which the Bundesrath occupies in the German constitutional system the
functions of the body are fundamental and its powers comprehensive.
Its competence is in the main legislative and fiscal, but also in part
executive and judicial. By the constitution it is stipulated that the
legislative power of the Empire shall be exercised by the Bundesrath
and the Reichstag, and that a majority of the votes of both bodies
shall be necessary and sufficient for the enactment of a law.[322] The
right of initiating legislation is expressly conferred upon the
Reichstag, but in practice it is exercised almost exclusively by the
Bundesrath. Even finance bills all but invariably originate in the
superior chamber. Under the normal procedure bills are prepared,
discussed, and voted in the Bundesrath, submitted to the Reichstag for
consideration and acceptance, and returned for further scrutiny by the
Bundesrath before their promulgation by the Emperor. In any case, the
final approval of a measure must take place in the Bundesrath, by
whose authority alone the character of law can be imparted. Speaking
strictly, it is the Bundesrath that makes law, with merely the assent
of the Reichstag.
[Footnote 322: Art. 5. Dodd, Modern Constitutions,
I., 328.]
*233. Executive Authority.*--The Bundesrath's executive functions
represent a curious admixture, but the sum total is very considerable.
In the first place, the body possesses supplementary administrative
powers. By the constitution it is required to take action upon "the
general administrative provisions and arrangements necessary for the
execution of the Imperial laws, so far as no other provision is made
by law," as well as upon "the defects which may be discovered in the
execution of the Imperial laws."[323] This function is performed
through the issuing of ordinances so devised as not to contravene the
constitution, existing law, or the proper prerogatives of any
constituted authority, Imperial or state. In the second place, certain
powers vested in the Emperor may be exercised only with the
Bundesrath's consent. Most important of these are: (1) the declaration
of war, save in the event of an attack upon the territory or coasts of
the Empire; (2) the concluding of treaties, in so far as they relate
to matters falling within the range of Imperial legislation; and (3)
the carrying out of an "execution" against a delinquent state. Finally
certain relations are maintained with the Reichstag which involve the
exercise of authority that is essentially executive. With the assent
of the Emperor, the Bundesrath may dissolve the popular chamber; and
every member of the Bundesrath has the right to appear in the (p. 222)
Reichstag and to be heard there at any time upon his own request,
somewhat after the manner of a minister in a parliamentary
government.[324] Large functions in connection with public finance,
likewise, are vested in the body. By it the annual budget is prepared,
the accounts which the Empire carries with the states are audited, and
important supervisory relations with the Imperial Bank, the Imperial
Debt Commission, and other fiscal agencies, are maintained. Lastly,
there is some participation in the power of appointment; for although
that power, as such, is vested in the Emperor, officials of some kinds
(e.g., judges of the Imperial Court) are actually chosen by the
Bundesrath, and in many other instances the body preserves an
acknowledged right to approve appointments which are made.
[Footnote 323: Art. 7. Dodd, I., 329.]
[Footnote 324: Arts. 9 and 24. Dodd, Modern
Constitutions, I., 330-333. It should be observed,
however, that the members of the Bundesrath are
authorized to appear in the Reichstag, not for the
purpose of advocating a measure which the
Bundesrath has enacted, or would be willing to
enact, but simply to voice the interests or demands
of their own states.]
*234. Judicial Powers.*--In its judicial capacity the Bundesrath sits as
a supreme court of appeal, to which cases may be carried from the
tribunals of a state, when it can be shown that justice is not to be
had in those tribunals.[325] It serves also as a court of last resort
for the settlement of disputes between the Imperial Government and a
state; or between two states, when the point at issue is not a matter
of private law and when a definite request for action is made by one
of the parties. Finally, in disputes relating to constitutional
questions in states whose constitution does not designate an authority
for the settlement of such differences, the Bundesrath is required, at
the request of one of the parties, to effect an amicable adjustment;
or, if this shall prove impossible, to see to it that the issue is
settled by Imperial law.[326]
[Footnote 325: Art. 77. Dodd, Modern Constitutions,
I., 350.]
[Footnote 326: Art. 76. Dodd, Modern Constitutions,
I., 350. On the Bundesrath see Howard, The German
Empire, Chap. 4; J. H. Robinson, The German
Bundesrath, in _Publications of University of
Pennsylvania_, III. (Philadelphia, 1891); P.
Laband, Das Staatsrecht des deutschen Reiches, §§
27-31; A. Lebon, Études sur l'Allemagne politique,
137-151; Dupriez, Les Ministres, I., 505-523; Zorn,
Das Staatsrecht des deutschen Reiches, I., 136-160;
E. Kliemke, Die Staatsrechtliche Natur und Stellung
des Bundesrathes (Berlin, 1894); A. Herwegen,
Reichsverfassung und Bundesrat (Cologne, 1902).]
CHAPTER XI (p. 223)
THE IMPERIAL GOVERNMENT: REICHSTAG, PARTIES, JUDICIARY
I. COMPOSITION OF THE REICHSTAG--ELECTORAL SYSTEM
In complete contrast with the Bundesrath, which is a purely federal
institution, the Reichstag is broadly national. It represents, not the
states, nor yet the people of the states, but the people of the Empire
as a whole. From what has been said regarding the preponderance of the
autocratic principle in the German system it follows that there is no
room in that system for a parliamentary chamber of the nature of the
British House of Commons or of the French Chamber of Deputies. None
the less, restricted as are its functions, the Reichstag is one of the
world's most vigorous and interesting legislative bodies.
*235. Allotment of Seats.*--Members of the Reichstag are chosen for a
term of five years,[327] by direct and secret ballot, at an election
which takes place on a given day throughout the entire Empire. The
number of seats, fixed tentatively by the constitution of 1871 at 382,
was, by law of June 25, 1873, providing for the election of fifteen
members from Alsace-Lorraine, increased to 397; and it thereafter
remained unchanged. The electoral "circles," or districts, each of
which returns one member, were laid out originally in such a way as to
comprise 100,000 inhabitants each, and also in such a manner that no
district would embrace portions of two or more states. Since 1871
there has been no redistricting of the Empire, and the populations
comprising the various constituencies have become grossly unequal.
Berlin, with more than two million people, is still entitled to but
six seats; and the disproportion in other great cities and densely
inhabited regions is almost as flagrant.[328] There has long been
demand for a redistribution of seats; but, by reason of the proneness
of urban constituencies to return to the Reichstag socialists or other
radicals, the Government has never been willing to meet the (p. 224)
demand. By states, the 397 seats are distributed as follows: Prussia,
236; Bavaria, 48; Saxony, 23; Württemberg, 17; Alsace-Lorraine
(Imperial territory), 15; Baden, 14; Hesse, 9; Mecklenburg-Schwerin,
6; Saxe-Weimar, 3; Oldenburg, 3; Brunswick, 3, Hamburg, 3;
Saxe-Meiningen, 2; Saxe-Coburg-Gotha, 2; Anhalt, 2; and all others,
one each. As in the American House of Representatives, a state is
entitled to one member regardless of its population.
[Footnote 327: The term, originally three years,
was made five by a law of 1888. The modification
went into effect with the Reichstag elected in
February, 1890.]
[Footnote 328: In Conservative East Prussia the
average number of voters in a district is 121,000;
in Socialist Berlin it is 345,000. Twelve of the
most populous districts represented in the
Reichstag contain 1,950,000 voters; twelve of the
least populous, 170,000. The district of
Schaumburg-Lippe has but 9,891.]
*236. Time and Method of Elections.*--Electoral procedure is regulated
by the Election Law of May 31, 1869, amended in minor particulars at
subsequent dates, and extended in 1871 and in 1873 to the southern
states and to Alsace-Lorraine respectively. Elections are held
uniformly throughout the Empire on a day fixed by the Emperor. In the
event of a dissolution prior to the end of the five-year term an
election is required to take place within a period of sixty days, and
the new Reichstag must be convened not later than ninety days after
the dissolution.[329] For election on the first ballot an absolute
majority of the votes cast within the circle, or district, is
required. If no candidate obtains such a majority, there follows a
second balloting (_Stichwahl_) a fortnight later, when choice is made
between the two candidates who upon the first occasion polled the
largest number of votes. In the event of a tie, decision is by
lot.[330] Secrecy of the ballot is specially safeguarded by
regulations enacted April 28, 1903. Each voter, upon appearing at the
polls, is furnished with an envelope and a white voting-paper bearing
an official stamp. In a compartment arranged for the purpose in the
polling room he marks his ballot and incloses it in the envelope. As
he leaves the room he hands the envelope to the presiding officer or
deposits it in a voting urn. Once elected, a member, according to
constitutional stipulation, is a representative, not of the
constituency that chose him, but of the people of the Empire as a
whole, and he may not be bound by any order or instruction.[331]
[Footnote 329: Art. 25. Dodd, Modern Constitutions,
I., 333.]
[Footnote 330: By reason of the multiplicity of
parties the number of second ballotings required is
invariably large. In 1890 it was 138; in 1893, 181;
in 1898, 185; in 1903, 180; in 1907, 158; and in
1912, 191. It is calculated that the effect of
forty per cent of the second ballotings is to
prevent the election of the candidate obtaining
originally the largest number of votes. The
arrangement operates to the advantage principally
of the National Liberals, the Radicals, and other
essentially moderate parties, and to the
disadvantage especially of the Social Democrats. On
this subject see A. N. Holcombe, Direct Primaries
and the Second Ballot, in _American Political
Science Review_, Nov., 1911.]
[Footnote 331: Art. 29. Dodd, Modern Constitutions,
I., 333.]
*237. The Franchise.*--The franchise is broadly democratic. (p. 225)
Every male who, possessing citizenship in the Empire, has completed
his twenty-fifth year is entitled to vote in the district in which he
has his domicile, provided his name appears on the registration lists.
He is not required to be a citizen of the state in which he votes. The
only exceptions to the general rule of universal manhood suffrage
arise from the disfranchisement of persons under guardianship,
bankrupts, beneficiaries of public charity, persons suffering judicial
deprivation in respect to certain of their rights as citizens, and
persons in active service in the army and navy. Any male citizen,
possessed of the right to vote, twenty-five years of age or over, and
a resident of a state of the Empire during at least one year, is
eligible as a candidate. He is not required to be a citizen of the
state from which he aspires to be elected.[332]
[Footnote 332: On the German Imperial electoral
system see Howard, The German Empire, Chap. 5;
Lebon, Études sur l'Allemagne politique, 70-83;
ibid., Étude sur la législation électorale de
l'empire d'Allemagne, in _Bulletin de Législation
Comparée_, 1879; G. Below, Das parlamentarische
Wahlrecht in Deutschland (Berlin, 1909); and M. H.
Nézard, L'Évolution du suffrage universel en Prusse
et dans l'Empire allemand, in _Revue du Droit
Public_, Oct.-Dec., 1904.]
*238. Privileges of Members.*--Solicitous lest if members of the
Reichstag should be entitled to remuneration for their services the
poorer classes would arrive at a preponderance in the chamber,
Bismarck insisted in season and out upon the non-payment of
representatives, and by the constitution of 1871 salaries were
specifically forbidden.[333] During the eighties the Imperial Court of
Appeal ruled that the payment of socialist members by their supporters
was illegal,[334] though such payment has been in recent times not
unknown. Again and again measures providing for the payment of all
members from the Imperial treasury were passed in the Reichstag, only
to be thrown out by the Bundesrath. May 21, 1906, such a measure was
at last enacted by both chambers, providing for a payment of 3,000
marks a session (with a deduction of twenty-five marks for each day's
absence), and in addition free passes over German railways during, and
for eight days before and after, sessions. Upon the taking effect of
this measure, Germany became one of the several European countries in
which, within years comparatively recent, the members of the popular
legislative chamber have been given a right to public compensation.
Special privileges enjoyed by members are of the customary sort. No
member may at any time be held legally to account outside the chamber
by reason of his utterances or his votes within it. Unless taken (p. 226)
in the commission of a misdemeanor, or during the ensuing day, a
member may not be arrested for any penal offense, or for debt, without
the consent of the chamber; and at the request of the chamber all
criminal proceedings instituted against a member, and any detention
for judicial investigation or in civil cases, must be suspended during
a session.[335]
[Footnote 333: "The members of the Reichstag, as
such, shall draw no salary or compensation." Art.
32. Dodd, Modern Constitutions, I., 334.]
[Footnote 334: Cf. the Osborne Judgment of 1909 in
England (see p. 127).]
[Footnote 335: Arts. 30 and 31. Dodd, Modern
Constitutions, I., 334.]
II. ORGANIZATION AND POWERS OF THE REICHSTAG
*239. Sessions and Officers.*--The constitution stipulates that the
Reichstag and the Bundesrath shall meet annually. Beyond this, and the
further requirement that the Reichstag shall never be in session when
the Bundesrath is not, the Imperial Government is left entirely free
in respect to the convening of the representative body.[336] The
summons is issued by the Emperor and the sessions are opened by him,
in person or by proxy. By him the assembly may be prorogued (though
not more than once during a session, and never for a longer period
than thirty days without its own consent); by him also, with the
assent of the Bundesrath, it may be dissolved.[337] The chamber
validates the election of its members, regulates its own procedure and
discipline, and elects its president, vice-presidents, and
secretaries.[338] Under standing orders adopted February 10, 1876, the
president and vice-president are chosen at the opening of the first
session following a general election for a temporary term of four
weeks, and upon the expiration of this period an election takes place
for the remainder of the session. At the opening of each succeeding
session an election of these officials for the session takes place at
once. The secretary is chosen at the beginning of each session for the
entire session.
[Footnote 336: Mention has been made of the
regulation that, following a dissolution prior to
the end of the five-year term, the chamber shall be
convoked within ninety days. It will be recalled,
also, that the Bundesrath may be convoked without
the Reichstag.]
[Footnote 337: Nominally by a resolution of the
Bundesrath, with the consent of the Emperor. Art.
24. Dodd, Modern Constitutions, I., 333.]
[Footnote 338: Art. 27. Ibid.]
*240. Abtheilungen and Committees.*--At the opening of a session the
entire membership of the Reichstag is divided by lot into seven
Abtheilungen, or bureaus, as nearly equal as it is possible to make
them. The bureaus of the French Chamber of Deputies are reconstituted
once a month, and those of the Italian once in two months, but those
of the Reichstag are maintained unchanged throughout a session, unless
upon motion of as many as thirty members the body decides upon a fresh
distribution. The functions of the bureaus comprise, in the main, (p. 227)
the passing upon the credentials of members of the chamber and
the designating of members of committees. There is in the Reichstag
but one standing committee--that on elections. It is perpetuated
throughout a session. All other committees are made up, as occasion
requires, by the appointment by ballot of an equal number of members
by each of the seven bureaus; although, in point of fact, the
preparation of committee lists falls largely to the party leaders of
the chamber. The function of committees is the preliminary
consideration of measures and the reporting of them and of evidence
relating to them, to the chamber, Bills are not, however, in all cases
referred to committees.
*241. Methods of Business.*--Measures proposed for enactment pass
through the three readings which have come to be customary among
modern legislative assemblies. Debate is carried on under regulations
closely resembling those which prevail in the British House of Commons
and distinctly less restrictive than those in vogue in the French
Chamber of Deputies. Members of the Bundesrath, to whom is assigned a
special bench, possess the right to appear and to speak at pleasure.
Debaters address the chamber from the tribune or from their seats as
they choose, and they speak whenever they can secure the recognition
of the presiding official, not, as in France, in the hard and fast
order indicated by a previously prepared written list. Like the
Speaker of the House of Commons, the president of the Reichstag is a
strictly non-partisan moderator. A fixed tradition of the office is
that during debate the chair shall recognize alternately the
supporters and the opponents of the measure under consideration. As a
general rule, closure of debate may be ordered upon the initiative of
thirty members.
Unlike the sittings of the Bundesrath, which take place invariably
behind closed doors, those of the Reichstag are, by constitutional
provision, public. Under the standing orders, however, the body may go
into secret session, on motion of the president, or of ten members.
Publicity is further assured by the constitutional stipulation that
"no one shall be held responsible for truthful reports of the
proceedings of the public sessions of the Reichstag."[339] Measures
are carried by absolute majority; and, while discussion may proceed in
the absence of a quorum, no vote or other action is valid unless there
is present a majority of the full membership of the body, that is,
since 1873, 199.
[Footnote 339: Art. 22. Dodd, Modern Constitutions,
I., 333.]
*242. Powers.*--The legislative power of the Empire is vested in the
Reichstag and the Bundesrath conjointly, and a majority of the votes
of both bodies is necessary for the enactment of a law. So declares
the constitution. The legislative functions of the popular chamber (p. 228)
are, however, in practice distinctly subordinate to those of the
Bundesrath. The Reichstag possesses no such power of legislative
initiative and discretion as is possessed by the popular chambers of
Great Britain, France, Italy, and the United States. Its consent is
necessary for the enactment of every law, for the adoption of every
constitutional amendment, and for the ratification of every treaty
affecting matters within the domain of Imperial legislation. But
bills, including those relating to finance, originate ordinarily with
the Chancellor and the Bundesrath; the procedure followed in the
shaping of revenue and military measures puts the Reichstag distinctly
at a disadvantage; and, at the best, the part which the chamber can
play in the public policy of the Empire is negative and subsidiary. It
can block legislation and discuss at length the policy of the
Government, but it is not vested by the constitution with power
sufficient to make it an effective instrument of control. It is within
the competence of the Bundesrath, with the assent of the Emperor, to
dissolve the popular chamber at any time, and, as has been pointed
out, such action is taken without an iota of the ministerial
responsibility which in other nations ordinarily accompanies the right
of dissolution. On several occasions since 1871 the Reichstag has been
dissolved with the sheer intent of putting an end to its
obstructionism.[340]
[Footnote 340: Lowell, Governments and Parties, I.,
257.]
The standing orders of the chamber make mention of the right of
interpellation, and resort is occasionally had to this characteristic
continental legislative practice. There are no ministers, however, to
whom an interpellation may be addressed except the Chancellor, and
even he has no right to appear in the Reichstag save as a member of
the Bundesrath. The consequence is that interpellations are addressed,
in practice, to the Bundesrath. It is only where the parliamentary
system prevails, as in France and Italy, that the device of
interpellation can be made to assume much importance. The possibility
of a larger opportunity for interpellation, which should involve the
right of the chamber to adopt resolutions declaring satisfaction or
dissatisfaction with the answer made, was warmly, but on the whole
inconclusively, discussed in the Reichstag in 1912.[341]
[Footnote 341: On the Reichstag see Howard, The
German Empire, Chap. 5; A. Lebon, Le Reichstag
allemand, in _Annales de l'École Libre des Sciences
Politiques_, April, 1889; ibid., Études sur
l'Allemagne politique, Chap. 2; Laband, Das
Staatsrecht des deutschen Reiches, §§ 32-38; H.
Robalsky, Der deutsche Reichstag (Berlin, 1897); G.
Leser, Untersuchungen über das Wahlprüfungsrecht
des deutschen Reichstags (Leipzig, 1908). There is
a full discussion of German methods of legislation
in Laband, _op. cit._, §§ 54-59.]
III. THE RISE OF POLITICAL PARTIES (p. 229)
In Germany, as in continental countries generally, the number of
political groups is legion. Many are too small and unstable to be
entitled properly to the designation of parties; and, in truth, of
even the larger ones none has ever become so formidable numerically as
to acquire a majority in the popular chamber. For the enactment of
measures the Government is obliged to rely always upon some sort of
coalition, or, at best, upon the members of a group which for the time
being holds the balance between two opposing alignments.
*243. Conservatives and Progressives.*--The party situation of the
present day has been reached in consequence of the gradual
disintegration of the two great political groups with which Prussia
entered upon the period of Bismarck's ministry; and to this day the
parties of the German Empire and those of the Prussian kingdom are
largely identical.[342] The two original Prussian groups were the
Conservatives and the Fortschritt, or Progressives, of which the one
comprised, throughout the middle portion of the nineteenth century,
the supporters of the Government and the other its opponents. The
Conservatives were pre-eminently the party of the landed aristocracy
of northern and eastern Germany. During twenty years prior to 1867
they dominated completely the Prussian court and army. Following the
Austrian war of 1866, however, the Conservative ascendancy was broken
and there set in that long process of party dissolution by which
German political life has been brought to its present confused
condition. To begin with, each of the two original parties broke into
two distinct groups. From the Conservatives sprang the Frei
Conservativen, or Free Conservatives; from the Fortschritt, the
National-Liberal-Partei, or National Liberals. In the one case the new
group comprised the more advanced element of the old one; in the
other, the more moderate; so that, in the order of radicalism, the
parties of the decade following 1866 were the Conservatives, the Free
Conservatives, the National Liberals, and the Fortschrittspartei, or
Radicals. Among these four groups Bismarck was able to win for his
policy of German unification the support of the more moderate, that is
to say, the second and third. The ultra-Conservatives clung to the
particularistic régime of earlier days, and with them the genius of
"blood and iron" broke definitely in 1866. The Free Conservatives
comprised at the outset simply those elements of the original (p. 230)
Conservative party who were willing to follow Bismarck.
[Footnote 342: To so great an extent is this true
that, having described in this place the parties of
the Empire, it will not be necessary subsequently
to allude at length to those of Prussia.]
*244. Rise and Preponderance of the National Liberals.*--Similarly among
the Progressives there was division upon the attitude to be assumed
toward the Bismarckian programme. The more radical wing of the party,
i.e., that which maintained the name and the policies of the original
Fortschritt, refused to abandon its opposition to militarism and
monarchism, opposed the constitution of 1867 for its illiberality, and
withheld from Bismarck's government all substantial support. The
larger portion of the party members, however were willing to
subordinate for a time to Bismarck's nationalizing projects the
contest which the united Fortschritt had long been waging in behalf of
constitutionalism. The party of no compromise was strongest in Berlin
and the towns of east Prussia. It was almost exclusively Prussian. The
National Liberals, on the contrary, became early an essentially
German, rather than simply a Prussian, party. Even before 1871 they
comprised, in point both of numbers and of power, the preponderating
party in both Prussia and the Confederation as a whole; and after
1871, when the Nationalists of the southern states cast in their lot
with the National Liberals, the predominance of that party was
effectually assured. Upon the National Liberals as the party of unity
and uniformity Bismarck relied absolutely for support in the
upbuilding of the Empire. It was only in 1878, after the party had
lost control of the Reichstag, in consequence of the reaction against
Liberalism attending the great religious contest known as the
Kulturkampf, that the Chancellor was in a position to throw off the
not infrequently galling bonds of the Liberal alliance.
*245. The Newer Groups: the Centre.*--Meanwhile the field occupied by
the various parties that have been named was, from an early date, cut
into by an increasing number of newly organized parties and groups.
Most important among these were the Clericals, or Centre, and the
Social Democrats. The origins of the Centre may be traced to the
project which was formulated in December, 1870, to found a new party,
a party which should be essentially Catholic, and which should have
for its purpose the defense of society against radicalism, of the
states against the central government, and of the schools against
secularization. A favorite saying of the founders was that "at the
birth of the Empire Justice was not present." The party, gaining
strength first in the Rhenish and Polish provinces of Prussia and in
Bavaria, was able in the elections of 1871 to win a total of sixty
seats. Employed by the Catholic clergy during the decade that followed
to maintain the cause of the papacy against the machinations of
Bismarck, the party early struck root deeply; and by reason of (p. 231)
the absolute identification in the public mind of its interests
with the interests of the Catholic Church, ensuring its preponderance
in the states of the south, and also by reason of the fact that it has
always been more successful than any of its rivals in maintaining
compactness of organization, it became, and has continued almost
uninterruptedly to the present time, the strongest numerically of all
political groups within the Reichstag.
*246. The Newer Groups: the Social Democrats.*--The Social Democratic
party was founded in 1869 under the leadership of Wilhelm Liebknecht
and August Bebel. In 1863 there had been organized at Leipzig, under
the inspiration of the eloquent Marxist Ferdinand Lassalle, a
Universal German Workingman's Association. Between the two bodies
there was for a time keen rivalry, but at a congress held at Gotha, in
May, 1875, they (together with a number of other socialistic
societies) were merged in one organization, which has continued to
this day to be known as the Social Democratic party. The development
of socialism in the Empire between 1870 and 1880, in respect to both
numbers and efficiency of organization, was phenomenal. At the
parliamentary elections of 1871 the Social Democratic vote was 124,655
(three per cent of the total) and two Social Democrats were chosen to
the Reichstag. In 1874 the popular vote was 351,952, and nine members
were elected; in 1877 it was 493,288, and the number of successful
candidates was twelve. By the Emperor William I. and by his
chancellor; Bismarck, as indeed by the governing and well-to-do
classes generally, the progress of the movement was viewed with
frankly avowed apprehension. Most of the great projects of the
Imperial Government were opposed by the Social Democrats, and the
members of the party were understood to be enemies of the entire
existing order, and even of civilization itself. Two attempts in 1878
upon the life of the Emperor, made by men who were socialists, but
disavowed by the socialists as a body, afforded the authorities an
opportunity to enter upon a campaign of socialist repression, and from
1878 to 1890 anti-socialist legislation of the most thoroughgoing
character was regularly on the statute books and was in no slight
measure enforced. At the same time that effort was being made to stamp
out socialist propaganda a remarkable series of social reforms was
undertaken with the deliberate purpose not only of promoting the
public well-being, but of cutting the ground from under the
socialists' feet, or, as some one has observed, of "curing the Empire
of socialism by inoculation." The most important steps taken in this
direction comprised the inauguration of sickness insurance in 1883, of
accident insurance in 1884, and of old-age and invalidity insurance in
1889.
For a time the measures of the government seemed to accomplish (p. 232)
their purpose, and the official press loudly proclaimed that socialism
in Germany was extinct. In reality, however, socialism thrived on
persecution. In the hour of Bismarck's apparent triumph the socialist
propaganda was being pushed covertly in every corner of the Empire. A
party organ known as the _Social Democrat_ was published in
Switzerland, and every week thousands of copies found their way across
the border and were passed from hand to hand among determined readers
and converts. A compact organization was maintained, a treasury was
established and kept well filled, and with truth the Social Democrats
aver to-day that in no small measure they owe their superb
organization to the Bismarckian era of repression. At the elections of
1878 the party cast but 437,158 votes, but in 1884 its vote was
549,990 (9.7 per cent of the whole) and the contingent of
representatives returned to the Reichstag numbered twenty-four. In
1890 the socialist vote attained the enormous total of 1,427,298 (19.7
per cent of the whole), and the number of representatives was
increased to thirty-five. Repression was manifestly a failure, and in
1890 the Reichstag, with the sanction of the new emperor, William II.,
wisely declined to renew the statute under which proscription had been
employed.
*247. Minor Parties.*--Aside from the Centre and the Social Democrats,
the newer party groups in Germany--the Guelfs, the Poles, the Danes,
the Alsatians, the Antisemites, etc.--are small and relatively
unimportant. All are particularistic and irreconcilable; all are
organized on the basis of local, racial, or religious interests.
Apart, indeed, from the National Liberals and the Socialists, it
cannot be said that any one of the German political groups, large or
small, is broadly national, in either its tenets or its constituency.
The Guelfs, or Hanoverische Rechtspartei, comprise the irreconcilables
among the old Hanoverian nobility who refuse to recognize the validity
of the extinction of the ancient Hanoverian dynasty by the deposing of
George V. in 1866. As late as 1898 they returned to the Reichstag nine
members. In 1903 they elected but five, and in 1907 their
representation was reduced to a single deputy. In 1912 their quota
became again five. The Poles comprise the Slavic voters of the
districts of West Prussia, Posen, and Silesia, who continue to send to
the Reichstag members who protest against the incorporation of the
Poles in Prussia and in the Empire. At the elections of 1903 they
secured sixteen seats, at those of 1907 twenty, and at those of 1912
eighteen. The Danes of northern Schleswig keep up some demand for
annexation to Denmark, and measures looking toward Germanization are
warmly resented; but the number of people concerned--not more than
150,000--is so small that their political power is almost _nil_. (p. 233)
They have, as a rule, but a single spokesman in the Reichstag. The
Alsatians comprise the autonomists of Alsace-Lorraine, and the
Antisemites form a group whose original purpose was resistance to
Jewish influence and interests.
IV. PARTY POLITICS AFTER 1878
*248. Shifting "Government" Parties.*--To rehearse here the details of
German party history during the period since the Government's break
with the Liberals in 1878 is impossible. A few of the larger facts
only may be mentioned. Between 1878 and 1887 there was in the
Reichstag no one great party, nor even any stable coalition of
parties, upon which the Government could rely for support. For the
time being, in 1879, Bismarck allied with the Centre to bring about
the adoption of his newly-framed policy of protection and of the
famous Frankenstein clause relative to the matricular contributions of
the states.[343] The National Liberals, left in the lurch, broke up,
and in 1881 the remnant of the party was able to obtain only
forty-five seats. After the elections of that year the Centre
commanded in the Reichstag a plurality of forty. The upshot was that,
in the effort to procure the dependable support of the Centre, the
Government gradually abandoned the Kulturkampf, and for a time the
Centre virtually succeeded to the position occupied prior to 1878 by
the National Liberals. The elections of 1887, however, again changed
the situation. The Centre retained a plurality of some twenty seats,
but the Conservatives, Free Conservatives, and National Liberals
formed a coalition and between them obtained a total of 220 seats and,
accordingly, the control of the Reichstag. Thereupon the Conservatives
became the Government's principal reliance and the Centre dropped for
a time into a position of neutrality. At the elections of 1890 the
coalition, which in truth had been built up by the Government on the
basis of a cartel, or agreement, suffered heavy losses. Of 397 seats
it carried only 130,[344] while the Centre alone procured 116.
Coincident with the overturn came the dismissal of Bismarck and the
elevation to the chancellorship of General von Caprivi. Throughout his
years of office (1890-1894) Caprivi was able to rely habitually upon
the support of no single party or group of parties, and for the
enactment of its measures the Government was obliged to seek (p. 234)
assistance now in one quarter and now in another, according as
circumstances dictated.
[Footnote 343: This measure provided that each year
all proceeds from the Imperial customs and tobacco
tax in excess of 130,000,000 marks should be
distributed among the several states in proportion
to their population. Its author was Frankenstein, a
leader of the Centre.]
[Footnote 344: Conservatives 65, Free Conservatives
24, National Liberals 41.]
*249. The Agrarian Movement and the Rise of the Bloc.*--Two or three
developments of the period stand out with some distinctness. One was
the break-up, apparently for all time, of the Fortschrittspartei, or
Radical party, in consequence of the elections of 1893. A second was
the rise of the Government's prolonged contest with the Agrarians. The
Agrarian group, of which indeed one hears as early as 1876, comprised
principally the grain-growing landholders of northern and eastern
Germany. By treaties concluded in 1892-1894 with Austria-Hungary,
Italy, Belgium, Russia, and other nations, German import duties on
grain were considerably reduced in return for advantages given to
German manufacturers. Low duties meant cheap foodstuffs, and in the
negotiation of these treaties the Government found itself supported
with enthusiasm not only by the Centre, but also by the Social
Democrats and the surviving Radicals. The Conservatives were divided.
Those of Agrarian sympathies (especially the Prussian landholders)
allied themselves with the forces of opposition. But the remainder
gave the Government some measure of support. And from this
last-mentioned fact arose a final political development of large
significance during the Caprivi period, namely, the creation of that
_bloc_, or affiliation, of Centre and Conservatives (popularly
referred to as the "blue-black" _bloc_) upon which the Government was
destined regularly to rely through upwards of a decade and a half.
During the chancellorship of Prince Chlodwig Hohenlohe-Schillingsfürst
(1894-1900) the struggle with the Agrarians was continued and the
preponderance of the _bloc_ became an established fact. Finally,
should be mentioned the rapidly accelerating growth of the Social
Democracy. In 1893 the popular party cast a total of 1,876,738 votes
and elected forty-four representatives. In 1896 its vote was 2,007,076
and the number of members elected was fifty-seven. In 1903 its vote
rose to the enormous proportions of 3,008,000 (24 per cent of the
total, and larger than that of any other single party), and the quota
in the Reichstag was increased to seventy-nine.
*250. The Elections of 1903 and 1907.*--At the elections of 1903 the
_bloc_ suffered numerically a loss of strength. The Centre obtained
102 seats, the Conservatives 53, and the Free Conservatives, or "Party
of the Empire," 22--an aggregate of only 177. By deft management,
however, Chancellor von Bülow (1900-1908) contrived to play off
through several years the opposing forces, and so to preserve, for all
practical purposes, the working efficiency of the Government
coalition. The elections of January, 1907, brought on by a dissolution
of the Reichstag after the refusal of that body to vote the (p. 235)
Government's colonial estimates, were of interest principally by
reason of the continued show of strength of the Centre and the falling
off of the Social Democrats in their representation in the Reichstag.
In the practical working out of political forces it had come about
that the Centre occupied in the chamber a pivotal position of such
consequence that the Government was in effect absolutely dependent
upon the vote of that party for the enactment of its measures.
Naturally enough, the party, realizing its power, was prone to put its
support upon a contractual basis and to drive with the Government a
hard bargain for the votes which it commanded. While hardly in a
position to get on without Clerical assistance, the Government in 1907
would have been willing enough to see the Centre's power and
independence broken. Not only, however, did the Centre not lose seats
by that contest; it in fact realized a gain of two. On the other hand,
there was compensation for the Government in the fact that the Social
Democrats fell back. They polled a total of 3,250,000 popular votes,
as compared with 3,008,000 in 1903; but by reason of the antiquated
distribution of seats which prevails in the Empire, the unusual vote
polled by other parties, and also the unusual co-operation of the
party groups opposed to the Social Democrats, their representation in
the Reichstag was cut from 79 to 43.[345]
[Footnote 345: The total number of popular votes
cast in the election was 10,857,000, of which
number government candidates received 4,962,000,
and opposition candidates 5,895,000. The numerical
strength of the various elements composing the
Reichstag consequent upon the elections of 1903 and
1907 was as follows:
_1903_ _1907_ _Seats_ _Seats_
_gained_ _lost_
Centre 102 104 2 0
Conservatives 53 58 5 0
Free Conservatives 22 22 0 0
National Liberals 51 56 5 0
Social Democrats 79 43 0 36
Radicals 42 50 8 0
Antisemites and
Economic Union 22 30 8 0
Poles 16 20 4 0
Liberal Union 10 13 3 0
Volkspartei
(Democrats of South) 6 7 1 0
Alsatians 10 7 0 3
Guelfs or Hanoverians 5 1 0 4
Danes 1 1 6 0
Independents 0 7 7 0
Total 397 397 43 43]
V. PARTIES SINCE 1907 (p. 236)
*251. The Bülow Bloc.*--The period covered by the life of the Reichstag
elected in 1907 was remarkable in German political history chiefly by
reason of the prolonged struggle for the establishment of
parliamentary government which took place within it--a struggle which
had its beginning, indeed, in the deadlock by which the dissolution of
1906 was occasioned, which reached its climax in the fiscal debates of
1908-1909, and which during the years that followed gradually
subsided, leaving both the status of parties and the constitutional
order of the Empire essentially as they were at the beginning. Even
before the dissolution of 1906 the Conservative-Centre _bloc_ was
effectually dissolved, principally by the defection of the Centre, and
through upwards of three years it was replaced by an affiliation,
known commonly as the "_Bülow bloc_," of the Conservatives and the
Liberals. This combination, however, was never substantial, and in the
course of the conflict over the Government's proposed budget of
November, 1908, there was a return to the old alignment, and
throughout ensuing years the Conservative-Clerical _bloc_ remained a
preponderating factor in the political situation.
*252. The Elections of 1912: Parties and Issues.*--The Reichstag of 1907
was dissolved at the termination of its five-year period, and in
January, 1912, there was elected a new chamber, the thirteenth since
the creation of the Empire. The contest was pre-eminently one of
measures rather than of men, but the public interest which it excited
was extraordinary. Broadly, the line was drawn between the Government
and the parties of the _bloc_, on the one hand, and the more purely
popular parties, especially the National Liberals, the Radicals, and
the Social Democrats, on the other;[346] and the issues were chiefly
such as were supplied by the spirit, purposes, and methods of
Chancellor von Bethmann-Hollweg and his Conservative-Clerical allies.
Of the alleged reactionism of the Government parties there was
widespread complaint. They were held responsible for the fiscal reform
of 1909 which imposed burdens unduly heavy on industry and commerce,
while sparing land and invested capital; they were charged with
re-establishing the yoke of the Catholic Centre upon the Lutheran (p. 237)
majority; and they were reproached for having failed to redeem their
promise to liberalize the antiquated franchise arrangements of
Prussia. The Conservatives in particular were attacked on the ground
of their continued monopoly of patronage and of power. On the whole,
however, the most important of practical issues was that of the
tariff. Throughout a twelvemonth discontent occasioned by the high
cost of living had been general and the Government had been besought
by municipalities, workingmen's organizations, and political societies
to inaugurate a project for the reduction of the duties imposed upon
imported foodstuffs. The demand was in vain and the country was given
to understand by the Chancellor that the Government, under
Conservative-Agrarian mastery, would stand or fall with "protection
for the nation's work" as its battle-cry. Upon this question the
National Liberals, being protectionist by inclination, stood with the
Government, but the Radicals, the Social Democrats, and some of the
minor groups assumed an attitude of clear-cut opposition.
[Footnote 346: The gravest abuse in connection with
the conduct of campaigns and elections in Germany
is the pressure which the Government brings to bear
systematically upon the enormous official
population and upon railway employees (alone
numbering 600,000) to vote Conservative, or, in
districts where there is no Conservative candidate,
Centrist. This pressure is applied through the
local bureaucratic organs, principally the Landrath
of the Kreis, who not uncommonly is a youthful
official of noble origin, related to some important
landed family, and a rigid Conservative. It has
been estimated that official influence controls a
million votes at every national election.]
*253. The Results and Their Significance.*--The total number of
candidates in the 397 constituencies was 1,428. The Social Democrats
alone had a candidate in every constituency, a fact which emphasizes
the broadly national character which that party has acquired. The
National Liberals had candidates in 200 constituencies, the Centre in
183, the Radicals in 175, and the Conservatives in 132. A second
ballot was required in 191 constituencies, or nearly one-half of the
whole number. The final results of the election justified completely
the general expectation of observers that the Social Democrats would
realize enormous gains. The appeal of von Bethmann-Hollweg for
solidarity against the Socialists had no such effect as did the
similar appeal of von Bülow in 1907. The tactfulness and personal hold
of the Chancellor was inferior to that of his predecessor, and the
mass of the nation was aroused in 1912 as it was not upon the earlier
occasion. The results may be tabulated as follows:
_Seats_ _Seats acquired_
_at dissolution_ _by elections of 1912_
Centre 103 90
Conservatives 58 45
Free Conservatives 25 13
Social Democrats 53 110
National Liberals 51 44
Radicals 49 41
Poles 20 18
Antisemites and Economic Union 20 11
Guelfs or Hanoverians 1 5
Alsatians, Danes, and Independents 16 20
___ ___
Total 397 397
Two of the three parties of the Left, i.e., the National Liberals (p. 238)
and the Radicals, suffered substantial losses, but the victory of the
Social Democrats was so sweeping that there accrued to the Left as a
whole a net gain of forty-two seats.[347] On the other hand, the three
parties of the _bloc_ lost heavily--in the aggregate thirty-eight
seats. The number of popular votes cast for candidates of the _bloc_
was approximately 4,500,000; that for candidates of the Left
approximately 7,500,000.[348] In Berlin, five of whose six constituencies
were represented already by Social Democrats, there was a notable
attempt on the part of the socialists to carry the "Kaiser district"
in which is located the Kaiserhof, or Imperial residence, and the seat
of the Government itself. The attempt failed, but it was only at the
second ballot, and by the narrow margin of seven votes, that the
socialist candidate was defeated by his Radical opponent. As has been
pointed out, the parties of the Left are entirely separate and they
are by no means able always to combine in action upon a public
question. The ideal voiced by the publicist Naumann, "from Bassermann
to Bebel," meaning that the National Liberals under the leadership of
Bassermann should, through the medium of the Radicals, amalgamate for
political purposes with the Social Democrats under Bebel, has not as
yet been realized. None the less there has long been community of
interest and of policy, and the elections of 1912 made it possible for
the first time for a combination of the three groups and their allies
to outweigh decisively any combination which the parties of the _bloc_
and their allies can oppose. Before the election there was a clear
Government majority of eighty-nine; after it, an opposition majority
of, at the least, fourteen. When, in February, 1912, the new Reichstag
was opened, it was only by the most dexterous tactics on the part of
the _bloc_ that the election of the socialist leader Bebel to the
presidency of the chamber was averted.
[Footnote 347: Many of the socialist victories
were, of course, at the expense of the National
Liberals and Radicals.]
[Footnote 348: The number of electors inscribed on
the lists was 14,236,722. The number who actually
voted was 12,188,337. The exact vote of the Social
Democrats was 4,238,919; of the National Liberals,
1,671,297; of the Radicals, 1,556,549; of the
Centre, 2,012,990; and of the Conservatives,
1,149,916.]
*254. The Parties To-day: Conservatives and Centre.*--The principal
effect of the election would seem to be to accentuate the already
manifest tendency of Germany to become divided between two great
hostile camps, the one representative of the military, bureaucratic,
agrarian, financial classes and, in general, the forces of resistance
to change, the other representative of modern democratic forces,
extreme and in principle even revolutionary. Leaving out of account
the minor particularist groups, the most reactionary of existing
parties is the Conservatives, whose strength lies principally in (p. 239)
the rural provinces of Prussia along the Baltic. The most radical is
the Social Democrats, whose strength is pretty well diffused through
the states of the Empire but is massed, in the main, in the cities.
Between the two stand the Centre, the Radicals, and the National
Liberals. The Centre has always included both an aristocratic and a
popular element, being, indeed, more nearly representative of all
classes of people in the Empire than is any other party. Its numerical
strength is drawn from the peasants and the workingmen, and in order
to maintain its hold in the teeth of the appeal of socialism it has
been obliged to make large concessions in the direction of liberalism.
At all points except in respect to the interests of the Catholic
Church it has sought to be moderate and progressive, and it should be
observed that it has abandoned long since its irreconcilable attitude
on religion. Geographically, its strength lies principally in the
south, especially in Bavaria.
*255. The Social Democrats.*--Nominally revolutionary, the German Social
Democracy comprises in fact a very orderly organization whose
economic-political tenets are at many points so rational that they
command wide support among people who do not bear the party name.
Throughout a generation the party has grown steadily more practical in
its demands and more opportunist in its tactics. Instead of opposing
reforms undertaken on the basis of existing institutions, as it once
was accustomed to do, in the hope of bringing about the establishment
of a socialistic state by one grand _coup_, it labors for such reforms
as are adjudged attainable and contents itself with recurring only
occasionally and incidentally to its ultimate ideal. The supreme
governing authority of the party is a congress composed of six
delegates from each electoral district of the Empire, the socialist
members of the Reichstag, and the members of the party's executive
committee. This congress convenes annually to regulate the
organization of the party, to discuss party policies, and to take
action upon questions submitted by the party members. Nominally, the
principles of the party are those of Karl Marx, and its platform is
the "Erfurt programme" of 1891, contemplating the abolition of class
government and of classes themselves, the termination of every kind of
exploitation of labor and oppression of men, the destruction of
capitalism, and the inauguration of an economic régime under which the
production and distribution of goods shall be controlled by the state
exclusively. The Radical Socialists, i.e., the old-line members of the
party, cling to these time-honored articles of faith. But the mass of
the younger element of the party, ably led by Edward Bernstein--the
"Revisionists," as they call themselves--consider that the Marxist
doctrines are in numerous respects erroneous, and they are insisting
that the Erfurt programme shall be overhauled and brought into (p. 240)
accord with the practical and positive spirit of the party to-day.
Except Bebel and Kautsky, every socialist leader of note in Germany at
the present time is identified with the revisionist movement.[349] The
political significance of this situation arises from the fact that the
"new socialists" stand ready to co-operate systematically with
progressive elements of whatsoever name or antecedents. Already the
socialists of Baden, Württemberg, and Bavaria have voted for the local
state budgets and have participated in court functions, and upon
numerous occasions they have worked hand in hand, not only at
elections but in the Reichstag and in diets and councils, with the
National Liberals and the Radicals. For the future of sane liberalism
in Germany this trend of the party in the direction of co-operative
and constructive effort augurs well. At the annual congress held at
Chemnitz in September, 1912, the issue of revisionism was debated at
length and with much feeling, but an open breach within the party was
averted and Herr Bebel was again elected party president. It was shown
upon this occasion that the party membership numbered 970,112, a gain
of 133,550 during the previous year. It need hardly be observed that
of the millions of men who in these days vote for Social Democratic
candidates for office hardly a fourth are identified with the formal
party organization.[350]
[Footnote 349: Herr Bebel died August 13, 1913.]
[Footnote 350: Two important works of recent date
dealing with the history and character of political
parties in Germany are C. Grotewald, Die Parteien
des deutschen Reichstags. Band I. Der Politik des
deutschen Reiches in Einzeldarstellungen (Leipzig,
1908); and O. Stillich, Die politischen Parteien in
Deutschland. Band I. Die Konservativen (Leipzig,
1908), Band II. Der Liberalismus (Leipzig, 1911).
The second is a portion of a scholarly work planned
to be in five volumes. A brief treatise is F.
Wegener, Die deutschkonservative Partei und ihre
Aufgaben für die Gegenwart (Berlin, 1908). An
admirable study of the Centre is L. Goetze, Das
Zentrum, eine Konfessionelle Partie; Beiträge zur
seiner Geschichte (Bonn, 1906). The rise of the
Centre is well described in L. Hahn, Geschichte des
Kulturkampfes (Berlin, 1881). On the rise and
progress of the Social Democracy see E. Milhaud, La
démocratie socialiste allemande (Paris, 1903); C.
Andler, Origines du socialisme d'état en Allemagne
(Paris, 1906); E. Kirkup, History of Socialism
(London, 1906); W. Sombart, Socialism (New York,
1898); W. Dawson, Bismarck and State Socialism
(London, 1891); J. Perrin, The German Social
Democracy, in _North American Review_, Oct., 1910.
Under the title "Chroniques politiques" there is
printed in the _Annales_ (since 1911 the _Revue_)
_des Sciences Politiques_ every year an excellent
review of the current politics of Germany, as of
other European nations. Other articles of value
are: M. Caudel, Les élections allemandes du 16
juin, 1898, et le nouveau Reichstag, in _Annales de
l'École Libre des Sciences Politiques_, Nov., 1898;
J. Hahn, Une élection au Reichstag allemand, in
_Annales des Sciences Politiques_, Nov., 1903; G.
Isambert, Le parti du centre en Allemagne et les
élections de janvier-février 1907, ibid., March,
1907; P. Matter, La crise du chancelier en
Allemagne, ibid., Sept., 1909; A. Marvaud, La
presse politique allemande, in _Questions
Diplomatiques et Coloniales_, March 16 and April 1,
1910. There are valuable chapters on German
politics in W. Dawson, The Evolution of Modern
Germany (London, 1908) and O. Eltzbacher (or J.
Ellis Barker), Modern Germany, her Political and
Economic Problems (new ed., London, 1912). For a
sketch of party history during the period 1871-1894
see Lowell, Governments and Parties, II., Chap. 7.
An excellent survey of the period 1906-1911 is
contained in P. Matter, D'un Reichstag à l'autre,
in _Revue des Sciences Politiques_, July-Aug.,
1911. On the elections of 1912 see G. Blondel, Les
élections au Reichstag et la situation nouvelle des
partis, in _Le Correspondant_, Jan. 25, 1912; J. W.
Jenks, The German Elections, in _Review of
Reviews_, Jan., 1912; A. Quist, Les élections du
Reichstag allemand, in _Revue Socialiste_, Feb. 15,
1912; and W. Martin, La crise constitutionelle et
politique en Allemagne, in _Revue Politique et
Parlementaire_, Aug. 10, 1912.]
VI. LAW AND JUSTICE (p. 241)
*256. Dual Character.*--Upon the subject of the administration of
justice the Imperial constitution of 1871 contained but a single
clause, by which there was vested in the Empire power of "general
legislation concerning the law of obligations, criminal law,
commercial law and commercial paper, and judicial procedure." By an
amendment adopted December 20, 1873, the clause was modified to read,
"general legislation as to the whole domain of civil and criminal law,
and of judicial procedure."[351] Each of the federated states has
always had, and still has, its own judicial system, and justice is
administered all but exclusively in courts that belong to the states.
These courts, however, have been declared to be also courts of the
Empire, and, to the end that they may be systematized and that
conditions of justice may be made uniform throughout the land, the
federal government has not hesitated to avail itself of the regulative
powers conferred in 1871 and amplified in 1873 in the constitutional
provisions which have been cited.
[Footnote 351: Art. 4. Dodd, Modern Constitutions,
I., 328.]
*257. Diversity of Law Prior to 1871.*--In the first place, there has
been brought about within the past generation a unification of German
law so thoroughgoing in character as to be worthy of comparison with
the systematization of the law of France which was accomplished
through the agency of the Code Napoléon. In 1871 there were comprised
within the Empire more than two score districts each of which
possessed an essentially distinct body of civil and criminal law; and,
to add to the confusion, the boundaries of these districts, though at
one time coincident with the limits of the various political divisions
of the country, were no longer so. The case of Prussia was typical. In
1871 the older Prussian provinces were living under a Prussian code
promulgated in 1794; the Rhenish provinces maintained the Code
Napoléon, established by Napoleon in all Germany west of the Rhine; in
the Pomeranian districts there were large survivals of Swedish law;
while the territories acquired after the war of 1866 had each its (p. 242)
indigenous legal system. Two German states only in 1871 possessed a
fairly uniform body of law. Baden had adopted a German version of the
Code Napoléon, and Saxony, in 1865, had put in operation a code of her
own devising. At no period of German history had there been either
effective law-making or legal codification which was applicable to the
whole of the territory contained within the Empire. In the domain of
the civil law, in that of the criminal law, and in that of procedure
the diversity was alike obvious and annoying.
*258. Preparation of the Codes.*--German legal reform since 1871 has
consisted principally in the formation and adoption of successive
codes, each of which has aimed at essential completeness within a
given branch of law. The task had been begun, indeed, before 1871. As
early as 1861 the states had agreed upon a code relating to trade and
banking, and this code had been readopted, in 1869, by the
Confederation of 1867.[352] In 1869 a code of criminal law had been
worked out for the Confederation, and in 1870 a code relating to
manufactures and labor. Upon the establishment of the Empire, in 1871,
there was created a commission to which was assigned the task of
drawing up regulations for civil procedure and for criminal procedure,
and also a plan for the reorganization of the courts. Beginning with a
scheme of civil procedure, published in December, 1872, the commission
brought in an elaborate project upon each of the three subjects. The
code of civil procedure, by which many important reforms were
introduced in the interest of publicity and speed, was well received.
That relating to criminal procedure, proposing as it did to abolish
throughout the Empire trial by jury, was, however, vigorously opposed,
and the upshot was that all three reports were referred to a new
commission, by which the original projects relating to criminal
procedure and to the organization of the courts were completely
remodelled. In the end the revised projects were adopted. October 1,
1879, there went into effect a group of fundamental laws under which
the administration of justice throughout the Empire has been
controlled from that day to the present. The most important of these
was the Gerichtsverfassungsgesetz, or Law of Judicial Organization,
enacted January 27, 1877; the Civilprozessordnung, or Code of Civil
Procedure, of January 30, 1877; and the Strafprozessordnung, or Code of
Criminal Procedure, of February 1, 1877.
[Footnote 352: It was replaced by a new code May
10, 1897.]
It remained only to effect a codification of the civil law. A
committee constituted for the purpose completed its work in 1887, and
the draft submitted by it was placed for revision in the hands of a
new commission, by which it was reported in 1895. In an amended form
the Civil Code was approved by the Reichstag, August 18, 1896, and (p. 243)
it was put in operation January 1, 1900. Excluding matters pertaining
to land tenure (which are left to be regulated by the states), the
Code deals not only with all of the usual subjects of civil law but
also with subjects arising from the contact of private law and public
law.[353]
[Footnote 353: A convenient manual for English
readers is E. M. Borchard, Guide to the Law and
Legal Literature of Germany (Washington, 1912), the
first of a series of guides to European law in
preparation in the Library of Congress.]
*259. The Inferior Courts.*--By these and other measures it has been
brought about that throughout the Empire justice is administered in
tribunals whose officials are appointed by the local governments and
which render decisions in their name, but whose organization, powers,
and rules of procedure are regulated minutely by federal law. The
hierarchy of tribunals provided for in the Law of Judicial
Organization comprises courts of four grades. At the bottom are the
Amtsgerichte, of which there are approximately two thousand in the
Empire. These are courts of first instance, consisting ordinarily of
but a single judge. In civil cases their jurisdiction extends to the
sum of three hundred marks; in criminal, to matters involving a fine
of not more than six hundred marks or imprisonment of not over three
months. In criminal cases the judge sits with two Schöffen (sheriffs)
selected by lot from the jury lists. Besides litigious business the
Amtsgerichte have charge of the registration of land titles, the
drawing up of wills, guardianship, and other local interests.
Next above the Amtsgerichte are the 173 district courts, or
Landgerichte, each composed of a president and a variable number of
associate judges. Each Landgericht is divided into a civil and a
criminal chamber. There may, indeed, be other chambers, as for example
a Kammer für Handelssachen, or chamber for commercial cases. The
president presides over a full bench; a director over each chamber.
The Landgericht exercises a revisory jurisdiction over judgments of
the Amtsgerichte, and possesses a more extended original jurisdiction
in both civil and criminal matters. The criminal chamber, consisting
of five judges (of whom four are necessary to convict), is competent,
for example, to try cases of felony punishable with imprisonment for a
term not exceeding five years. For the trial of many sorts of criminal
cases there are special Schwurgerichte, or jury courts, which sit
under the presidency of three judges of the Landgerichte. A jury
consists of twelve members, of whom eight are necessary to convict.
Still above the Landgerichte are the Oberlandesgerichte, of which
there are twenty-eight in the Empire, each consisting of seven judges.
The Oberlandesgerichte are courts of appellate jurisdiction largely.
Each is divided into a civil and a criminal senate. There is a (p. 244)
president of the full court and a similar official for each senate.[354]
[Footnote 354: In Bavaria alone there is an Oberste
Landesgericht, with twenty-one judges. Its relation
to the Bavarian Oberlandesgerichte is that of an
appellate tribunal.]
*260. The Reichsgericht.*--At the apex of the system stands the
Reichsgericht (created by law of October i, 1879), which, apart from
certain administrative, military, and consular courts,[355] is the
only German tribunal of an exclusively Imperial, or federal,
character. It exercises original jurisdiction in cases involving
treason against the Empire and hears appeals from the consular courts
and from the state courts on questions of Imperial law. Its members,
ninety-two in number, are appointed by the Emperor for life, on
nomination of the Bundesrath, and they are organized in six civil and
four criminal senates. Sittings are held invariably at Leipzig, in the
kingdom of Saxony.
[Footnote 355: The highest administrative court is
the Oberverwaltungsgericht, whose members are
appointed for life. Under specified conditions, the
"committees" of circles, cities, and districts
exercise inferior administrative jurisdiction. For
the adjustment of disputed or doubtful
jurisdictions there stands between the ordinary and
the administrative tribunals a Gerichtshof für
Kompetenz-konflikte, or Court of Conflicts,
consisting of eleven judges appointed for life.]
All judges in the courts of the states are appointed by the sovereigns
of the respective states. The Imperial law prescribes a minimum of
qualifications based on professional study and experience, the state
being left free to impose any additional qualifications that may be
desired. All judges are appointed for life and all receive a salary
which may not be reduced; and there are important guarantees against
arbitrary transfer from one position to another, as well as other
practices that might operate to diminish the judge's impartiality and
independence.[356]
[Footnote 356: On the German judiciary see Howard,
The German Empire, Chap. 9; Laband, Das Staatsrecht
des deutschen Reiches, §§ 83-94; C. Morhain, De
l'empire allemand (Paris, 1886), Chap. 9.]
CHAPTER XII (p. 245)
THE CONSTITUTION OF PRUSSIA-THE CROWN AND THE MINISTRY
I. THE GERMAN STATES AND THEIR GOVERNMENTS
*261. Variations of Type.*--Within the bounds of Germany to-day there
are twenty-five states and one Imperial territory with certain
attributes of statehood, Alsace-Lorraine. During the larger portion of
the nineteenth century each of these states (and of the several which
no longer exist) was possessed of substantial sovereignty, and each
maintained its own arrangements, respecting governmental forms and
procedure. Under the leadership of Prussia, as has been pointed out,
the loose Confederation of 1815 was transformed, during the years
1866-1871, into an Imperial union, federal but yet vigorous and
indestructible, and to the constituted authorities of this Empire was
intrusted an enormous aggregate of governmental powers. The powers
conferred were, however, not wholly abstracted from the original
prerogatives of the individual states. In a very appreciable measure
they were powers, rather, of a supplementary character, by virtue of
which the newly created central government was enabled to do, on a
broadly national scale, what, in the lack of any such central
government, there would have been neither means of doing, nor occasion
for doing, at all. Only at certain points, as, for example, in respect
to the levying of customs duties and of taxes, was the original
independence of the individual state seriously impaired by the terms
of the new arrangement.
The consequence is that, speaking broadly, each of the German states
maintains to this day a government which is essentially complete within
itself. No one of these governments covers quite all of the ground which
falls within the range of jurisdiction of a sovereign state; each is
cut into at various points by the superior authority of the Empire;
but each is sufficiently ample to be capable of continuing to run,
were all of the other governments of Germany instantly to be blotted
out.[357] Of the twenty-five state governments, three--those of the
free cities of Bremen, Hamburg, and Lübeck--are aristocratic (p. 246)
republics; all the others are monarchies. Among the monarchies there
are four kingdoms: Prussia, Bavaria, Saxony, and Württemberg; six
grand-duchies: Baden, Hesse, Mecklenburg-Schwerin, Mecklenburg-Strelitz,
Oldenburg, and Saxe-Weimar; five duchies: Anhalt, Brunswick,
Saxe-Altenburg, Saxe-Coburg-Gotha, and Saxe-Meiningen; and seven
principalities: Lippe, Schwarzburg-Rudolstadt, Schwarzburg-Sonderhausen,
Schaumburg-Lippe, Reuss Älterer Linie, Reuss Jüngerer Linie, and
Waldeck-Pyrmont.
[Footnote 357: The best survey in English of the
governments of the German states is that in Lowell,
Governments and Parties, I., Chap. 6. Fuller and
more recent is G. Combes de Lestrade, Les
monarchies de l'empire allemand (Paris, 1904). The
most elaborate treatment of the subject is to be
found in an excellent series of studies edited by
H. von Marquardsen and M. von Seydel under the
title Handbuch des Oeffentlichen Rechts der
Gegenwart in Monographien (Freiburg and Tübingen,
1883-1909). A new series of monographs, comprising
substantially a revision of this collection, is at
present in course of publication by J. C. B. Mohr
at Tübingen. The texts of the various constitutions
are printed in F. Stoerk, Handbuch der deutschen
Verfassungen (Leipzig, 1884).]
*262. The Preponderance of Prussia.*--From whatever angle one approaches
German public affairs, the fact that stands out with greatest
distinctness is the preponderant position occupied by the kingdom of
Prussia. How it was that Prussia became the virtual creator of the
Empire, and how it is that Prussia so dominates the Imperial
government that that government and the Prussian are at times all but
inextricable, has already been pointed out.[358] Wholly apart from the
sheer physical fact that 134,616 square miles of Germany's 208,780,
and 40,163,333 people of the Empire's 64,903,423, are Prussian, the
very conditions under which the Imperial organization of the present
day came into being predetermined that Prussia and things Prussian
should enjoy unfailing pre-eminence in all that pertains to German
government and politics. Both because they are extended immediately
over a country almost two-thirds as large as France, and because of
their peculiar relation to the political system of the Empire, the
institutions of Prussia call for somewhat detailed consideration.
[Footnote 358: See pp. 200-201, 207.]
II. THE RISE OF CONSTITUTIONALISM IN PRUSSIA
*263. Regeneration in the Napoleonic Period.*--By reason of the
vacillating policies of her sovereign, Frederick William III., the
successive defeats of her armies at Jena, Auerstädt, and elsewhere,
and the loss, by the treaty of Tilsit in 1807, of half of her
territory, Prussia realized from the first decade of the Napoleonic
period little save humiliation and disaster. Through the years
1807-1815, however, her lot was wonderfully improved. Upon the failure
of the Russian expedition of Napoleon in 1812, Frederick William (p. 247)
shook off his apprehensions and allied himself openly with the
sovereigns of Russia and Austria. The people rose _en masse_, and in
the titanic struggle which ensued Prussia played a part scarcely
second in importance to that of any other power. At the end she was
rewarded, through the agency of the Congress of Vienna, by being
assigned the northern portion of Saxony, Swedish Pomerania, her old
possessions west of the Elbe, the duchies of Berg and Julich, and a
number of other districts in Westphalia and on the Rhine. Her area in
1815 was 108,000 square miles, as compared with 122,000 at the
beginning of 1806; but her loss of territory was more than compensated
by the substitution that had been made of German lands for
Slavic.[359] The homogeneity of her population was thereby increased,
her essentially Germanic character emphasized, and her capacity for
German leadership enhanced.
[Footnote 359: L. A. Himly, Histoire de la
formation territoriale des états de l'Europe
centrale, 2 vols. (Paris, 1876), I., 93-110.]
It was not merely in respect to territory and population that the
Prussia of 1815 was different from the Prussia of a decade earlier.
Consequent upon the humiliating disasters of 1806 there set in a moral
regeneration by which there was wrought one of the speediest and one
of the most thoroughgoing national transformations recorded in
history. In 1807 Frederick William's statesmanlike minister Stein
accomplished the abolition of serfdom and of all legal distinctions
which separated the various classes of society.[360] In 1808 he
reformed the municipalities and gave them important powers of
self-government. By a series of sweeping measures he reconstructed the
ministerial departments, the governments of the provinces, and the
local administrative machinery, with the result of creating an
executive system which has required but little modification to the
present day. In numerous directions, especially in relation to
economic conditions, the work of Stein was continued by that of the
succeeding minister, Prince Hardenberg. By Scharnhorst and Gneisenau
the military régime was overhauled and a body of spiritless soldiery
kept in order by fear was converted into "a union of all the moral and
physical energies of the nation." By Wilhelm von Humboldt the modern
Prussian school system was created; while by Fichte, Arndt, and a
galaxy of other writers there was imparted a stimulus by which the
patriotism and aspiration of the Prussian people were raised to (p. 248)
an unprecedented pitch.[361]
[Footnote 360: It is to be observed that while
Stein was officially the author of this reform, the
substance of the changes introduced had been agreed
upon by the king and his advisers before Stein's
accession to office (October 4, 1807). The Edict of
Emancipation was promulgated October 9, 1807. It
made the abolition of serfdom final and absolute on
and after October 8, 1810.]
[Footnote 361: E. Meier, Reform der
Verwaltungsorganisation unter Stein und Hardenberg
(Leipzig, 1881); J. R. Seeley, Life and Times of
Stein, 3 vols. (Boston, 1879), Pt. III., Chaps.
3-4, Pt. V., Chaps. 1-3.]
*264. Obstacles to the Establishment of a Constitution.*--Such an epoch
of regeneration could not fail to be a favorable period for the growth
of liberal principles of government. In June, 1814, and again in May,
1815, King Frederick William promised, through the medium of a cabinet
order, to give consideration to the question of the establishment of a
constitution in which provision should be made not merely for the
estates of the provinces but also for a national diet. After the
Congress of Vienna the task of framing such a constitution was
actually taken in hand. But the time was not ripe. Liberalism had
gained headway as yet among only the professional classes, while the
highly influential body of ultra-conservative landholders were
unalterably opposed. Between the eastern provinces, still essentially
feudal in spirit, and the western ones, visibly affected by French
revolutionary ideas, there was, furthermore, meager community of
interest. So keen was the particularistic spirit that not infrequently
the various provinces of the kingdom were referred to in contemporary
documents as "nations." Among these provinces some retained the system
of estates which had prevailed throughout Germany since the Middle
Ages, but in some of those which had fallen under the control of
Napoleon the estates had been abolished, and in others they were in
abeyance. In a few they had never existed. Votes were taken in the
assemblages of the estates by orders, not by individuals, and the
function of the bodies rarely extended beyond the approving of
projects of taxation. Within the provinces there existed no
sub-structure of popular institutions capable of being made the basis
of a national parliamentary system.
Notwithstanding these deterring circumstances, it is not improbable
that some sort of constitution might have been established but for the
excesses of the more zealous Liberals, culminating in the murder of
the dramatist Kotzebue in 1819, whereby the king was thrown into an
attitude, first of apprehension, and finally of uncompromising
reaction. By assuming joint responsibility for the Carlsbad Decrees of
October 17, 1819, he surrendered completely to the régime of
"stability" which all the while had been urged upon him by Metternich.
June 11, 1821, he summoned a commission to organize a system of
provincial estates;[362] but at the same time the project of a national
constitution and a national diet was definitely abandoned. Under (p. 249)
repression Prussian liberalism languished, and throughout the
remainder of the reign, i.e., to 1840, the issue of constitutionalism
was not frequently raised. In Prussia, as in Austria, the widespread
revolutionary demonstrations of 1830 elicited little response.
[Footnote 362: The system was created by royal
patent June 5, 1823.]
*265. The Diet of 1847.*--Upon the accession of Frederick William IV.,
son of Frederick William III., in 1840, the hopes of the Liberals were
revived. The new sovereign was believed to be a man of advanced ideas.
To a degree he was such, as was manifested by his speedy reversal of
his father's narrow ecclesiastical policy, and by other enlightened
acts. But time demonstrated that his liberalism was not without
certain very definite limits. February 13, 1847, he went so far as to
summon a Vereinigter Landtag, or "united diet," of Prussia, comprising
all members of the existing eight provincial assemblies, and organized
in two chambers--a house of lords and a house containing the three
estates of the knights, burghers, and peasants. But the issue was
unhappy. As Metternich had predicted, the meeting of the Diet but
afforded opportunity for a forceful reassertion of constitutional
aspirations, and the assemblage refused to sanction loans upon which
the sovereign was bent until its representative character should have
been more completely recognized. The king, on his part, declared he
would never allow "to come between Almighty God in heaven and this
land a blotted parchment, to rule us with paragraphs, and to replace
the ancient, sacred bond of loyalty." The deadlock was absolute, and,
June 26, the Diet was dissolved.
*266. The Revolution of 1848.*--The dawn of constitutionalism was,
however, near. The fundamental law under which Prussia still is
governed was a product--one of the few which endured--of the
widespread revolutionary movement of 1848. Upon the arrival in Berlin
of the news of the overthrow of Louis Philippe (February 24) at Paris
and of the fall of Metternich (May 13) at Vienna, the Prussian
Liberals renewed with vigor their clamor for the establishment in
Prussia of a government of a constitutional type. The demand was
closely related to, yet was essentially distinct from, the
contemporary project for the inauguration of a new constitutional
German Empire. As was proved by the vagaries of the Frankfort
Parliament (May, 1848, to June, 1849), conditions were not yet ripe
for the creation of a closely-knit empire;[363] and one of the reasons
why this was true was that a necessary step toward that culmination
was only now about to be taken, i.e., the introduction of constitutional
government in the important kingdom of Prussia. Apprehensive lest (p. 250)
the scenes of violence reported from Paris should be re-enacted in his
own capital, Frederick William acquiesced in the demands of his
subjects in so far as to issue letters patent, May 13, 1848, convoking
a national assembly[364] for the consideration of a proposed
constitution. Every male citizen over twenty-five years of age was
given the right to participate in the choice of electors, by whom in
turn were chosen the members of this assembly. May 22, 1848, the
assembly met in Berlin and entered upon consideration of the sketch of
a fundamental law which the king laid before it. The meeting was
attended by disorders in the city, and the more radical deputies
further inflamed public feeling by persisting in the discussion of the
abolition of the nobility, and of a variety of other more or less
impracticable and revolutionary projects. The king took offense
because the assembly presumed to exercise constituent functions
independently and, after compelling a removal of the sittings to the
neighboring city of Brandenburg, he in disgust dissolved the body,
December 5, and promulgated of his own right the constitutional
charter which he had drawn.
[Footnote 363: See p. 198.]
[Footnote 364: Known technically as Versammlung zur
Vereinbarung der preussischen Verfassung.]
*267. Formation of the Constitution.*--At an earlier date it had been
promised that the constitution to be established should be "agreed
upon with an assembly of the nation's representatives freely chosen
and invested with full powers;" but it had been suggested to the king
that the way out of the existing difficulty lay in issuing a
constitutional instrument independently and subsequently allowing the
Landtag first elected under it to submit it to a legislative revision,
and this was the course of procedure which was adopted.[365] Elections
were held and, February 26, 1849, the chambers were assembled. Having
recognized formally the instrument of December 5, 1848, as the law of
the land, the two bodies addressed themselves forthwith to the task of
revising it. The result was disagreement and, in the end, the
dissolution of the lower house. The constitution of 1848 had been
accompanied by an electoral law establishing voting by secret ballot
and conferring upon all male citizens equal suffrage. Upon the
dissolution of 1849 there was promulgated by the king a thoroughgoing
modification of this democratic measure, whereby voting by ballot was
abolished and parliamentary electors were divided into three classes
whose voting power was determined by property qualifications or by (p. 251)
official and professional status. In other words, there was introduced
that peculiar three-class system which was already not unknown in the
Prussian municipalities, and which, in both national and city
elections, persists throughout the kingdom to the present day. In the
elections which were held in the summer of 1849 in accordance with
this system the democrats refused to participate. The upshot was that
the new chambers, convened August 7, 1849, proved tractable enough,
and by them the text of the constitution, after being discussed and
revised article by article, was at last accorded formal approval. On
the last day of January, 1850, the instrument was duly promulgated at
Charlottenburg.[366] By Austria, Russia, and other reactionary powers
persistent effort was made during the ensuing decade to influence the
king to rescind the concession which he had made. He refused, however,
to do so, and, with certain modifications, the constitution of 1850
remains the fundamental law of the Prussian kingdom to-day.[367]
[Footnote 365: The confusion of constitutional and
ordinary statutory law inherent in this arrangement
has influenced profoundly the thought of German
jurists.]
[Footnote 366: On the establishment of
constitutionalism in Prussia see (in addition to
works mentioned on p. 201) P. Matter, La Prusse et
la révolution de 1848, in _Revue Historique_,
Sept.-Oct., 1902; P. Devinat, Le mouvement
constitutionnel en Prusse de 1840 à 1847, ibid.,
Sept.-Oct. and Nov.-Dec., 1911; Klaczko,
L'agitation allemande et la Prusse, in _Revue des
Deux Mondes_, Dec., 1862, and Jan., 1863; C.
Bornhak, Preussische Staats-und Rechtsgeschichte
(Berlin, 1903); H. von Petersdorff, König Friedrich
Wilhelm IV. (Stuttgart, 1900); and H. G. Prutz,
Preussische Geschichte, 4 vols. to 1888 (Stuttgart,
1900-1902). For full bibliography see Cambridge
Modern History, XI., 893-898.]
[Footnote 367: As is true in governmental systems
generally, by no means all of the essential
features of the working constitution are to be
found in the formal documents, much less in the
written constitution alone. In Prussia ordinances,
legislative acts, and administrative procedure,
dating from both before and after 1850, have to be
taken into account continually if one would
understand the constitutional order in its
entirety.]
*268. Nature of the Constitution.*--The constitution of Prussia is
modelled upon that of Belgium. Provisions relating to the powers of
the crown, the competence of the chambers, and the functions of the
ministers are reproduced almost literally from the older instrument.
None the less, the two rest upon widely differing bases. The Belgian
fundamental law begins with the assertion that "all powers emanate
from the nation." That of Prussia voices no such sentiment, and the
governmental system for which it provides has as its cornerstone the
thoroughgoing supremacy of the crown.[368] The Liberals of the
mid-century period were by no means satisfied with it; and, sixty
years after, it stands out among the great constitutional documents of
the European world so conspicuous by reason of its disregard of
fundamental democratic principle as to justify completely the (p. 252)
charges of anachronism which reformers in Prussia and elsewhere are
in these days bringing against it. It provides for the responsibility
of ministers, without stipulating a means whereby that responsibility
may be enforced. There is maintained under it one of the most
antiquated and undemocratic electoral systems in Europe. And, as is
pointed out by Lowell, even where, on paper, it appears to be liberal,
it is sometimes much less so than its text would lead one to suppose.
It contains, for example, a bill of rights, which alone comprises no
fewer than forty of the one hundred eleven permanent articles of the
instrument.[369] In it are guaranteed the personal liberty of the
subject, the security of property, the inviolability of personal
correspondence, immunity from domiciliary visitation, freedom of the
press, toleration of religious sects, liberty of migration, and the
right of association and public meeting. But there is an almost total
lack of machinery by which effect can be given to some of the most
important provisions relating to these subjects. Some guarantees of
what would seem the most fundamental rights, as those of public
assemblage and of liberty of teaching, are reduced in practice to
empty phrases.[370]
[Footnote 368: Dupriez, Les Ministres, I., 350.]
[Footnote 369: Arts. 3-42. Robinson, Constitution
of the Kingdom of Prussia, 27-34.]
[Footnote 370: Lowell, Governments and Parties, I.,
286.]
The process of constitutional amendment in Prussia is easy. With the
approval of the king, an amendment may at any time be adopted by a
simple majority of the two legislative chambers, with the special
requirement only that an amendment, unlike a statute, must be voted
upon twice, with an interval of three weeks between the two votes.
During the first ten years of its existence the constitution was
amended no fewer than ten times. Of later amendments there have been
six, but none more recent than that of May 27, 1888. The Prussian
system of amendment by simple legislative process was incorporated, in
1867, in the fundamental law of the North German Confederation (except
that in the Bundesrath a two-thirds vote was required); and in 1871 it
was perpetuated in the constitution of the Empire.[371]
[Footnote 371: There is an annotated English
version of the Prussian constitution, edited by J.
H. Robinson, in the _Annals of the American Academy
of Political and Social Science_, Supplement,
Sept., 1894. The original text will be found in F.
Stoerk, Handbuch der deutschen Verfassungen
(Leipzig, 1884), 44-63; also, with elaborate notes,
in A. Arndt, Die Verfassungs-Urkunde für den
preussischen Staat nebst Erganzungs-und
Ausführungs-Gesetzen, mit Einleitung, Kommentar und
Sachregister (Berlin, 1889). The principal
treatises on the Prussian constitutional system are
H. Schulze, Das preussisches Staatsrecht, auf
Grundlage des deutschen Staatsrechtes (Leipzig,
1872-1874); ibid., Das Staatsrecht des Königreichs
Preussen, in Marquardsen's Handbuch (Freiburg,
1884); L. von Rönne, Das Staatsrecht der
preussischen Monarchie (Leipzig, 1881-1884); and H.
de Grais, Handbuch der Verfassung und Verwaltung in
Preussen und dem deutschen Reiche (11th ed.,
Berlin, 1896). A good brief account is that in A.
Lebon, Études sur l'Allemagne politique, Chap. 4.]
III. THE CROWN AND THE MINISTRY (p. 253)
*269. Status of the Crown.*--At the head of the state stands the king,
in whom is vested the executive, and a considerable share in the
legislative, power. The crown is hereditary in the male line of the
house of Hohenzollern, following the principle of primogeniture. An
heir to the throne is regarded as attaining his majority on the
completion of his eighteenth year. It has been pointed out that the
German Emperor, as such, has no civil list. He has no need of one, for
the reason that in the capacity of king of Prussia he is entitled to
one of the largest civil lists known to European governments. Since
the increase provided for by law of February 20, 1889, the
"Krondotations Rente," as it appears in the annual Prussian budget,
aggregates 15,719,296 marks; besides which the king enjoys the
revenues from a vast amount of private property, comprising castles,
forests, and estates in various parts of the realm. There are also
certain special funds the income from which is available for the needs
of the royal family.
*270. Powers.*--The powers of the crown are very comprehensive.[372] It
is perhaps not too much to say that they exceed those exercised by any
other European sovereign. The king is head of the army and of the
church, and in him are vested, directly or indirectly, all functions
of an executive and administrative character. All appointments to
offices of state are made by him immediately or under his authority.
The upper legislative chamber is recruited almost exclusively by royal
nomination. And all measures, before they become law, require the
king's assent; though, by reason of the sovereign's absolute control
of the upper chamber, no measure of which he disapproves can ever be
enacted by that body, so that there is never an occasion for the
exercise of the formal veto. To employ the language of a celebrated
German jurist, the king possesses "the whole and undivided power of
the state in all its plenitude. It would, therefore, be contrary to
the nature of the monarchical constitutional law of Germany to
enumerate all individual powers of the king.... His sovereign right
embraces, on the contrary, all branches of the government. Everything
which is decided or carried out in the state takes place in the name
of the king. He is the personified power of the state."[373] (p. 254)
Except in so far as the competence of the sovereign is expressly
limited or regulated by the constitution, it is to be regarded as
absolute.
[Footnote 372: They are enumerated in articles
45-52 of the constitution. Robinson, Constitution
of the Kingdom of Prussia, 36-37.]
[Footnote 373: Schulze, Preussisches Staatsrecht,
I., 158.]
*271. The Ministry: Composition and Status.*--The organization of the
executive--the creation of ministerial portfolios, the appointment of
ministers, and the delimitation of departmental functions--rests
absolutely with the king, save, of course, for the necessity of
procuring from the Landtag the requisite appropriations. Beginning in
the days of Stein with five, the number of ministries was gradually
increased until since 1878 there have been nine, as follows: Foreign
Affairs;[374] the Interior; Ecclesiastical, Educational, and Sanitary
Affairs; Commerce and Industry; Finance; War; Justice; Public Works;
and Agriculture, Public Domains, and Forests. Each ministry rests upon
an essentially independent basis and there has been little attempt to
reduce the group to the uniformity or symmetry of organization that
characterizes the ministries of France, Italy, and other continental
monarchies. Departmental heads, as well as subordinates, are appointed
with reference solely to their administrative efficiency, not, as in
parliamentary governments, in consideration of their politics or of
their status in the existing political situation. They need not be,
and usually are not, members of either of the legislative chambers.
[Footnote 374: The Minister of Foreign Affairs is
at the same time the Minister-President of Prussia
and the Chancellor of the Empire. On the functions
of the various ministries see Dupriez, Les
Ministres, I., 448-462.]
For it is essential to observe that in Prussia ministers are
responsible only to the sovereign, which means that the parliamentary
system, in the proper sense, does not exist. The constitution, it is
true, prescribes that every act of the king shall be countersigned by
a minister, who thereby assumes responsibility for it.[375] But there
is no machinery whereby this nominal responsibility can be made, in
practice, to mean anything. Ministers do not retire by reason of an
adverse vote in the Landtag; and, although upon vote of either
legislative chamber, they may be prosecuted for treason, bribery, or
violation of the constitution, no penalties are prescribed in the
event of conviction, so that the provision is of no practical
effect.[376] Every minister possesses the right to appear on the (p. 255)
floor of either chamber, and to be heard at any time when no member of
the house is actually speaking. In the exercise of this privilege the
minister is the immediate spokesman of the crown, a fact which is apt
to be apparent from the tenor of his utterances.
[Footnote 375: Art. 44.]
[Footnote 376: Art. 61. Robinson, Constitution of
the Kingdom of Prussia, 40. In the words of a
German jurist, "the anomaly continues to exist in
Prussia of ministerial responsibility solemnly
enunciated in the constitution, the character of
the responsibility, the accuser and the court
specified, and at the same time a complete lack of
any legal means by which the representatives of the
people can protect even the constitution itself
against the most flagrant violations and the most
dangerous attacks." Schulze, Preussisches
Staatsrecht, II., 694.]
*272. The Ministry: Organization and Workings.*--The Prussian ministry
exhibits little solidarity. There is a "president of the council of
ministers," who is invariably the Minister for Foreign Affairs and at
the same time the Chancellor of the Empire, but his functions are by
no means those of the corresponding dignitary in France and Italy.
Over his colleagues he possesses, as president, no substantial
authority whatsoever.[377] In the lack of responsibility to the
Landtag, there is no occasion for an attempt to hold the ministry
solidly together in the support of a single, consistent programme. The
ministers are severally controlled by, and responsible to, the crown,
and the views or policies of one need not at all be those of another.
At the same time, of course, in the interest of efficiency it is
desirable that there shall be a certain amount of unity and of
concerted action. To attain this there was established by Count
Hardenberg a Staats-Ministerium, or Ministry of State, which occupies
in the Prussian executive system a position somewhat similar to that
occupied in the French by the Council of Ministers.[378] The Ministry
of State is composed of the nine ministerial heads, together with the
Imperial secretaries of state for the Interior, Foreign Affairs, and
the Navy. It holds meetings at least as frequently as once a week for
the discussion of matters of common administrative interest, the
drafting of laws or of constitutional amendments, the supervision of
local administration, and, in emergencies, the promulgation of
ordinances which have the force of law until the ensuing session of
the Landtag. There are certain acts, as the proclaiming of a state of
siege, which may be performed only with the sanction of this body. The
fact remains, none the less, that, normally, the work of the several
departments is carried on independently and that the ministry exhibits
less cohesion than any other in a state of Prussia's size and
importance. It is to be observed that there is likewise a Staatsrath,
or Council of State (dating originally from 1604 and revived in (p. 256)
1817), composed of princes, high officials of state, ministers,
judges, and other persons of influence designated by the crown. It may
be consulted on legislative proposals, disputes as to the spheres of
the various ministries, and other important matters. In barrenness of
function, however, as in structure, it bears a close resemblance
to-day to the British Privy Council.[379]
[Footnote 377: The office of Chancellor was
discontinued with the death of Hardenberg and that
of Minister-President substituted. The Chancellor
possessed substantial authority over his
colleagues. Since 1871, the Minister-President has
been a Chancellor, but of the Empire, not of
Prussia.]
[Footnote 378: The Staats-Ministerium was called
into being, to replace the old Council of State, by
an ordinance of October 27, 1810. Its functions
were further elaborated in cabinet orders of June
3, 1814, and November 3, 1817. The constitution of
1850 preserved it and assigned it some new duties.]
[Footnote 379: On the organization and functions of
the Prussian ministry see Dupriez, Les Ministres,
I., 345-462; von Seydel, Preussisches Staatsrecht,
91-104; von Rönne, Das Staatsrecht der preussischen
Monarchie, 4th ed., III.; Schulze, Das preussische
Staatsrecht, II.]
*273. Subsidiary Executive Bodies.*--Two other executive organs possess
considerable importance. These are the Oberrechnungskammer, or Supreme
Chamber of Accounts, and the Volkswirthschaftsrath, or Economic
Council. The Oberrechnungskammer has existed continuously since 1714.
Its function is the oversight and revision of the finances of the
departments, the administration of the state debt, and the acquisition
and disposal of state property. Its president is appointed by the
crown, on nomination of the Staats-Ministerium. Its remaining members
are designated by the crown on nomination of its own president,
countersigned by the president of the Staats-Ministerium. All enjoy
the tenure and the immunities of judges, and the body collectively is
responsible, not to the Ministry of State, but to the crown
immediately. In status and function it resembles somewhat closely the
French Cour des Comptes. The same group of men, with additional
members appointed by the Bundesrath, serves as the Chamber of Accounts
of the Empire. The Volkswirthschaftsrath consists of seventy-five
members named by the king for a term of five years. Its business is to
give preliminary consideration to measures vitally affecting large
economic interests, to determine what should be Prussia's position in
the Bundesrath upon these measures, and to recommend to the crown
definite courses of action regarding them. Its function is purely
consultative.
CHAPTER XIII (p. 257)
THE PRUSSIAN LANDTAG--LOCAL GOVERNMENT
I. COMPOSITION OF THE LANDTAG
*274. The House of Lords: Law of 1853.*--Legislative authority in the
kingdom of Prussia is shared by the king with a national assembly, the
Landtag, composed of two chambers, of which the upper is known as the
Herrenhaus, or House of Lords, and the lower as the Abgeordnetenhaus,
or House of Representatives. Under the original provisions of the
constitution, the House of Lords was composed of (1) adult princes of
the royal family; (2) heads of Prussian houses deriving directly from
the earlier Empire; (3) heads of families designated by royal
ordinance, with regard to rights of primogeniture and lineal descent;
(4) 90 members chosen by the principal taxpayers of the kingdom; and
(5) 30 members elected by the municipal councils of the larger towns.
By law of May 7, 1853, this arrangement was set aside and in its stead
it was enacted that the chamber should be made up entirely of persons
appointed by the crown in heredity or for life; and, on the
authorization of this measure, there was promulgated, October 12,
1854, a royal ordinance by which the composition of the body was fixed
substantially as it is to-day. The act of 1853 forbids that the system
thus brought into operation be further modified, save with the assent
of the Landtag; but this does not alter the fact that the present
composition of the Prussian upper house is determined, not by the
constitution of the kingdom, but by royal ordinance authorized by
legislative enactment.
*275. The House of Lords To-day.*--The component elements of the House
of Lords to-day are: (1) princes of the royal family who are of age;
(2) scions of the Hohenzollern-Hechingen, Hohenzollern-Sigmaringen,
and sixteen other once sovereign families of Prussia; (3) heads of the
territorial nobility created by the king, and numbering some fifty
members; (4) a number of life peers, chosen by the king from among
wealthy landowners, great manufacturers, and men of renown; (5) eight
titled noblemen appointed by the king on the nomination of the
resident landowners of the eight older provinces of the kingdom; (6)
representatives of the universities, of religious bodies, and of towns
of over 50,000 inhabitants, presented by these various organizations
respectively, but appointed ultimately by the king; and (7) an (p. 258)
indefinite number of members, chosen by the king for life on any
ground whatsoever, and under no restriction except that peers must
have attained the age of thirty years.
The composition of the chamber is thus extremely complex. There are
members _ex-officio_, members by royal appointment, members by
hereditary right. But the appointing power of the crown is so
comprehensive that the body partakes largely of the character of a
royal creation. Its membership is recruited almost exclusively from
the rigidly conservative landowning aristocracy, so that in attitude
and policy it is apt to be in no degree representative of the mass of
the nation, at least of the industrial classes. As a rule, though not
invariably, it is ready to support cordially the measures of the
crown. In any event, through exercise of the unrestricted power of
creating peers, the crown is in a position at all times to control its
acts. The number of members varies, but is ordinarily about 300.[380]
[Footnote 380: Lebon, Études sur l'Allemagne
politique, 187-197.]
*276. The House of Representatives.*--The Abgeordnetenhaus, or House of
Representatives, consists of 443 members--362 for the old kingdom, 80
added in 1867 to represent the newly acquired provinces, and one added
in 1876 to represent Lauenburg. Representatives are elected for a
five-year term, and every Prussian is eligible who has completed his
thirtieth year, who has paid taxes to the state during as much as
three years, and whose civil rights have not been impaired by judicial
sentence. Every Prussian who has attained his twenty-fifth year, and
who is qualified to vote in the municipal elections of his place of
domicile, is entitled to participate in the choice of a deputy. At
first glance the Prussian franchise appears distinctly liberal. It is
so, however, only in the sense that comparatively few adult males are
excluded from the exercise of it. In its actual workings it is one of
the most undemocratic in Europe.
*277. The Electoral System.*--Representatives are chosen in electoral
districts, each of which returns from one to three members--as a rule,
two. There has been no general redistribution of seats since 1860
(although some changes were made in 1906), so that in many districts,
especially in the urban centers whose growth has fallen largely within
the past fifty years, the quota of representatives is grossly
disproportioned to population. Until 1906 the entire city of Berlin
returned but nine members, and its quota now is only twelve.[381] The
enfranchised inhabitants of the district do not, moreover, vote (p. 259)
for a representative directly. The essential characteristics of the
Prussian electoral system are, first, that the suffrage is indirect,
and, second, that it is unequal. The precise method by which a
representative is elected[382] may be indicated as follows: (1) each
circle, or district, is divided into a number of Urwahlbezirke, or
sub-districts; (2) in each Urwahlbezirk one Wahlman, or elector, is
allotted to every 250 inhabitants; (3) for the choosing of these
Wahlmänner the voters of the sub-district are divided into three
classes, arranged in such a fashion that the first class will be
composed of the payers of direct taxes, beginning with the largest
contributors, who collectively pay one-third of the tax-quota of the
sub-district, the second class will include the payers next in
importance who as a group pay the second third, and the last class
will comprise the remainder; (4) each of these classes chooses, by
absolute majority, one-third of the electors to which the Urwahlbezirk
is entitled; finally (5) all the electors thus chosen in the various
Urwahlbezirke of the district come together as an electoral college
and choose, by absolute majority, a representative to sit in the
Abgeordnetenhaus at Berlin.[383]
[Footnote 381: Prior to 1906 the Berlin
representatives were chosen in four electoral
districts, but in the year mentioned the city was
divided into twelve single-member constituencies.]
[Footnote 382: As stipulated in articles 69-75 of
the constitution. Robinson, The Constitution of the
Kingdom of Prussia, 42-44.]
[Footnote 383: In the event that, between
elections, a seat falls vacant, a new member is
chosen forthwith by this same body of Wahlmänner
without a fresh appeal to the original electorate
of the district.]
*278. Origins and Operation of the System.*--The principal features of
this unique system were devised as a compromise between a
thoroughgoing democracy based on universal suffrage and a government
exclusively by the landholding aristocracy. The three-class
arrangement originated in the Rhine Province where, by the local
government code of 1845, it was put in operation in the elections of
the municipalities. In the constitution of 1850 it was adopted for use
in the national elections, and in subsequent years it was extended to
municipal elections in virtually all parts of the kingdom, so that it
came to be a characteristic and well-nigh universal Prussian
institution. It need hardly be pointed out that the scheme throws the
bulk of political power, whether in municipality or in nation, into
the hands of the men of wealth. In not fewer than 2,214 Urwahlbezirke
a third of the direct taxes is paid by a single individual, who
therefore comprises alone the first electoral class; and in 1703
precincts the first class consists of but two persons. In most cases
the number of the least considerable taxpayers who in the aggregate
pay the last third of the tax-quota is relatively large. Taking the
kingdom as a whole, it was estimated in 1907 that approximately (p. 260)
three per cent of the electorate belonged to the first class, about
9.5 per cent to the second, and the remaining 87.5 to the third. In
the individual precinct, as in the nation at large, the little group
at the top, however, possesses precisely as much political weight as
the large group at the bottom, because it is entitled to choose an
equal number of Wahlmänner. The result is a segregation of classes
which, whatever its merits at certain points, is of very questionable
utility as a basis of government.
The effect politically is to give an enormous advantage to the
conservative and agrarian interests and to deprive the socialists and
other popular elements all but completely of representation. At the
elections of 1903 the Social Democrats put forth effort for the first
time in an organized way to win seats in the Landtag. Under the system
which has been described a total of 324,157 Conservative votes
sufficed to elect 143 representatives, but 314,149 Social Democratic
votes did not secure the return of a single member. In the Imperial
elections of the same year, conducted under a scheme of equal
suffrage, the popular party sent to the Reichstag eighty members. At
the Prussian elections of 1908 a Social Democratic vote which
comprised approximately twenty-four per cent of the total popular vote
yielded but seven members in a total of 443. So glaringly undemocratic
is the prevailing system that even that arch-aristocrat, Bismarck, was
upon one occasion moved to denounce the three-class arrangement as
"the most miserable and absurd election law that has ever been
formulated in any country."[384]
[Footnote 384: For a brief exposition of the
practical effects of the system, especially on
political parties, see Lowell, Governments and
Parties, I., 305-308. The system as it operates in
the cities is described in Munro, The Government of
European Cities, 128-135, and in R. C. Brooks, The
Three-Class System in Prussian Cities, in
_Municipal Affairs_, II., 396ff. Among special
treatises may be mentioned H. Nézard, L'Évolution
du suffrage universel en Prusse et dans l'Empire
allemand (Paris, 1905); I. Jastrow, Das
Dreiklassensystem (Berlin, 1894); R. von Gneist,
Die nationale Rechtsidee von den Ständen und das
preussische Dreiklassensystem (Berlin, 1904); and
G. Evert, Die Dreiklassenwahl in den preussischen
Stadt-und Landgemeinden (Berlin, 1901).]
II. THE MOVEMENT FOR ELECTORAL REFORM
*279. The Programme Formulated.*--Throughout more than a generation
there has been in Prussia persistent agitation in behalf of electoral
reform. In 1883, and again in 1886, the lower chamber debated, but
rejected, a project for the substitution of the secret ballot for the
existing _viva voce_ method of voting. In 1883 the Social Democratic
party proclaimed its purpose to abstain from voting until the (p. 261)
inequalities arising from "the most wretched of all electoral systems"
should have been removed. Gradually there was worked out a programme
of reform to which socialists, Liberals, and progressives of various
schools gave adherence, wholly or in part, comprising four principal
demands: (1) the abolition of discriminations against the small
taxpayer; (2) the introduction of the secret ballot; (3) the replacing
of indirect by direct elections; and (4) a redistribution of seats.
And these are to-day the objects chiefly sought by the reform
elements.
*280. The Efforts of 1906 and 1908.*--In 1906 a bill raising the number
of representatives from 433 to 443 and making provision for a slight
redistribution of seats was carried, but a Radical amendment providing
for direct and universal suffrage and the secret ballot was opposed
with vigor by the Government and failed of adoption. In January, 1908,
there were notable socialist demonstrations throughout the country in
behalf of the establishment of equal manhood suffrage. Prince von
Bülow, while admitting the existing system to be defective, opposed
the introduction in Prussia of the electoral system of the Empire,
alleging that it would not be compatible with the interests of the
state and maintaining that every sound reform of the franchise must
retain and secure the preponderance of the great mass of the middle
class, and therefore must aim at the establishment of an equitable
gradation in the weight of the various classes of votes. It was added
that the Government would consider whether this object might best be
attained by basing the franchise entirely upon the amount of taxes
paid by the voter, or by taking into account age, educational
attainments, or other qualifications. When the Radicals introduced in
the lower chamber a resolution declaring for equal manhood suffrage
the Clericals and the Poles supported it, but the Conservatives and
National Liberals of all shades stood by the Government, and the
resolution was overwhelmingly rejected. The elections of June, 1908,
at which, as has been pointed out, seven Social Democratic members
were returned, demonstrated that even under existing electoral
arrangements dissatisfaction could find some expression. The National
Liberals and the Free Conservatives, who had been outspoken in
opposition to the extension of the suffrage, lost, respectively,
twelve and four seats. When, however, the Radical resolution
reappeared it again was thrown out.
*281. The Project of 1910.*--By popular demonstrations in Berlin and in
other important towns throughout the kingdom, the Government was
brought to the conviction that it was not expedient to maintain too
long its hitherto inflexible attitude. In a speech from the (p. 262)
throne, January 11, 1910, the sovereign announced the early
introduction of a measure for electoral reform, and a month later it
became the unwelcome duty of the new Chancellor, von Bethman-Hollweg,
to lay the Government's project before the chambers. Instantly it was
evident, not only that the proposal had been prepared entirely under
bureaucratic direction, but that the real purpose of the Government
was to carry through the Landtag an electoral bill designed to appease
the reformers without yielding the essential features of the existing
system. The project provided, in brief: (1) that the tripartite system
be retained, though the quota of taxes admitting to the first class
should be reduced to a uniform level of five thousand marks (no weight
being given to payment beyond that amount), and voters of specified
degrees of education, or occupying certain official positions, or
having served a stipulated number of years in the army or navy, should
be assigned to the higher classes, with but incidental regard to their
tax contributions: (2) that _viva voce_ voting be retained; (3) that
the choice of electors be by districts rather than by Urwahlbezirke;
and (4) that direct voting be substituted for indirect. There was no
mention of redistribution, and the secret ballot was specifically
withheld. The rearrangement of classes did not touch the fundamental
difficulty, and the only demand of the reformers which was really met
was that for direct elections. In his speech in defense of the measure
the Chancellor frankly admitted that the Government was irrevocably
opposed to a suffrage system based on democratic principles.
The scheme was ridiculed by the liberal elements. In protest against
the nonchalance with which the door had been shut in their faces the
working classes in Berlin and elsewhere entered upon a fresh series of
demonstrations by reason of which the Government was embarrassed
through several weeks. In the Landtag the Conservative and Free
Conservative parties, comprising the Government majority, stood
solidly for the bill, in the conviction that if there must be change
at all those changes which the bill proposed would be less
objectionable than those which were being urged by the radicals. The
Centre wavered, while the National Liberals, the Poles, the Social
Democrats, and the Progressive People's Party stood firmly in
opposition. February 13 the bill was referred in the lower house to a
committee, by which it was reported so amended as to provide for the
secret ballot but not for direct elections. March 16, by a vote of 283
to 168, the measure in this amended form, was passed by the chamber,
all parties except the Conservatives and the Centre voting against it.
April 29 the bill was passed in the upper chamber, by a vote of 140 to
94, in the form in which originally it had been introduced. All (p. 263)
efforts on the part of the Government to bring the lower house to an
acceptance of the original measure proved fruitless, and the upshot
was that, May 27 following, the project was withdrawn from the
chambers. The overhauling of the antiquated electoral system in
Prussia, both national and municipal, remains a live issue, but
agreement upon a definite project of reform is apparently remote. The
problem is enormously complicated by the virile traditions of
aristocratic, landed privilege which permeate the inmost parts of the
Prussian political system. In respect to redistribution, too, a
fundamental obstacle lies in the consideration that such a step on the
part of Prussia would almost of necessity involve a similar one on the
part of the Empire. In both instances the insuperable objection, from
the point of view of the Government, arises from the vast acquisition
of political power which would accrue from such reform to the
socialists and other radical parties.[385]
[Footnote 385: P. Matter, La réforme électorale en
Prusse, in _Annales des Sciences Politiques_,
Sept., 1910; C. Brocard, La réforme électorale en
Prusse et les partis, in _Revue Politique et
Parlementaire_, Feb., 1912.]
III. ORGANIZATION AND FUNCTIONS OF THE LANDTAG
*282. Sessions and Privileges of Members.*--The maximum life of a
Landtag is five years; but the lower house may at any time be
dissolved by the crown. A dissolution must be followed by the election
of a new chamber within sixty days, and the ensuing session is
required to begin within three months. The power of dissolution is not
infrequently exercised, and there have been instances of the
dissolution of a newly elected chamber, by reason of its objectionable
political character, before it had been convened for so much as a
single sitting. According to law the Landtag must be convoked in
regular session every year, during the period between the beginning of
November and the middle of the following January.[386] It may be
called in extraordinary session at any time. Without its own consent,
it may not be adjourned for more than thirty days, or more than once
during a session. Save in the event of the necessity of making
provision for a regency, the chambers sit separately; but the two must
be convoked, opened, adjourned, and prorogued simultaneously.
[Footnote 386: Art. 76.]
Each chamber passes upon the qualifications of its members; each
elects it own presidents, vice-presidents, and secretaries; and each
regulates its own discipline and order of business. Sittings of both
chambers are public, save when, on proposal of the president or of ten
members, it is decided to close the doors. Members are regarded (p. 264)
as representatives of the population of the kingdom as a whole. They
may not be bound by any sort of instructions; nor may they be called
to account legally for votes cast, or for statements made, in the
fulfillment of their legislative functions. Unless taken in the act,
or within twenty-four hours thereafter, no member of either house may,
without the consent of that house, be arrested or submitted to
examination for any penal offense. Members of the lower house receive,
and must accept, travelling expenses and a daily allowance of fifteen
marks during sessions.
At the beginning of each sitting the House of Lords is divided into
five Abtheilungen, or sections, and the House of Representatives into
seven. In the lower house the division is made by lot; in the upper,
by the president. In both instances it is made once for an entire
session, not monthly as in France, or bi-monthly as in Italy. The
function of the Abtheilungen is to appoint committee members, and, in
the lower house, to make preliminary examination of election returns.
In each house there are eight standing committees. For the
consideration of particular measures special committees are
constituted as occasion demands.