*283. Powers.*--The Landtag is, of course, primarily a legislative

institution. But the powers of independent deliberation which it

exercises are distinctly inferior to those exercised by the British

House of Commons, by the French Chamber of Deputies, or by any one of

a half score of other European parliamentary bodies. This fact arises

from the relatively preponderating influence which is exerted by the

Government in its proceedings. In theory each chamber possesses the

right to initiate legislation; in practice, virtually all bills are

introduced by the Government, and the chambers content themselves with

discussion and the proposing of amendments. It not infrequently

happens that, as in the case of the Electoral Reform Bill of 1910, the

lower house so emasculates a measure as to compel the Government to

withdraw it. But, speaking broadly, it may be said that the

legislative acts of Prussia are projected and formulated by the crown

and the ministers and merely ratified by the Landtag. There is still

some question as to whether the stipulation that all laws require the

assent of the two houses covers, under every circumstance, the

appropriation of money. In practice, appropriations are regularly

voted in the chambers, and in fact it is required that the budget and

all fiscal measures shall be presented first to the lower house and

shall be accepted or rejected as a whole by the upper; but during the

years immediately preceding the Austrian war of 1866 the Government

asserted and exercised the power of collecting and expending the revenues

of the state on the basis of standing laws, thus virtually (p. 265)

suspending the legislative appropriating power, and the question has

never been finally settled by Prussian jurists as to whether such a

thing might not again be done.[387]

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

298.]

On the side of administration the powers of the Landtag are but

nominal. Under provisions of the constitution each chamber has a right

to present memorials to the king; to refer to the ministers documents

addressed to it, and to demand explanations respecting complaints made

therein; and to appoint commissions for the investigation of subjects

for its own information. The right of interpellation is expressly

recognized. But, as has been pointed out, the ministers are not in

practice responsible to the legislative chambers, and neither they nor

the king himself can be compelled to give heed, unless they so desire,

to legislative protests, demands, or censure. Where a parliamentary

system does not exist, the influence of the legislative branch upon

matters of administration is likely to be confined to the simple

assertion of opinion.

IV. LOCAL GOVERNMENT: ORIGINS AND PRINCIPLES[388]

[Footnote 388: The judicial system of Prussia,

regulated in common with that of the other states

by Imperial law, is described in Chapter 11, pp.

241-244. Articles 86-97 of the Prussian

constitution deal with the subject of the

judiciary, but many of their provisions have been

rendered obsolete by Imperial statutes.]

*284. The Measures of Stein and Hardenberg.*--The origins of the local

governmental régime prevailing in the kingdom of Prussia to-day

antedate, to some extent, the nineteenth century, but in large part

they are to be traced to the period of the Stein-Hardenberg

ministries. By the memorable Municipal Edict (_Städt-Ordnung_) of

November 19, 1808, Stein set up a complete municipal system, with

burgomasters, executive boards, and town councils (all elective), and

swept away the oligarchy of the guilds, broadened the franchise, and

conferred upon the towns almost complete independence, even in the

matter of taxation. An edict of 1831 inaugurated a revival of the

right of the central authorities to supervise local taxation and

introduced a number of other changes, but, on the whole, the municipal

arrangements of the present day are based upon the edict of Stein.

More immediately, they rest upon an act of 1853, applied originally

only to the six eastern provinces of the kingdom, but eventually

extended to the others. Aside from its introduction of the three-class

electoral system, and a few other matters, this law follows closely

the measure of 1808 and but consolidates and extends pre-existing

arrangements.[389] Neither Stein nor Hardenberg touched the (p. 266)

constitution of the country communes, but the extension, during the

Napoleonic occupation, of the French communal system into all the

Prussian territories west of the Elbe prepared the way for the

essentially uniform system which was established by the Westphalian

and Rhineland Edicts of 1841 and 1845. Edicts of 1807 and 1811

abolished the aristocratic basis of the ancient circles (Kreise), and

after 1815 the circle as a unit of local government next above the

commune was extended to all the conquered or reconquered territories.

The revival of the old provincial organization was begun also in 1815,

when the kingdom was divided into ten provinces; and in the same year

there were established twenty-six government districts (Regierungsbezirke),

two or three within each province, each under the control of one of

the government boards (Regierungen) whose creation had been begun in

1808.[390]

[Footnote 389: The text of the law of 1853 is

printed in the appendix of A. W. Jebens, Die

Städtverordneten (Berlin, 1905).]

[Footnote 390: E. Meier, Die Reform der

Verwaltungsorganisation unter Stein und Hardenberg

(Leipzig, 1881).]

*285. The Reforms of Bismarck.*--Throughout the middle portion of the

nineteenth century the administrative system, modified but slightly by

legislative enactment, continued to present a curious combination of

elements which were popular and elements which were narrowly

bureaucratic and, in some instances, essentially feudal. Beginning in

1872, Bismarck addressed himself to the task of co-ordinating,

strengthening, and to a certain extent liberalizing, the local

institutions of the kingdom. The ends at which he aimed principally

were the abolition of conditions by which it was made possible for the

whole machinery of local government to be captured from time to time

by a single social class for its own benefit, and the establishment of

a system under which all classes of the population might be admitted

to participation in the management of purely local affairs. In the

course of the reform which was carried through numerous features of

English local institutions were copied with some closeness. In a

number of scholarly volumes appearing between 1863 and 1872 the genius

of these institutions had been convincingly expounded by the jurist

Rudolph Gneist, whose essential thesis was that the failure of

parliamentary government in Prussia and the success of it in Great

Britain was attributable to the dissimilarity of the local

governmental systems of the two countries;[391] and by these writings

the practical proposals with which Bismarck came forward were given

important theoretic basis. Neither Gneist nor Bismarck sympathized

with the ideals of democracy, but both believed that the local (p. 267)

administrative authorities should be made to include not only a

paid, expert bureaucracy but a considerable element of unpaid lay or

non-official persons, drawn, however, principally from the large

landowners and taxpayers. The obstacles to be overcome, arising from

public indifference, the opposition of the existing bureaucracy, the

apprehensions of the Conservatives, and sectional differences and

antipathies, were enormous, but by proceeding slowly and in a

conciliatory spirit the Government was able eventually to execute the

larger portion of its plans. The first enactments, for the circles in

1872 and for the provinces in 1875, were applied only to those

provinces which had formed the old monarchy, but during the ensuing

ten years similar measures were extended to the remainder of the

kingdom, and, finally, after the dismissal of Bismarck, the task was

rounded out by a great Landgemeinde-Ordnung issued for the seven

eastern provinces in 1891. By this series of enactments the

administrative methods and machinery of the kingdom were reduced to

substantially the character which they to-day possess.

[Footnote 391: The most important of Gneist's works

in this connection are: Geschichte des

self-government in England (1863); Verwaltung,

Justiz, Rechtsweg (1867); Die preussische

Kreis-Ordnung (1871); and Der Rechtsstaat (1872).]

*286. Principles of the Administrative System.*--Although the system is

still one of the most complicated in Europe, it is infinitely simpler

than once it was, and the bureaucratic forces in it, if still

predominant, have been subjected to a variety of important restraints.

The principles which underlie it have been summarized by an English

writer as follows: "The first is the careful distinction drawn between

those internal affairs in which the central government is thought to

be directly concerned, and those which are held to be primarily of

only local interest. The former group includes, besides the army, the

state taxes and domains, ecclesiastical affairs, police (in the wide

Prussian meaning of the term), and the supervision of local

authorities; whilst roads, poor relief, and a number of miscellaneous

matters are left to the localities. These two groups are kept

carefully separate, even when they are entrusted to the same

authority. Secondly, the work of the central government is

'deconcentrated,' that is, the country is divided into districts

(which may or may not be coincident with the areas of local

self-government), in each of which there is a delegation of the

central authority, doing its work, and thereby lessening the pressure

upon the departmental offices in Berlin. Something like this

deconcentration is found in the educational organization of France,

and also in the office of the Prefect, but it is far more elaborate,

and the machinery much more complex, in Prussia. Thirdly the

comparative independence of the executive from the deliberative

authority, and the predominance of the officials, which characterize

the central government of Prussia, repeat themselves throughout the

whole of local government. And, finally, in all except the (p. 268)

largest of the Prussian areas of local self-government, the executive

agents of the locality, elected by it, are also the representatives of

the central government; as such they are members of the bureaucracy

and controlled by it, and in consequence they naturally look to the

center for guidance and direction in regard to local affairs.

Therefore, whilst it would be inaccurate to say that local

self-government, as understood in England, does not exist in Prussia,

it is true that self-government there is weak, that it is not so much

the exercise of the will of the locality within limits prescribed (for

the protection of the whole community) by the central power, as the

exercise of the will of the latter by the locality. In fact, the

bureaucracy rules; and it is fortunate for Prussia that hitherto the

bureaucracy has remained intelligent and respective of new

ideas."[392]

[Footnote 392: Ashley, Local and Central

Government, 130-132.]

At the same time it is to be observed that, while the professional,

life-long holders of office continue to preponderate as in no other

important country of western Europe, the class of non-professionals is

large and constantly increasing. As a rule, the first class is

salaried, the second is not; the non-professionals being simply

citizens who, moved by considerations of a civic and social nature,

give their services without prospect of pecuniary reward. The

principle of the system is, as Ashley characterizes it, that of

government by experts, checked by lay criticism and the power of the

purse, and effectively controlled by the central authorities. And,

although the details of local governmental arrangements vary

appreciably from state to state, this principle, which has attained

its fullest realization in Prussia, may be said to underlie local

government throughout the Empire in general.

V. LOCAL GOVERNMENT: AREAS AND ORGANS

*287. The Province.*--Aside from the cities, which have their special

forms of government, the political units of Prussia, in the order of

their magnitude, are: (1) the Provinz, or province; (2) the

Regierungsbezirk, or district; (3) the Kreis, or circle; (4) the

Amtsbezirk, or court jurisdiction; and (5) the Gemeinde, or commune.

Of these, three--the first, third, and fifth--are spheres both of the

central administration and of local self-government; two--the second

and fourth--exist for administrative purposes solely. Of provinces

there are twelve: East Prussia, West Prussia, Brandenburg, Pomerania,

Silesia, Posen, Westphalia, Saxony, Hanover, the Rhine Province,

Schleswig-Holstein, and Hesse-Nassau.[393] Unlike the French and (p. 269)

Italian departments, the Prussian provinces are historical areas,

of widely varying extent and, in some instances, of not even wholly

continuous territory. Thus Hanover is, geographically, the kingdom

once united with the crown of Great Britain, Schleswig-Holstein

comprises the territories wrested from Denmark in 1864, Saxony is the

country taken from the kingdom of Saxony at the close of the

Napoleonic wars, and Posen represents Prussia's ultimate acquisition

from the Polish partitions of the eighteenth century.

[Footnote 393: For all practical purposes the city

of Berlin and the district of Hohenzollern form

each a province. If they be counted, the total is

fourteen.]

In the organization of the province the separation of functions

relating to the affairs of the kingdom (_Staatsgeschäfte_) from those

which relate only to matters of a local nature is carried out rigidly.

In the circle, as will appear, the two sets of functions are

discharged by the same body of officials; in the district, the

functions performed are wholly of a national, rather than a local,

character; but in the province there are not merely two sets of

functions but two entirely separate groups of officials.

*288. Provincial Organs of the Central Administration.*--For the

administration of affairs of general interest, such as police,

education, and religion, the organs within the province are (1) the

Oberpräsident, or chief president, appointed by the king to represent

the central government in the management of all such matters as

concern the entire province or reach beyond the jurisdiction of a

single Regierungsbezirk administration,[394] and (2) the

Provinzialrath, a provincial council consisting of, besides the

Oberpräsident or his representative as presiding officer, one

professional member appointed for an indefinite tenure by the Minister

of the Interior and five ordinary citizen members elected, usually for

a term of six years, by the provincial Ausschuss, or committee. The

Oberpräsident is the immediate agent of the ministry, as is the

prefect in France, though he is a more dignified and important

functionary than his French counterpart. None the less, by virtue of

the fact that most of the Oberpräsident's acts are valid only after

having been accorded the assent of a body the majority of whose

members are chosen within the province, the bureaucratic aspect of his

position is subjected to a highly important limitation.

[Footnote 394: Schulze, Das Staatsrecht des

Königreichs Preussen, 63.]

*289. Provincial Organs of Self-Government.*--By the side of this

official group stands another, quite independent of it, for the

control of affairs of purely local concern. Its organs comprise: (1)

the Provinzialausschuss, or provincial committee, consisting of from

seven to fourteen members elected for six years by the provincial (p. 270)

Landtag, not necessarily, but almost invariably, from its own

membership; (2) a Landeshauptmann or Landesdirektor, a salaried

executive official elected by the Landtag for six or twelve years and

confirmed by the crown; and (3) the Provinziallandtag, or provincial

assembly. The Landeshauptmann is the executive, the Provinzialausschuss

the consultative, organ of local self-administration; the

Provinziallandtag is the provincial legislature. Members of the

Landtag are elected for six years (one-half retiring every three

years) by the diets of the circles, and they comprise, as a rule,

local administrative officials of the circles, large landowners, and

other well-to-do persons. Sessions are convoked by the crown at least

every two years.[395] The Landtag's functions are comprehensive. They

include the supervision of charities, highways, and industry; the

voting of local taxes and the apportionment of them among the circles;

the enactment of local laws; the custody of provincial property; the

election of the Landeshauptmann and the members of the provincial

committee; and the giving of advice on provincial matters at the

request of the central government. The Landtag is in practice less

independent, however, than this enumeration of powers might seem to

imply. All of its legislation requires the assent of the king; most of

its fiscal arrangements must be submitted to one or more of the

ministers; and the body itself may be dissolved at any time by the

crown.

[Footnote 395: Towns of twenty-five thousand

inhabitants or more may, by ministerial decree, be

set off as separate circles. In such circles

Landtag members are chosen by the municipal

officials.]

*290. The Government District.*--Each province is divided into a number

of Regierungsbezirke, or districts, of which there are now thirty-five

in the kingdom.[396] Unlike the province, the district exists for

purposes of general administration only. It therefore has no organs of

self-government. Its Regierung, or "administration," consists of a

body of professional, salaried officials, appointed by the crown and

having at its head the Regierungspräsident, who is, on the whole, the

most important official in the Prussian local service. The subjects

that fall within the jurisdiction of the functionaries of the

district, including taxation, education, religion, forests, etc., are

very comprehensive, and the work of administration is carried on

chiefly through "colleges," or boards. For the management of police

and the supervision of local bodies there exists a Bezirksausschuss,

or district committee, composed of the Regierungspräsident, two (p. 271)

other persons appointed by the crown, and four members elected by the

Provinzialausschuss for six years. A very important function which

this body has possessed since 1883 is that of sitting, under the

presidency of one of its members appointed for his judicial

qualifications, as the administrative court of the district.[397]

[Footnote 396: The province of Schleswig-Holstein,

however, contains but a single district. The

largest number of districts in a province is six,

in Hanover.]

[Footnote 397: The immediate legal basis of the

organization of the district is the

Landesverwaltungsgesetz of 1883.]

*291. The Circle.*--In the Kreis, or circle, as in the province, there

exist two sharply distinguished sets of governmental functions, the

general and the local; but for the administration of both there is a

single hierarchy of officials. The number of circles within the

kingdom is about 490, with populations varying from 20,000 to 80,000.

Each includes all towns lying within it which have a population of

less than 25,000. A town of over 25,000 is likely to be created, by

ministerial order, a circle within itself, in which case the functions

of government are exercised by the municipal authorities.[398] The

essential organs of government within the Landkreise, or country

circles, are three: the Landrath, the Kreisausschuss, and the

Kreistag. The Landrath is appointed for life by the crown, on

nomination frequently by the Kreistag, or diet. He superintends all

administrative affairs, general and local, within the circle; fulfills

the functions of chief of police; presides over the Kreisausschuss and

Kreistag; and, in general, occupies within the circle the place

occupied within the province by the Oberpräsident. Associated with

him, and organized under his presidency, is the Kreisausschuss, or

circle committee, composed of six unofficial members elected by the

Kreistag for six years. In addition to its consultative functions, the

Kreisausschuss sits as an administrative court of lowest grade.

[Footnote 398: Approximately one hundred towns have

been so constituted.]

The Kreistag is the legislative body of the circle. Its members,

numbering at least twenty-five, are elected for a term of six years by

three Verbände, or colleges, the first being made up of the cities,

the second of the large rural taxpayers, the third of a complicated

group of rural interests in which the smaller taxpayers and delegates

of the communal assemblies preponderate.[399] The Kreistag is a body

of substantial importance. It chooses, directly or indirectly, all the

elective officials of the circle, of the district, and of the

province; it creates local officers and regulates their functions; it

enacts legislation of a local nature; and it votes the taxes required

for both its own and the provincial administration.

[Footnote 399: For a fuller statement of the

electoral system see Lowell, Governments and

Parties, I., 325.]

*292. The Commune.*--The smallest of Prussian governmental units (p. 272)

is the Gemeinde, or commune.[400] Of communes there are two distinct

types, the rural (Landgemeinde) and the urban (Stadtgemeinde). The

governments of the rural communes (some 36,000 in number) are so

varied that any general description of them is virtually impossible.

They rest largely upon local custom, though reduced at some points to

a reasonable uniformity under regulating statutes such as were enacted

for the communes of eight of the twelve provinces in the

Landgemeinde-ordnung of 1891.[401] There is invariably an elective

Schulze, or chief magistrate. He is assisted ordinarily by from two to

six aldermen (Schöffen) or councillors. And there is generally a

governing body (Gemeindevertretung), composed of elected representatives,

when there are as many as forty qualified electors,--otherwise

the people acting in the capacity of a primary assembly

(Gemeindeversammlung),--for the decision of matters relating to local

schools, churches, highways, and similar interests. It is to be

observed, however, that most of the rural communes are so small that

they have neither the financial resources nor the administrative

ability to maintain a government of much virility. Such action as is

taken within them is taken almost invariably with the approval of, and

under the guidance of, the authorities of the circle, principally the

Landrath.[402]

[Footnote 400: The Amtsbezirk is essentially a

judicial district. See p. 243. In the eastern

provinces it is utilized also for purposes of

police administration.]

[Footnote 401: For an annotated edition of this

important instrument see F. Keil, Die

Landgemeinde-ordnung (Leipzig, 1890).]

[Footnote 402: On Prussian local government see

Lowell, Governments and Parties, I., 308-333; F. J.

Goodnow, Comparative Administrative Law (2d ed.,

New York, 1903), I., 295-338; and Ashley, Local and

Central Government (London, 1906), 125-186,

263-287. Fuller accounts are contained in Schulze,

Das preussische Staatsrecht, I., 436-538; K.

Stengel, Organisation der preussischen Verwaltung,

2 vols. (Berlin, 1884); C. Bornhak, Preussisches

Staatsrecht, 3 vols. (Freiburg, 1888-1890), and Hue

de Grais, Handbuch der Verfassung und Verwaltung in

Preussen, etc. (17th ed., Berlin, 1906). Texts of

local government acts are printed in G. Anschutz,

Organisations-gesetze der innern Verwaltung in

Preussen (Berlin, 1897). The best description in

English of Prussian municipal government is that in

Munro, The Government of European Cities, 109-208.

A good brief sketch is Ashley, Local and Central

Government, 153-164. The best account of some

length in German is H. Kappleman, Die Verfassung

und Verwaltungsorganisation der preussischen

Städte, in Schriften des Vereins für Sozialpolitik

(Leipzig, 1905-1908), vols. 117-119. Mention may be

made of A. Shaw, Municipal Government in

Continental Europe (New York, 1895), Chaps. 5-6; E.

J. James, Municipal Administration in Germany

(Chicago, 1901); and Leclerc, La Vie municipale en

Prusse, in _Annales de l'École Libre des Sciences

Politiques_, Oct., 1888. For ample bibliography see

Munro, _op. cit._, 389-395.]

In their governmental arrangements the urban communes exhibit more

uniformity than do the rural, though occasionally among them there

is wide variation. The usual organs comprise (1) the Stadtrath, (p. 273)

an executive body consisting of a burgomaster and a number of

assistants, elected for six, nine, or twelve years, or even for life,

and (2) the Stadtverordnete, or municipal council, chosen for from

three to six years, as a rule by an electorate identical with that

which returns the members of the lower branch of the Prussian

Landtag.

CHAPTER XIV (p. 274)

THE MINOR GERMAN STATES--ALSACE-LORRAINE

*293. Essential Similarity of Political Institutions.*--The

preponderance of Prussia among the twenty-five states comprised within

the German Empire is such as to lend the governmental system of that

kingdom an interest and an importance which attaches to the political

arrangements of no one of the remaining members of the federation. No

description of German governments would be adequate, none the less,

which should ignore wholly the minor states. A number of these states,

especially Bavaria, Baden, Württemberg, and Saxony, are of

considerable size, and the populations which are governed within them

approximate, or exceed, the populations of certain wholly independent

European nations, as Norway, Denmark, Switzerland, Portugal, and

several of the states of the southeast. It would be unnecessary,

however, even were it possible, to describe in this place twenty-five

substantially independent German governmental systems. Despite no

inconsiderable variation, there are many fundamental features which

they, or the majority of them, possess in common. All save

three--Hamburg, Bremen, and Lübeck--are monarchies. All save

two--Mecklenburg-Schwerin and Mecklenburg-Strelitz--have written

constitutions[403] and elective legislative chambers. In every one of

the monarchies the total lack of anything in the nature of ministerial

responsibility to a parliamentary body leaves the way open for the

maintenance of vigorous and independent royal authority, and it is not

too much to say that in all of them, as is pre-eminently true in

Prussia, the principle of autocracy lies at the root of both the

organization and the methods of government. Local governmental

arrangements and systems of administration of justice have been

copied, in most instances, from Prussia. It will suffice to speak very

briefly, first of a few of the more important monarchies, and

subsequently of the city-state republics.

[Footnote 403: The texts of these constitutions, in

the form in which they existed in 1884, are printed

in Stoerk, Handbuch der deutschen Verfassungen.

Even in the Mecklenburgs there are certain written

instruments by which the curiously mediæval system

of government there prevailing is in a measure

regulated.]

I. THE MORE IMPORTANT MONARCHIES (p. 275)

*294. Bavaria: Crown and Ministry.*--After Prussia, the most important

of the German states, in point both of area and of population, is the

kingdom of Bavaria. The constitution at present in operation in

Bavaria was promulgated May 26, 1818, though it has undergone no

slight modification through the process of amendment since that

date.[404] The original instrument replaced a fundamental law of May,

1808, devised by the king of Bavaria in imitation of the constitution

given some months before by Napoleon to the kingdom of Westphalia; and

even the present frame of government bears unmistakable evidence of

French influence. The functions and prerogatives of king and ministers

are substantially what they are in Prussia.[405] In addition to the

Ministry of State, consisting of the seven heads of departments, there

is an advisory Staatsrath, or Council of State, comprising, besides

the ministers, one prince of the royal blood and eight other members.

In accordance with royal proclamation important acts of the government

require the countersignature of all of the ministers. This, of itself,

does not imply any larger measure of ministerial subordination than

exists elsewhere in German governments, but it is worth observing that

during a prolonged period, especially after 1869, there was persistent

effort on the part of the Clericals to inject into the Bavarian system

the principle of ministerial responsibility in the parliamentary sense

of the phrase, and that although the attempt was by no means wholly

successful, it is true that in Bavaria the ministers occupy in

practice a somewhat less independent position than in other German

monarchies. The device of interpellation, for example, not only exists

in theory; it means something, as elsewhere in Germany it does not, in

actual operation. If a minister will not answer an interpellation that

is addressed to him, he is obliged by law at least to give reasons for

his refusal.[406]

[Footnote 404: Among amendments the most notable

have been that of March 9, 1828, relating to the

composition of the upper legislative chamber; those

of June 4, 1848, and March 21, 1881, by which was

modified the composition of the lower house; and

that of April 8, 1906, whereby direct elections

were substituted for indirect.]

[Footnote 405: The crown is hereditary in the house

of Wittelbach, by which it was acquired as early as

1180. From 1886, the king, Otto I., being insane,

the powers of the sovereign were exercised by the

prince regent Luitpold, until his death December

12, 1912.]

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

338.]

*295. The Bavarian Landtag.*--The Landtag of Bavaria consists of two

chambers. The upper, designated officially as the Kammer der Reichsrate

("chamber of the council of the Empire"), is composed of princes (p. 276)

of the royal family, crown dignitaries, high ecclesiastics, hereditary

nobles, and life members appointed by the crown--in all, some

eighty-five to ninety persons. The lower chamber, or Abgeordnetenkammer,

consists of 163 members. By law of 1881 the class system of voting in

Bavaria was replaced by an equal suffrage extended to all males paying

a direct tax. Elections continued to be indirect until 1906, when

provision was made for elections by direct and secret ballot.[407]

Deputies are chosen for a term of six years and are apportioned in

such a manner that, normally, there is one for every 38,000 people.

Every male inhabitant is entitled to vote who at the time of the

election has completed his twenty-fifth year, has been a Bavarian

citizen during at least one year, and has paid to the state a direct

tax during at least the same period. The Landtag must be summoned not

less frequently than once every three years.[408] The budget is made

up on a two-year basis, so that sessions are held, in point of fact,

biennially.

[Footnote 407: Grassman, Die bayerische

Landtagswahlgesetz vom 8 April, 1906, in Jahrbuch

des Oeffentlichen Rechts der Gegenwart, I., 242. A

law of April 15, 1908, introduced the principle of

proportional representation in Bavarian municipal

elections.]

[Footnote 408: M. von Seydel, Das Staatsrecht des

Königreichs Bayern, (Freiburg, 1888), in

Marquardsen's Handbuch; E. Junod, La Bavière et

l'Empire allemande, in _Annales de l'École Libre

des Sciences Politiques_, Apr. 15, 1892.]

*296. Saxony: Crown and Ministry.*--Third among the states of the Empire

in population, though fifth in area, is the kingdom of Saxony. The

present Saxon constitution was promulgated September 4, 1831, under

the influence of the revolutionary movements of 1830. By it a monarchy

governed under a mediæval system of estates was converted into a

monarchy governed, at least nominally, under a modern representative

régime. In point of fact, however, the inauguration of constitutionalism

tempered the actual authority of the monarch very slightly. The king is

still in every sense the supreme authority within the state.[409] He

appoints and dismisses ministers at will, issues ordinances with the

force of law, and exercises far-reaching control over the processes of

legislation. Upon the failure of the chambers to vote supplies which

are held to be essential, he may even collect and expend revenues for

a year on no authority apart from his own. For purposes of administrative

supervision there are ministers of War, Finance, Justice, Foreign

Affairs, the Interior, and Education, and the ministers collectively

comprise a Gesammt-Ministerium, or ministry of state. Measures of the

crown are countersigned by a minister; but there is no means by which

a minister may be forced out of office against the will of the (p. 277)

king by a hostile legislative chamber.

[Footnote 409: The crown is hereditary in the

Albertine line of the house of Wettin, with

reversion to the Ernestine line, of which the duke

of Saxe-Weimar is now the head. The present

sovereign is Frederick August III.]

*297. The Saxon Legislative Chambers.*--The Saxon legislature

(Standeversammlung) consists of two houses. The upper, designated

simply as the First Chamber, is a composite body consisting of

forty-six members, in addition to a variable number of adult princes

of the royal house. The membership comprises, principally, (1)

important prelates; (2) certain university officials; (3) proprietors

of great estates, twelve elected and ten appointed by the crown for

life: (4) the first magistrates of Dresden and Leipzig; (5) six

burgomasters of other cities, designated by the king; and (6) five

nobles named for life by free choice of the king. The lower house

consists of ninety-one deputies, of whom forty-three are elected by

the towns and forty-eight by the rural communes. At one time members

were chosen by direct secret ballot under a general and equal suffrage

based upon a small tax qualification. Fear of socialism led, however,

to the adoption, in 1896, of a new system under which the tax

qualification was retained, indirect elections were substituted for

direct and public voting for the secret ballot, and a three-class

scheme was brought into operation which threw political preponderance

into the hands of the well-to-do scarcely less effectively than does

the three-class arrangement in Prussia.

After prolonged agitation the reactionary measure of 1896 was replaced

by a comprehensive electoral law of May 5, 1909 by which direct and

secret voting was re-established and the interests of property were

sought to be safeguarded by a newly devised system of plural votes. As

the law now stands (1) all males who have attained the age of

twenty-five and who pay direct taxes are entitled to one vote; (2) men

owning two hectares of land, or paying a tax upon an annual income of

1,250, 1,400, or 1,600 marks, according, respectively, as such income

is drawn from land, public office, or general sources, and men who

have passed certain examinations, are entitled to two votes; (3)

voters paying taxes yearly, as above, upon an income of 1,600, 1,900,

or 2,200 marks, or who possess four hectares of land, or who as

teachers, engineers, artists, or writers earn an income of 1,900

marks, possess three votes; (4) persons paying a tax, as above, on an

income of 2,200, 2,500, or 2,800 marks, or owning eight hectares of

land, have four votes; and (5) every person belonging to the first,

second, or third of these classes is allotted an additional vote when

he attains the age of fifty, the total number of votes possessed by

one elector never exceeding four. Curiously enough, at the first

elections held under this law, in October, 1909, the socialists, (p. 278)

who previously were represented by but a single member, gained

twenty-five seats, or upwards of a third of the entire number. The

chambers must be summoned by the king at least once in two years. Both

may propose measures, but in practice leadership in the business of

legislation is left very largely to the king and ministry.[410]

[Footnote 410: O. Mayer, Das Staatsrecht des

Königreichs Sachsen (Tübingen, 1909).]

*298. Württemberg: Crown and Ministry.*--The constitution of the kingdom

of Württemberg was promulgated, following prolonged political

controversy, September 25, 1819. At the head of the state is the king,

whose powers are in some respects even larger than those belonging to

other German sovereigns.[411] It is required that all political acts,

except the bestowing of titles of nobility, shall be performed only

with the sanction in writing of a minister; but, by reason of the

king's absolute control of the ministry, this constitutes no invasion

of the crown's essential prerogative. Of ministers there are six.

These collectively comprise the Ministry of State, and they, together

with certain appointive councillors, likewise constitute the

Geheimerrath, or Privy Council, which the sovereign consults at

pleasure.

[Footnote 411: The reigning sovereign is William

II.]

*299. The Assembly of Estates: Proportional Representation.*--The

legislative body of Württemberg is known as the Standeversammlung, or

Assembly of Estates. The upper chamber,--the Standesherren, or House

of Lords,--consists of princes of the royal family; other princes,

under varying conditions; knights; ecclesiastical dignitaries; and

members appointed by the crown, in part according to stipulated

conditions and in part without reference to any necessary

consideration of birth, wealth, or religious affiliation. The

Abgeordnetenhaus, or House of Deputies, consists of ninety-two members

chosen for a term of six years, as follows: one from each of the

administrative divisions (Oberamtsbezirke); six from Stuttgart and one

from each of six other important towns; nine from the Neckar and Jagst

circle; and eight from the Black Forest and Danube circle. Election is

by direct and secret ballot, on a basis of universal suffrage for

males over twenty-five years of age. By constitutional amendment of

July 16, 1906, there was introduced a scheme of proportional

representation under which the six deputies of Stuttgart and the

seventeen of the Neckar and Jagst and the Black Forest and Danube

circles are distributed among the several political groups in

approximate proportion to the numerical strength attained by these

groups at the polls. This system, an innovation in Germany, was tested

in the elections of December, 1906, and January, 1907, and was by most

persons adjudged satisfactory.[412]

[Footnote 412: J. Fontaine, La représentation

proportionnelle en Württemberg, in _Revue Politique

et Parlementaire_, Jan., 1911; ibid., La

représentation proportionnelle en Württemberg

(Paris, 1909).]

The remaining sixty-nine representatives are chosen still in (p. 279)

single member districts. Prior to the amendment of 1906, the chamber

was made up of seventy members chosen popularly and of twenty-three who

sat as representatives of privileged or corporate interests--thirteen

chosen by the landowning nobility, nine dignitaries of the Protestant

and Catholic churches, together with the Chancellor of the University

of Tübingen.[413]

[Footnote 413: G. Combes de Lestrade, Monarchies de

l'Empire allemand, 181; L. Gaupp, Das Staatsrecht

des Königreichs Württemberg (Freiburg and Tübingen,

1884), in Marquardsen's Handbuch; W. Bazille, Das

Staats-und Verwaltungsrecht des Königreichs

Württemberg (Hanover, 1908), in Bibliothek des

Oeffentlichen Rechts der Gegenwart. The monograph

of Gaupp, revised by him in 1895 and by K. Göz in

1904, has been re-issued as essentially a new

volume by Göz (Tübingen, 1908).]

*300. The Government of Baden.*--In July, 1808, a constitutional edict

was promulgated in Baden in imitation of the fundamental law which

Napoleon in the previous year had bestowed upon the kingdom of

Westphalia. August 22, 1818, this instrument was replaced by the

constitution at present in operation. Executive power is vested in the

grand-duke, with the customary provision for ministerial

countersignature. Legislative power is shared by the monarch with a

Landstände of two houses. Under a liberalizing law of August 24, 1904,

the upper chamber consists of princes of the reigning family, nobles

occupying hereditary seats, members appointed for four years by the

grand-duke, and representatives of a variety of ecclesiastical,

educational, and other corporate interests. The lower house is

composed of seventy-three representatives elected for four years

(twenty-four by the towns and forty-nine by the rural districts) by

male citizens over twenty-five years of age. Direct election was

substituted for indirect in 1904. Half of the membership of the lower

chamber is renewed every two years. In Baden there has been rather

more progress than in the majority of German states toward liberal and

responsible government.[414]

[Footnote 414: Lowell, Governments and Parties, I.,

345; K. Schenkel, Das Staatsrecht des

Grossherzogthums Baden (Freiburg and Tübingen,

1884), in Marquardsen's Handbuch.]

II. THE LESSER MONARCHIES AND THE CITY REPUBLICS

*301. Monarchical Variations.*--With relatively unimportant exceptions,

the governments of the remaining seventeen German monarchies exhibit

features substantially similar to those of the governments that (p. 280)

have been described. In each of the states, except the two

grand-duchies of Mecklenburg-Schwerin and Mecklenburg-Strelitz, there

is a written constitution, promulgated, in most instances, during the

second or third quarter of the nineteenth century.[415] Executive

power in each is vested in the monarch; legislative power in the

monarch and a Landtag, or assembly. The assembly consists ordinarily

of a single chamber, varying in membership from twelve to forty-eight;

and in most instances the members are chosen, at least in part, on a

basis of manhood suffrage. In some states, as the principality of

Lippe, the three-class electoral system prevails; and elections are

still very commonly indirect. The trend toward liberalism is, however,

all but universal, and within recent years numbers of important

changes, e.g., the substitution of direct for indirect elections in

Oldenburg and in Saxe-Weimar in 1909, have been brought about. In the

curiously intertwined grand-duchies of Mecklenburg the common Landtag

remains a typically mediæval assemblage of estates, based, in the

main, on the tenure of land.[416]

[Footnote 415: The dates of the original

promulgation of constitutions at present in

operation are: Saxe-Weimar, 1816; Hesse, 1820;

Saxe-Meiningen, 1829; Saxe-Altenburg, 1832;

Brunswick, 1832; Lippe, 1836; Oldenburg, 1852;

Waldeck, 1852; Saxe-Coburg-Gotha, 1852; Reuss

Jüngerer Linie, 1852 and 1856;

Schwartzburg-Rudolstadt, 1854;

Schwartzburg-Sonderhausen, 1857; Anhalt, 1859;

Reuss Älterer Linie, 1867; and Schaumburg-Lippe,

1868.]

[Footnote 416: Repeated attempts to bring about a

modernization of the Mecklenburg constitutional

system have failed. Several times the liberal

elements in the Reichstag have carried a proposal

that to the Imperial constitution there should be

added a clause requiring that in every state of the

Empire there shall be an assembly representative of

the whole people. On the ground that such an

amendment would comprise an admission that the

constitutions of the states are subject to revision

at the hand of the Empire, the Bundesrath has

invariably rejected the proposal. In 1907 the

grand-duke of Mecklenburg-Schwerin inaugurated a

movement for political reform, and in 1908 there

was drafted a constitution providing for the

establishment of a Landtag whose members should be

chosen in part by the landed, industrial,

professional, and official classes and in part by

manhood suffrage. Late in 1909 the Ritterschaft

(i.e., the estate comprising owners of knights'

fees) rejected the proposal, as, indeed, it had

rejected similar ones on earlier occasions.]

*302. Hamburg.*--The three free cities of Hamburg, Bremen, and Lübeck

are survivals of the ancient Hanseatic League. All have republican

forms of government, differing in only minor details. The constitution

of Hamburg came into operation January 1, 1861, and was revised in

1879 and in 1906. The principal organs of government are the Senate

and the Bürgerschaft, or House of Burgesses. The Senate consists of

eighteen members elected for life by the House of Burgesses, but in

accordance with an indirect method so devised that the Senate itself

exercises a preponderating influence in the elections. A senator (p. 281)

is privileged to retire, if he so desires, at the end of a six-year

period, or at the age of seventy. Of the eighteen, half must have

studied finance or law, while of the remaining nine at least seven

must belong to the class of merchants. The House of Burgesses is

composed of 160 members, elected for six years by voters whose

qualifications are based upon property, taxpaying, or position. An

electoral law of March 5, 1906, introduced the principle of

proportional representation, but failed to break the dominance of the

well-to-do classes in the chamber. Half of the membership is renewed

triennially. The service is unpaid and, under ordinary circumstances,

compulsory.

The larger portion of the executive authority is vested in the Senate.

After the fashion of the prince of a monarchical state, this body

appoints officials, designates and instructs the delegate in the

Bundesrath, issues ordinances, and supervises administration.[417] One

senator is placed at the head of each of the nine executive

departments. In matters of legislation the powers of the Senate and of

the Bürgerschaft are concurrent. Both bodies possess the right of

legislative initiative, and all laws, treaties, and fiscal

arrangements must receive the assent of both. The lower chamber elects

and maintains a Bürgerausschuss, or Committee of the Burgesses,

consisting of twenty-five members, whose business it is to watch over

the proceedings of the Senate and the administration of the laws. The

sessions of both Senate and Bürgerschaft are irregular but frequent.

*303. Lübeck and Bremen.*--The government of Lübeck rests upon a

constitution proclaimed December 30, 1848, but revised in later years

upon a number of occasions. The system is essentially similar to that

in operation in Hamburg, the principal differences being that in

Lübeck the full membership of the Bürgerschaft (120) is elected by the

citizens directly and that the Bürgerausschuss, of thirty members,

performs larger and more independent functions. The constitution of

Bremen dates from March 5, 1849, but was revised in 1854, 1875, and

three times subsequently. As in Lübeck, the Bürgerschaft, of 150

members, is elected by all of the citizens, but under a class system

according to which citizens who have studied at a university return

fourteen members; the merchants, forty; the mechanics and

manufacturers, twenty; and all other citizens who have taken the

burgher oath, the remaining seventy-six. The Senate consists of

fourteen members.

[Footnote 417: The presiding officer of the Senate

is a burgomaster, chosen for one year by the

senators from their own number. The burgomaster as

such, however, possesses no administrative power.]

III. ALSACE-LORRAINE (p. 282)

*304. Original Problem of Organization.*--By the terms of the Peace of

Frankfort, May 10, 1871, France ceded to Germany the province of

Alsace and a portion of that of Lorraine--an aggregate of 5,605 square

miles of hotly disputed territory whose population, while in

considerable measure German, was none the less predominantly French.

The position assigned the newly acquired territory within the Empire

was anomalous. It was determined by two principal considerations:

first, the fact that the districts comprised conquered territory

inhabited by a discontented people and liable both to domestic

disorder and foreign invasion; and, second, the further fact that the

newly established Empire consisted of a federation of semi-autonomous

states, into which subordinate territory acquired by war could not

easily be made to fit. The annexed lands might conceivably have been

erected, in 1871, into the twenty-sixth state of the Empire; but in no

quarter was this policy so much as suggested. They might have been

incorporated with one of the existing states, or divided among two or

more of them; but this would have involved friction at a time when the

stability of the new régime was not yet assured. The only course that

to the statesmen and jurists of the day appeared feasible was to hold

the new territories as the joint property of the states, under the

sovereign control of the Imperial Government; and the arrangement hit

upon in the execution of this policy was perpetuated, with

modification only of administrative machinery, from 1871 until almost

the present day.

*305. The Imperial Basis of Government.*--Prior to the enactment of the

controverted Alsace-Lorraine Constitution Bill of 1911 Alsace-Lorraine

was not a member of the German federation, but was, on the contrary, a

mere dependency--a Reichsland, or Imperial territory. Beginning with a

virtual dictatorship on the part of the Emperor, established under act

of June 9, 1871, the governmental arrangements within the territory

passed through a number of stages of elaboration. In the main, the

organs of government employed until 1911, and a large proportion of

those still in operation, were created, or perpetuated, by the

constitutional statute of July 4, 1879. By this instrument the

sovereignty of the territories was vested specifically in the Empire;

the exercise of that sovereignty was vested in the Kaiser, acting

alone or in conjunction with the Bundesrath. The Kaiser was

represented personally at Strassburg, as he still is, by a

Statthalter, or governor-general, whose powers were such as the

Emperor might from time to time intrust to him. At Strassburg (p. 283)

also was a ministry, with a secretary of state at the head, and with

under-secretaries, appointed by the Kaiser, in charge of four

departments; likewise a council of state, which was a purely advisory

body made up of the secretary and under-secretaries, certain judicial

officials, and from eight to twelve members specially appointed by the

Kaiser for a term of three years.

*306. The Landesausschuss.*--Such privileges of self-government as were

possessed by the inhabitants of the territory arose from the peculiar

and complicated arrangements which were devised for legislation. In

1874 an Imperial decree called into being a Landesausschuss, or

Territorial Committee. This body consisted originally of thirty

members--ten elected in each of the three districts of Upper Alsace,

Lower Alsace, and Lorraine. Its function at the outset was merely to

give expert advice on subjects pertaining to local legislation and

taxation. By law of 1877, however, it was intrusted with power to

initiate legislation in matters pertaining solely to the territory.

Measures of any sort designed for Alsace-Lorraine exclusively were

enabled to be carried through by enactment in the Territorial

Committee, provided they received the assent of the Bundesrath and

were duly promulgated by the Emperor. The Committee was enlarged until

it consisted of fifty-eight members, thirty-four of whom were elected

by the assemblies of the three districts from their own membership,

four others being chosen by the communal councils of Strassburg, Metz,

Kolmar, and Mülhausen, and twenty elected by indirect suffrage from

the twenty-three circles into which the territories were divided.

*307. Legislative Processes.*--Several conditions, however, operated to

impose upon what might appear a fairly liberal system some very

serious limitations. In the first place, there was no possibility of

legislation which was wholly within the control of the inhabitants of

the territory. The laws applicable solely to Prussia are made

exclusively in Prussia, by Prussian authorities, and in like manner

those of every other one of the confederated states. But those of

Alsace-Lorraine, while they might be enacted in a provincial

legislative chamber, acquired no validity until they should have been

approved by the Empire through its agents, the Bundesrath and the

Kaiser. In the second place, the method of legislation which has been

mentioned did not occupy the field alone. With insignificant

exceptions, any measure which might be enacted in the fashion

described might be enacted in either of two other ways, in neither of

which did the inhabitants of the territory have any appreciable

influence. A measure might take the form of a simple decree of (p. 284)

the Kaiser with the consent of the Bundesrath and Reichstag; or, in

the case of an ordinance having the provisory force of law, it might

be promulgated by the Kaiser with the consent of the Bundesrath alone.

The fact that in practice the Territorial Committee ordinarily did

participate in the legislative process was largely offset by the

exceeding cumbersomeness and indirectness of the system. The normal

procedure in the making of a law for the territory involved at least

eight steps; (1) the _projet_ was drawn up by the Statthalter; (2) it

was approved by the Council of State at Strassburg; (3) it was

transmitted, through the Imperial Chancellor, to the Kaiser; (4) if he

approved, it was sent to Strassburg to receive the Statthalter's

countersignature; (5) it was laid before the Bundesrath, the members

of which, being but delegates, ascertained from their respective

sovereigns how they should vote; (6) if all had gone well, the

Territorial Committee, at Strassburg, passed the measure through the

usual three readings; (7) it was returned to the Bundesrath again to

be approved; and (8) it was promulgated by the Emperor--provided he

did not see fit to veto and withhold it, as he had an entire right to

do. Even if such roundabout law-making were to be considered in itself

satisfactory there remained the disquieting condition that the

Territorial Committee rested on no basis more substantial than a body

of Imperial decrees capable at any time of being altered, or even

revoked. Not merely was it altogether lacking in the independence of

action enjoyed by the diets of the federated states; its very

existence was precarious.

*308. The Movement for Autonomy.*--Throughout a prolonged period there

was in the territory insistent demand for the grant of a more

independent status, to involve the eventual placing of Alsace-Lorraine

on a footing of constitutional equality with Saxony, Bavaria, and the

other confederated states. Within very few years after the annexation

there sprang up, within the Territorial Committee first of all, a

group of "autonomists," led by the secretary of state Baron Zorn von

Bulach, who insisted in season and out upon statehood for the

conquered territory, and within a decade the campaign gained momentum

until it enlisted the support of men of all political faiths and

became the principal rallying issue of Alsatian sentiment and

enthusiasm. Until within recent years the tension of the international

situation was alone sufficient to restrain the Imperial Government

from according the demand favorable consideration. With the passing of

time the danger of international conflict in which Alsace-Lorraine

should be involved was, however, perceptibly diminished, and the way

was to this extent cleared for a readjustment of the territory's

anomalous status on the merits of the purely administrative and

constitutional questions involved.

The programme of the autonomists, as it finally assumed shape, (p. 285)

embraced four fundamental points: (1) the elevation of Alsace-Lorraine

to membership in the German Empire, with all the rights and immunities

commonly possessed by existing members; (2) the vesting of the

executive authority in an independent head of the state, whether a

king of a newly established line, a regent appointed for life, or even

a president of a republic; (3) the establishment within the state of a

full-fledged legislative body, with powers equivalent to those

exercised by the Landtags of the existing states; and (4) the

elimination of Kaiser, Bundesrath, and Reichstag from all legislation

which concerns Alsace-Lorraine exclusively. Taking their stand on the

situation as it was, and accepting the union with Germany with such

grace as they could muster and assuming that it is to be permanent,

the exponents of autonomy proposed to make the best of a state of

things not of their choosing.

*309. The Government Bill of 1910.*--Under pressure of persistent public

demand, the Imperial Government prepared an elaborate measure upon the

subject, which, after having been approved by the Bundesrath, was

submitted to the Reichstag, December 17, 1910. Although Chancellor von

Bethmann-Hollweg had declared unreservedly for reform, the

Government's proposals fell far short of the demands of the autonomist

leaders. The cardinal features of the Imperial programme, were, in

brief: (1) Alsace-Lorraine should remain a dependency of the Empire;

(2) sovereign authority therein should continue to be exercised by the

Kaiser, as the representative of the states, through his accustomed

agent, the Statthalter at Strassburg; (3) the legislative functions of

the Bundesrath and Reichstag in matters pertaining exclusively to

Alsace-Lorraine should be terminated; and (4) such legislation should

thereafter be enacted by a bicameral diet at Strassburg. The members

of the upper chamber of this diet, not to exceed thirty-six, were in

part to sit by _ex-officio_ right, but some were to be named by

chambers of commerce and other professional and business

organizations, and a maximum of one-half might be appointed by the

Emperor, on nomination of the Bundesrath. The sixty members of the

lower house were to be chosen by manhood suffrage, but electors over

thirty-five years of age were to have two votes, and those over

forty-five three.

*310. The Bill Amended and Adopted, 1911.*--By those whose object was

the procuring of statehood for Alsace-Lorraine, this plan was

pronounced inadmissible. It did not alter the legal status of the

territory; neither, it was alleged, did it give promise of increased

local independence in law-making or administration. Conservatives, on

the other hand, objected to the provision which was made for manhood

suffrage. After being debated in the Reichstag the measure was (p. 286)

referred to a special committee, by which amendments were reported

to the effect that the territory should be created a state of the

Empire and the Statthalter should be appointed for life. The second of

these amendments the Government refused positively to accept, but it

was agreed finally that the territory should be recognized as

substantially a state of the Empire, and, as such, should be allowed

three votes in the Bundesrath. Since 1879 the Statthalter had been

authorized to send to the Bundesrath four "commissioners" who might

speak when the subject under consideration touched the affairs of

Alsace-Lorraine, but might not vote. Since under the new arrangement

the three members representing Alsace-Lorraine were to be appointed

and instructed by the Statthalter, who is himself practically the

delegate of the king of Prussia, the Bundesrath insisted upon and

obtained the special stipulation (1) that the votes of Alsace-Lorraine

should not be counted in favor of the Prussian view of any question

except when Prussia should be able to procure a majority without such

votes and (2) that they should not be counted for or against any

proposal to amend the Imperial constitution. The revised bill was

passed in the Reichstag, May 26, 1911, and in accordance with a decree

of August 26 the new constitution was put in operation September 1.

*311. The Governmental System To-day.*--Supreme executive authority is

lodged, as before, in the Emperor. It is exercised, in the main, by

the Statthalter, who is appointed by, and holds office at the pleasure

of, the Emperor. In the Statthalter are vested all the rights and

privileges in Alsace-Lorraine that hitherto have been held and

exercised by the Imperial Chancellor. He appoints and instructs the

plenipotentiaries in the Bundesrath, and Imperial orders and decrees

have legal effect only when signed by him. All laws require the assent

of the Emperor and the two chambers of the diet, and the budget of the

year must be laid first before the lower chamber and must be accepted

or rejected in its entirety by the upper one. The Emperor has the

right to summon, to adjourn, and to dissolve the chambers

simultaneously. Members of the popular branch are elected by direct

and secret ballot and majority vote by all male German citizens

twenty-five years of age who have resided in Alsace-Lorraine at least

three years; except that a residence of one year qualifies teachers

and occupants of official posts. The plural voting proposal contained

in the Government bill of 1910 was abandoned. The first chamber

elected under the new system--that chosen in October, 1911--contained

twenty-five Centre members, eleven Socialists, ten members of the

National Alsace-Lorraine group,[418] eight Liberal Democrats, and (p. 287)

six Independents. The independent attitude promptly assumed by the

body elicited from the Emperor, in May, 1912, a threat that the new

constitution might be abrogated and Alsace-Lorraine incorporated with

Prussia. The incident provoked a storm of criticism, and, outside the

rabid Pan-German press, the Imperial pronouncement was commented upon

everywhere adversely.[419]

[Footnote 418: The party which had contended most

vigorously for Alsatian autonomy.]

[Footnote 419: On the organization of

Alsace-Lorraine prior to 1911 see Howard, The

German Empire, Chap. 10; Laband, Das Staatsrecht

des deutschen Reiches, §§ 67-69; P. Gerber, La

condition de l'Alsace-Lorraine dans l'Empire

allemand (Lille, 1906), and L'Administration en

Alsace-Lorraine, in _Revue du Droit Public_,

Oct.-Dec, 1909. On the problem of reform and the

legislation of 1911 see R. Henry, La question

d'Alsace-Lorraine, in _Questions Diplomatiques et

Coloniales_, Feb. 1 and March 16, 1904; P. Braun,

Alsace-Lorraine--La réforme de la constitution,

ibid., Nov. 16, 1905, and Jan. 1, 1906;

Alsace-Lorraine en 1908, ibid., March 1, 1909;

Alsace-Lorraine--les préludes d'une lutte

nationale, ibid., April 16, 1910; La constitution

d'Alsace-Lorraine, ibid., March 16, 1911; A.

Wetterlé, L'Autonomie de Alsace-Lorraine, in _Le

Correspondant_, Aug. 25, 1910, La nouvelle loi

constitutionnelle de l'Alsace-Lorraine, ibid., June

10, 1911, and Les élections en Alsace-Lorraine,

ibid., Nov. 25, 1911; Eccard, L'Autonomie de

l'Alsace-Lorraine, in _Revue Politique et

Parlementaire_, Nov. 10, 1910: G. Bruck, Die Reform

der Verfassung von Elsass Lothringen, in _Annalen

des deutschen Reichs_, 1911, I; and P. Heitz, La

loi constitutionnelle de l'Alsace-Lorraine du 31

mai, 1911, in _Revue du Droit Public_, July-Sept.,

1911, containing French translations of the

documents. See also _Annual Register_ for 1911,

328-332.]

PART III.--FRANCE (p. 289)

CHAPTER XV

CONSTITUTIONS SINCE 1789

I. A CENTURY OF POLITICAL INSTABILITY

Among European states of the first order there is but a single

republic. In Great Britain the conspicuous success with which monarchy

has been tempered with democracy has left the partisans of the

republican style of government slender ground upon which to stand.

Russia has as yet but partially emerged from a political status in

which monarchy is both natural and inevitable. Germany and Italy, in

days comparatively recent, achieved nationality through processes

absolutely conditioned upon monarchical leadership. And it is all but

inconceivable that the heterogeneous nationalities of Austria-Hungary

should thus long have been held together by any force less tangible

and commanding than the personality of a common sovereign. Although in

some of these instances the functions ordinarily associated with

monarchy are more nominal than actual, the fact remains that in no one

of the greater European states, save France, has it as yet been found

expedient, or possible, to dispense with royalty as an agency of

public authority.

*312. The Multiplicity of Constitutions.*--The chain of circumstances by

which the people of France have been brought to their present

republican form of government constitutes one of the most remarkable

chapters in the history of modern Europe. After centuries of

governmental centralization, under conditions which enabled monarchy

to do its best, and its worst, there came the gigantic disruption of

1789, inaugurating a series of constitutional changes by which was

imparted to the political history of the French nation in the

nineteenth century a more unsettled character than that exhibited by

the public economy of any other European state. France to-day is

governed under her eleventh constitution since the fall of the

Bastille. All but one of the eleven have been actually in operation,

during a longer or a shorter period. But, prior to the fundamental law

at present in effect, no one of these instruments attained its

twentieth year. Once having cut loose from her ancient moorings, the

nation became through many decades the plaything of every current (p. 290)

that swept the political sea. It is only within our own generation

that she appears definitely to have righted herself for a prolonged

and steady voyage. The constitutional system of the Third Republic is

a product, not of orderly evolution, but of disruption,

experimentation, compromise. It represents a precarious balance which

has been struck between those forces of radicalism and conservatism,

of progress and reaction, for whose eternal conflict France

pre-eminently has furnished a theatre since 1789. Its connection with

the remoter past is very much less direct and fundamental than is that

of the governmental system of England, Russia, Austria-Hungary, or the

Scandinavian states. At certain points, however, as will appear, this

connection is vital. And the relation of the constitution of 1871-1875

to the several instruments by which it was more immediately preceded

is essential to be observed, because this body of fundamental law

comprises but the latest in a series of devices through which France

since 1789 has sought orderliness and stability in public affairs.

Some of these devices were shaped under the preponderating influence

of radical democracy, some under that of monarchical reaction; but all

are of interest and importance. For the purpose in hand it will be

sufficient to review briefly the principal aspects of the several

constitutional systems whose devising or operation has contributed

with some directness to the political institutions and experience of

the France of to-day.

II. THE REVOLUTIONARY AND NAPOLEONIC ERA

*313. The Constitution of 1791.*--During the decade which elapsed

between the outbreak of the Revolution and the establishment of the

Consulate there were in actual operation in France two successive

constitutions: that of September 3, 1791, which was in effect

subverted by the uprising of August 10, 1792, and that of 5 Fructidor

of the Year III. (August 22, 1795), terminated by the _coup d'état_ of

18 Brumaire of the Year VIII. (November 9, 1799). The instrument of

1791, essentially a compilation of measures voted during the years

1789-1791, was prepared by a committee appointed by the National

Assembly, September 15, 1789.[420] It was shaped, in the main, by men

who were desirous of preserving the form while destroying the

substance of monarchy. At the head of the state was allowed to remain

the king, shorn, however, of many of his accustomed prerogatives and

obliged to exercise under stringent restraint the few that were left

him. "King of the French," he henceforth was to be, "by the grace of

God and the will of the nation." The legislative body (_Corps (p. 291)

législatif_) was made to consist of a single chamber whose 745

members, chosen for a two-year term according to a system of indirect

suffrage, were distributed among the eighty-three newly created

departments upon the three-fold basis of extent, population, and

contribution of direct taxes.[421] Only male citizens who had attained

the age of twenty-five, and whose annual payment of direct taxes was

the equivalent of three days' labor, were entitled to participate in

the choice of the electors, by whom, in turn, were chosen the

deputies. The powers of the legislative body were ample. In respect to

measures generally, the king possessed only a suspensive veto; that is

to say, any measure passed by three successive legislatures acquired,

without the royal sanction, the force of law. Fiscal measures might

not be vetoed at all. The king was given no power to prorogue or to

dissolve the legislative chamber, and without the assent of that body

no proclamation of war, and no treaty, was valid. To it the ministers

in charge of the six executive departments were made absolutely

responsible. In conformity with prevailing ideas of the sovereignty of

the people and the separation of powers, provision was made that all

judges should be elected popularly, as also all local administrative

authorities.[422]

[Footnote 420: A constitutional committee of five

had been appointed the previous July 14; but, its

recommendation proving unacceptable to the

Assembly, it had resigned, September 11.]

[Footnote 421: Of the whole number of deputies, 247

were apportioned according to departmental areas

and 249 according each to population and tax

quotas.]

[Footnote 422: The texts of all French

constitutions and fundamental laws since 1789 are

printed in several collections, of which the best

is L. Duguit et H. Monnier, Les constitutions et

les principales lois politiques de la France depuis

1789 (Paris, 1898). Other serviceable collections

are F. Hélie, Les constitutions de la France

(Paris, 1880) and E. Pierre, Organisation des

pouvoirs publics; recueil des lois

constitutionnelles et organiques (Paris, 1902). For

English versions see F. M. Anderson, The

Constitutions and other Select Documents

illustrative of the History of France, 1789-1907

(2d ed., Minneapolis, 1908). The various

constitutions are excellently summarized in M.

Block, Dictionnaire général de la politique, 2

vols. (Paris, 1884), I., 494-518. For the text of

the constitution of 1791 see Duguit et Monnier,

1-35; Hélie, 268-294; Anderson, 58-95. For summary,

Block, I., 494-497. Dupriez, Les Ministres, II.,

253-269; Cambridge Modern History, VIII., Chap. 7.]

*314. The Constitution of the Year I. (1793).*--The constitution of 1791

was in operation rather less than a twelvemonth. The _Corps

législatif_ elected under it, after precipitating war with Austria,

gave way before the rising demand for the abolition of monarchy,

called into being a constituent convention of 782 members, and voted

its own dissolution.[423] September 21, 1792, the Convention met and

decreed the abolition of the monarchy and the establishment of a

republic.[424] Mindful for the time of the purpose of its (p. 292)

creation, the new assembly appointed, October 11, a committee of nine

to which was intrusted the task of drafting a republican constitution.

February 15, 1793, the committee reported, and June 24 the Convention

adopted an ultra-republican frame of government, the principal

features of which were an executive council consisting of twenty-four

members chosen by the legislative body from candidates named by the

secondary electors of the departments; a unicameral _Corps législatif_

chosen indirectly by manhood suffrage for one year, with power to

enact "decrees," but only to propose "laws"; and an arrangement

whereby projected laws were to be communicated to primary assemblies

of citizens to be voted upon after the principle of the

referendum.[425]

[Footnote 423: The members of the Convention were

elected by manhood suffrage, one of the last acts

of the Legislative Body having been the repeal of

the tax qualification required by the constitution

of 1791.]

[Footnote 424: September 22 was reckoned the first

day of the Year I. of French liberty, and the

fundamental law of June 24, 1793, was known as the

constitution of the Year I. For an illuminating

sketch of the rise of the republic see H. A. L.

Fisher, The Republican Tradition in Europe (New

York, 1911), Chap. 4.]

[Footnote 425: Text in Duguit et Monnier, Les

Constitutions, 66-78; Hélie, Les Constitutions,

376-384; Anderson, Constitutions, 171-184. Summary

in Block, Dictionnaire Général, 497-498.]

*315. The Constitution of the Year III. (1795).*--By reason of the

intensity of party strife within the Convention, and the critical

condition of affairs generally, the constitution of 1793, although

duly ratified by the people, was never put in operation. On the basis

of a decree of December 4, 1793, the Convention maintained through

upwards of two years a revolutionary provisional government, and when,

finally, in October, 1795, the body passed out of existence, it left

behind it in the Constitution of the Year III. an instrument of

government essentially different from the proposed instrument of 1793.

The Constitution of the Year III. was framed under a hurried order of

the Convention by a committee of eleven. The Convention adopted the

committee's plan with but few modifications, and when the project was

submitted to a popular vote it was approved by the overwhelming

majority of 1,057,390 to 49,997. September 23, 1795, the new frame of

government was solemnly promulgated.

The instrument of 1795, like that of 1791, was introduced by a

Declaration of the Rights of Man and of the Citizen, in which were

stated succinctly the fundamental principles of the Revolution.

Legislative power was henceforth to be vested in two chambers

conjointly--a Council of Five Hundred and a Council of Elders--the

members of which should be chosen by the same electors, but under

differing conditions of eligibility. The term of members of both

chambers was fixed at three years, and one-third of the membership was

renewable annually. The franchise was broader than under the (p. 293)

constitution of 1791, being extended now to all citizens over

twenty-one years of age who were able to read and write and who

followed a trade or were liable to direct taxation; but the earlier

system of indirect election by means of electoral colleges was

retained. Upon the lower chamber alone was conferred the right of

initiating legislation. The Elders, whose number was fixed at 250,

might approve or reject, but were not permitted to amend, any measure

submitted to them. Executive power was vested in a Directory

consisting of five members chosen for a term of five years, one member

retiring annually. Directors were selected by the Council of Elders

from a double quota of nominees offered by the Council of Five

Hundred. Aside from its creation of a plural, republican executive,

the most notable feature of the constitution was its provision for the

establishment of a bicameral legislative system, until now generally

opposed by French reformers.[426]

[Footnote 426: For the text of the constitution of

1795 see Duguit et Monnier, Les Constitutions,

78-118; Hélie, Les Constitutions, 436-466;

Anderson, Constitutions, 212-254. Summary in Block,

Dictionnaire Général, 498-500. Cambridge Modern

History, VIII., Chap. 13; G. Dodu, Le

parlementarisme et les parlementaires sous la

Révolution, 1789-1799; origines du régime

représentatif en France (Paris, 1911); Fisher,

Republican Tradition in Europe, Chap. 5.]

*316. The Constitution of the Year VIII. (1799): Electoral System.*--The

constitution of the Year III. continued in operation from October,

1795, to Napoleon's _coup d'état_ of 18 Brumaire of the Year VIII.

(November 9, 1799). In the course of a month and a half following the

event mentioned there was drawn up a new fundamental law, prepared in

the first instance largely by Napoleon and Sieyès, put into final

shape by two commissions composed each of twenty-five members of the

old Councils, and subsequently ratified by popular vote.[427] Amended

from time to time by important organic enactments, the Constitution of

the Year VIII. (December 13, 1799) comprised the fundamental law under

which Napoleon ruled France until his abdication in 1814.

[Footnote 427: In favor of the new constitution

there were cast 3,011,007 votes; against it,

1,562.]

The new instrument, in ninety-five articles, was much briefer than the

one which it replaced,[428] but the scheme of government for which it

made provision was distinctly more complicated than that previously in

operation. In the main, the Napoleonic constitution dealt with three

subjects: the electoral system, the assemblies, and the executive.

Nominally there was established a system of thoroughgoing manhood (p. 294)

suffrage. But the conditions under which electoral powers were to be

exercised rendered the plan very much less democratic than on the

surface it appeared to be. The scheme was one devised by Sieyès under

the designation of "lists of notables." In each communal district

citizens twenty-one years of age and inscribed on the civil register

were authorized to choose one-tenth of their number to comprise a

"communal list." Those named on the communal list were to choose in

their department a tenth of their number, who formed a "departmental

list." And, similarly, those whose names appeared on the departmental

list were to choose a tenth of their number, who formed a "national

list." From these three lists in order were to be chosen, largely by

the Senate, the public officials of the districts, the departments,

and the nation. No electoral scheme has ever been devised which, while

grounded upon the principle of manhood suffrage, more effectually

withdraws from the people the actual choice of public officials, local

as well as national.[429]

[Footnote 428: The constitution of the Year III.,

containing 377 articles, is one of the lengthiest

documents of the sort on record.]

[Footnote 429: Under this system the primary

electors numbered about 5,000,000; the district

notables, 500,000; the departmental notables,

50,000; and the national list, 5,000.]

*317. Constitution of the Year VIII: Organs of Government.*--Of national

governmental bodies there were four. One was the Tribunate, consisting

of 100 members, one-fifth of whom were renewable every year. The

function of the Tribunate was to discuss, but not necessarily to vote

upon, legislative measures. A second was the _Corps législatif_, or

Legislative Body, of 300 members, one-fifth being renewed annually. To

this assembly was committed the power to vote upon, but not to debate,

legislative measures. A third was the Senate, consisting at the outset

of sixty life members, to be increased through a period of ten years

to eighty. The Senate was authorized to pass upon the constitutionality

of laws and to choose the Tribunes, the Legislators, and the Consuls

from the national list. Its own ranks were to be recruited by

co-optation from triple lists of candidates presented by the

Tribunate, the Legislative Body, and the First Consul. Finally, there

was the Council of State, whose organization was left purposely

indefinite. Its members were appointed by the First Consul, and their

business consisted principally in the preparation and advocacy of

legislative and administrative measures.

If under this scheme the legislative organs were weak, the executive

authority was notably strong. Powers of an executive character were

vested in three consuls, appointed by the Senate for ten years and

indefinitely eligible. Upon the First Consul was conferred power to

promulgate the laws, to appoint all civil and military officials, and

to do many other things of vital importance. Upon the second and (p. 295)

third consuls was bestowed simply a "consultative voice." Provision

was made for a ministry, and under the letter of the constitution no

act of the government was binding unless performed on the warrant of a

minister. But in point of fact the principle of irresponsibility

permeated the Napoleonic régime from the First Consul himself to the

lowliest functionary. The conferring upon Napoleon, in 1802, of the

consulship for life, and the conversion of the Consulate, in 1804,

into the Empire, but concentrated yet more fully in the hands of a

single man the whole body of governmental authority in France.[430]

[Footnote 430: The text of the constitution of the

Year VIII. is in Duguit et Monnier, Les

Constitutions, 118-129; Hélie, Les Constitutions,

577-585; and Anderson, Constitutions, 270-281.

Summary in Block, Dictionnaire Général, I.,

500-505. Cambridge Modern History, IX., Chap. 1.]

III. FROM THE RESTORATION TO THE REVOLUTION OF 1848

*318. The Constitutional Charter, 1814.*--May 3, 1814,--three weeks

after Napoleon's signature of the Act of Abdication,--the restored

Bourbon king, Louis XVIII., entered Paris. Already the Senate had

formulated a document, commonly known as the "Senatorial

Constitution," wherein was embraced a scheme for a liberalized Bourbon

monarchy.[431] Neither the instrument itself nor the authorship of it

was acceptable to the new sovereign, and by him the task of drafting a

constitution was given over to a commission consisting of three

representatives of the crown, nine senators, and nine members of the

Legislative Body. The task was accomplished with despatch. June 4 the

new instrument, under the name of the Constitutional Charter, was

adopted by the two chambers, and ten days later it was put in

operation. With some modification, principally in 1830, it remained

the fundamental law of France until the revolution of 1848.

[Footnote 431: Duguit et Monnier, Les

Constitutions, 179-182; Anderson, Constitutions,

446-450; Block, Dictionnaire Général, I., 505-506.]

The governmental system provided for in the Charter was in a number of

respects more liberal than that which had prevailed during the

dominance of Napoleon. At the head of the state stood the king,

inviolable in person, in whose hands were gathered the powers of

issuing ordinances, making appointments, declaring war, concluding

treaties, commanding the armies, and initiating all measures of

legislation. But there was established a bicameral legislature, by

which the king's ministers might be impeached, and without whose

assent no law might be enacted and no tax levied. The upper house, or

Chamber of Peers, was composed of a variable number of members named

by the crown in heredity or for life.[432] The lower, or Chamber (p. 296)

of Deputies, consisted of representatives elected in the departments

for a term of five years, one-fifth retiring annually.[433] Provision

was made for the annual assembling of the chambers; and although the

proposing of laws was vested exclusively in the crown, it was

stipulated that either house might petition the king to introduce a

measure relating to any specific subject. The Charter contained a

comprehensive enumeration and guarantee of the civil rights of French

citizens.[434]

[Footnote 432: By law of December 29, 1831, it was

stipulated that only life peers might thereafter be

appointed, and the king was required to take all

appointees from a prescribed list of dignitaries.

Duguit et Monnier, Les Constitutions, 231-232.]

[Footnote 433: A law of June 9, 1824, stipulated

that thereafter the Chamber of Deputies should be

elected integrally for a period of seven years.

Duguit et Monnier, Les Constitutions, 211.]

[Footnote 434: The text of the Charter of 1814 may

be found in Duguit et Monnier, Les Constitutions,

I., 183-190; Hélie, Les Constitutions, 884-890;

and, in English translation, in Anderson,

Constitutions, 457-465, and University of

Pennsylvania Translations and Reprints, I., No. 3.

Summary in Block, Dictionnaire Général, I.,

506-508. Cambridge Modern History, IX., Chap. 18.]

*319. The Electoral System.*--The Charter prescribed the

qualifications required of voters and of deputies, but did not define

the manner in which deputies should be chosen. The lack was supplied

by an election law enacted February 5, 1817. The system established

was that of _scrutin de liste_. Under it the electors--men of a

minimum age of thirty who paid each year a direct tax of at least

three hundred francs--were required to assemble in the principal town

of the department and there choose the full quota of deputies to which

the department was entitled. The system proved of distinct advantage

to the liberal elements, whose strength lay largely in the towns, and

in 1820 when the conservative forces procured control and inaugurated

a general reaction a measure was adopted, though only after heated

debate, by which the arrangement was completely altered. The

membership of the Chamber was increased from 258 to 430 and for the

principle of _scrutin de liste_ was substituted that of _scrutin

d'arrondissement_. Each arrondissement became a single-member district

and the electors were permitted to vote for one deputy only. In this

manner 258 of the members were chosen. The remaining 172 were elected

at the chief departmental towns by the voters of the department who

paid the most taxes, an arrangement under which some twelve thousand

of the wealthier electors became possessed of a double vote. Voting

was by ballot, but the elector was required to write out his ballot in

the presence of an appointee of the government and to place it in his

hands unfolded.[435]

[Footnote 435: Duguit et Monnier, Les

Constitutions, 206-209; Hélie, Les Constitutions,

934-936.]

*320. Liberalizing Changes in 1830-1831.*--Upon the enforced (p. 297)

abdication of Charles X. in 1830 a parliamentary commission prepared a

revision of the Charter, which, being adopted, was imposed upon the

new sovereign, Louis Philippe, and was continued in operation through

the period of the Orleanist monarchy. The preamble of the original

document, in which language had been employed which made it appear

that the Charter was a grant from the crown, was stricken out.

Suspension of the laws by the sovereign was expressly forbidden. Each

chamber was given the right to initiate legislation, the

responsibility of the ministers to the chambers was proclaimed, and

the sessions of the Peers, hitherto secret, were made public. The

integral renewal of the Deputies, established in 1824, was continued,

but the term of membership was restored to five years. The minimum age

of electors was reduced from thirty to twenty-five years, and of

deputies from forty to thirty. Subsequently, April 19, 1831, a law was

passed whereby the suffrage--so restricted at the close of the

Napoleonic régime that in a population of 29,000,000 there had been,

in 1814, not 100,000 voters--was appreciably broadened. The direct tax

qualification of three hundred francs was reduced to one of two

hundred, and, for certain professional classes, of one hundred. By

this modification the number of voters was doubled, though the

proportion of the enfranchised was still but one in one hundred fifty

of the total population, and it would be a mistake to regard the

government of the Orleanist period as in effect more democratic than

that by which it was preceded. At the most, it was a government by and

for the well-to-do middle class.[436]

[Footnote 436: For the act of the Chambers relative

to the modification of the Constitutional Charter

and to the accession of Louis Philippe, see Duguit

et Monnier, Les Constitutions, 213-218; Hélie, Les

Constitutions, 987-992; and Anderson,

Constitutions, 507-513. The electoral law of 1831

is in Duguit et Monnier, 219-230. Cambridge Modern

History, X., Chap. 15; G. Weill, La France sous la

monarchic constitutionnelle, 1814-1848 (new ed.,

Paris, 1912).]

IV. THE SECOND REPUBLIC AND THE SECOND EMPIRE

*321. The Republican Constitution of 1848.*--With the overthrow of the

Orleanist monarchy, in consequence of the uprising of February 24,

1848, France entered upon a period of aggravated political

unsettlement. Through upwards of five years the nation experimented

once more with republicanism, only at the end of that period to emerge

a monarchy, an empire, and the dominion of a Bonaparte. By the

provisional government which sprang from the revolution a republic was

proclaimed tentatively and the nation was called upon to elect, under

a system of direct manhood suffrage, an assembly to frame a constitution.

The elections--the first of their kind in the history of (p. 298)

France--were held April 23, 1848, and the National Constituent

Assembly, consisting of nine hundred members, eight hundred of whom

were moderate republicans, met May 4 in Paris. During the summer the

draft of a constitution prepared by a committee of eighteen, was duly

debated, and November 4 it was adopted by a vote of 739 to 30.

The Constitution of 1848 declared the Republic to be perpetual and the

people to be sovereign. It asserted, furthermore, that the separation

of powers is the first condition of a free government. In respect to

the organs of government it provided, in the first place, for a

legislative assembly consisting of a single chamber of 750

members[437] chosen integrally for three years, directly by secret

ballot on the principle of departmental _scrutin de liste_, and by

electors whose only necessary qualifications were those of age

(twenty-one years) and of non-impairment of civil rights.[438]

Executive powers were vested in a president of the Republic, elected

for a term of four years by direct and secret ballot, and by absolute

majority of all votes cast in France and Algeria. Under stipulated

conditions, e.g., if no candidate should receive an absolute majority

and at the same time a total of at least two million votes, the

president was required to be chosen by the Assembly from the five

candidates who had polled the largest votes. Save after a four-year

interval, the president was ineligible for re-election. Upon him were

bestowed large powers, including those of proposing laws, negotiating

and ratifying treaties with the consent of the Assembly, appointing

and dismissing ministers and other civil and military officers, and

disposing of the armed forces. With respect to the functions and

powers of the ministers the constitution was not explicit, and whether

the instrument might legitimately be interpreted to make provision for

a parliamentary system of government was one of the standing issues

throughout the days of its duration.[439]

[Footnote 437: Including representatives of Algeria

and the colonies.]

[Footnote 438: Electoral law of March 15, 1849.

Duguit et Monnier, Les Constitutions, 247-265.]

[Footnote 439: Dupriez, Les Ministres, II.,

308-312. The text of the Constitution of 1848 is in

Duguit et Monnier, Les Constitutions, 232-246;

Hélie, Les Constitutions, 1102-1113; and Anderson,

Constitutions, 522-537. Summary in Block,

Dictionnaire Général, I., 510-513. Cambridge Modern

History, XI., Chap. 5; V. Pierre, Histoire de la

république de 1848, 2 vols. (Paris, 1873-1878); P.

de la Gorce, Histoire de la deuxième république

française, 2 vols. (Paris, 1887); E. Spuller,

Histoire parlementaire de la deuxième république

(Paris, 1893); Fisher, Republican Tradition in

Europe, Chap. 8.]

*322. From Republic to Empire.*--December 10, 1848, Louis Napoleon,

nephew of the first Napoleon, was chosen president by an overwhelming

vote, and ten days later he assumed office. In May, 1849, an (p. 299)

Assembly was elected, two-thirds of whose members were thoroughgoing

monarchists; so that, as one writer has put it, both the president and

the majority of the Assembly were, by reason of their very being,

enemies of the constitution under which they had been elected.[440]

The new order, furthermore, failed completely to strike root

throughout the nation at large. In this state of things the collapse

of the Republic was but a question of time. By an electoral law of May

31, 1850, requiring of the elector a fixed residence of three years

instead of six months, the suffrage arrangements of 1849 were

subverted and the electorate was reduced by three millions, or

virtually one-third.[441] December 2, 1851, occurred a carefully

planned _coup d'état_, on which occasion the Assembly was dissolved,

the franchise law of 1849 was restored, and the people, gathered in

primary assemblies, were called upon to intrust to the President power

to revise the national constitution.[442] December 20, by a vote of

7,439,216 to 640,737, the people complied. Thereafter, though

continuing officially through another year, the Republic was in

reality dead. November 7, 1852, the veil was thrown off. A

_senatus-consulte_ decreed a re-establishment of the Empire,[443] and

by a plebiscite of eleven days later the people, by a vote of

7,824,189 to 253,145, sanctioned what had been done. December 2,

Napoleon III. was proclaimed Emperor of the French.

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

[Footnote 441: The text of this measure is in

Duguit et Monnier, Les Constitutions, 265-268, and

Hélie, Les Constitutions, 1149-1150. H. Laferrière,

La loi électorale du 31 mai 1850 (Paris, 1910).]

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

[Footnote 443: Duguit et Monnier, Les

Constitutions, 290-292; Anderson, Constitutions,

560-561.]

*323. The Imperial Constitution, 1852.*--Meanwhile, March 29, 1852,

there had been put in operation a constitution,[444] nominally

republican, but in reality strongly resembling that in force during

the later years of Napoleon I. The substitution, later in the year, of

an emperor for a president upon whom had been conferred a ten-year

term was but a matter of detail. A _senatus-consulte_ of December 25,

made all of the necessary adjustments, and the constitution of 1852,

with occasional modifications, remained the fundamental law of France

until the collapse of the Empire in 1870. Upon the emperor were

conferred very extended powers. His control of the administrative

system was made practically absolute. He commanded the army and navy,

decided upon war and peace, concluded treaties, and granted pardons.

He alone possessed the power of initiating legislation and of promulgating

the laws. To him alone were all ministers responsible, and of (p. 300)

such parliamentarism as had existed formerly there remained not a

vestige, Of legislative chambers there were two: a _Corps législatif_

of 251 members elected by direct manhood suffrage every six years, and

a Senate composed of cardinals, admirals, and other _ex-officio_

members, and of a variable number of members appointed for life by the

emperor. The powers of the Senate, exercised invariably in close

conjunction with the head of the state, were of some importance, but

those of the popular chamber were so restricted that the liberal

arrangements which existed respecting the suffrage afforded but the

appearance, not the reality, of democracy.[445]

[Footnote 444: Drawn up by a commission of five,

under date of January 14, 1852.]

[Footnote 445: The text of the constitution of 1852

is in Duguit et Monnier, Les Constitutions,

274-280; Hélie, Les Constitutions, 1167-1171;

Anderson, Constitutions, 543-549. Summary in Block,

Dictionnaire Général, I., 513-515. Cambridge Modern

History, XI., Chaps. 5, 10.]

*324. Constitutional Alterations, 1869-1870.*--Throughout upwards of

two decades the illusion of popular government was maintained as well

as might be. The country was prosperous and the government, if

illiberal, was on the whole enlightened. Discontent, none the less,

was not infrequently in evidence, and during especially the second

half of the reign the Emperor found it expedient more than once to

make some concession to public sentiment. In the later sixties he was

compelled to moderate the laws which dealt with the press and with

political meetings, and in 1869-1870 he was brought to the point of

approving a series of measures which gave promise of altering in an

important manner the entire governmental system. One was a

_senatus-consulte_ of September 8, 1869, whereby the sittings of the

Senate were made public, the Legislative Body was given the right to

elect all of its own officials, and the parliamentary system was

nominally re-established.[446] By reason of the fact, however, that

ministers were not permitted to be members of either the Legislative

Body or the Senate, and that they were declared still to be

responsible to the crown, the effects of the last-mentioned feature of

the reform were inconsiderable. By a _senatus-consulte_ of April 20,

1870, (approved by a plebiscite of May 8 following) there were adopted

still more important constitutional changes. In the first place, the

Senate, which hitherto had been virtually an Imperial council, was

erected into a legislative chamber co-ordinate with the Legislative

Body, and upon both houses was conferred the right of initiating

legislation. In the second place, the provision that the ministers

should be dependent solely upon the emperor was stricken from the

constitution, thus clearing the way for a more effective realization

of the parliamentary system of government. Finally, it was (p. 301)

stipulated that the constitution should thereafter be modified only

with the express approval of the people.[447] These reforms, however,

were belated. They came only after the popularity of the Emperor had

been strained to the breaking point, and by reason of the almost

immediate coming on of the war with Prussia there was scant

opportunity for the testing of their efficacy.

[Footnote 446: Text in Duguit et Monnier, Les

Constitutions, 307-308; Hélie, Les Constitutions,

1314-1315; and Anderson, Constitutions, 579-580.]

[Footnote 447: The text of the measure of April 20,

1870, is in Duguit et Monnier, Les Constitutions,

308-314; Hélie, Les Constitutions, 1315-1327; and

Anderson, Constitutions, 581-586. Cambridge Modern

History, XI., Chap. 17; H. Berton, L'évolution

constitutionnelle du second empire (Paris, 1900).

An important larger work is P. de la Gorce,

Histoire du second empire, 7 vols. (Paris,

1894-1905).]

V. THE ESTABLISHMENT OF THE THIRD REPUBLIC

*325. The National Assembly.*--The present French Republic was

instituted under circumstances which gave promise of even less

stability than had been exhibited by its predecessors of 1793 and

1848.[448] Proclaimed in the dismal days following the disaster at

Sedan, it owed its existence, at the outset, to the fact that, with

the capture of Napoleon III. by the Prussians and the utter collapse

of the Empire, there had arisen, as Thiers put it, "a vacancy of

power." The proclamation was issued September 4, 1870, when the war

with Prussia had been in progress but seven weeks.[449] During the

remaining five months of the contest the sovereign authority of France

was exercised by a Provisional Government of National Defense, with

General Trochu at its head, devised in haste to meet the emergency by

Gambetta, Favre, Ferry, and other former members of the Chamber of

Deputies. Upon the capitulation of Paris, January 28, 1871, elections

were ordered for a national assembly, the function of which was to

decide whether the war should be prolonged and what terms of peace

should be accepted at the hands of the victorious Germans. There was

no time in which to frame a new electoral system. Consequently the

electoral procedure of the Second Republic, as prescribed by the (p. 302)

law of March 15, 1849, was revived,[450] and by manhood suffrage

there was chosen, February 8, an assembly of 758 members,

representative of both France and the colonies. Meeting at Bordeaux,

February 12, this body, by unanimous vote, conferred upon the

historian and parliamentarian Thiers the title of "Chief of the

Executive Power," without fixed term, voted almost solidly for a

cessation of hostilities, and authorized Thiers to proceed with an

immediate negotiation of peace.

[Footnote 448: The best account of the beginnings

of the Third Republic is that in G. Hanotaux,

Histoire de la France contemporaine, 4 vols.

(Paris, 1903-1909), I. There is an English

translation of this important work by J. C. Tarver.

A recent book of value is A. Bertrand, Les origines

de la troisième république, 1871-1876 (Paris,

1911). Mention may be made also of E. Zevort,

Histoire de la troisième république, 4 vols.

(Paris, 1896-1901), I.; C. Duret, Histoire de

France de 1870 à 1873 (Paris, 1901); A. Callet, Les

origines de la troisième république (Paris, 1889);

F. Littré, L'établissement de la troisième

république (Paris, 1880); L. E. Benoit, Histoire de

quinze ans, 1870-1885 (Paris, 1886); F. T.

Marzials, Léon Gambetta (London, 1890); and P. B.

Ghensi, Gambetta: Life and Letters (New York,

1910). There is an interesting interpretation in

Fisher, Republican Tradition in Europe, Chap. 11.]

[Footnote 449: Duguit et Monnier, Les

Constitutions, cxvi.]

[Footnote 450: Most of the disqualifications for

voting which were enumerated in the law of 1849

were declared inapplicable in the present

election.]

*326. The Problem of a Permanent Government.*--Pending a diplomatic

adjustment, the Assembly was disposed to defer the establishment of a

permanent governmental system. But the problem could not long be kept

in the background. There were several possible solutions. A party of

Legitimists, i.e., adherents of the old Bourbon monarchy, was

resolved upon the establishment of a kingdom under the Count of

Chambord, grandson of the Charles X. who had been deposed at the

revolution of 1830. Similarly, a party of Orleanists was insistent

upon a restoration of the house of Orleans, overthrown in 1848, in the

person of the Count of Paris, a grandson of the citizen-king Louis

Philippe. A smaller group of those who, despite the discredit which

the house of Bonaparte had suffered in the war, remained loyal to the

Napoleonic tradition, was committed to a revival of the prostrate

empire of the captive Napoleon III. Finally, in Paris and some

portions of the outlying country there was uncompromising demand for

the definite establishment of a republic.[451] In the Assembly the

monarchists outnumbered the republicans five to two, and, although the

members had been chosen primarily for their opinions relative to peace

rather than to constitutional forms, the proportion throughout the

nation was probably about the same. The republican outlook, however,

was vastly improved by the fact that the monarchists, having nothing

in common save opposition to republicanism, were hopelessly disagreed

among themselves.[452]

[Footnote 451: G. Weill, Histoire du parti

républicain en France de 1814 à 1870 (Paris,

1900).]

[Footnote 452: Of pure Legitimists there were in

the Assembly about 150; of Bonapartists, not over

30; of Republicans, about 250. The remaining

members were Orleanists or men of indecisive

inclination. At no time was the full membership of

the Assembly in attendance.]

*327. The Rivet Law, 1871.*--As, from the drift of its proceedings, the

royalist character of the Assembly began to stand out in unmistakable

relief, there arose from republican quarters vigorous opposition to

the prolonged existence of the body. Even before the signing of the

Peace of Frankfort, May 10, 1871, there occurred a clash between the

Assembly and the radical Parisian populace, the upshot of which (p. 303)

was the bloody war of the Commune of April-May, 1871.[453] The

communards fought fundamentally against state centralization, whether

or not involving a revival of monarchy. The fate of republicanism was

not in any real measure bound up with their cause, so that after the

movement had been suppressed, with startling ruthlessness, by the

Government, the political future of the nation remained no less in

doubt than previously it had been. Thiers continued at the post of

Chief of the Executive, and the Assembly, clothed by its own

assumption with powers immeasurably in excess of those it had been

elected to exercise, and limited by no fixed term, gave not the

slightest indication of a purpose to terminate its career. Rather, the

body proceeded, August 31, 1871, to pass, by a vote of 491 to 94, the

Rivet law, whereby the existing régime was to be perpetuated

indefinitely.[454] By this measure unrestricted sovereignty, involving

the exercise of both constituent and legislative powers, was declared

by the Assembly to be vested in itself. Upon the Chief of the

Executive was conferred the title of President of the French Republic;

and it was stipulated that this official should thereafter be

responsible to the Assembly, and presumably removable by it. A

quasi-republic, with a crude parliamentary system of government,

thereafter existed _de facto_; but it had as yet absolutely no

constitutional basis.

[Footnote 453: In March the Assembly had

transferred its sittings from Bordeaux to

Versailles.]

[Footnote 454: Duguit et Monnier, Les

Constitutions, 315-316; Anderson, Constitutions,

604-606.]

*328. Failure of the Monarchist Programmes.*--This anomalous condition

of things lasted many months, during the course of which Thiers and

the Assembly served the nation admirably through the promotion of its

recovery from the ravages of war. More and more Thiers, who had begun

as a constitutional monarchist, came to believe in republicanism as

the style of government which would divide the French people least,

and late in 1872 he put himself unqualifiedly among the adherents of

the republican programme. Thereupon the monarchists, united for the

moment in the conviction that for the good of their several causes

Thiers must be deposed from his position of influence, brought about

in the Assembly a majority vote in opposition to him, and so induced

his resignation, May 24, 1873.[455] The opponents of republicanism now

felt that the hour had come for the termination of a governmental

régime which had by them been regarded all the while as purely (p. 304)

provisional. The monarchist Marshal MacMahon was made President, a

coalition ministry of monarchists under the Orleanist Duke of Broglie

was formed, and republicanism in press and politics was put under the

ban. Between the Legitimists and the Orleanists there was worked out

an ingenious compromise whereby the Bourbon Count of Chambord was to

be made king under the title of Henry V. and, he having no heirs, the

Orleanist Count of Paris was to be recognized as his successor. The

whole project was brought to naught, however, by the persistent

refusal of the Count of Chambord to give up the white flag, which for

centuries had been the standard of the Bourbon house. The Orleanists

held out for the tricolor; and thus, on what would appear to most

people a question of distinctly minor consequence, the survival of the

Republic was for the time determined.[456]

[Footnote 455: Anderson, Constitutions, 622-627; A.

Lefèvre Pontalis, L'Assemblée nationale et M.

Thiers, in _Le Correspondant_, Feb. 10, 1879; A.

Thiers, Notes et Souvenirs de 1870 à 1873 (Paris,

1903); J. Simon, Le gouvernement de M. Thiers

(Paris, 1878); E. de Marcère, L'Assemblée nationale

de 1871 (Paris, 1904).]

[Footnote 456: Marquis de Castallane, Le dernier

essai de restauration monarchique de 1873, in

_Nouvelle Revue_, Nov. 1, 1895.]

In the hope that eventually they might gain sufficient strength to

place their candidate on the throne without the co-operation of the

Legitimists, the Orleanists joined with the Bonapartists and the

republicans, November 20, 1873, in voting to fix the term of President

MacMahon definitely at seven years.[457] By the Orleanists it was

assumed that if within that period an opportunity should be presented

for the establishment of the Count of Paris upon the throne, the

President would clear the way by retiring. The opportunity, however,

never came, and the septennial period for the French presidency,

established thus by monarchists in their own interest, was destined to

pass into the permanent mechanism of a republican state.

[Footnote 457: Duguit et Monnier, Les

Constitutions, 319; Anderson, Constitutions, 630.]

VI. THE CONSTITUTION OF TO-DAY

*329. Circumstances of Formation.*--Meanwhile the way was opening for

France to acquire what for some years she had lacked completely, i.e.,

a constitution. May 19, 1873, the minister Dufaure, in behalf of

the Government, laid before the Assembly _projets_ of two organic

measures, both of which, in slightly amended form, passed in 1875 into

the permanent constitution of the Republic. May 24 occurred the

retirement of President Thiers, and likewise that of Dufaure, but in

the Assembly, the two proposed measures were none the less referred to

a commission of thirty. Consideration in committee was sluggish, and

the Assembly itself was not readily roused to action. During the

twelvemonth that followed several _projets_ were brought forward, and

there was desultory discussion, but no progress. In the summer of (p. 305)

1874 a new commission of thirty was elected and to it was intrusted

the task of studying and reporting upon all of the numerous

constitutional laws that had been suggested. The majority of this

commission, monarchist by inclination, contented itself with

proposing, in January, 1875, a law providing simply for the

continuance of the existing "septennate." Only after earnest effort,

and by the narrow vote of 353 to 352, were the republican forces in

the Assembly able to carry an amendment, proposed by the deputy

Wallon, in which was made definite provision for the election of the

President of the Republic, and therefore, by reasonable inference, for

the perpetuity of the Republic itself.[458]

[Footnote 458: Anderson, Constitutions, 633.]

Before the year 1875 was far advanced the Assembly threw off its

lethargy and for the first time in its history addressed itself

systematically to the drafting of a national constitution. To this

course it was impelled by the propaganda of Gambetta and other

republican leaders, by fear on the part of the Legitimists and

Orleanists that the existing inchoate situation would lead to a

Bonapartist revival, and by a new _modus operandi_ which was cleverly

arranged between the republicans and the Orleanists. Convinced that an

Orleanist monarchy was, at least for a time, an impossibility, and

preferring a republic to any alternative which had been suggested, the

Orleanist members of the Assembly gave their support in sufficient

numbers to the programme of the republicans to render it at last

possible to work out for the nation a conservatively republican

constitutional system.

*330. Texts and General Nature.*--Of the organic laws which comprise the

constitution of France to-day five which date from 1875 are of

principal importance: (1) that of February 24, on the Organization of

the Senate; (2) that of February 25,--the most important of all,--on

the Organization of the Public Powers; (3) that of July 16, on the

Relations of the Public Powers; (4) that of August 3, on the Election

of Senators; and (5) that of November 30, on the Election of Deputies.

Collectively, these measures are sometimes referred to as the

"constitution of 1875." Other and later constitutional enactments of

considerable importance include (1) the law of July 22, 1879, relating

to the seat of the Executive Power and of the two Chambers at Paris;

(2) the law of December 9, 1884, amending existing organic laws on the

Organization of the Senate and the Election of Senators; and (3) laws

of June 16, 1885, and February 13 and July 17, 1889, respecting the

Election of Deputies.[459]

[Footnote 459: The original texts of these

documents are printed in Duguit et Monnier, Les

Constitutions, 319-350, and Hélie, Les

Constitutions, 1348-1456. For English versions see

Dodd, Modern Constitutions, I., 286-319; C. F. A.

Currier, Constitutional and Organic Laws of France,

in _Annals of the American Academy of Political and

Social Science_, March, 1893, supplement; and

Anderson, Constitutions, 633-640. Albert Duc de

Broglie, Histoire et Politique: Étude sur la

constitution de 1875 (Paris, 1897); R. Saleilles,

The Development of the Present Constitution of

France, in _Annals of Amer. Academy_, July, 1895.]

Springing from the peculiar conditions which have been described, (p. 306)

the handiwork of a body in which only a minority felt the slightest

degree of enthusiasm for it, the constitution of the French Republic

is essentially unlike any instrument of government with which the

English-speaking world is familiar. It differs from the British in

having been put almost wholly into written form. It differs from the

American in that it consists, not of a single document, but of many,

and in that it emanated, not from a great constituent assembly,

charged with the specific task of formulating a governmental system,

but from a law-making body which in truth had never been formally

intrusted by the nation with even the powers of legislation proper,

and had merely arrogated to itself those functions of constitution-framing

which it chose to exercise.[460] It consists simply of organic laws,

enacted chiefly by the provisional Assembly of 1871-1875, but amended

and amplified to some extent by the national parliament in subsequent

years. Unlike the majority of constitutions that went before it in

France, it is not orderly in its arrangement or comprehensive in its

contents. It is devoid of anything in the nature of a bill of

rights,[461] and concerning the sovereignty of the people it has

nothing to say. Even in respect to many essential aspects of

governmental organization and practice it is mute. It contains no

provision respecting annual budgets, and it leaves untouched the

entire field of the judiciary. The instrument lays down only certain

broad lines of organization; the rest it leaves to be supplied through

the channels of ordinary legislation.

[Footnote 460: Among French writers upon

constitutional law there has been no small amount

of difference of opinion as to whether the National

Assembly is to be regarded as having been entitled

to the exercise of constituent powers. For a brief

affirmative argument see Duguit et Monnier, Les

Constitutions, cxvii. Cf. Dicey, Law of the

Constitution, 121, note.]

[Footnote 461: It is to be observed, however, that

many authorities agree with Professor Duguit in his

contention that although the individual rights

enumerated in the Declaration of Rights of 1789 are

passed without mention in the constitutional laws

of 1875, they are to be considered as lying at the

basis of the French governmental system to-day. Any

measure enacted by the national parliament in

contravention of them, says Professor Duguit, would

be unconstitutional. They are not mere dogmas or

theories, but rather positive laws, binding upon

not only the legislative chambers but upon the

constituent National Assembly. Traité de droit

constitutionnel (Paris, 1911), II., 13.]

*331. Amendment.*--It was the desire of all parties in 1875 that (p. 307)

the constitutional laws should be easy of amendment, and indeed most

men of the time expected the governmental system which was being

established to undergo, sooner or later, fundamental modification. The

process of amendment is stipulated in the law of February 25,

1875.[462] Amendments may be proposed by the President of the Republic

or by either of the chambers of Parliament. When, by a majority of

votes in each, the Senate and Chamber of Deputies declare a revision

of the constitutional laws necessary, the two chambers are required to

be convened in the character of a National Assembly, and amendments

are adopted by absolute majority of this composite body. Contrary to

earlier French practice, the exercise of constituent and of ordinary

legislative powers is thus lodged in the same body of men, the only

difference of procedure in the two instances arising from the

temporary amalgamation of the chambers for constituent purposes. The

sole limitation that has been imposed upon the revising powers of the

Assembly is contained in a clause adopted in an amendment of August

14, 1884, which forbids that the republican style of government be

made the subject of a proposed revision. In point of fact, amendments

have been few, although some, as that of December 9, 1884, modifying

the methods of electing senators and those of June 16, 1885, and

February 13 and July 17, 1889, re-establishing single districts for

the election of deputies and prohibiting multiple candidatures, have

been of a high degree of importance.

[Footnote 462: Art. 8. Dodd, Modern Constitutions,

I., 288.]

CHAPTER XVI (p. 308)

THE PRESIDENT, THE MINISTRY, AND PARLIAMENT

I. THE PRESIDENT

Under the French system of government functions of a purely executive

nature are vested in the President of the Republic and the Ministry,

assisted by a numerous and highly centralized body of administrative

officials. The presidency had its origin in the unsettled period

following the Prussian war when it was commonly believed that

monarchy, in one form or another, would eventually be re-established.

The title "President of the Republic" was created in 1871; but the

office as it exists to-day hardly antedates the election of Marshal

MacMahon in 1873. The character and functions of the presidency were

determined in no small measure by the circumstance that by those who

created the dignity it was intended merely to keep the French people

accustomed to visible personal supremacy, and so to make easier the

future transition to a monarchical system. Counting Thiers, the

Republic has had thus far nine presidents: Adolphe Thiers, 1871-1873;

Marshal MacMahon, 1873-1879; Jules Grévy, 1879-1887; F. Sadi-Carnot,

1887-1894; Casimir-Perier, June, 1894, to January, 1895; Félix Faure,

1895-1899; Émile Loubet, 1899-1906; Armand Fallières, 1906-1913; and

Raymond Poincaré elected early in 1913.