*232. Powers of Legislation.*--By reason of the pivotal position (p. 221)

which the Bundesrath occupies in the German constitutional system the

functions of the body are fundamental and its powers comprehensive.

Its competence is in the main legislative and fiscal, but also in part

executive and judicial. By the constitution it is stipulated that the

legislative power of the Empire shall be exercised by the Bundesrath

and the Reichstag, and that a majority of the votes of both bodies

shall be necessary and sufficient for the enactment of a law.[322] The

right of initiating legislation is expressly conferred upon the

Reichstag, but in practice it is exercised almost exclusively by the

Bundesrath. Even finance bills all but invariably originate in the

superior chamber. Under the normal procedure bills are prepared,

discussed, and voted in the Bundesrath, submitted to the Reichstag for

consideration and acceptance, and returned for further scrutiny by the

Bundesrath before their promulgation by the Emperor. In any case, the

final approval of a measure must take place in the Bundesrath, by

whose authority alone the character of law can be imparted. Speaking

strictly, it is the Bundesrath that makes law, with merely the assent

of the Reichstag.

[Footnote 322: Art. 5. Dodd, Modern Constitutions,

I., 328.]

*233. Executive Authority.*--The Bundesrath's executive functions

represent a curious admixture, but the sum total is very considerable.

In the first place, the body possesses supplementary administrative

powers. By the constitution it is required to take action upon "the

general administrative provisions and arrangements necessary for the

execution of the Imperial laws, so far as no other provision is made

by law," as well as upon "the defects which may be discovered in the

execution of the Imperial laws."[323] This function is performed

through the issuing of ordinances so devised as not to contravene the

constitution, existing law, or the proper prerogatives of any

constituted authority, Imperial or state. In the second place, certain

powers vested in the Emperor may be exercised only with the

Bundesrath's consent. Most important of these are: (1) the declaration

of war, save in the event of an attack upon the territory or coasts of

the Empire; (2) the concluding of treaties, in so far as they relate

to matters falling within the range of Imperial legislation; and (3)

the carrying out of an "execution" against a delinquent state. Finally

certain relations are maintained with the Reichstag which involve the

exercise of authority that is essentially executive. With the assent

of the Emperor, the Bundesrath may dissolve the popular chamber; and

every member of the Bundesrath has the right to appear in the (p. 222)

Reichstag and to be heard there at any time upon his own request,

somewhat after the manner of a minister in a parliamentary

government.[324] Large functions in connection with public finance,

likewise, are vested in the body. By it the annual budget is prepared,

the accounts which the Empire carries with the states are audited, and

important supervisory relations with the Imperial Bank, the Imperial

Debt Commission, and other fiscal agencies, are maintained. Lastly,

there is some participation in the power of appointment; for although

that power, as such, is vested in the Emperor, officials of some kinds

(e.g., judges of the Imperial Court) are actually chosen by the

Bundesrath, and in many other instances the body preserves an

acknowledged right to approve appointments which are made.

[Footnote 323: Art. 7. Dodd, I., 329.]

[Footnote 324: Arts. 9 and 24. Dodd, Modern

Constitutions, I., 330-333. It should be observed,

however, that the members of the Bundesrath are

authorized to appear in the Reichstag, not for the

purpose of advocating a measure which the

Bundesrath has enacted, or would be willing to

enact, but simply to voice the interests or demands

of their own states.]

*234. Judicial Powers.*--In its judicial capacity the Bundesrath sits as

a supreme court of appeal, to which cases may be carried from the

tribunals of a state, when it can be shown that justice is not to be

had in those tribunals.[325] It serves also as a court of last resort

for the settlement of disputes between the Imperial Government and a

state; or between two states, when the point at issue is not a matter

of private law and when a definite request for action is made by one

of the parties. Finally, in disputes relating to constitutional

questions in states whose constitution does not designate an authority

for the settlement of such differences, the Bundesrath is required, at

the request of one of the parties, to effect an amicable adjustment;

or, if this shall prove impossible, to see to it that the issue is

settled by Imperial law.[326]

[Footnote 325: Art. 77. Dodd, Modern Constitutions,

I., 350.]

[Footnote 326: Art. 76. Dodd, Modern Constitutions,

I., 350. On the Bundesrath see Howard, The German

Empire, Chap. 4; J. H. Robinson, The German

Bundesrath, in _Publications of University of

Pennsylvania_, III. (Philadelphia, 1891); P.

Laband, Das Staatsrecht des deutschen Reiches, §§

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.

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