functions of the vestries, leaving to
those bodies the control of ecclesiastical matters only, while to the
district councils, whether rural or urban, were committed control of
sanitary affairs and highways.
[Footnote 258: The arrangements effected at this
time were perpetuated in the great Public Health
Act of 1875. Lowell, Government of England II.,
137.]
[Footnote 259: The number of county boroughs had
been increased by 1910 to seventy-four. See p.
188.]
[Footnote 260: It should be observed that the
original intent in 1888 was to deal with district
as well as county organization. In its final form
the bill carried in that year had to do only,
however, with the counties.]
The effect of the acts of 1888 and 1894 was two-fold. In the first
place, they put the administrative affairs of the rural portions of
the country in the hands almost exclusively of popularly elected
bodies. In the second place, their adoption afforded opportunity for
the immediate or gradual abolition of all local governing authorities
except the county, municipal, district, and parish councils, the
boards of guardians, and the school boards, and thus they contributed
vastly to that gradual simplification of the local governing system
which is one of the most satisfactory developments of recent years.
The act of 1894 alone abolished some 8,000 authorities. Since 1894 the
consolidation of authorities and the elimination of areas have been
carried yet further, the most notable step being the abolition of the
school boards by the Education Act of 1902 and the transfer of the
functions of these bodies to the councils of the counties, boroughs,
and districts. Both the majority and minority reports of the recent
Poor Law Commission, submitted in 1909, recommend the abolition of the
parish union area; but no action has been taken as yet by Parliament
upon this subject.[261]
[Footnote 261: The history of local government
changes since 1870 is well sketched in May and
Holland, Constitutional History of England, III.,
Chap. 5.]
VI. LOCAL AND CENTRAL GOVERNMENT
The system of local government as it operates at the present time is
by no means free from anomalies, but it exhibits, none the less, an
orderliness and a simplicity which were altogether lacking a
generation ago. The variety of areas of administration has been
lessened, the number of officials has been reduced and their relations
have been simplified, the guiding hand of the central authorities in
local affairs has been strengthened. Stated briefly, the situation is
as follows: the entire kingdom is divided into counties and county
boroughs; the counties are subdivided into districts, rural and urban,
and boroughs; these are subdivided further into parishes, which are
regrouped in poor-law unions; while the city of London is organized
after a fashion peculiar to itself. In order to make clear the (p. 182)
essentials of the system it will be necessary to allude but briefly to
the connection which obtains between the local and central
administrative agencies, and to point out the principal features of
each of the governmental units named.
*191. The Five Central Departments.*--Throughout most periods of its
history English local government has involved a smaller amount of
interference and of direction on the part of the central authorities
than have the local governments of the various continental nations.
Even to-day the general government is not present in county or borough
in any such sense as that in which the French government, in the
person of the prefect, is present in the department, or the Prussian,
through the agency of the "administration," is present in the
district. A noteworthy aspect of English administrative reform during
the past three-quarters of a century has been, nevertheless, a large
increase of centralized control, if not of technical centralization,
in relation to poor-relief, education, finance, and the other varied
functions of the local governing agencies. There are to-day five
ministerial departments which exercise in greater or lesser measure
this kind of control. One, the Home Office, has special surveillance
of police and of factory inspection. A second, the Board of Education,
directs and supervises all educational agencies which are aided by
public funds. A third, the Board of Agriculture, supervises the
enforcement of laws relating to markets and to diseases of animals. A
fourth, the Board of Trade, investigates and approves enterprises
relating to the supply of water, gas, and electricity, and to other
forms of "municipal trading." Most important of all, the Local
Government Board directs in all that pertains to the execution of the
poor laws and the activities of the local health authorities, oversees
the financial operations of the local bodies, and fulfills a variety
of other supervisory functions too extended to be enumerated. The
powers of these departments in relation to local affairs are exercised
in a number of ways, but chiefly through the promulgation of orders
and regulations, the giving or withholding of assent to proposed
measures of the local bodies, and the giving of expert advice and
guidance. It need hardly be added that the powers and functions of the
local authorities are subject at all times to control by parliamentary
legislation.[262]
[Footnote 262: On the relations between the central
and local agencies of government see Lowell,
Government of England, II., Chap. 46; J. Redlich
and F. W. Hirst, Local Government in England, 2
vols. (London, 1903), II., Pt. 6; Traill, Central
Government, Chap. 11; and M. R. Maltbie, English
Local Government of To-day; a Study of the
Relations of Central and Local Government (New
York, 1897).]
VII. LOCAL GOVERNMENT TO-DAY: RURAL (p. 183)
*192. The Administrative County.*--Since the reform of 1888 there have
been in England counties of two distinct kinds. There are, in the
first place, the historic counties, fifty-two in number, which survive
as areas for parliamentary elections and, in some instances, for the
organization of the militia and the administration of justice. Their
officials--the lord lieutenant, the sheriff, and the justices of the
peace--are appointed by the crown. Much more important, however, are
the administrative counties, sixty-two in number,[263] created and
regulated by the local government legislation of 1888 and 1894. Six of
these administrative counties coincide geographically with ancient
counties, while most of the remaining ones represent no wide variation
from the historic areas upon which they are based. Yorkshire and
Lincolnshire were divided into three of the new counties each, and
eight others were divided into two. The administrative counties do not
include the seventy-four county boroughs which are located geographically
within them, but they do include all non-county boroughs and urban
districts, so that they are by no means altogether rural. They are
extremely unequal in size and population, the smallest being Rutland
with 19,709 inhabitants and the largest Lancashire with 1,827,436.
[Footnote 263: Including the county of London. See
p. 190.]
*193. The County Council.*--The governing authority in each
administrative county is the county council, a body composed of (1)
councillors elected for a term of three years in single-member
electoral divisions under franchise qualifications identical with
those prevailing in the boroughs, save that plural voting is not
permitted, and (2) aldermen chosen for six years by the popularly
elected councillors. The number of aldermen is regularly one-third
that of the other councillors, and half of the quota retire
triennially. Between the two classes of members there is no
distinction of power or function. The council elects a chairman and
vice-chairman who hold office one year but are commonly re-elected.
Other officers are the clerk, the chief constable, the treasurer, the
surveyor, the public analyst, inspectors of various kinds, educational
officials, and coroners. The tenure of these is not affected by
changes in the composition of the council. Legally, the chairman is
only a presiding official, though in practice his influence may be,
and not infrequently is, greater than that of any other member. In the
election of councillors party feeling seldom displays itself, and (p. 184)
elections are very commonly uncontested.[264] Members are drawn mainly
from the landowners, large farmers, and professional men, though
representatives of the lower middle and laboring classes occasionally
appear. The councils vary greatly in size, but the average membership
is approximately seventy-five. The bringing together of so many men at
frequent intervals is not easily accomplished and the bodies do not
assemble ordinarily more than the four times a year prescribed by law.
The mass of business devolving upon them is transacted largely through
the agency of committees. Of these, some, as the committees on
finance, education, and asylums, are required by law; others are
established as occasion arises.
[Footnote 264: At the elections of 1901 there were
contests in but 433 of 3,349 divisions. P. Ashley,
Local and Central Government; a Comparative Study
of England, France, Prussia, and the United States
(London, 1906), 25, note.]
The powers and duties of the council are many and varied. In the main,
though not wholly, they represent the former administrative functions
of the justices of the peace. In the act of 1888 they are enumerated
in sixteen distinct categories, of which the most important are the
raising, expending, and borrowing of money; the care of county
property, buildings, bridges, lunatic asylums, reformatory and
industrial schools; the appointment of inferior administrative
officials; the granting of certain licenses other than for the sale of
liquor;[265] the care of main highways and the protection of streams
from pollution; and the execution of various regulations relating to
animals, fish, birds, and insects. By the Education Act of 1902 the
council is given large authority within the domain of education. It
must see that adequate provision is made for elementary schools, and
it may assist in the maintenance of agencies of education of higher
grades. The control of police within the county devolves upon a joint
committee representing the council and the justices of the peace.
Finally, the council may make by-laws for the county, supervise in a
measure the minor rural authorities, and perform the work of these
authorities when they prove remiss.[266]
[Footnote 265: Liquor licenses are granted by the
justices of the peace.]
[Footnote 266: Lowell, Government of England, II.,
274-275.]
*194. The Rural District.*--Within the administrative county are four
kinds of local government areas--rural districts, rural parishes,
urban districts, and municipal boroughs. Of rural districts there are
in England and Wales 672. They are coterminous, as a rule, with rural
poor-law unions, or with the rural portions of unions which are both
rural and urban; but they may not comprise parts of more than one
county. The governing authority of the district is a council, (p. 185)
composed of persons (women being eligible) chosen in most instances
triennially by the rural parishes in accordance with population.
Unless an order is made to the contrary, one-third retire each year.
The members at the same time represent on the board of guardians of
the union the parishes from which they have been elected, although the
two bodies are legally distinct. The council must meet at least once a
month. Its chairman, who during his year of office is _ex-officio_ a
justice of the peace, may be chosen from among the councillors or from
outside; and the same is true of members of committees. The principal
salaried and permanent officials are the clerk, the treasurer, a
medical officer, a surveyor, and sanitary inspectors. The functions of
the councils pertain, in the main, to the administration of sanitation
and of highways. The bodies are responsible largely for the execution
in the rural localities of the various public health acts, and they
have charge of all highways which are not classed as "main roads." To
meet in part the costs of this administration they are empowered to
levy district rates.
*195. The Parish.*--Of parishes there are two types, the rural and the
urban, and their aggregate number in England and Wales is
approximately 15,000. The urban parishes possess no general
administrative importance and further mention need not be made of them
here. Under the act of 1894 the rural parish, however, has been
revived in a measure from the inert condition into which it had
fallen, and it to-day fills an appreciable if humble place in the
rural administrative régime. The style of its organization is
dependent to a degree upon its population. In each parish there is a
meeting in which all persons on the local government and parliamentary
registers (including women and lodgers) are privileged to participate.
This meeting elects its own chairman, and it likewise chooses a number
of overseers whose duty it is to assess and collect certain local
rates, to administer the poor-rate, and to make up the electoral and
jury lists. All parishes whose population numbers as much as three
hundred have a council composed of from five to fifteen members (women
being eligible), elected as a rule for a term of three years. The list
of powers which the parish authorities may exercise is extended, if
not imposing. It includes the maintenance of foot-paths, the
management of civil parochial property, the provision of fire
protection, the inspection of local sanitation, and the appointment of
trustees of civil charities within the parish. The meagerness of the
population of large numbers of the parishes, however, together with
the severe limitations imposed both by law and by practical conditions
upon rate-levying powers, preclude the authorities very generally (p. 186)
from undertaking many or large projects. It is regarded commonly that
the parishes are too small to be made such areas of public activity as
the authors of the act of 1894 had in mind. Practically, the parish is
little more than a unit for the election of representatives and the
collection of rates.[267]
[Footnote 267: Lowell, Government of England, II.,
281.]
For purposes of poor-law administration, as has been pointed out,
there have existed since 1834 poor-law unions, consisting of numbers
of parishes grouped together, usually without much effort to obtain
equality of size or population. These unions not infrequently comprise
both rural and urban parishes, and in cases of this kind the board of
guardians is composed of the persons elected as district councillors
in the rural parishes of the union, together with other persons who
are elected immediately as guardians in the urban parishes and have no
other function. The conditions under which poor relief is administered
are prescribed rather minutely in general regulations laid down by the
Local Government Board at London, so that, save in the matter of
levying rates, the range of discretion left to the boards of guardians
is closely restricted.[268]
[Footnote 268: Ashley, Local and Central
Government, 52-60.]
VIII. LOCAL GOVERNMENT TO-DAY: URBAN
*196. The Urban District.*--Of areas within which are administered the
local affairs of the urban portions of the kingdom there are several
of distinct importance, although in reality the institutions of urban
government are less complex than they appear on the surface to be. In
the main, the legal basis of urban organization is the Municipal
Corporations Consolidation Act of 1882, which comprises a codification
of the Municipal Corporations Act of 1835 and a mass of subsequent and
amending legislation. This great statute is supplemented at a number
of points by the Local Government Act of 1888, the District and Parish
Councils Act of 1894, the Education Act of 1902, and other regulative
measures of the past thirty years. At the bottom of the scale among
urban governmental units stands the urban district, which differs from
an ordinary borough principally in that it has no charter and its
council possesses less authority than does that of the borough.[269]
The number of urban districts is in the neighborhood of eight hundred.
Under the terms of the act of 1894 the governing authority in each is
a council consisting of members elected for three years, women being
eligible. There are no aldermen, and no mayor is chosen. The (p. 187)
council elects its own chairman and other officers, and it meets at
least once a month. Its functions, of which the most important is the
control of sanitation and of highways, are discharged largely through
the agency of committees. The district council possesses none of the
police and judicial privileges which the borough councils commonly
enjoy. It is more closely controlled by the Local Government Board,
and, in general, it lacks "the status and ornamental trappings of a
municipal authority.[270]" Yet in practice its powers are hardly less
extensive than are those of the council of a full-fledged borough. New
urban districts may be created in thickly populated localities by
joint action of the county council and the Local Government Board.
[Footnote 269: Speaking strictly, a borough is an
urban district, and something more.]
[Footnote 270: Ashley, Local and Central
Government, 45.]
*197. Boroughs and "Cities."*--The standard type of municipal unit is
the borough. Among boroughs there is a certain amount of variation,
but the differences which exist are those rather of historic
development and of nomenclature than of governmental forms or
functions. There are "municipal" boroughs, "county" boroughs, and
cities. Any non-rural area upon which has been conferred a charter
stipulating rights of local self-government is a borough. Areas of the
sort which have been withdrawn from the jurisdiction of the
administrative counties in which they are situated are county
boroughs; those not so withdrawn are municipal boroughs. The term
"city" was once employed to designate exclusively places which were or
had been the seat of a bishop. Nowadays the title is borne not only by
places of this nature but also by places, as Sheffield and Leeds, upon
which it has been conferred by royal patent. Save, however, in the
case of the city of London, where alone in England ancient municipal
institutions have been generally preserved, the term possesses no
political significance.[271] The governments of the cities are
identical with those of the non-city boroughs. It is to be observed,
further, that whereas formerly the borough as organized for municipal
purposes coincided with the borough as constituted for purposes of
representation in Parliament, there is now no necessary connection
between the two. An addition to a municipal borough does not alter the
parliamentary constituency.
[Footnote 271: See p. 190.]
*198. Kinds of Boroughs.*--The Municipal Corporations Act of 1835 made
provision for 178 boroughs in England and Wales and stipulated
conditions under which the number might be increased from time to time
by royal charter. In not a few instances the charters of boroughs at
the time existing were of mediæval origin. Since 1875 new charters (p. 188)
have been conferred until the number of boroughs has been brought up
to approximately 350. For the obtaining of a borough charter no fixed
requirement of population is laid down. Each application is considered
upon its merits, and while the size and importance of an urban
community weigh heavily in the decision other factors not infrequently
are influential, with the consequence that some boroughs are very
small while some urban centers of size are not yet boroughs. Of the
present number of boroughs, seventy-four, or about one-fifth, are
county boroughs. By the act of 1888 it was provided that every borough
which had or should attain a population of 50,000 should be deemed,
for purposes of administration, a separate county, and should
therefore be exempt from the supervision exercised over the affairs of
the municipal boroughs by the authorities of the administrative
counties. Any borough with a population exceeding the figure named may
be created a county borough by simple order of the Local Government
Board. Unlike the ordinary municipal borough, the county borough is
not represented in the council of the county in which the borough
lies; on the contrary, the council of the borough exercises
substantially an equivalent of the powers exercised normally by the
county council, and it is, to all intents and purposes, a council of
that variety. Much the larger portion of the English boroughs are,
however, simple municipal boroughs, whose activities are subject to a
supervision more or less constant upon the part of the county
authorities.
*199. The Borough Authorities.*--The difference between county and
municipal boroughs is thus one of degree of local autonomy, not one of
forms or agencies of government. The charters of all boroughs have
been brought into substantial agreement and the organs of borough
control are everywhere the same. The governing authority is the
borough council, which consists of councillors, aldermen, and a mayor,
sitting as a single body. The councillors, varying in number from nine
to upwards of one hundred, are elected by the voters of the borough,
either at large or by wards, for three years, and one-third retire
annually. The aldermen, equal in number to one-third of the
councillors, are chosen by the entire council for six years, and are
selected usually from among the councillors of most prolonged
experience. The mayor is elected annually by the councillors and
aldermen, frequently from their own number. In boroughs of lesser size
re-elections are not uncommon. Service in all of the capacities
mentioned is unpaid. The council determines its own rules of
procedure, and its work is accomplished in large measure through the
agency of committees, some of which are required by statute, others of
which are created as occasion demands; but, unlike the county (p. 189)
council, the council of the borough cannot delegate any of its powers,
save those relating to education, to these committees. The mayor
presides over the council meetings, serves commonly as an _ex-officio_
member of committees, and represents the municipality upon ceremonial
occasions. The office is not one of power, although it is possible for
an aggressive and tactful mayor to wield real influence. The permanent
officers of the council include a clerk, a treasurer, a medical
official, a secretary for education, and a variable number of
inspectors and heads of administrative departments.
*200. The Borough Council.*--In the capacity of representative authority
of the municipality the council controls corporation property, adopts
and executes measures relative to police and education, levies rates,
and not infrequently administers waterways, tramways, gas and electric
plants, and a variety of other public utilities. The enormously
increased activity of the town and urban district councils in respect
to "municipal trading" within the past two score years has aroused
widespread controversy. The purposes involved have been, in the main,
two--to avert the evils of private monopoly and to obtain from
remunerative services something to set against the heavy
unremunerative expenditures rendered necessary by existing sanitary
legislation. And, although opposed by reason of the outlays which it
requires and the invasion of the domain of private enterprise which it
constitutes, the device of municipal ownership is being ever more
widely adopted, as in truth it is also in Germany and other European
countries.[272] Aside from its general functions, the borough councils
is in particular a sanitary authority, and among its most important
tasks is the execution of regulations concerning drainage, housing,
markets, hospitals, and indeed the entire category of matters provided
for in the long series of Public Health acts. The expenditures of the
council as a municipal authority are met from a fund made up of fees,
fines, and other proceeds of administration, together with the income
from a borough rate, which is levied on the same basis as the poor
rate; its expenditures as a sanitary authority are met from a fund
raised by a general district rate. To assist in the administration of
education, sanitation, and police, grants are made regularly by
Parliament.[273]
[Footnote 272: Ashley, Local and Central
Government, 42.]
[Footnote 273: The best of existing works upon the
general subject of English local government is J.
Redlich, and F. W. Hirst, Local Government in
England, 2 vols. (London, 1903). There are several
convenient manuals, of which the most useful are P.
Ashley, English Local Government (London, 1905); W.
B. Odgers, Local Government (London, 1899), based
on the older work of M. D. Chalmers; E. Jenks, An
Outline of English Local Government (2d ed.,
London, 1907); R, S. Wright and H. Hobhouse, An
Outline of Local Government and Local Taxation in
England and Wales (3d ed., London, 1906); and R. C.
Maxwell, English Local Government (London, 1900),
in Temple Primer Series. The subject is treated
admirably in Lowell, Government of England, II.,
Chaps. 38-46, and a portion of it in W. B. Munro,
The Government of European Cities (New York, 1909),
Chap. 3 (full bibliography, pp. 395-402). There are
good sketches in Ashley, Local and Central
Government, Chaps. 1 and 5, and Marriott, English
Political Institutions, Chap. 13. A valuable group
of papers read at the First International Congress
of the Administrative Sciences, held at Brussels in
July, 1910, is printed in G. M. Harris, Problems of
Local Government (London, 1911). A useful
compendium of laws relating to city government is
C. Rawlinson, Municipal Corporation Acts, and Other
Enactments (9th ed., London, 1903). Two
appreciative surveys by American writers are A.
Shaw, Municipal Government in Great Britain (New
York, 1898) and F. Howe, The British City (New
York, 1907). On the subject of municipal trading
the reader may be referred to Lowell, Government of
England, II., Chap. 44; Lord Avebury, Municipal and
National Trading (London, 1907); L. Darwin,
Municipal Ownership in Great Britain (New York,
1906); G. B. Shaw, The Common Sense of Municipal
Trading (London, 1904); and C. Hugo,
Städteverwaltung und Municipal-Socialismus in
England (Stuttgart, 1897). Among works on poor-law
administration may be mentioned T. A. Mackay,
History of the English Poor Law from 1834 to the
Present Time (New York, 1900); P. T. Aschrott and
H. P. Thomas, The English Poor Law System, Past and
Present (2d ed., London, 1902); and S. and B. Webb,
English Poor Law Policy (London, 1910). The best
treatise on educational administration is G.
Balfour, The Educational Systems of Great Britain
and Ireland (2d ed., London, 1904). Finally must be
mentioned C. Gross, Bibliography of British
Municipal History (New York, 1897), an invaluable
guide to the voluminous literature of an intricate
subject.]
*201. The Government of London.*--The unique governmental (p. 190)
arrangements of London are the product in part of historical survival
and in part of special and comparatively recent legislation.
Technically, the "city" of London is still what it has been through
centuries, i.e., an area with a government of its own comprising but
a single square mile on the left bank of the Thames. By a series of
measures covering a period of somewhat more than fifty years, however,
the entire region occupied by the densely populated metropolis has
been drawn into a closely co-ordinated scheme of local administration.
London was untouched by the Municipal Corporations Act of 1835 and the
changes by which the governmental system of the present day was
brought into being began to be introduced only with the adoption of
the Metropolis Management Act of 1855. The government of the city was
left unchanged, but the surrounding parishes, hitherto governed
independently by their vestries, were at this time brought for certain
purposes under the control of a central authority known as the
Metropolitan Board of Works. The Local Government Act of 1888 carried
the task of organization a stage further. The Board of Works was
abolished, extra-city London was transformed into an administrative
county of some 120 square miles, and upon the newly created London (p. 191)
County Council (elected by the rate-payers) was conferred a varied and
highly important group of powers. Finally, in 1899 the London
Government Act simplified the situation by sweeping away a mass of
surviving authorities and jurisdictions and by creating twenty-eight
metropolitan boroughs, each with mayor, aldermen, and councillors such
as any provincial borough possesses, though with powers specially
defined and, on the side of finance, somewhat restricted. Within each
borough are urban parishes, each with its own vestry.
At the center of the metropolitan area stands still the historic City,
with its lord mayor, its life aldermen, and its annually elected
councillors, organized after a fashion which has hardly changed in
four and a half centuries. Within the administrative county the county
council acts as a central authority, the borough councils and the
parish vestries serve as local authorities. While areas of common
administration still very much larger than the county comprise, among
others, the districts of the Metropolitan Water Board and of the
Metropolitan Police. The jurisdiction of the Metropolitan Police
extends over all parishes within fifteen miles of Charing Cross, an
area of almost 700 square miles.[274]
[Footnote 274: For excellent descriptions of the
government of London see Munro, Government of
European Cities, 339-379 (bibliography, 395-402),
and Lowell, Government of England, II., 202-232.
Valuable works are G. L. Gomme, Governance of
London: Studies on the Place occupied by London in
English Institutions (London, 1907); ibid., The
London County Council: its Duties and Powers
according to the Local Government Act of 1888
(London, 1888); A. MacMorran, The London Government
Act (London, 1899); A. B. Hopkins, Boroughs of the
Metropolis (London, 1900); and J. R. Seager,
Government of London under the London Government
Act (London, 1904). A suggestive article is G. L.
Fox, The London County Council, in _Yale Review_,
May, 1895.]
PART II.--GERMANY (p. 193)
CHAPTER IX
THE EMPIRE AND ITS CONSTITUTION
I. POLITICAL DEVELOPMENT PRIOR TO 1848
*202. Napoleonic Transformations.*--Among the political achievements of
the past hundred years few exceed in importance, and none surpass in
interest, the creation of the present German Empire. The task of
German unification may be regarded as having been brought formally to
completion upon the occasion of the memorable ceremony of January 18,
1871, when, in the presence of a brilliant concourse of princes and
generals gathered in the Hall of Mirrors in the palace of the French
kings at Versailles, William I., king of Prussia, was proclaimed
German Emperor. Back of the dramatic episode at Versailles, however,
lay a long course of nationalizing development, of which the
proclamation of an Imperial sovereign was but the culminating event.
The beginnings of the making of the German Empire of to-day are to be
traced from a period at least as remote as that of Napoleon.
Germany in 1814 was still disunited and comparatively backward, but it
was by no means the Germany of the seventeenth and eighteenth
centuries. The transformations wrought to the east of the Rhine during
the period of the Napoleonic ascendancy were three-fold. In the first
place, after more than a thousand years of existence, the Holy Roman
Empire was, in 1806, brought to an end, and Germany, never theretofore
since the days of barbarism entirely devoid of political unity, was
left without even the semblance or name of nationality. In the second
place, there was within the period a far-reaching readjustment of the
political structure of the German world, involving (1) the reducing of
the total number of German states--kingdoms, duchies, principalities,
ecclesiastical dominions, and knights' holdings--from above three
hundred to two score; (2) the augmenting of the importance of Austria
by the acquisition of a separate imperial title,[275] and the (p. 194)
raising of Saxony, Bavaria, and Württemberg from duchies to kingdoms;
and (3) the bringing into existence of certain new and more or less
artificial political aggregates, namely, the kingdom of Westphalia,
the grand-duchy of Warsaw, and the Confederation of the Rhine, for the
purpose of facilitating the Napoleonic dominance of north-central
Europe. Finally, in several of the states, notably Prussia, the
overturn occasioned by the Napoleonic conquests prompted systematic
attempts at reform, with the consequence of a revolutionizing
modernization of social and economic conditions altogether comparable
with that which within the generation had been achieved in France.
[Footnote 275: In anticipation of the prospective
abolition of the dignity of Emperor of the Holy
Roman Empire, the Emperor Francis II., in 1804,
assumed the title of Emperor of Austria, under the
name Francis I.]
The simple reduction of the German states in number, noteworthy though
it was, did not mean necessarily the realization of a larger measure
of national unity, for the rivalries of the states which survived
tended but to be accentuated. But if the vertical cleavages by which
the country was divided were deepened, those of a horizontal
character, arising from social and economic privilege, were in this
period largely done away. Serfdom was abolished; the knights as a
political force disappeared; the free cities were reduced to four; and
such distinctions of caste as survived rapidly declined in political
importance. By an appreciable levelling of society the way was
prepared for co-ordinated national development, while by the
extinction of a variety of republican and aristocratic sovereignties
monarchy as a form of government acquired new powers of unification
and leadership.[276]
[Footnote 276: On Germany during the Napoleonic
period see Cambridge Modern History, IX., Chap. 11;
J. H. Rose, Life of Napoleon I., 2 vols. (new ed.,
New York, 1910), II., Chaps. 24-25; A. Fournier,
Napoleon I., a Biography, trans, by A. E. Adams, 2
vols, (New York, 1911), I., Chaps. 11-12; J. R.
Seeley, Life and Times of Stein; or Germany and
Prussia in the Napoleonic Age, 3 vols. (Cambridge,
1878); H. A. L. Fisher, Studies in Napoleonic
Statesmanship, Germany (Oxford, 1903).]
*203. The Congress of Vienna and the Confederation of 1815.*--The
collapse of the dominion of Napoleon was followed in Germany by rather
less of a return to earlier arrangements than might have been
expected. Indeed, it can hardly be said to have involved any such
return at all. The Confederation of the Rhine was dissolved, and both
the grand-duchy of Warsaw and the kingdom of Westphalia ceased, as
such, to be. But the Holy Roman Empire was not revived; the newly
acquired dignities of the sovereigns of Saxony, Bavaria, and other
states were perpetuated; despite the clamors of the mediatized
princes, the scores of German states which during the decade had been
swallowed up by their more powerful neighbors, or had been otherwise
blotted out, were not re-established; and--most important of all--the
social and economic changes by which the period had been given (p. 195)
distinction were, in large part, not undone.
As has been pointed out, the close of the Napoleonic period found
Germany entirely devoid of political unity, in both name and fact. By
the governments which were chiefly influential in the reconstruction
of Europe in 1814-1815, it was deemed expedient that there be
re-established some degree of German unity, though on the part of most
of them, both German and non-German, there was no desire that there be
called into existence a united German nation of substantial
independence and power. In the Final Act of the Congress of Vienna,
promulgated under date of June 9, 1815, there was included the draft
of a constitution, prepared by a committee of the Congress under the
presidency of Count Metternich, in which was laid down the fundamental
law of an entirely new German union. Within Germany proper there were
recognized to be, when the Congress had completed its work of
readjustment, thirty-eight states, of widely varying size, importance,
and condition. Under authorization of the Congress, these states were
now organized, not into an empire with a common sovereign, but into a
_Bund_, or Confederation, whose sole central organ was a _Bundestag_,
or Diet, sitting at Frankfort-on-the-Main and composed of delegates
commissioned by the sovereigns of the affiliated states and serving
under their immediate and absolute direction. Save only in respect to
certain matters pertaining to foreign relations and war, each of the
thirty-eight states retained its autonomy unimpaired.[277]
[Footnote 277: In 1817 the number was brought up to
39 by the adding of Hesse-Homburg, unintentionally
omitted when the original list was made up. By
successive changes the number was reduced to 33
before the dissolution of the Confederation in
1866.]
*204. The Diet.*--The Diet was in no proper sense a parliamentary body,
but was rather a congress of sovereign states. Nominally, its powers
were large. They included both the regulation of the fundamental law
and the performance of the functions of ordinary legislation. But, in
practice, the authority of the body was meager and exercise of
discretion was absolutely precluded. The members, as delegates of the
princes, spoke and voted only as they were instructed. Questions
relating to the fundamental laws and the organic institutions of the
Confederation and "other arrangements of common interest" were
required to be decided by the Diet as a whole (_in Plenum_), with
voting power distributed among the states, in rough proportion to
their importance. Of the total of 69 votes, six of the principal
states possessed four each. The preparation of measures for discussion
_in Plenum_ was intrusted to the "ordinary assembly," a smaller (p. 196)
gathering in which Austria, Prussia, and nine other states had each
one vote, and six _curiæ_, comprising the remaining states in groups
had likewise each a single vote. The presidency of the two assemblies
was vested permanently in Austria, and the Austrian delegation
possessed in each a casting vote. Proposals were carried in the
smaller body by simple majority, but _in Plenum_ only by a two-thirds
vote. For the enactment of fundamental laws, the modification of
organic institutions, the amendment of individual rights, and the
regulation of religious affairs, it was declared by the Federal Act
that a majority vote should be insufficient, and, although it was not
expressly so stipulated, the intent was that in such cases unanimity
should be required. Early in the Diet's history, indeed, the president
was instructed solemnly to announce that the fundamental law of the
Confederation, far from being subject to revision, was to be regarded
as absolutely final.
The Confederation was, and was intended to be, only the loosest sort
of a league of sovereign powers. The party of German unity,
represented by Stein and the Liberals generally, began by assuming it
to be a _Bundesstaat_, or true federal state; but at the opening of
the first session of the Diet (November 5, 1816) the Austrian
authorities formally pronounced it a _Staatenbund_, or federation of
states, and from this ruling, according strictly with both the facts
of the situation and the intent of the founders, there was no possible
escape. The powers and functions which were vested in the
Confederation were exercised exclusively through and upon states, and
with the private individual it had no sort of direct relation, being,
in these respects, essentially similar to the federal government of
the United States under the Articles of Confederation. The function of
the Diet, in effect, came to be little more than that of registering
and promulgating the decrees of the authorities at Vienna.
*205. Constitutional Progress, 1815-1848.*--Notwithstanding these facts,
the decade which terminates with the creation of the Confederation of
1815 contributed enormously to the clearing of the way for the
establishment of modern German unity and of vigorous and efficient
national government. Among large numbers of the German people there
had been engendered a genuine desire, not only for constitutionalism
in government, but for a substantial unification of the German-speaking
world; and the increased homogeneity and prosperity of the kingdom of
Prussia pointed already to the eventual realization of these aspirations
under the leadership of that powerful state. The history of Germany
during the period from 1815 to 1848 is a story largely of the growth
of these twin ideas of constitutionalism and nationality, and of (p. 197)
the relentless combat which was waged between their exponents and the
entrenched forces of autocracy and particularism. Gradually the
results of this conflict found expression through two developments,
(1) the promulgation of liberalizing constitutions in a majority of
the states and (2) the building of the Zollverein, or customs union.
The original draft of the Federal Act of 1815 pledged every member of
the Confederation to establish a constitution within a year. In the
final form of the instrument, however, the time limit was omitted and
what had been a specific injunction became but a general promise. The
sovereigns of the two preponderating states, Austria and Prussia,
delayed and eventually evaded the obligation altogether. But in a
large number of the lesser states the promise that had been made was
fulfilled with despatch. In the south the ground had been cleared by
the Napoleonic domination, and the influence of French political
experimentation was more generally felt, so that, very naturally, the
progress of constitutionalism was most rapid in that quarter. The new
era of constitution-making was inaugurated by the promulgation of the
fundamental law of Schwarzburg-Rudolstadt, January 8, 1816. In rapid
succession followed similar grants in Schaumburg-Lippe, January 15, 1816;
Waldeck, April 19, 1816; the grand-duchy of Saxe-Weimar-Eisenach, May 5,
1816; Saxe-Hildburghausen, March 19, 1818; Bavaria, May 26, 1818;
Baden, August 22, 1818; Lichtenstein, November 9, 1818; Württemberg,
September 25, 1819; Hanover, December 7, 1819; Brunswick, April 25,
1820, and the grand-duchy of Hesse, December 17, 1820. Instruments
promulgated later during the period under review include those of
Saxe-Meiningen, in 1829; Hesse-Cassel, Saxe-Altenburg, and Saxony, in
1831; Hohenzollern-Sigmaringen, in 1833; Lippe, in 1836; and Lübeck,
in 1846. In a number of the states mentioned, including Bavaria,
Baden, Württemberg, and Saxony, the constitutions at this time granted
are still in operation. Many of them were, and some of them remain,
highly illiberal. But, in the aggregate, the ground gained in behalf
of constitutional and enlightened government through their
promulgation was enormous.
The spread of constitutionalism was paralleled by the gradual
creation, after 1818, of the Zollverein. This was a customs union,
taking its origin in the establishment of free trade throughout the
kingdom of Prussia, and extended from state to state until by 1842 the
whole of Germany had been included save the Hanseatic towns,
Mecklenburg, Hanover, and Austria. The union was maintained for
purposes that were primarily commercial, but by accustoming the people
to concerted effort and by emphasizing constantly their common
interests it must be regarded as having contributed in a very (p. 198)
important way to the growth of national consciousness and solidarity.
Under its agency the lesser states were schooled deliberately in
independence of Austria and in reliance upon Prussian leadership.
II. THE CREATION OF THE EMPIRE
*206. The Revolution of 1848.*--From 1815 onwards the Liberals
advocated, in season and out, the conversion of the Confederation into
a more substantial union under a constitutional style of government.
Aside from the promulgation of a number of new state constitutions,
the effects of the revolutionary movements of 1830 were, in Germany,
of little consequence. But during the period 1830-1848 conditions so
developed that only the stimulus of a near-by liberal demonstration
was required to precipitate to the east of the Rhine a popular
uprising of revolutionary proportions. In the constitutional history
of the German countries of central Europe few periods are to be
assigned larger importance than the years 1848-1849. Taking advantage
of the interest created by the contemporary revolution in France, the
Liberal leaders began by convening at Heidelberg, March 31, 1848, a
_Vorparlament_, or preliminary meeting, by which arrangements were
effected for the election, by manhood suffrage, of a national assembly
of some six hundred members whose business it should be to draw up a
constitution for a united German nation. This assembly, reluctantly
authorized by the Diet, convened May 18 in the free city of Frankfort.
The task to be accomplished was formidable and much valuable time was
consumed in learned but irrelevant disputation. In the end it was
decided that not the whole of Austria, but only the German portions,
should be admitted to the new union; that there should be established
a full-fledged parliamentary system, with a responsible ministry; and
that the parliament should consist of two chambers, the lower to be
chosen by direct manhood suffrage, the upper to be made up half of
members appointed by the princes and half of members elected for six
years by the legislative bodies of the several states. As an executive
some desired a directory of three princes and some wanted a single
president; but the majority voted at length to establish the dignity
of German Emperor and to offer it to Frederick William IV., king of
Prussia.
*207. The Reaction.*--The refusal of the Prussian monarch to accept the
proffered title, save upon the impossible condition that all of his
brother princes in Germany should give their assent to his so doing,
blasted the hopes of the patriots. In May, 1849, the Frankfort
assembly broke up. Not long thereafter Prussia, Saxony, and (p. 199)
Hanover agreed upon a constitution substantially like that which the
Frankfort meeting had proposed. Other states accepted it, and March
20, 1850, a parliament was convened under it at Erfurt. By reason of
the recovery of Austria, however, and the subsidence of the
revolutionary movement generally throughout Germany the experiment
promptly collapsed. The conception of a German empire had been
formulated with some definiteness, but for its realization the day had
not yet arrived. The old Confederation, under Austrian domination,
kept the field. After an upheaval which involved the enforced
promulgation of a constitution, the accession of a new emperor (the
present Francis Joseph), and the threatened loss of Hungary, Bohemia,
and the Italian dependencies, the Austrian monarchy recovered its
balance and inaugurated a fresh era of reaction, during the course of
which there was revoked not only the constitution conceded at Vienna
but also that of almost every one of the German states.[278]
[Footnote 278: See pp. 454-456.]
In Prussia the outcome was more fortunate. In January, 1850, Frederick
William IV, granted a constitution which established a national
legislative assembly and admitted a portion of the Prussian people to
an active participation in the government. Although the instrument
proved a disappointment to the Liberals, it has survived, with some
modifications, to the present day as the fundamental law of the
Prussian kingdom; and the fact that Prussia had become fixedly a
constitutional state, together with the hopeless deadlock which arose
between Prussia and Austria in the attempted readjustments of
1848-1849, emphasized the conclusion that the future of Germany lay
with Prussia rather than with Austria, and that, indeed, there could
be no adequate unification of the German people until one of the two
great rival states should have been definitely ejected.[279]
[Footnote 279: On the revolution of 1848 in Germany
see Cambridge Modern History, XI., Chaps. 3, 6, 7;
H. von Sybel, The Founding of the German Empire
trans. by M. L. Perrin, 7 vols. (New York,
1890-1898), I., 145-243; H. Blum, Die deutsche
Revolution, 1848-1849 (Florence and Leipzig, 1897);
P. Matter, La Prusse et la révolution de 1848
(Paris, 1903).]
*208. The War of 1866.*--With the elevation of Count von Bismarck,
September 23, 1862, to the presidency of the Prussian ministry,
affairs began to move rapidly toward the inevitable conclusion. A
month prior to Bismarck's appointment there had been held at Frankfort
a conference--the so-called _Fürstentag_--whose object was the
proposal of a plan for the reconstitution of the Confederation. The
scheme suggested contemplated the establishment of a directory, an
assembly composed of delegates from the various diets, and a federal
court of appeal. The conference was held at the instigation of (p. 200)
Austria, and it was intended primarily to promote an alignment of the
liberal forces against Prussia. The last-mentioned state refused,
naturally, to have part in the proceedings, and the enterprise came to
naught. A brief interlude in the fast developing contest was afforded
by the Austro-Prussian alliance against Denmark in 1864; but the net
result of this episode was only to supply the occasion for war which
Bismarck desired. In 1866 Prussia came forward with a project for the
reorganization of the Confederation (in reality, a counter-bid for
popular support), the more noteworthy features of which were the total
exclusion of Austria from the league and the establishment of a
parliament elected by manhood suffrage. As was inevitable, the Diet
rejected the scheme; whereupon, with the object of forcing Austria
into helpless isolation, Bismarck and his royal master, William I., in
June, 1866, proclaimed the Confederation to be dissolved and plunged
the whole of Germany in civil war.
*209. The North German Bund, 1867.*--The conflict was short and sharp.
Its outcome was the crushing defeat of Austria, and in the treaty of
Prague (August 23, 1866) the proud Hapsburg monarchy was compelled to
assent to a reconstitution of the German federation in which Austria
should have no part. A number of lesser states which had supported
Austria--Hanover, Nassau, Hesse-Cassel, and Frankfort--were forthwith
incorporated by Prussia, by decree of September 20, 1866,[280] and
among the group of surviving powers the preponderance of Prussia was
more than ever indisputable. Realizing, however, that the states of
the south--Bavaria, Baden, Württemberg, and Hesse-Darmstadt--were not
as yet ready to be incorporated under a centralized administration,
Prussia contented herself for the moment with setting up a North
German _Bund_, comprising the states to the north of the river Main,
twenty-two in all. February 24, 1867, there was brought together in
Berlin a constitutional diet, representing all of the affiliated
states and elected by manhood suffrage and secret ballot. A
constitution, drafted previously by a committee of plenipotentiaries,
was debated from March 9 to April 16 and was adopted by a vote of 230
to 53. After having been ratified by the legislative bodies of the
various states, the instrument was put in operation, July 1. The
principal organs of government for which it made provision were three
in number: (1) the _Præsidium_, or President, of the Confederation,
the dignity being hereditary and vested in the king of Prussia; (2)
the _Bundesrath_, or Federal Council, representing the various
governments; and (3) the _Bundestag_, or Diet, composed of deputies
elected directly by manhood suffrage. For all practical purposes (p. 201)
the German Empire, under the hegemony of Prussia, was a reality.
[Footnote 280: The disputed districts of
Schleswig-Holstein were annexed at the same time.]
*210. Establishment of the Empire, 1871.*--For the time being the states
to the south of the Main were left to their own devices, though the
constitution of the _Bund_ was shaped purposely to permit, and even to
encourage, the accession of new members. Very soon these southern
states entered the new customs union of 1867, maintained by the
northern states, and ere long they were concluding with Prussia
treaties of both offensive and defensive alliance. The patriotic
fervor engendered by the war with France in 1870-1871 sufficed to
complete the work. Contrary to the expectation of Napoleon III., the
states of the south contributed troops and otherwise co-operated
vigorously with the Prussians throughout the contest, and before its
close they let it be known that they were ready to become full-fledged
members of the Confederation. On the basis of treaty arrangements,
concluded in November, 1870, it was agreed that the North German
Confederation should be replaced by a German Empire, and that for the
title of President, borne by the Prussian sovereign, should be
substituted that of _Deutscher Kaiser_, German Emperor. January 18,
1871, at Versailles, William, king of Prussia and President of the
Confederation, was formally proclaimed German Emperor. The siege of
Paris was at the time still in progress, and the treaty of Frankfort,
by which peace with France was concluded, was not signed until the
following May.[281]
[Footnote 281: For brief accounts of the founding
of the Empire see B. E. Howard, The German Empire
(New York, 1906), Chap. 1; E. Henderson, Short
History of Germany (New York, 1906). Chaps. 8-10;
Cambridge Modern History, XI., Chaps. 15-17, XII.,
Chap. 6; and Lavisse et Rambaud, Histoire Générale,
XI., Chap. 8. A very good book is G. B. Malleson,
The Refounding of the German Empire, 1848-1871 (2d
ed., London, 1904). More extended presentation of
German history in the period 1815-1871 will be
found in A. Stern, Geschichte Europas seit den
Verträgen von 1815 bis zum Frankfurter Frieden von
1871, 6 vols. (Berlin, 1894-1911), extending at
present to 1848; C. F. H. Bulle, Geschichte der
neuesten Zeit, 4 vols. (Leipzig, 1886-1887),
covering the years 1815-1885; H. G. Treitschke,
Deutsche Geschichte im Neunzehnten Jahrhundert, 5
vols. (Leipzig, 1879-1894), covering the period to
1848; H. von Sybel, Die Begründung des deutschen
Reiches durch Wilhelm I. (Munich and Leipzig,
1890), and in English translation under title of
The Founding of the German Empire (New York, 1890);
H. von Zwiedeneck-Sudenhorst, Deutsche Geschichte
von der Auflösung d. alten bis zur Errichtung d.
neuen Kaiserreichs (Stuttgart, 1903-1905); and M.
L. Van Deventer, Cinquante années de l'histoire
fédérale de l'Allemagne (Brussels, 1870). A book of
some value is A. Malet, The Overthrow of the
Germanic Confederation by Prussia in 1866 (London,
1870). P. Bigelow, History of the German Struggle
for Liberty (New York, 1905) is readable, but not
wholly reliable. An excellent biography of Bismarck
is that by Headlam (New York, 1899). For full
bibliography see Cambridge Modern History, X.,
826-832; XI., 879-886, 893-898; XII., 869-875.]
III. THE CONSTITUTION: NATURE OF THE EMPIRE (p. 202)
*211. The Constitution Framed.*--As ordained in the treaties of
November, 1870, ratified subsequently by the _Bundesrath_ and the
_Bundestag_ of the North German Confederation, and by the legislative
assemblies of the four incoming states, the German Empire came legally
into existence January 1, 1871. It consisted fundamentally of the
Confederation, which in the process of expansion did not lose its
corporate identity, together with the four states, whose treaties
bound them severally to it. The _Bund_ was conceived of technically,
not as replaced by, but rather as perpetuated in, the new Empire. The
accession of the four southern states, however, involved of necessity
a considerable modification of the original character of the
affiliation; and the innovations that were introduced called for a
general reconstitution of the fundamental law upon which the enlarged
structure was to be grounded.
The elements at hand for the construction of the constitution of the
Empire were four: (1) the constitution of the North German
Confederation, in operation since 1867; (2) the treaties of November
15, 1870, between the Confederation, on the one hand, and the
grand-duchies of Baden and Hesse on the other; (3) the treaty of
November 23, 1870, by which was arranged the adhesion of the kingdom of
Bavaria; and (4) the treaty of November 25, 1870, between the _Bund_,
Baden, and Hesse, on the one side, and the kingdom of Württemberg on
the other. Each of these treaties stipulated the precise conditions
under which the new affiliation should be maintained, these
stipulations comprising, in effect, so many projected amendments of
the original constitution of the _Bund_.[282] At the initiative of the
Emperor there was prepared, early in 1871, a revised draft of this
constitution, and in it were incorporated such modifications as were
rendered necessary by the adhesion of the southern states and the
creation of the Imperial title. March 31 the Reichstag was convened in
Berlin and before it was laid forthwith the constitutional _projet_,
to which the Bundesrath had already given its assent. April 14 the
instrument was approved by the popular chamber, and two days later it
was promulgated as the supreme law of the land.
[Footnote 282: The first three of these treaties
were concluded at Versailles; the fourth was signed
at Berlin.]
*212. Contents of the Instrument.*--As it came from the hands of its
framers, the new constitution comprised a judicious amalgamation of
the various fundamental documents that have been mentioned, i.e., the
constitution of the Confederation and the treaties. Within the (p. 203)
scope of its seventy-eight articles most subjects which are dealt with
ordinarily in such instruments find ample place: the nature and extent
of the legislative power; the composition, organization, and procedure
of the legislative chambers; the privileges and powers of the
executive; the adjustment of disputes and the punishment of offenses
against the national authority; the process of constitutional
amendment. It is a peculiarity of the German constitution, however,
that it contains elaborate provisions relating to a variety of things
concerning which constitutions, as a rule, are silent. There is an
extended section upon customs and commerce; another upon railways;
another upon posts and telegraphs; another upon navigation; another
upon finance; and an especially detailed one relating to the military
organization of the realm. In part, the elaboration of these
essentially legislative subjects within the constitution was
determined by the peculiarly federal character of the Empire, by which
was entailed the necessity of a minute enumeration of powers. In a
greater measure, however, it arose from the underlying purpose of
Bismarck and of William I. to smooth the way for the conversion of
Germany into the premier militant power of Europe. Beyond a guarantee
of a common citizenship for all Germany and of equal protection for
all citizens as against foreign powers, the constitution contains
little that relates to the status or privileges of the individual.
There is in it no bill of rights, and it makes no mention of abstract
principles. Among instruments of its kind, none is of a more
thoroughly practical character.[283]
[Footnote 283: The text of the constitution, in
German, is printed in A. L. Lowell, Governments and
Parties in Continental Europe, 2 vols. (Boston,
1896), II., 355-377, and in Laband, Deutsches
Reichsstaatsrecht, 411-428; in English, in W. F.
Dodd, Modern Constitutions, 2 vols. (Chicago,
1909), I., 325-351, and in Howard, The German
Empire, 403-435. Carefully edited German texts are:
L. von Rönne, Verfassung des deutschen Reiches (8th
ed., Berlin, 1899); A. Arndt, Verfassung des
deutschen Reiches (Berlin, 1902). On the formation
of the Imperial constitution see A. Lebon, Les
origines de la constitution allemande, in _Annales
de l'École Libre des Sciences Politiques_, July,
1888; ibid., Études sur l'Allemagne politique
(Paris, 1890).]
*213. Federal Character of the Empire.*--The political system of Germany
to-day is the product of centuries of particularistic statecraft,
capped, in 1871, by a partial centralization of sovereign organs and
powers. The Empire is composed of twenty-five states: the four kingdoms
of Prussia, Bavaria, Saxony, and Württemberg; the six grand-duchies of
Baden, Hesse, Mecklenburg-Schwerin, Saxe-Weimar, Mecklenburg-Strelitz,
and Oldenburg; the five duchies of Brunswick, Saxe-Meiningen,
Saxe-Altenburg, Saxe-Coburg-Gotha, and Anhalt; the seven (p. 204)
principalities of Schwarzburg-Sonderhausen, Schwarzburg-Rudolstadt,
Waldeck, Reuss Älterer Linie, Reuss Jüngerer Linie, Lippe, and
Schaumburg-Lippe; and the three free cities of Hamburg, Bremen, and
Lübeck. These states vary in size from Prussia, with 134,616 square
miles, to Bremen, with 99; and in population, from Prussia, with
40,163,333, to Schaumburg-Lippe, with 46,650. There is, in addition,
the _Reichsland_, or Imperial domain, of Alsace-Lorraine, whose status
until 1911 was that of a purely dependent territory, but which by act
of the year mentioned was elevated to a condition of quasi-statehood.[284]
[Footnote 284: See p. 285.]
Prior to the formation in 1867, of the North German Confederation,
each of the twenty-five states was sovereign and essentially
independent. Each had its own governmental establishment, and in many
instances the existing political system was of considerable antiquity.
With the organization of the _Bund_, those states which were
identified with the federation yielded their independence, and
presumably their sovereignty; and with the establishment of the
Empire, all gave up whatever claim they as yet maintained to absolute
autonomy. Both the _Bund_ and the Empire were creations, strictly
speaking, of the states, not of the people; and, to this day, as one
writer has put it, the Empire is "not a juristic person composed of
fifty-six million members, but of twenty-five members."[285] At the
same time, it is not what the old Confederation of 1815 was, i.e., a
league of princes. It is a state established by, and composed of,
states.[286]
[Footnote 285: P. Laband, Das Staatsrecht des
deutschen Reiches, I., 91.]
[Footnote 286: On the more purely juristic aspects
of the Empire the best work in English is Howard,
The German Empire (Chap. 2, on "The Empire and the
Individual States"). A very useful volume covering
the governments of Empire and states is Combes de
Lestrade, Les monarchies de l'Empire allemand
(Paris, 1904). The monumental German treatise is P.
Laband, Das Staatsrecht des deutschen Reiches (4th
ed., Tübingen, 1901), in four volumes. There is a
six-volume French translation of this work, Le
droit public de L'Empire allemand (Paris,
1900-1904). Other German works of value are: O.
Mayer, Deutsches Verwaltungsrecht (Leipzig,
1895-1896); P. Zorn, Das Staatsrecht des deutschen
Reiches (2d ed., Berlin, 1895-1897); and A. Arndt,
Das Staatsrecht des deutschen Reiches (Berlin,
1901). There is a four-volume French translation of
Mayer's important work, under the title Le droit
administratif allemand (Paris, 1903-1906). Two
excellent brief German treatises are: P. Laband,
Deutsches Reichsstaatsrecht (3d ed., Tübingen,
1907), and Hue de Grais, Handbuch der Verfassung
und Verwaltung in Preussen und dem deutschen Reiche
(18th ed., Berlin, 1907). The most recent work upon
the subject is F. Fleiner, Institutionen des
deutschen Verwaltungsrechts (Tübingen, 1911). A
suggestive monograph is J. du Buy, Two Aspects of
the German Constitution (New Haven, 1894).]
IV. THE EMPIRE AND THE STATES (p. 205)
*214. Sovereignty and the Division of Powers.*--The Germans are not
themselves altogether agreed concerning the nature and precise
location of sovereignty within the Empire, but it is reasonably clear
that sovereignty, in the ultimate meaning of that much misused term,
is vested in the government of the Empire, and not in that of any
state. The embodiment of that sovereignty, as will appear
subsequently, is not the national parliament, nor yet the Emperor, but
the Bundesrath, which represents the "totality" of the affiliated
governments.[287] As in the United States, Switzerland, and federal
nations generally, there is a division of powers of government between
the central governmental establishment and the states. The powers of
the Imperial government, it is important to observe, are specifically
enumerated; those of the states are residual. It is within the
competence of the Imperial government to bring about an enlargement of
the powers that have been confided to it; but until it does so in any
particular direction the power of the state governments in that
direction is unlimited. On the one hand, there is a considerable field
of legislative activity--in respect to citizenship, tariffs, weights,
measures, coinage, patents, military and naval establishment of the
Empire, etc.--in which the Empire, by virtue of constitutional
stipulation, possesses exclusive power to act.[288] On the other,
there is a no less extensive domain reserved entirely to the
states--the determination of their own forms of government, of laws of
succession, of relations of church and state, of questions pertaining
to their internal administration; the framing of their own budgets,
police regulations, highway laws and laws relating to land tenure; the
control of public instruction. Between lies a broad and shifting area,
which each may enter, but within which the Imperial authority, in so
far as is warranted by the constitution, must be accorded precedence
over the authority of a state. "The matters over which the states
preserve control," says a great German jurist, "cannot be separated
completely from those to which extends the competence of the Empire.
The various powers of government are intimately related the one to
another. They run together and at the same time impose mutual checks
in so many ways, and are so interlaced, that one cannot hope to set
them off by a line of demarcation, or to set up among them a Chinese
wall of division. In every sphere of their activity the states (p. 206)
encounter a superior power to which they are obliged to submit. They
are free to move only in the circle which Imperial law-making leaves
open to them. That circle does exist. It is delimited, but not wholly
occupied, by the Empire.... In a certain sense it may be said that it
is only by sufferance of the Empire that the states maintain their
political rights at all, and that, at best, their tenure is
precarious."[289]
[Footnote 287: Howard, German Empire, 21.]
[Footnote 288: Matters placed under the supervision
of the Empire and made subject to Imperial
legislation are enumerated in the sixteen sections
of Article 4 of the constitution. Dodd, Modern
Constitutions, I., 327-328.]
[Footnote 289: Laband, Das Staatsrecht des
deutschen Reiches (2d ed.), I., 102-103.]
In passing, it may be observed that there is, in fact, a distinct
tendency toward the reduction of the spheres of authority which
formerly were left to the states. One of the means by which this has
been brought about is the establishment of uniform codes of law
throughout the Empire, containing regulations respecting a multitude
of things which otherwise would have been regulated by the states
alone. Most important among these is the great Civil Code, which went
into effect January 1, 1900. Another means to the same end is the
increase in recent years of Imperial legislation relating to
workingmen's insurance, factory regulations, industrial conditions,
and other matters of a social and economic nature. Not infrequently in
recent times have the states, or some of them, raised protest against
this centralizing tendency, and especially against the "Prussianization"
of the Empire which it seems clearly to involve. In many states,
especially those to the south of the Main, the separatist tradition is
still very strong. In Bavaria, more than anywhere else, is this true,
and in 1903 the new Bavarian premier, Baron Podevils, was able to
arouse genuine enthusiasm for his government by a solemn declaration
before the diet that he and his colleagues would combat with all their
might "any attempt to shape the future of the Empire on lines other
than the federative basis laid down in the Imperial constitution."
*215. The Interlacing of Governmental Agencies.*--The functions of a
legislative character which are delegated to the Imperial government
are numerous and comprehensive, and in practice they tend all the
while to be increased. Those of an executive and judicial character
are very much more restricted. In respect to foreign relations, the
navy, and the postal and telegraph service, administration is
absolutely centralized in the organs of the Empire; in respect to
everything else, administrative functions are performed entirely, or
almost entirely, through the agency of the states. In the United
States the federal government is essentially complete within itself.
It has its own law-makers, administrators, and judges, who carry on
the national government largely independently of the governing agencies
of the various states. In Germany, where the state occupies in (p. 207)
some respects a loftier position in the federation than does its
counterpart in America, the central government, in respect to all save
the fields that have been mentioned, relies for the execution of its
measures upon the officials of the states. The Empire establishes
taxes and customs duties, but the imposts are collected by state
authorities. Similarly, justice is rendered, not in the name of the
Empire, but in the name of the state, and by judges in the employ of
the state. In respect to machinery, the Imperial government is,
therefore, but a part of a government. Alone, it could not be made to
operate. It lacks a judiciary; likewise the larger portion of the
administrative agencies without which mere powers of legislative
enactment are futile. To put the matter succinctly, the working
government of the Empire comprises far more than the organs and
functions that are purely Imperial; it comprises the federal organs
and functions possessed by the individual states as well.[290]
[Footnote 290: Laband, Das Staatsrecht des
deutschen Reiches, § 7-10; Lebon, Études sur
l'Allemagne politique, 93-104.]
*216. The States: the Prussian Hegemony.*--Legally, the union of the
German states is indestructible. The Imperial government is vested
with no power to expel a state, to unite it with another state, to
divide it, or in any way to alter its status in the federation. On the
other hand, no state possesses a right to secede, or to modify its
powers or obligations within the Empire. If a state violates its
obligations or refuses to be bound by the authority of the Empire, the
federal army, on decision of the Bundesrath, may be mobilized by the
Emperor against it.[291]
[Footnote 291: Art. 19. Dodd, Modern Constitutions,
I., 332.]
Among the states, however, there is a glaring lack of equality of
status and privilege. When the Empire was formed the component states
differed widely in area, population, and traditional rights, and there
was no attempt to reduce them to a footing that should be absolutely
uniform. Prussia, besides comprising the moving spirit in the new
affiliation, contained a population considerably in excess of that of
the other twenty-four states combined. The consequence was that
Prussia became inevitably the preponderating power in the Empire. The
king of Prussia is _ex-officio_ German Emperor; the Prussian votes in
the Bundesrath can defeat any proposed amendment of the constitution,
and likewise any measure looking toward a change in the army, the
navy, or the taxes; and Prussia controls the chairmanship of all
standing committees in the Bundesrath.[292]
[Footnote 292: A. Lebon, La constitution allemande
et l'hégémonie prussienne, in _Annales de l'École
Libre des Sciences Politiques_, Jan., 1887.]
*217. Military Arrangements.*--Other privileges Prussia possesses (p. 208)
by virtue, not of the constitution, but of agreements with her sister
states. The most important of these relates to the army. By the
constitution it was provided at the outset that the armed forces of
the Empire should be organized into a single establishment, to be
governed by Imperial law and to be under the supreme command of the
Emperor.[293] In respect to the appointment of minor officers, and
some other matters, powers of jurisdiction were left, however, to the
individual states. These powers were in themselves worth little, and
in the course of time all of the states save Bavaria, Saxony, and
Württemberg were brought to the point of yielding to Prussia the
slender military authority that remained to them.[294] In this manner
Prussia acquired the right to recruit, drill, and officer the
contingents of twenty-one states--a right which appreciably increased
her already preponderant authority in all matters of a military
character. Technically, there is no _German_ army, just as there is no
_German_ minister of war. Each state maintains its own contingent, and
the contingent maintained by the state is stationed normally within
that state. By virtue of the treaties, however, all contingents save
those of Bavaria, Saxony, and Württemburg are administered precisely
as if they comprised integral parts of the Prussian establishment.[295]
[Footnote 293: Arts. 61, 63, 64. Dodd, Modern
Constitutions, I., 345-347.]
[Footnote 294: The first of the Prussian military
treaties, that concluded with Saxe-Coburg-Gotha,
dates from 1861; the last, that with Brunswick,
from 1885.]
[Footnote 295: Howard, The German Empire, Chap. 12;
Laband, Das Staatsrecht des deutschen Reiches, §§
95-113; C. Morhain, De l'empire allemand (Paris,
1886), Chap. 15.]
*218. The Sonderrechte.*--In the possession of special privileges
Prussia, however, is not alone. When the states of the south became
members of the federation all of them stipulated certain
_Sonderrechte_, or reserved rights, whose acknowledgment was made the
condition upon which they came into the union. Württemberg and Bavaria,
for example, retain on this basis the administration of posts and
telegraphs within their boundaries, and Württemberg, Bavaria, and
Baden possess the exclusive right to tax beers and brandies produced
within each state respectively. Bavaria retains the administration of
her own railways. At one time it was feared that the special privileges
accorded the southern states would constitute a menace to the stability
of the Empire. Such apprehension, however, has proved largely
groundless.[296] In this connection it is worth pointing out that under
the Imperial constitution the right to commission and despatch diplomatic
(though not consular) agents is not withdrawn from the individual states.
In most instances, however, the maintenance of diplomatic representatives
abroad has long since been discontinued. Saxony, Bavaria, and (p. 209)
Württemberg retain to-day only their posts at Vienna, St. Petersburg,
and the Vatican.
[Footnote 296: Laband, Das Staatsrecht des
deutschen Reiches, §§ 11-13.]
*219. Constitutional Amendment.*--It is stipulated within the Imperial
constitution that amendments may be adopted by a process identical
with that of ordinary legislative enactment, save that an amendment
against which as many as fourteen votes are cast in the Bundesrath is
to be considered rejected. The practical operation of this
last-mentioned provision is to confer upon Prussia, possessing
seventeen votes and controlling twenty in the federal chamber, an
absolute veto upon all propositions looking toward constitutional
change. Clauses of the constitution whereby special rights are secured
to particular states may be amended only with the consent of the
states affected.[297] In 1873, 1888, and 1893 the text of the
constitution was amended, and upon several other occasions important
modifications have been introduced in the working constitution without
the formality of altering the letter of the instrument.
[Footnote 297: Art. 78. Dodd, Modern Constitutions,
I., 351.]
CHAPTER X (p. 210)
THE IMPERIAL GOVERNMENT: EMPEROR, CHANCELLOR, AND BUNDESRATH
I. THE EMPEROR
*220. Status and Privileges.*--Under the North German Confederation of
1867-1871 the king of Prussia was vested with supreme command of the
federal navy, the functions of Bundesfeldherr, or commander-in-chief
of the federal army, and a large group of purely governmental powers,
including the summoning, proroguing, and adjourning of the Bundesrath
and Bundestag, the appointment and dismissal of the Chancellor and of
other federal officials, the publication of the federal laws, and a
general supervision of the federal administration. These powers were
exercised by the king in the capacity of _Bundespræsidium_, or chief
magistrate, of the federation. Upon the accession of the south German
states in 1870-1871 Bismarck and his royal master determined to bring
once more into use in Germany the title of Emperor, although between
the empire which was now assuming form and the empire which had been
terminated in 1806 there was recognized to be no historical
connection. The constitution of April 16, 1871, accordingly stipulates
that "to the king of Prussia shall belong the presidency of the
Confederation, and he shall bear the title of _Deutscher Kaiser_
(German Emperor)."[298]
[Footnote 298: Art. II. Dodd, Modern Constitutions,
I., 330. It will be observed that the title is not
"Emperor of Germany." The phrase selected was
intended to denote that the Emperor is only _primus
inter pares_ in a confederation of territorial
sovereigns (_Landesherren_.) He is a territorial
sovereign only in Prussia.]
The revival of the Imperial title and dignity involved, and was
intended to involve, no modification of the status of the
Bundespræsident, save in respect to his official designation and
certain of his personal privileges. His relations with the states and
with the princes of the federation continued precisely as before. The
powers of the Kaiser were, and are, the powers of the old President,
and nothing in excess of those. The title might be taken to imply a
monarchy of the customary sort; but properly it does not. There is no
Imperial crown, no Imperial civil list, no Imperial "office" as such.
The king of Prussia, in addition to his purely Prussian prerogatives,
is by the Imperial constitution vested with the added prerogative (p. 211)
of bearing the Kaiser title and of exercising those powers which under
the constitution and laws are conferred upon the bearer of that title.
Apart from the Prussian crown the Imperial function does not exist;
from which it follows that there is no law of Imperial succession
apart from the Prussian law regulating the tenure of the Prussian
throne,[299] and that in the event of a regency in Prussia the regent
would, _ipso facto_, exercise the functions of Emperor. Chief among
the privileges which belong to the Kaiser as such are those of special
protection of person and family and of absolute exemption from legal
process. Responsible to no superior earthly authority, the Emperor may
not be brought for trial before any tribunal, nor be removed from
office by any judicial proceeding. Assaults upon his person are
punishable with death, and attacks, in speech or writing, which are
adjudged to constitute _lèse majesté_ are subject to special and
severe penalties.[300]
[Footnote 299: Arts. 53-58 of the Prussian
Constitution. See p. 253.]
[Footnote 300: R. C. Brooks, Lèse Majesté, in _The
Bookman_, June, 1904.]
*221. Powers: Military and Foreign Affairs.* The king of Prussia being
_ipso facto_ Emperor, the royal and Imperial functions which are
combined in the hands of the one sovereign are of necessity closely
interrelated. There are powers which belong to William II. to-day
solely by virtue of his position as king of Prussia. There are others,
of an Imperial nature, which he possesses by reason of the fact that,
being king of Prussia, he is also Emperor. In practice, if not in law,
there are still others which arise from the thoroughgoing
preponderance of the Prussian kingdom as a state within the
Empire--the power, in general, of imparting a bent to Imperial policy
such as would not be possible if, for example, the king of Württemberg
were Emperor, rather than the king of Prussia.
The functions of the Emperor as such are not numerous, but, so far as
they go, they are of fundamental importance. In the first place, the
Emperor is commander-in-chief of the army and navy. He may control the
organization of the Landwehr, or national defense; determine the
strength and composition of the armed contingents; supervise the
equipment and drilling of the troops; and mobilize the whole, or any
part, of the forces.[301] A second group of Imperial functions are
those relating to foreign affairs. "It shall be the duty of the
Emperor," says the constitution, "to represent the Empire among
nations, to declare war and to conclude peace in the name of the
Empire, to enter into alliances and other treaties with foreign
countries, to accredit ambassadors and to receive them."[302] The (p. 212)
Emperor's power, however, is not in all of these directions absolute.
One important limitation arises from the requirement that, under all
circumstances save in the event of an attack upon the federal
territory or its coasts, war may be declared only with the consent of
the Bundesrath. Another is that in so far as treaties with foreign
countries relate to matters which are to be regulated by Imperial
legislation, "the consent of the Bundesrath shall be required for
their conclusion, and the approval of the Reichstag shall be necessary
to render them valid."[303]
[Footnote 301: Howard, The German Empire, Chap. 12;
Laband, Deutsches Reichsstaatsrecht, 345-359.]
[Footnote 302: Art. II. Dodd, Modern Constitutions,
I., 330.]
[Footnote 303: Art. II, clause 3. Dodd, I., 331.]
*222. Powers: Legislation and Justice.*--A third group of functions has
to do with legislation. By the constitution the Emperor is vested with
the right to convene the Bundesrath and the Reichstag, and to open,
adjourn, and close them.[304] In accordance with resolutions of the
Bundesrath, bills are laid before the Reichstag in the name of the
Emperor; and it is the Emperor's duty to prepare and publish the laws
of the Empire, as well as to supervise their execution.[305] In so far
as is permitted by the constitution, and by laws from time to time
enacted, decrees and ordinances may be promulgated by the Emperor,
under the countersignature of the Chancellor. Speaking strictly, the
Emperor possesses no veto upon measures passed in the Bundesrath and
Reichstag, though in practice he may refuse to publish a law in the
enactment of which he believes the ordinary formal requirements not to
have been complied with. He may not withhold a measure by reason
simply of its content.
[Footnote 304: Art. 12. Ibid.]
[Footnote 305: "The laws of the Empire shall
receive their binding force by Imperial
promulgation, through the medium of an Imperial
Gazette. If no other time is designated for the
published law to take effect it shall become
effective on the fourteenth day after its
publication in the Imperial Gazette at Berlin."
Art. 2. Dodd, Modern Constitutions, I., 326.]
The Emperor is vested, in the next place, with certain prerogatives in
relation to the judiciary. On motion of the Bundesrath, he appoints
(though he may not remove) the members of the Reichsgericht, or
Imperial Court; and by the Code of Criminal Procedure it is stipulated
that in cases in which the Imperial Court shall have rendered judgment
as a tribunal of first instance, the Emperor shall possess the power
of pardon. The pardoning power is extended likewise to cases adjudged
in consular courts, prize courts, and other tribunals specified by
law.
*223. Powers: Execution of the Law.*--Finally, the execution of the laws
is intrusted to the Emperor with, however, this limitation, that,
under the German system, the execution of law is committed largely to
the states and the officials thereof, so that the measures of the (p. 213)
Imperial Government whose execution is not specifically provided for
by the constitution and the laws are presumably carried into effect by
the constituted authorities of the states. There are, however,
Imperial agents whose business it is to inspect the execution of
Imperial measures by the states and to report to the Emperor
infractions or omissions. When such delinquencies are adjudged
sufficiently serious, the Emperor may bring them to the attention of
the Bundesrath, and that body may order an "execution," i.e., a show
of military force to coerce the erring state. The carrying out of the
"execution" is intrusted to the Emperor.[306] Incident to the general
executive function is the power to make appointments. By the
constitution it is stipulated that the Emperor, in addition to
appointing the Imperial Chancellor, shall appoint Imperial officials,
require of them the taking of an oath to the Empire, and, when
necessary, dismiss them.[307] The position which the Chancellor
occupies in the Imperial administrative system is of such weight that
the power of appointing to, and of removing from, the chancellorship
is in itself of very large importance; and the Kaiser's control of
administration is still further increased by his power of appointment
and removal of subordinate officials.[308]
[Footnote 306: Art. 19. Dodd, Modern Constitutions,
I., 332.]
[Footnote 307: Art. 18. Ibid.]
[Footnote 308: Art. 19. Dodd, Modern Constitutions,
I., 332. On the status and functions of the German
Emperor see Howard, The German Empire, Chap. 3; J.
W. Burgess, The German Emperor, in _Political
Science Quarterly_, June, 1888; Laband, Das
Staatsrecht des deutschen Reiches, §§ 24-26; ibid.,
Das deutsche Kaiserthum (Strassburg, 1896); R.
Fischer, Das Recht des deutschen Kaisers (Berlin,
1895); K. Binding, Die rechtliche Stellung des
Kaisers (Dresden, 1898); R. Steinbach, Die
rechtliche Stellung des deutschen Kaisers
verglichen mit des Präsidenten der Vereinigten
Staaten von Amerika (Leipzig, 1903).]
II. THE CHANCELLOR
*224. Non-existence of a Parliamentary System.*--Within the domain of
Imperial government the place filled in other governmental systems by
a ministry or cabinet of some variety is occupied by a single official,
the _Reichskanzler_, or Chancellor. When the Imperial constitution was
framed it was the intention of Bismarck to impart to the Imperial
administration the fullest facility and harmony by providing the
Chancellor with no colleagues, and by making that official responsible
solely to the Emperor. Such a scheme would have meant, obviously, a
thoroughgoing centralization in all Imperial affairs and the utter
negation of anything in the way of a parliamentary system of government.
The more liberal members of the constituent Reichstag compelled (p. 214)
a modification of the original Bismarckian programme; so that when the
constitution assumed its permanent form it contained not merely the
stipulation that "the Imperial Chancellor, to be appointed by the
Emperor, shall preside in the Bundesrath and supervise the conduct of
its business," but the significant provision that "the decrees and
ordinances of the Emperor shall be issued in the name of the Empire,
and shall require for their validity the countersignature of the
Imperial Chancellor, who thereby assumes the responsibility for
them."[309]
[Footnote 309: Arts. 15 and 17. Dodd, Modern
Constitutions, I., 331.]
Nominally, this article establishes the principle of ministerial
responsibility, even though there is but a single minister to be made
responsible. Practically, it does nothing of the sort, for the reason
that no machinery whatever is provided for the enforcing of
responsibility. There is not even specification of the authority to
which responsibility shall lie. The article stipulating
responsibility, appropriated from the constitution of Prussia, was
merely tacked on the Imperial instrument and has never been brought
into organic relation with it. In practice the Imperial Government has
always been able to do business without for a moment admitting the
right of the Reichstag to unseat the Chancellor by an adverse vote.
The Chancellor may be criticised and the proposals which he introduces
may be defeated; expediency may even require his removal by his
Imperial master; but he has never felt obliged to retire merely by
reason of lack of support in the legislative chamber, as would a
British or a French minister similarly situated. This does not mean,
of course, that the blocking of a governmental programme may not tend
to produce the practical effect of a parliamentary vote of "want of
confidence." It means simply that the Chancellor, in such a case, is
under no admitted obligation to resign. The retirement of Chancellor
von Bülow during the crisis of 1908-1909 was more nearly involuntary
than that of any one of his three predecessors, but persons most
conversant with the circumstances agree that there was involved in it
no intention of concession to the parliamentary principle. The
Chancellor's fall was, in reality, only his punishment for
countenancing the popular indignation occasioned by the Emperor's
memorable _Daily Telegraph_ interview, for which the Chancellor
himself had been, at least technically, responsible.[310]
[Footnote 310: For an excellent discussion of this
general subject see W. J. Shepard, Tendencies
toward Ministerial Responsibility in Germany, in
_American Political Science Review_, Feb., 1911. In
the course of an impassioned speech in the
Reichstag in 1912, occasioned by a storm of protest
against the Emperor's alleged threat to withdraw
the newly granted constitution of Alsace-Lorraine,
Chancellor von Bethmann-Hollweg stated the theory
and fact of the office which he holds in these
sentences: "No situation has been created for which
I cannot take the responsibility. As long as I
stand in this place I shield the Emperor (_trete
ich vor den Kaiser_). This not for courtiers'
considerations, of which I know nothing, but as in
duty bound. When I cannot satisfy this my duty you
will see me no more in this place."]
There is a clause of the constitution[311] which confers upon the (p. 215)
Chancellor the right to delegate the power to represent him to _any
other_ member of the Bundesrath; whence it seems to follow that the
Chancellor must be himself a member of that body. The relations of the
Empire and the Prussian kingdom practically require, further, that the
Chancellor be identified with the Prussian contingent in the federal
chamber. Since, however, the Emperor, in his capacity of king of
Prussia, designates the Prussian delegates in that body, it is open to
him to make such an appointment in this second capacity as will enable
him when selecting, in his Imperial capacity, a chancellor to procure
the services of the man he wants.
[Footnote 311: Art. 15, cl. 2. Dodd, Modern
Constitutions, I., 331.]
*225. Functions: in the Bundesrath and the Reichstag.*--Speaking
broadly, the functions of the Chancellor are two-fold. The first
arises from his position within the Bundesrath. Not only does he
represent in that body, as do his Prussian colleagues, the king of
Prussia; he is vested constitutionally with the presidency of it and
with the supervision of its business. He determines the dates of its
sessions. Through his hands pass all communications and proposals,
from the states as well as from the Reichstag, addressed to it, and he
is its representative in all of its external relations. In the name of
the Emperor he lays before the Reichstag all measures enacted by the
Bundesrath; and as a member of the Bundesrath, though not as Imperial
Chancellor, he may appear on the floor of the Reichstag to advocate
and explain proposed legislation. Measures which have been enacted
into law are binding only after they have been proclaimed by the
Chancellor, such proclamation being made regularly through the
official organ known as the _Reichsgesetzblatt_.
*226. Functions: Administration.*--A second function, so inextricably
intertwined with those just mentioned as to be in practice sometimes
not clearly distinguishable from them, is that which arises from the
Chancellor's position as the principal administrative official of the
Empire. As has been pointed out, the work of administration under the
German system is largely decentralized, being left to the states; but
the ultimate administrative _authority_ is very highly centralized,
being gathered in the hands of the Chancellor in a measure not
paralleled in any other nation of western Europe. As an administrative
official the Chancellor has been described with aptness as the
Emperor's "other self." He is appointed by the Emperor; he may be
dismissed by him; he performs his functions solely as agent and (p. 216)
assistant of the Emperor; and, although according to the letter of
the constitution responsible to the Reichstag, he is, in practice,
responsible to no one save his Imperial master.
Prior to 1870 the administrative functions of the Confederation were
vested in a single department, the _Bundeskanzleramt_, or Federal
Chancery, which was organized in three sections--the "central office,"
the postal office, and the bureau of telegraphs. For the time being,
affairs pertaining to the army, the navy, and foreign relations were
confided to the care of the appropriate ministries of Prussia. In 1870
there was created a separate federal department of foreign affairs,
and in the following year a federal department of the marine. One by
one other departments were established, until in 1879 the process was
completed by the conversion of what remained of the Bundeskanzleramt
into a department of the interior. The status of these departments,
however, was from the outset totally unlike that of the corresponding
branches of most governments. They were, and are, in effect but
bureaus of the Imperial Chancellery, and their heads comprise in no
degree a collegiate ministry or cabinet. Each official in charge of a
department owes his position absolutely to the Chancellor, and is
responsible, not to the Reichstag, nor yet to the Emperor directly,
but to the Chancellor. Some of the more important officials bear the
title of "secretary of state," but in any case they are legally
nothing more than expert and essentially non-political functionaries
of the administrative hierarchy, answerable to the Chancellor for all
that they may do.[312] Of the principal departments there are at
present seven: the Foreign Office, the Colonial Office, the Imperial
Home Office, the Department of Justice, the Imperial Treasury, the
Imperial Admiralty, and the Imperial Post-Office. In the nature of
things some are more important than others; and in addition to them
there are several Imperial bureaus, notably those of Railways, the
Bank, and the Debt Commission. Throughout all branches of the Imperial
administrative service appointments and dismissals are made regularly
by the Chancellor, in the name of the Emperor, and by the same
authority all administrative regulations are promulgated.[313]
[Footnote 312: At the same time it is to be
observed that, in practice, the more important
state secretaries are apt to sustain a relation
with the other organs of government which is
somewhat closer than might be inferred from what
has been said. Not infrequently they sit in the
Bundesrath, and are by reason of that fact
privileged to defend their measures in person on
the floor of the Reichstag. Not infrequently, too,
they are members of the Prussian ministry.]
[Footnote 313: Laband, Das Staatsrecht des
deutschen Reiches, §§ 41, 64-66.]
*227. Delegation of Powers.*--There are two arrangements in accordance
with which it is possible for the functions of the Chancellor to (p. 217)
be vested in a substitute. By the constitution the Chancellor is
authorized, as has been observed, to delegate to any other member of
the Bundesrath the power of representing him in that body; and there
is a special agreement to the effect that, in such a contingency,
should no acceptable Prussian substitute be available, the choice
shall fall on a Bavarian. In the second place, under statute of March
17, 1878, the Chancellor is empowered to call for the appointment of a
substitute, or substitutes, in his capacity of Imperial minister. The
appointment in such a case is made, not by the Chancellor himself, but
by the Emperor, and there may be designated either a general
substitute (_Generalstellvertreter_) or a substitute for the discharge
of the Chancellor's functions in some particular department
(_Specialstellvertreter_).[314] In the one case there is no limit upon
the Emperor's freedom of choice; in the other, appointments must be
made from chiefs of the department or departments affected. The
Chancellor may at any time resume functions thus delegated.[315]
[Footnote 314: The law of 1878 was enacted on the
occasion of Bismarck's prolonged absence from
Berlin, during his retirement at Varzin. A
_Generalstellvertreter_ takes the title of
_Reichsvicekanzler_, or Imperial Vice-Chancellor.]
[Footnote 315: On the status and functions of the
Chancellor see Howard, The German Empire, Chap. 7;
Laband, Das Staatsrecht des deutschen Reiches, §
40; L. Dupriez, Les ministres dans les principaux
pays d'Europe et d'Amérique, 2 vols. (Paris, 1892),
I., 483-548; Hensel, Die stellung des
Reichskanzlers nach dem Staatsrechte des deutschen
Reiches, in Hirth, _Annalen des deutschen Reiches_,
1882; M. I. Tambaro, La transformation des pouvoirs
en Allemagne, in _Revue du Droit Public_,
July-Sept., 1910.]
III. THE BUNDESRATH
If the chancellorship is without a counterpart among modern
governments, no less so is the Federal Council, or Bundesrath. No
feature of the German political system is more extraordinary; none, as
one writer has observed, is more thoroughly native.[316] It is not an
"upper house," nor even, in the ordinary sense, a deliberative chamber
at all. On the contrary, it is the central institution of the whole
Imperial system, and as such it is possessed of a broad combination of
functions which are not only legislative, but administrative,
consultative, judicial, and diplomatic.
[Footnote 316: Lowell, Governments and Parties, I.,
259.]
*228. Composition: the Allotment of Votes.*--The Bundesrath is composed
of delegates appointed by the princes of the monarchical states and by
the senates of the free cities. In the Imperial constitution it is
required that the fifty-eight votes to which the twenty-five states
of the confederation are entitled shall be distributed in such a (p. 218)
manner that Prussia shall have seventeen, Bavaria six, Saxony four,
Württemberg four, Baden three, Hesse three, Mecklenburg-Schwerin two,
Brunswick two, and the seventeen other states one apiece.[317] Save
for the increase of the Bavarian quota from four to six and of the
Prussian from four to seventeen, these numbers were simply carried
over from the Diet of the Confederation of 1815. The Prussian increase
arose, in 1866, from the absorption of Hanover, Hesse Cassel,
Holstein-Lauenburg, Nassau, and Frankfort; the Bavarian, from a
customs union treaty of July 8, 1867. Subsequent to the adoption of
the constitution of 1871 Prussia acquired, by contract, the vote of
the government of Waldeck; also, through the establishment in
1884-1885 of a perpetual Prussian regency in Brunswick, the two votes
to which that state is entitled; so that the total of the votes
controlled by the government of Prussia has been raised, for all
practical purposes, to twenty.
[Footnote 317: Under the Alsace-Lorraine
Constitution Act of 1911 (see p. 285), comprising
for all practical purposes an amendment of the
Imperial constitution, the territory of
Alsace-Lorraine has become nominally a state of the
Empire, being accorded three votes in the
Bundesrath. The whole number of votes was thus
raised to sixty-one. The Alsatian delegates are
appointed by the Statthalter, who is the immediate
and responsible agent of the Emperor. Their votes
are cast, however, under regulations which are
inconsistent with full-fledged statehood.]
It may be observed that the allocation of votes for which provision
was made in the constitution of 1867-1871 was largely arbitrary. That
is to say, except for the quotas of Prussia and Bavaria, it was
perpetuated from the constitution of 1815 with no attempt to apportion
voting power among the several states in exact relation to population,
wealth, or importance. Upon any one of these bases Prussia must have
been accorded an absolute majority of the aggregate number, rather
than a scant third. In 1867 the population of Prussia comprised
four-fifths of that of the North German Confederation; in 1871,
two-thirds of that of the Empire. That Prussia should intrust to her
sister states a total of forty-one votes, retaining but seventeen for
herself, was one of the arrangements by which Bismarck sought to
assure the lesser members of the federation against too complete
domination on the part of the Prussian kingdom.
*229. Status of Delegates and Method of Voting.*--Each state is
authorized, though not required, to send to the Bundesrath a number of
delegates identical with the number of votes to which the state is
entitled. The full quota of members is, therefore (since the
Alsace-Lorraine Constitution Act of 1911), sixty-one. Legally, and to
a large extent practically, the status of the delegate is that, not of
a senator, but of a diplomat; and the Emperor is required to (p. 219)
extend to the members of the body the "customary diplomatic
protection."[318] Delegates are very commonly officials, frequently
ministers, of the states which they represent. They are appointed
afresh for each session, and they may be recalled or replaced at any
time. The purely federal character of the Bundesrath is further
emphasized by two principal facts. The members speak and act and vote
regularly, not at their own discretion, but under the specific
instructions of the governing authorities by whom they are accredited.
Only rarely do their instructions allow to them any considerable
measure of independence. Strictly, the Bundesrath is not a
deliberative assembly at all; though, unlike the former Diet, it is
something more than a meeting of ambassadors of the states. In the
second place, the votes cast are the votes, not of the individual
members, but of the states, and they are cast in indivisible blocks by
the delegations of the states, regardless of the number of members in
attendance. Thus, Bavaria is entitled to six votes. Whatever the
individual opinions of the six Bavarian delegates, the six Bavarian
votes are cast solidly upon any question that may arise. It is not
even necessary that six delegates actually participate in the
decision. A single delegate may cast the entire quota of votes to
which his state is entitled. The twenty votes controlled by Prussia
are therefore cast invariably in a block, from which it follows that
Prussia usually preponderates in the chamber. On several occasions the
smaller states have been able to combine in sufficient numbers to
defeat a project upon which Prussia was bent, but such a proceeding is
distinctly exceptional.
[Footnote 318: Art. 10. Dodd, Modern Constitutions,
I., 330.]
*230. Sessions and Procedure.*--The Bundesrath may be convened by the
Emperor, which in effect means by the Chancellor, at any time. The
constitution stipulates that there shall be at least one session a
year, and, furthermore, that it shall be obligatory upon the Emperor
to convene the body whenever a meeting is demanded by one-third of the
total number of votes. The Bundesrath may be called together "for the
preparation of business" without the Reichstag; but the Reichstag may
not be convened without the Bundesrath.[319] The presiding officer at
all sessions is the Chancellor, or some other member of the body by
him designated as a substitute. It is within the competence of each
member of the confederation, i.e., each state, to propose measures
and to introduce motions. The phraseology of the constitution debars
the Emperor, as Emperor, from introducing proposals. As king of
Prussia, however, he may bring forward any project through the (p. 220)
medium of the Prussian delegation; and in actual practice it has
not always been deemed necessary to resort to this subterfuge.
[Footnote 319: Arts. 13 and 14. Dodd, Modern
Constitutions, I., 331.]
From all sittings of the Bundesrath the public is rigorously excluded;
and although ordinarily upon the conclusion of a session a statement
regarding the results of the proceedings is given to the press, the
chamber may vote to withhold such information altogether. Business
left unfinished at the close of a session may be resumed upon the
reassembling, precisely as if no lapse of time had occurred. With some
exceptions, a simple majority of the sixty-one votes is adequate for
the adoption of a measure. In the event of a tie, the Prussian
delegation possesses the deciding voice. The principal limitations
upon decisions by simple majority are: (1) any proposal to amend the
constitution may be rejected by as few as fourteen votes, whence it
arises that Prussia has an absolute veto on amendments; and (2) when
there is a division upon proposed legislation relating to military
affairs, the navy, the tariff, and various consumption taxes, the vote
of Prussia prevails if it is cast in favor of maintaining the _status
quo_.[320]
[Footnote 320: Art. 5. Dodd, Modern Constitutions,
I., 328.]
*231. Committees.*--The work of the Bundesrath consists largely in the
preparation of measures for the consideration of the Reichstag, and a
goodly share of its labor is performed in committees. Of permanent
committees there are now twelve--eight provided for within the
constitution itself and four existing by virtue of standing orders.
The committees prescribed by the constitution are those on the army
and fortifications; marine; customs and taxes; commerce; railroads,
posts and telegraphs; judicial affairs; accounts; and foreign
relations. Under certain limitations, each of these committees,
constituted for one year, is chosen by the Bundesrath itself, by
secret ballot, except that the Emperor appoints the members of the
committee on the marine and all but one of the members of the
committee on the army and fortifications.[321] The committees existing
by virtue of standing orders are those on Alsace-Lorraine, railroad
freight rates, standing orders, and the constitution. All committees
consist of seven members, save those on foreign affairs and the
marine, which have five; and each includes representatives of at least
four states. Prussia holds all chairmanships, save that of the
committee on foreign affairs, which belongs to Bavaria.
[Footnote 321: Art. 8. Ibid., I., 330. Strictly,
the Bundesrath but indicates by ballot the states
which shall be represented on each committee,
leaving to the states themselves the right to name
their representatives.]