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.